Landmark Legal and Const History - Kulshreshta

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V.D. KULSHRESHTHA'S
LANDMARKS IN
INDIAN LEGAL AND
CONSTITUTIONAL
HISTORY
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Opinions
UNIVERSITY OF DELHI
November 15, 1969
The treatment of the subject is comprehensive and up to date, and is testimony of
considerable industry and thought expended by the author. The book will prove
eminently useful for students and others interested in the subject.
DR. P.K. TRWATH!
Dean, Faculty of Law
NEw DELHI
January 15, 1969
I have perused Mr. V.D. Kulshreslitha's treatise with interest. He has by dint of
keen research produced a comprehensive work which should be of ready assistance to
all interested in the development of the law, constitutional and other, who would
otherwise have to collect the information from it vast number of sources. The material
has been ananged systematically and with great care. Of particular value is the reference
to the work of the Law Commission and the discussion on codification. Mr. Kulshrc-
shtha's book is a valuable addition to the literature on legal history.
C.K. DAPHTARY
(Formerly Attorney-General of India)
[iv I
Preface to Seventh Edition

The present seventh edition of this book is a mark of its popularity.
Wherever necessary the present edition seeks to revise and revi-
talise the discussion without disturbing the continuity of the subject.
At the same time by incorporating the current events and developments
in the field, the edition has been updated.
Current events, such as, government liability for compensation
for breach of Fundamental Rights ( p. 408), and Breach of Contract
( p. 409) ; its liability in Tort (p. 410) ; discarding of traditional view
of the doctrine of Promissory Estoppel (p. 412) and the new enforce-
ment directions by the Supreme Court (p. 413) ; enforcement of
economic rights through Public Interest Litigation (p. 4.14) and the
Consumer Protection Movement involving issues of inclusion of Medi-
cal Profession and Government Hospitals in the Consumer Protection
Act (pp. 418-419) non-legislative initiative in environmental control
measures (p. 420) Legal Aid Programmes and the Lok Adalats
( p. 421) The Common Civil Code issue and related decisions
( p. 423) ; The Motion of Impeachment against a Supreme Court
Judge and Article 124(4) of the Contilution (p. 429) ; The Ayodhya
Problem and its aftermath ; Darshan Judgment, 1992 and Ismail
Faruqui case, 1994 (p. 431) ; use and misuse of Article 356 ( p. 432)
Secularism and the Constitution Amending Bill, de]inking Religion
from Politics (p. 434) ; The Kashmir issue and suitability of Article
370 of the Constitution (p. 437) ; The Mandal Commission, the Indra
Sawhaey case (1992) and the Reservation Policy (p. 441) have all
been highlighted so as to make the students aware of the situation and
ponder over its legal implications.
Note has also been taken of C.D.C.'s unique report regarding
Indianising and modernising the Legal Education (p. 461) and Com-
puter-Aided Search of Case Law Scheme - JUDIS (p. 469) and SCC
ONLINE Scheme (p. 469). List of Reference material is also enriched.
All this, I think, should make the publication useful for one and
all who use it.
My heartfelt thanks are due to Shii Surendra Malik, Chief Editor,
S.C.C., his zealous staff and my friends, particularly Arvind L. Soni
v]

VI LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
of New Gujarat Law House Ahmedabad who extended their helping

hand in carrying out this arduous task.
15-8-1995 —13.M. GANDHI
Ahmedabad
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Preface to Sixth Edition

Legal History is one of the major divisions of legal science. In its general
aspect it is concerned with the origins and development of legal institutions,
systems, principles and thought about law from the most ancient times. It also
includes the study of the historical development of particular legal systems, of
particular institutions therein and of particular branches of law. Such particular
legal history is one of the facets of the general history of the countr y or
community in question, and overlaps on the political, constitutional, social,
economic and other facets of that countr y 's history, because facts primarily
political, social, economic or other constantly react upon and influence legal
development and in turn are influenced by it. Legal History is parlicu Early
closely connected with constitutional history in it broad sense legal history may
include constitutional history, but more usually constitutional history is con-
cerned with developments in public law and legal history with developments in
private law and criminal law. As it is only b y examining the origins. cour.sc of
development and reasons for particular developments, that the true scope and
rationale of a particular rule can he found or . understood. the study of such
particular legal history is not only intrinsically interesting but frequently of
practical utility (Walker Oxfi)rd Companion In Eiilish Lou'. 1980, pp. 744-45).
Succinctly it should iiistigate a reader to probe deep into its study.
The British occupation of India between 18111 Century and 1947 resulted in
political awakening and conseql.leiri political uiirficatioii of India oil
level. The governmental and legal system created during this time bear heavy
influence, of English Law and ideas. This book attempts to 'lay down the major
events right from the appearance of the East India Company and before up to
indepetidence of India and after.
As to the arrangement of the book it has 21 chapters. It can he viewed in
three parts part one (Ch. I) dealing with history ofjudicial systems in ancient
and mediaeval India, part two (Cbs. 2 Ri 16) dealing with history of the early
administration of justice in Bombay, Calcutta and Madras (Ch. 2), History of
Mayor's Courts and Courts of Requests (Ch. 3), the Adalat System in Bengal
(Ch. 4), Judicial reforms by Warren Hastings, Lord Cornwallis and others (Chs.
4, 6, 7), the Evolution of High Courts (Ch. 8), Privy Council (Ch. 9), Federal
Court (Ch. 10). Supreme Court of India (Ch. 11), Evolution of writs (Ch. 16)
and Codification of law (Ch. 14) in India. Part three (Chs. 17 to 21) lays down
the Constitutional History of India (Ch. 17) brin g ing it up to date (Ch. 18) till
the 59th Constitutional Amendment.
As a result of revision five new Chapters and three new appendices are
added to the book incorporating therein the 'Racial Distinction' (Ch. 13),
emergence of Muslim Communalism (p. 350), rise of 'Nationalism' and the
birth of Indian National Congress (p. 352), India since Independence (Ch. 18),
Concept and Sources of Law (Ch 19), the Rule of law and Constitutional
Developments (Ch. 20) and Legal Profession, Legal Education and Law Repor-
t vij
VIII LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
ting (Ch. 21) in India. In doing this and in refurbishing the old material attempts
have been made to bring into highlight how the principles of natural justice were
applied into India (Ch. 15), what injustice did the British do in building,
consolidating and in sustaining the empire in India by applying the wrong law
which consequently cost Indians their lives (p. 114), liberty and property ( p. 53).
A serious conflict between executive and judiciary for power-arose as early as
1730 in Shimpy case (p. 66) and later on it spread to Madras and Calcutta too
(pp. 23, 25, 122, 128, 139, 147-172). Bold and honestjudges were sacrificed at
the altar of power-politics for their independent thinking. This evil, the reader
may see for himself stil l continues.
While the British were ruling this country the whole country irrespective of
caste and creed was one and against them. Today, when we are free and
independent the country is wallowing in the mire of communalism, factionalism
corruption and unprecedented scandals. This aspect of the situatton is brought
into light pleading for a common Civil Code to preserve the unity and integrity
of India ( pp. 440-448). Special attention is drawn to the march of law in welfare
State (Ch. 18) and the Court's Struggle to control the separatist tendencies taking
note of the Shah !3ano ( p. 442), Mary Roy (p. 444) and
National Anthem case
( p. 444). Landmark decisions (pp. 427-434), recent development (pp. 434-448)
of law in the area of fundamental rights (. 434), Public 'Interest Litigation (p.
435-37), Consumer's Protection Movement (p. 437), Environmental control
measures (p. 437), Lok Adalats (p. 438-40) and Uniform Civil Code Bill (p.
447) would add to the utility of the book no less than the discussion on
Constitutional developments (Ch. 20) and the topics on Legal Profession, its
pathology and future (pp. 459-60), the aims of Legal Education and its future
(pp . 462-63). Incorporation ofinformation about various Law Reports (p. 478),
Legal Periodicals ( p. 482), Legal Research and Methodology (p. 48) and an
up to date Bibliography have been added to further enhance the utility of this
book. It may not be an exaggeration to say that this may be the first book of its
kind to incorporate therein such a wealth of ready information to be helpful to
a law student and researcher in Indian Legal History.
My heartfelt thanks are due to Shri Surendra Malik, Chief Editor, Supreme
Court Cases, and his staff for their vigilance and zeal and my friends and
colleagues who extended their helping hand towards me in carrying out this task.
31-10-1988
Ahmedabad.
—B.M. GANDHI
Contents
XVIII
Table of Cases
Landmark years in the Legal and Constitutional

History of India XX VII
Chapter 1
Judicial Systems in India Ancient & Mediaeval Period
A HINDU PERIOD JUDICIAL SYSTEM IN ANCIENT INDIA
I. Ancient Hindu Social Order, Institutions and Religious Philos-

ophy 2

2. Ancient Kingdoms : Administrative Units 4

3. Administration of Justice 6
B. THE MUSLIM PERIOD JUDICIAL SYSTEM IN MEDIAEVAL INDIA

4. Causes of the Downfall of Early Hindu Kingdoms 14

5. Muslim Social Order: Political Theory and Religion IS

6. Historical Introduction 16

7. The Sultanate of Delhi: Civil Administration 17

8. Judicial Reforms of Sher Shah 2]

9. The Mughal Period: Judicial System 21

10. Akhar's Policy of Tolerance 27

11. Citizenship : Position of 28

12. Next Phase 28
Chapter 2
Early Administration of Justice in Bombay, Madras & Calcutta 29

1. European Settlements in India 30
2. The En g lish East India Company : Development of Authority

under Charters 30
3. Subsequent Charters: Transition from a Trading Body to a Terri-
torial power 33
4. Organisational set-up
of the English Company's Factories or
Settlements in India 34

5. The Factory or Settlement at Surat 3-5
6. Madras Settlement and Administration of Justice from 1639 to
1726 36

7. Administration of Justice in Bombay : The Bombay Settlement 45

8. Administration of justice in Calcutta 52
IX
LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
Chapter 3
The Mayor's Courts & the Courts of Requests
in Presidency Towns 56
Early Mayor's Court at Madras 56
2 Origination of new Charter 58
3 Provisions of Charter of 1726 58
4 Consequences of the Charter of 1726 60
5 Distinction between the Madras Charter of 1687 and the Char-
ter of 1726
61
6. Critical estimate of the working of the Mayor's Courts from
1726 to 1753
6)
7 Political Changes in Madras (Sept 1746 to Aug. 1749)
65
8 Charter of 1753 : Reforms Introduced
65
9 Criticism of the Charter
67
I0 Abolition of the Mayor's Court and Constitution of new Courts
67
II Appraisal of the Mayor's Court under the Charters of 1726 and
'753
69
12. The Courts of Requests (Sinai] Cause Courts)
70
Chapter 4
Iflauguua[ioii of the Adalat System in Bengal 73
Courts in Bengal under the Mughals 73
2. Origination of a legal vacuum 74
3. Grant ui Diwani
75
4. Dual Government in Bengal: Its Consequences 76
S. The Company as Diwan 78
6. "Warren Hastings' Plan of 1772" 78
7. Defects in the Plan
80
8. New Plan of 1774
81
9. Reorganisation of Aclalats in 1780: Characteristics 82
10. Defects of the Reorganisation Plan 83
II. Appointment of Impey as Chief of the Sadar Diwani Adalat 83
12. Reforms of 1781: Initiative of Impey and Warren Hastings 84
13. The First Civil Code
86
'4. Recall of Impey and Civil Justice 86
15. Reforms in the administration of criminal justice 87
Chapter 5
The Regulating Act
I. Circumstances prior to Act of 1773
92
2. Salient Features of ilie Regulating Act, 1773
94
CONTENTS xl
3. Legislative Power under the Act of 1773 96

4. Charter of 1774 and the Supreme Court at Calcutta 97
5- Critical estimate of the provisions of the Regulating Act. 1773
and the Charter of 1774 98
on Some landmark cases 104
(a) Trial of Raja Nand Kumar (1775): The Judicial Murder 104
(b) Case of Kainaluddin (1775) 113
(c) The Patna Case (1777-79) 114
(d) The Cossijurah Case (1779-80) 118
(e) Radha Charan Mitra's case: (1775) 121
( Saroop Charid's case 122
(g) Gora Chand Dun v. Hosea 122
7. Act of Settlement, 1781 123
8. Ma l or defect of the Act 124
9. Supreme Court at Calcutta 125
10. Supreme Courts al Madras and Bombay 127
I I. Laws administered in the Supreme Courts 130
Chapter 6
Role of Cornwallis in Judicial Reforms 132
I. Company's Government before Cornwallis 132

2. Judicial Reforms of Cornwallis 136
3. Estimation of scheme of Cornwallis 142
4. The Hierarchy of Courts 143
Chapter 7
Progress of Judicial Reforms (1793-1833) 144
Result of Reforms by Cornwallis (1793) 45

2. Reforms of Sir John Shore (1793) 145
3. Reforms of Lord Wellesley (1798) 147
4. Reforms of Lord Cornwallis (1805) 148
S Reforms of Lord Minto (1807) 148
6. Lord Hastings and the Administration of Justice (1813) 149
7. Reforms of Lord Amherst (1823) 52
8. Judicial Reforms of Lord Bentinck (182$) 152
9. The Independence of the Judges 155
to- Dual System of Courts (1834-1861) 160
II. Defects of the System 162
Chapter 8
Establishment of the High Courts
I. Early efforts to unite 164

XII LANDMARKS IN INDIAN LEGALANI) CONSTITUTIONAL HISTORY
The Indian High Courts Act, 1861

165
3 Letters Patent establishin g High Courts
166
(a) High Court of Judicature at Calcutta
166
(b) High Court of Judicature at Bombay
166
(c) High Court of Judicature at Madras
167
(d) High Court of Judicature at Allahabad
167
4- Advantages of Unification
168
5. Indian High Courts Act of 1865 and 1911
168
6. The Government of India Act, 1915
169
170
8. Hugh Courts established during 1947 to 950
171
9- High Courts after the Constitution of India
172
Chapter 9
The Privy Council 181
1. Origin
181
2. Appeals from India to the Privy Council
185
3. Privy Council: A Unique Institution
189
Chapter 10
The Federal Court Of India 191
1. Public Opinion and early efforts up to 1935
191
2. Foundation of the Federal Court
192
3. Jurisdiction of the Federal Court
194
4. Form of Judgment
196
5. Authority of Law laid down by Federal Court
196
6. Expansion of Jurisdiction
197
7. Abolition of Federal Court
197
8. The Federal Court : An Assessment
198
Chapter 11
The Supreme Court of India 199
I. Origin
200
2. Constitution
201
3. Jurisdiction and Powers
203
(a) Original jurisdiction
203
(b) Appellate jurisdiction
203
(c) Advisory jurisdiction
206
(d) Power to review judgments
207
(e) Enlargement of jurisdiction
208
(/) Power to punish for contempt
208
(g) Enforcement of decrees, orders, etc.
209
CONTENTS XIII
(h) Ancillary powers 209

(0 Power to issue writs 209
(1) Other powers 210
(k) Conclusion 211
4. Doctrine of Precedents and the Supreme Court 211
5. Recommendations of the Law Commission 212
6. Recent Changes 213
Chapter 12
Development of Criminal Law 215
I. Ancient Hindu Criminal Law 215

2. Early Muslim Criminal Law 216
3. Detects of Mohammedan Criminal Law 219
4. Reforms by English Administrators 221
5. End of Muslim Law as the General Law (I 832) 224
6. First Indian Law Commission and Indian Penal Code 225
Chapter 13
Racial Distinction 229
I. Origin 229
2. Distinction in Civil justice 230
3. Distinction in Criminal Justice
Chapter 14
Charter Act, 1833 & Codification 235
I. System of Regulation Law up to 1833 236
2. Defects of the System 239
3. Charter of 1833 and Reforms in Legislation 241
4. Working of the Law Commissions 247
5. Law Commission under Indian Constitution 254
6, Codification 270
Chapter 15
Influence of English Law in India 273
I. General 273
2. English Common Law : Meaning 274
3. Principles of Justice. Equity and Good Conscience 275
4. English Law and Crown's Charters up to 1832 275
5. Application of English law 282
6. import of English Law and Codification 286
7. Attempts to govern Natives and Englishmen by their respective
Iaws—Causes of failure 287
XIV LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
8. Codification and Natives Laws

288
9. English law: Influence on Indian Legislation
291
10. Special Features of English Law in India
293
Chapter 16
Prerogative Writs in India 294
Origin of the Writ System
294
(a) In England
294
(b) In India
295
2 Writs under the Constitution of India
297
3 Habeas Corpus
298
4 Mandamus
301
5 Prohibition
302
6 Certiorari
303
7 Writ of Quo Warranto
305
Chapter 17
Constitutional History of India 307
A. INDIA UNDER THE EAST INDIA COMPANY 1600-1858
1.Early Charters and growth of Company's power
308
2. Parliamentary Control over the Company
309
3. The Government 01 India Act, 1858
314
B. INDIA UNDER THE BRITISH CROWN 1858.1947
1. The IndianCouncj]s Act, 1861
315
2. The Indian High Courts Act, 1861
317
317
4. Emergence of Muslim Communalism
317
5. The Rise of Nationalism and the Birth of Indian National Con-
gress
319
6, The Indian Councils Act of 1892
322
7. The Indian Councils Act, 1909
323
325
9. The Simon Commission and developments up to 1935
328
331
If. Constitutional Developments 1937 to 1947
333
12. T he Indian Independence Act, 1947
337
Chapter 18
India Since Independence 339
I. India gains Independence
339
2. The Constituent Assembly
340
3. The Constitution of India
341
CONTENTS xv
4. Salient features of the Constitution 343
5. The Constitutional Manifesto 352
6. Amendments to the Constitution 352
7. The Constitution Amending Acts 353
Chapter 19
The Concept and Sources of Law 370
Concept of Law 370
(a) What is Law 370
(b) Characteristics of Laws 37!
(c) Conceptions about Law 371
(d) Important Schools of Law 372
(e) Law and Morality 375
(f; Law and Custom 37()
(g) Law and Equity 377
(h) Law and Public Opinion 378
2 Sources of Law 379
(a) Constitution 381
(b) Legislation 380
(C) Precedent 3.8
(d) Custom 393
(e) Expert Opinion and Juristic Writings 393
Chapter 20
The Rule of Law and Constitutional Developments 394
The Rule of Law 395
(a) Legal Concept: Meaning 395
(b) Concept of Rule of Law 395
(C) Origin 395
(d) Definition 396
(e) Dicey's Concept 396
(f) Implications and importance 397
(g) Dicey's concept criticiscd 397
(h) Latest Improvements by I.L.I. 398
ii Indian Position prior to Constitution 399
(a) Hindu Period 399
(b) Muslim Period 399
(c) British Period 400
3 Post-Independence Period 400
(ci) Affirmation of Rule of Law by the Constitution 401
(b) Landmark Decisions 402
4 Recent Developments 408
XVI LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
(1) Government Liability for gross breach of Fundamental

Rights: Compensation cases 408
(ii) Liability of the Government in Contract and Ton 409
(iii) Doctrine of Promissory Estoppel : Traditional view given up 412
(iv) New Enforcement Direction : The Ratlam Municipality Case 413
(v) Public Interest Litigation
414
(vi) Quality Control Measures and the Consumer Protection
Movement
416
(vii) Environmental Control Measures 419
(viii) Lok Acialats and Legal Aid Programmes 421
(ix) The Common Civil Code
423
(x) Article 124(4) and Motion of Impeachment against a Su-
preme Court Judge
429
(xi) The Eventful Ayoclhya Problem and its Constitutional After-
math
431
(xii) The Kashmir Problem and Article 370
437
(xiii) The Mandal Commission case and the Reservation Policy
441
(xiv) Miscellaneous
444
Chapter 21
Legal Profession, Legal Education
and Law Reporting 447
A.—LEGAL PROFESSION
I. Profession
447
2. The Legal Profession
448
3. Position up to 1926
448
4. The Indian Bar Councils Act, 1926
452
5. All-India Bar Committee, 1951
453
6. The Advocates Act, 1961
456
7. The 'Pathology' of Legal Profession
451
8. The Future of Legal Profession
458
B. LEGAl. EDUCATION
(a) The Aims of Legal Education
458
(b) History
459
(c) Reasons for Stagnation
459
(d) The New Scheme
460
(e) Future of Legal Education
461
(f) Recent Developments
461
C—LAW REPORTING
(a) The Doctrine of Precedent: History and development
462
(b) Advantages
464
(c) Law Reporters: Supreme Courts
465
(d) Law Reporters: High Courts
466
CONTENTS
XVI'
(e) Law Reporters: Privy Council, Federal Court & Supreme
Court
(f) Private Reporters 467
(g) Principles for Law Reporting 467
468
APPENDICES
A. The Gentoc) Code
B. The Union Territories 470
C. Alphabetical Table of Indian Legal Peri 473
odicals and Law
Reports
D. Index to Indian Reference Materials 477
F. Legal Research and M 4.6
ethodology in the Indian Legal System
F. Instrument of A ccession oh Jam mu and Kashmir 489
BIBLIOGRAPHY r to India 495
SUBJECT INDEX 498
514
Table of Cases
AIiM. V. Shivakant Shukl. (1976) 2 SCC 521 ....................403
A.G. of Bengal v. Ranee Surnolitoyce, 91 MIA 391 ...................55
A.G. of Canada v. AG. of Ontario, AIR 1932 PC 36 ...................2(16
A.G. Ontario Y. CT. Fed., AIR 1946 PC 88 ...................184
A.J. Joy v. Govt. of TN., AIR 1993 Mad 282 ......................4(3
A.K. Gopalan Y. State of Madras. 1950 SCR 1111 : AIR 1950 SC 27 .........210, 300, 393, 405
A.S. Minal i'. State of UP. (1989) 3 5CC 223 AIR 19119 SC 1570 416
A.S. Srinivasa Rao v. State of A.P., (1981) 3 SCC 131 ................405
AN. Nacharie v. Union of India, (982) I SCC 205 .................415
Abdul Fata Muhoined v. kussoruoy, 22 IA 76 ......................289
Abdul Kadir v. Salim, (1886) 11 All. 149 ........................425
Aga Mohd. Jaffer v. MoM. Saduck. lD(. OS)iV 361 ..................1b2
Ahmedabad St. Xavier's College v. State of Gujarat. (1974) I SCC 717 345
Air India v. Nargesh Mceria. (1981) 4 5CC 335 ....................406
Akadasi Padhoti v. Stale of Orissa. AIR 1963 SC 1047 .................345
Akhil Bhartiiiya Sochir Karrnachari Saneh s'. Union of India, (19111) 1 SCC 246 414
Akock, Asixlowii & Co. L.lil. V. Chief I(vcnue Aulhoi uy.5O IA 227 ........2%. 302
Alexander E. Hull & Co v. A.L. McKenna. 926 IR 402 ................84
Alexander John Forbes v. Ameionnlssa Beguni. 10 MIA 348 .............2113
All Saints High School v. Govt. of A.P.. (19110) 2 SCC 478 AlP. 1980 SC
(042 406
Allocation of Lands and Buildings in a Chief Cornrnr. Province, Re. 1943 FCR
20 196
Ainharct s'. A.G. for TiinirLid & Tobago. 1946 AC 335 2011
Andrews Hunter v. Rajah ol Burdwan. PC 2 (Vol 150) 130 ............. 1116
Annie Besant v, Advocate GcnaI al Madrac. 46 lÀ 176 ...... 296
Anwar All r. State of WI)., AIR 1 1,152 Cal 150 .................... 298
.120
Ardeshir v. Aitnal. AIR 1929 Ban 94
Ashby s. White, ((703) 2 Ld Rayia 938 ...................... 392
Ashok Chand v. University of Jodhpur. 1989 I SCC 399 .............. 413
Assn. for Social Action and Legal Thought (Assail) v. State of M.P. WP 11332
of 1981 . 415
Assit. Cointnr. of C. T. r. Dhatinenlra Trdg. Co., ((9811) 3 SCC 570 ......... 413
Atarn Nagar Coop. House Building Society Ltd. v State of Punjab. AIR 979
P&H 196 ..................................... 413
Azad Rickshaw Pullers' Union i. State of Punjab. 1980 Supp 3C 601 ....... 415. 414
Babul Chandra, Re, AIR 1952 Pal 309 ........................ 302
Bachan Singh v. State of Punab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580
AIR 1980 SC 8911 ................................ 259
Bai Tahira v. AHF Chothia, (1979) 2 SCC 316: 1979 SCC (Cr1) 473 ........ 425
Baldota Bios. r. Libia Mining Work'.. AIR 1961 SC 1(11) 205
Balusami r. Balktishiia. AIR 1957 Mad 97 376
Bandhua Mijkti Morha y. IJnjori cif India, (1984) 3 SCC 161: AIR 1984 SC 802 209, 415
Bank of Bengal v. East India Co., (1831) 1 Bin Rep 120 ............... 409
Bankelal v Balm, AIR 953 All 747 .......................... 464
Banwari Lai Roy. In re, 48 CWN 766 ......................... 295
Ban inglon v. President and Council of Foit St. George, PC 2 (Vol 91) 340 ..... 185
Bar-ay v. State of Maharashua, AIR 1961 SC 1762 .................. 2(15
Basavva K.D.Patil v. Stale of Mysore, (1977) 4 SCC 350 ............... 390
Rasavva Paid v. State of Mysore. (1977) 4 SCC 350 . AIR 1977 SC 1749 ...... 411
Bathina Raiiiakcishna v . State of Madra,s, AIR 1952 SC 149 .............. 208
Begulla B Raju r. State of Al'.. (19114)1 SCC 66 ................... 4)5
Bcguirt Subanu v. A.M. Abdul Gafoor. (1987) 2 SCC 2115 ............... 390, 425
Bengal Immunity Co. Ltd. v. State of Bihar. 1955 SCR 603 : AIR 1955 SC 661 211 293, 354, 392
XVIII I

TABLE OFCASES
XIX
Bengal Iron Corpn. v. C.T.O.,
1994 Supp (I) 5CC 310: AIR 1993 SC 244A
Rerubari Union, Re, (1960) 3 SCR 250: AIR 1960 SC 845
Bharat Bank p. EmpIoees, AIR 950 SC 188
.............. 207. 355
I3htkh Raj Jatpuria V. Union of India. (1962) 2 SCR 880 AIR 1962 SC 113 205
Bhim Singh r. State of Haryana, (1981) 2 .5CC 673
Bhim Singh v. Site of J&K, (1985) 4 5CC 677
...............
........... 410
413
Bhooni Money Dos.cee s. Natobat Biswas. ILR 28 Cal 452 409
Bibhahati De v i 55. 283
Kumar Raniendra Narayan Roy, AIR 1947 PC 19 . .
.............
Bidi Supply Co. v. Union of India, 1956 SCR 267 90
303
1987 SC 38
................................................
Bihar Legal Support Society i. Chief Justice of India. (19 86) 4 S CC 7 67
Biman (:handra t: Governor of W.B., AIR 1952 Cal 799

: AIR
A
415
Board of Trustec.s of the Port of Bombay v. Dilip R. Nadk 306
124
...........................................................
Nadkarni. ( 1983) I S CC
.......................
British Coal Coipn. V. King, 1935 AC 500 416
Calcutta Corpit. r. Director of Rationing. AIR 1955 Cal 282 ... 183
............................ . . . 212
Cauvery Water Disputes Tribunal. Re. 1993 Supp (Jj SCC 96 (II) AIR 1992
SC 522
207
Central Inland Water Transport Corpo. Ltd. r. Brojo Nath, (1986) 3SCC ISo . .
408
1938, Re, 1939 FCR IS .................
Century Spg. and Mfg. Co. Ltd. v. Uthasnagar Municipal ouni1
.
Central Provinces and Berar Saks of Motor Spirit and Lubricants Taxation Act
0
196
5CC582 .........................................
. c, (1970) 1
Chandra Bhavzin Boarding & Lodging i'. State of My.sore. (1969) 3 SCC 81
AIR 1970 SC 2042 (1970) 2 SCR 600
Chandra Mohan v. State of Ii P., AIR 1966 SC 1987: (1967) I SCR 77
Charanjit Lal v Union of India, AIR 1951 SC 41
Charanlal Sahu v. Union of India, (1089) 4 SCC

1950 SCR 869 ........
286 : AIR 1989 SC 2039
. 356
210, 297. 298, 353
............................ . . . 416
C'liauutbltujVahaldas s'. Moresliwar Parurant AIR 1954 SC 236 1954 SCR
817
(1iief Settlement Cominr. v. Otri Parkasli, 410
AIR 1969 SC 33 (1058) 35CR 655 398
Chief Settlement Coinntr. v. Urn Piakach. AIR 1969 SC 33.
.............
Chinna,nnit Stvdas t'. State (Delhi Adrnn.). WP 2526 of 1982
...................
Chotey Ltd v. State of UP.. AIR 1951 All 228
. .
402
415
..................... .. .
CIT v. Ishwarlal (1966) SCR 90
.......................
302
CIT y. Vazir, AIR 1959 SC 814
.... ....
... 204
211
.............. .
Collector of Bombay v. Municipal Corpn of the City of Bombay., AIR 195
1
SC 469 : 1952 SCR 43 : 54 Born LIZ 122
Collector of Ma.cultpattatn v. Cavaly V enkcasa, 8 MIA 500 412
...........
..................
omnw., H.R.E. r. Laxminclra Tirtha Swamiar, AIR 1954 SC 282
Compensation to Civil Servants. Re. AIR 1929 PC 84
. .
284
345, 434
......................
Cox v. Mayor of London, (1867) 2 HL 239
D.C. Wdhwa v. State of Bihar. (1987) I 5CC 378 AIR 1987 Sc 379 . . .
184
302
D. K. Yadav v. J.M.A. Industrics Ltd., (1993) 3 SC 259 415
................
D.P. Bhzindari v. (Jangarain Hospital, (1991) 2 CPJ 409

...................
D.R Kohli v. Awl Products Ltd., (1985) 2 SCC 77
408
418
.
D.S. Nakara v. Union of India. (1983) I ScC 303 : AIR 1983 SC 130 ......
Dada Honaji y. Babaji. 2 Born HCR 36 (1865)
413
293. 392, 345, 415
Datnodara,j,' tate of T.C. AIR 1953 SC 462 284
......................
Dryao s'. SiateQf UP.. AIR 1961 SC 1957 205
297
SC141 .....................................................
Davecos Gannehis Factory v. State of Rajasthan. (1970) 3 ScC 874: AIR 1971
Deen Dayal v. Kylas Ctiunder, ILR I Cal 92 .... 410

282
Delhi Cloth & Gen. Mills v. Rajacihan SEB. (1986) 2 SCC 431 . . . . 413
Delhi Cloth & Gen. Mills v, Union of India, (1988) I SC 86
413
Delhi Laws Act, 1912. Re, 1951 SCR 747 AIR 1951 SC 332 ..
Devilal v. S.T.O., AIR 1965 sc 1150
................................. 207, 387, 388
298
XX LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

416
Devki Nandan Prasad v. State of Bihar, (1983) 4 SCC 20 .............
206
Dhakeswari Cotton Mills Ltd v. CIT.. AIR 1955 Sc 65 ...............
464
Dhorido Y. Mishri. AIR 936 Born 95
302
iriabzti v. M.S. Noronha, AIR 1946 t8oin 407 ....................
304
Dipa Pal V. Urtiveisity of Calcutta. AIR 1952 Cal 594 .................
Director of Rationing v. Coffin. of Calcuita(1), AIR 1960 SC 1155 (1961) I 412
SCR 158
212
Di-ii. Panchayat v. Muhamad ltnji Galur & Co.. AIR 1984 Guj 98 ..........
Doctors' Sahakari Grali Nirinan Stunili Ltd. v. Aviv, Evatu \'ikas Parishad. AIR
351
1984 A11234 ...................................
296
Doiinan Long & Co. Ltd. v. Jagadeesh Chandra Mahindra. ILR 1935 Cal 596 .
416
Dronamraju Saryanarayaria v. N.T Rama Pt>. (1988) 20 Rep (AP) 126 .......
205
Durgashankar v. Raghur4j, AIR 1954 SC 520 ....................
Dwarkadac Marfalia & Sons v. Board of Trustees of the Port of Botobay,
411
(1989) 3SCC 293 ..................................
Dwarkadav Srirtivas v. Sholapur Spg. and Wvg. Co. Ltd., 1954 SCR 674 AIR
211, 293. 354
1954 SC 119 ...................................
411
E.P. Royappa v. State of TN, (1974) 4 SCC S
303
East India Commercial Co. m'. Collcetoi of Customs, AIR 1962 SC 1893 .......
204, 356
Election Commission v. StAn Vemikata Rao, AIR 1953 SC 210 .............
299
Emperor i'. Sibnath Bannevji. AIR 1945 PC 156 .....................
206
Estate Duty, Re, AIR 1944 FC 71 ...........................
345
Excel Wear v. Union of India. (1978)4 SCC 224 : AIR 1979 SC 25 .........
412,413
Express Newspapers (P) Ltd. v. Union of India, (1966) I SC 133 ...........
284
Felix Lopez v. Mudduit Muhati Thzrkoor, 13 MIA 467
410
Fernandez v. State of Karratz*ka. (1990) 2 SCC 488 AIR 1990 SC 958 ......
Frtilizei Corpn. Kaingar Union v. Union of India. (1981) I 5CC 565 AIR
1981 SC 344 .................................... 414
Food Corpn. of India m'. Kaindhenu Cattle Feed lndos&mic, (1993) I SCC 71 ..... 4(18
Francis Coralie Mullin v. Administrator. Union Territory of Delhi. (1981) I 416

SCCOOII....................................
184
Fr yer v. Bernard. (1724) 2 1' Woos 261 .......................
389,425
Fuzlunhi u. K. Khader Vali, (1980) 4 8CC 125: 1980 8CC (Cri) 916 ........
306. 306
G.D. Karkare v. T.L. Slievde. AIR 1952 Nag 330 ....................
(Tax) 90
Ganga Sugar Curpn. v. State of U P.. (1980) I 8CC 223 : 1980 SC('
212
AIR 1980 SC 286
412
Ganges Mfg. Co. v. Sourujittull, ILR (1880) 5 Cal 669 .................
291
Gangu v. Chandrahhngabai. 32 Born 275 ........................
Garnienis International (P) Lid. r. Union of India. AIR 1991 Kant 52 ......... 413
299
Girindra Nath t'. Birendra NatIt. (1927) SI CWN 594: 54 Cal 727 ...........
376
Gokal Chtiisd v. P:irvin Kumar, AIR 1952 SC 231 ....................
210. 347,
Golak Nath v. State of Punjab, AIR 1967 SC 1643 ...................
367, 393. 402
Gopal Rant Chandar r. Gangamamn Anand. ILR 20 horn 721 .............. 282
Gopi Krixt Gosain i'. Gzwgtipersaud Gosain. 6 MIA 53 ................. 283
194
Governor-Gencral . in-Couflcil r. Province of Madras 943 FCR I ...........
282
Govind Dayal v. lnayntulla. ILR (1870) 7 All 775 ...................
Govindan. Re. (1922) 4.5 Mad 922 (FF3) ......................... 299
205
Govindlal v. Stale of W.B.. 1957 SC (Cr App 62) ...................
Gujarat State Finnneial Corpn. i Lotus Hotels (P) Ltd.. (1983) 3 SCC 379 ...... 413
206
Gujtuai Steel Tubes Ltd. v. Mador>r Union. (1980) 2 SCC 593
Gullapalli Nageswara Rao r. A.P. SRTC. AIR 1959 SC 308 ............. 354
306
I'Iammud Hassan v. Banwari Lal Ray, AIR 1947 PC 90 ..................
425
Hainirabibi v. Zubaida Bibi. 43 IA 294 ..........................
351
1-lanif Qijarashi v. Stale of Bihar. AIR 1958 Sc 731 .................
Harakehand v. Union of India. (1969) 2 SCC 166 .................... 388
413
I-Iardwarilal v. G.D. Tapace, AIR 1982 P&H 439
TABLE OF CASES XXI
.......................
Iiari Vishnu Kamath r. Ahmed Ishaque. (1955) I SCR 1104. AIR 1955 SC 233
I-Iaripacb v. State of W.B., 1957 SCR 639
1-larishankar Bagla v. M . P. State. AIR 1954 SC 465
73, 305
205
388
Hiinmal Lal v. State of M.P., 1964 SCR 1122 . . .
..........
..........
Hindu Women's Rights to Property Act, Re, I937, 1941 FCR 12
295
196
.......................
Hindustan Commercial Baitic v. Bhagwan Das, AIR 1 ID65 SC 1142
Hiralal v. State of UP.. AIR 1954 SC 741
Home Secy U. T. of Chandigarh v. Darshji; Singh GtwaI, (1993) 4 SCC 25 .
204
208
413
.............
Htkssainara Khatoon v. State of Bihar, (1980) I SCC 81: AIR 1979 SC 1360 .....
Ibrahim Saib v. Muni Miruddin Saib, (1870) 6 Mad 11CR 26
412, 415
282
391. 403
Indira Nehru Gandhi v. Raj Narain, 1975 Supp 5CC I : AIR 1975 SC 2299 .
..........................
Indra Sawhney s' Union of India (ROP, dated 8-8-91), 1992 Supp (3) SCC
212 . 1992 SCC (L&S) Stipp 479 442
......................
India Sawhney s' Union of India (stay Order datcd 1-10-1990), 1992 Supp ()
SCC 210 : 1992 SCC (L&S) Supp 477 442
Supp 1: (1992) 22 ATC 385 ............................

Indra Sawhney s' Union of India. 1992 Supp (3) SCC 217 : 1992 SCC (L&S)
442
......................
Indurnati Devi Chaudharani v. Bengal Court of Wards. 42 CWN 230 ........
Iram Y. State of Madras, AIR 1961 SC 1738
Ishwari Prasad w. Registrar of Allahabad University, AIR 1955 All 13 ........
296, 302
298
304
J.K. Gas Plant Manufacturing Co. (Painpur) Lid. v. King Emperoi, 1947 FCR
141
..................
...............
Jagannath v. Authonsed Officer, (1971) 2 5CC 893
195
35>,
ut ...............
Jamalpur Arya Samaj v. Dr D. Rant, AIR 1954 Pat 297
............
Javecl Ahmed v. State of Maharashtra. (1985) I SCC 275
306
212
..............
Ram Shiv Kumar v. State of Harvar,a, (1981) I SCC II
..................
Joanna Fernandez s' Dc Silva, (1817) I Morley Digest 214
Jorderi Dieugdeh r. S.S. Chopra, (1985) 3 SCC 62
413
48
425
............
Juggi Lal Kainlapam v. Collector of Bombay. AIR 1946 Born 280 . . .
Justices of Supreme Court of Judicature, In re, I Knapp PC I
304
295
..................
Juttender Mohun Tagore v. Ganendra Mohun Tagore, 1872 IA Stipp 47 ........
Jyti Pt-akash s' H.K. Bose. CJ., AIR 1963 Cal 483
K.K. Kochuni Y. State of Madras. 1959 Supp 2 SCR 316 AIR 1959 SC 725 .
283
202
209, 210, 297
...............
Kadra Pahadiya V. State of Bihar. (1983) 2 SCC 104 : AIR 1982 SC 1167 ......
........................
Katneshwar Prasad v. State of Bihar, AIR 1962 SC 1166
412, 415
363
Kanhaiyalai v. ITO., AIR 1962 SC 1323
...................
Karamshi v. State of Bombay. AIR 1964 SC 1714
Kashinath C. Jaltili (Di) v. Speaker, (1993)2 ScC 703 . AIR 1993 SC 1873 .
205
410
209
............
Ka,cmurilal v State of UP.. AIR 1965 SC 1039 : (1965) I SCR 375 .........
............................
Kerala Education Bill. Re, 1959 SCR 995 : AIR 1958 SC 956
Kerwick Y. Keiwick, 47 IA 275
410, 411
207. 383
283
Kesavananda Bharati v. State of Kerala. (1973) 4 SCC 225 AIR 1973 SC 1461 350, 383,
391, 393, 4W-
Keshav Mills Co. Ltd. v. CIT., AIR 965 SC 1636
.................
....................
Kshava v. Ramachandra. (1980) 2 Kar U 432 (FR)
392
213, 362
Kharak Singh r. State of UP.. 993> I SCR 332
...........
.......................
Khatri Y. State of Bihar. (1981) I SCC 627 AIR 1981 SC 928
405
412
Khau'i v. State of Bihar, ( 198 1) I SCC63
Khushal v. State of Bombay. AIR 1958 SC 22 .....................
................
422
205
..............
Khushalchand v. Mahodeogtn. 12 Bout HCR 214 (1875)
Kisitan Chand s' Commr. of Polioc.. AIR 1961 SC 705
............
283
191
Kishurilal v. Debi Pracad, AIR 1950 Pat 53

...................
Kishanlal Bhootnick r. Peare Soondree. SDA (1852) Beng 394
.......................
Kishen s' State of Orissa. 1989 Supp (I) SCC 258
283
416
211
Kissenchurn Tagore v. Rainpria Debee, ID (OS) 11100
...........
................
Ko;hasi Oil Products Co. s' Govt. of Gujazat. AIR 1982 Guj 107
L.R. Koolwal v. State of Rajasthan, (1987) 4 Reports 53
55
390, 413
414
XXII LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
Lxrnan v. Rajpramukh, AIR 1953 MB 54 ........................ 302

Levy of Ectte Duly, Re, 1944 FCR 317 AIR 1944 FC 73 .............. 196
Lucknow Development Authority v. M.K. Gupta, (1904) I SCC 243 . AIR
1994 SC 787 ................................... 4(8
Lukhat Ram v. Beharilal Mimi-, 1939 FCR 121 ..................... [95
M.C. Melua v Union of India, (1986) 2 SCC 176 AIR 1987 SC 96.5 ....... 420
M.C. Mehia i'. Union of India. (1986) 2 SCC 325 AIR 1987 SC 982 ....... 420
M.C. Mehia v. Union of India, (1987) 1 SCC 395 ................... 421
MC. Mehta v. Union of India, (1987) 4 SCC 463 AIR 1988 SC 1037 . 42)
MC. Melva v. Union of India. (1988) I SCC 411 : 1938 SCC (Cd) 141 AIR
1988 Sc: 1115 ................................... 421
M.H. Iloscot v. Slate of Mahnra.chtra. (1978) 3 SCC 544 ................ 422
M. Jsniad Faruqut (Di-) v. Union of India, (1994) 6 SCC 360 ............. 432, 446
M.R. Parashar i'. Dr Farooq AbdullaJ, AIR 1984 SC 615 ............... 208
Madhucudan Singh v. Union of India, (1984) 2 SCC 381 : AIR 1984 SC 374 345
Mahabir Auto Stores v. Indian Oil Corpn.. (1990) 3 SCC 752 AIR 1990 SC
1031 .......................................... 410, 411
Mahahjr Kishore v. State of MY.. (1989) 4 5CC I : AIR 1990 SC 313 ....... 410
Mahant Moti Das v. S.P. Sahi. 1959 Supp 2 SCR 568 ................. 204
Makhan Singh v. State of Punjab, AIR 1964 SC 381 .................. 300
Manak La) v. Prem Chand, AIR 1957 SC 425 ...................... 303
Maneka Gandhi v. Union of India, (1978) I SCC 248 ................. 390. 404, 411
Manzur Hassan v. Mohd. Zaman, 52 IA 61 ....................... 283
Mapuna v. Dr Premavathi Elango, 2 (1991) CPR 460 (Mud) .............. 418
Mary Roy v. Stale of Kerala. (1986) 2 SCC 209 ....................
42(1
Mary Soma Zachariah v. Union of India. (1995) I KLT 644 (F13) .......... 426
Mala Prasad t. Nagc.hwar Salmi. 52 IA 398: AIR 1925 PC 272 ...........
97, 211. 404
Maihura Narain v. Es-a Naikin. ILk (1880) 4 Born 545 ................
376
Maithen v. District Maistraie, AIR 1939 PC 213 : (1939) 3 All ER 356 (PC) ....
296, 299
Mayor of Lyons t' East India Co., I MIA 272 .... ..............
276
Meharhan Khan p. Makltana. 57 IA 168 .............
284
Minerva Mills LW. v. Union of India. ([980j 2 SCC 591 ................ 357
Minerva Mills Ltd. v. Union of India. (1980) 3 5CC 625 : AIR 1980 SC 1789 293, 378.
391, 392.405
Mohd. Ahined Khan v. Shahbano Beguiri, (1985) 2 .ScC 556 ..............
390
Mohd. Ali v. Mir Nazar Alt. (190)) 5 CWN 326 ....................
4(17
Mohd. Anis v. Union of India. 993 Supp (1) 5CC 145 ............... 209
Mohd. Beg s'. Narain. AIR 1929 l3oin 255 ....................... 282
Mohd. Nawaz v. Emperor, AIR 1941 PC 132 ....................
19(1
Mohd. Reza Y. Abbas Bandj Bjbj. 59 IA 236 ....................
284
Mohinder Singh i. Emperor. (1932) 59 IA 233 ...................... 196
Mohoinedalli v. Istnailji, (1926) 50 Born 616
299
Moodalay v. Morton. (1875) 1 l3rcs CC 469 : 28 ER 1245 ..............
409
Moribal Dabri Hospital v. M.I. Govilkar. 2 (1991) CPJ 684 ..............
4)8
Motu LaJ v. Govt. of UP.. AIR 1951 All 257 ......................
302, 353
Motilal Padainpat Sugar Mills Co. Ltd, v. State of UP., (1979) 2 SCC 409 ....
389, 413
Moulvie .Sayyud Uzhur Ali v. I3ibi Ultaf Fatima, 13 MIA 232 .............
I 283
Murnbai Kamgar Sabha v. Abdulbhai, (1976) 3 SCC 832: AIR 1976 SC (643
351, 414
Municipal Council v. Vardhichan, (1980) 4 SCC 162 ..................
390.414
Munna v. Stale of UP.. (1981) 3 SC 671 . AIR 1981 SC 939 ............
412
N.S. Krishnaswaint Ayyangar v. Perutnal Gouridan, AIR 1950 PC 105 : 64
MLWI ............................
189. 198
Nadan ti. King. 1926 AC 482 ..........................
184
Naoroji v. Rogers. 4 Born HCR I ...............
55
Nat Singh v. State of HP., AIR 1954 SC 457
205, 349
Narayan VRhaJ v. Janki Bar. 39 Born 604 ..........
302
TABLE OF CASES XXIII
......................................
National Carbon Co , In re, AIR 1934 Cal 725 ]LR (1934) 61 Cal 450 38
CWN729
..............
Nawab Khwaja MoOd. Khan v. Husainti Begun). 37 IA 152
Niharan Chandra Bag v. Mahendra Nath Ghughu. AIR 1963 SC 1895
296. 302
282
..................
Nilabati Behera v, State of Orissa, (1993) 2 SCC 746
O.K.A. Nair v. Union of India. (1976) 2 SCC 780 AIR 1976 SC 1179 .......
173
408
363
Olga Tellis v Bombay Municipal Corpit.. (1985) 3 SCC 545 ......... 390, 415
P.C. Jam (Or) v. Indian Institute of Technology, (1987) 4 Reports, (Del) 381 .....
...................
P.N. Eswara Iyer v. Registrar, (1980) 4 5CC 680
P.S.R.Sadhananthani v. Anutachalam, (1980) 3 ScC 141
407
207
205
P. Rainaswajnj t'. Chandra Kottoyya, AIR 1925 Mad 261
Param Shookdos v Ra.shced, 7 Mad FICR 285

................
Panchkowrec Mehtoon v. Kaleecharan Suth, 9 WI< 490
....................
464
283
Parvathi v Mannar, ILR (1884) 8 Mart 175

...............
Paratoanand Katara v. Union of India, (1990) I SCC 60
......................
55
416
223
Pashupati Bharti s. Scey. of Seoc f0r lndici-in . Council. 1939 FCR 13 ........
..................
Pati;thliii'airiic'r r. Venkalrao Naicker, 13 MIA 560
.................
Peerozeboyc v Ardeshir Cursejce. IF) (OS) Vol IV 33
195
283
45
.........................
Peninsular & Oriental Steatti Navigation Co v. Secy. of State, (1861) 5 Born
11CR App I . Bourkc AOC 1 66
Pennegotida Venkataraunan v. Secy. of State for India, ILR 1929 Mad 179 ......
410, 411
304
Perspective Publications (P) Ltd. v. State of Mharachrra, AIR 1971 SC 221 ....
Ptianmdra Chandra v. King, AIR 1940 PC 117 .................
.............
Pine Chemicals Ltd v. Assessing Authority. (1992i 2 SCC 8'(
208
184
413
Pitchnktutty s'. Kamala Nayakkan, I Mad 11CR 55, 283
Powers, Privileges and luritnunilics of State Legislatures. Re, AIR 1965 SC 945
......................
Pratap Singh r. Gurbaksh, AIR 1962 SC 1172
Presidential Putt, Re. (1974) 2 5CC
207
209
207
AIR 1992 SC 904 ...............................

Pritatn Pal s' 1-ugh Court of M P. (1993) I SCC 529 1993 5CC (Cri) 356
Pritani Singh v. State, AIR 1950 SC 169

208
206
..............................
PitUti Pal Siiieli Bdi u'. Union of India, (982) 3 SCC 140 . 962 SCC (Cii)
642 : AIR 1982 SC 1413
......................
PUDR v. Police Cornunr., (1989) 4 SCC 730
363
...........
PUDR v. State of Bihar. (1987) I SCC 265 AIR 1987 SC 35
..........
PUOR v. Union of India, (1982) 3 SCC 235 AIR 1982 SC 1473
412
412, 415
415
..........................
Punjab Land Development & Reclamation Corpni. Ltd. v. Presiding Officer, La-
bour Court, (1990) 3 SCC 682
........................
Puntabai v. S(etmnrao. AIR 1955 Nag 291
293. 393
.................
.............................
Pushpa Thkur v. Union of India. AIR 1986 SC 1199
R. v. Abdul Majid, 1949 FCR 29
89, 212
412
............................
R. s'. Bertrand, LR I PC 520
....................
IL v. Burah. (1878) 3 AC 889 :1478) 5 IA 178
195
184
......................
IL v. Electricity Cornuni. (1924) I KB 171
.........................
R. s'. Ram Dayal, AIR 1950 All 134
388
305
464
RD. Slietty v. International Airport Authot ty of India. (1979) 3 SCC 489 ...... 407, 411
R. Sircar r. Nurudy. ID (OS) I 1102 .. 55
Radhakrishna Agarwai v. Slate of Bihar. (1977) 3 5CC 457 AIR 1977 SC 1496
Radtsarani r. Skit Kumar, AIR 1953 Cal 524
Radheshyarn s. State of MV, AIR 1959 SC 107
...................... 411
211
305
Rai Saheb Rain Jawoya Kapur v. State of Punjal. (1955) 2 SCR 223 ...... 292, 297
Raj Narain r'. Chairman. Patna Admn. Cututinittec. AIR 1954 SC 569 ......... 388
Rajasthan SRTC v. Narain Shankar. (1980)2 SCC ISO : AIR 1980 SC 693 ..... 412
Rajmndar Narain Rao v Bijoy Govind Sing, 2 MIA 181
Rain Cocunar v. Chandcr Canto, (1876-1877) 4 IA 23
Rain Coounar v. Macqueen, (1872) IA SUpp 40
................
....................
282
284
Rant Man Lal v. Radlic Sham, AIR 1951 SC 210 ............. . 284
376
IN
XXIV LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
Rain Gajadhar v. State of UP. (1990) 2 .5CC 486 ...................410

Rant Kissen v. D.F.O.. AIR 1965 SC 625 ........................362
Ram Narayan v. Stare of Delhi. 1953 SCR 652 ....................300
Ram Pra.cad Narayan Sahi v. State of Bihar, AIR 1953 SC 215 ............398
Rama Nadi liI1ai v. Slate of Kerala, (1973) 2 SCC 650 ................413
Rains Rio v. Ru.cwm Khan, ILR 26 Born 198 ................... .
282
Rarngarh Stale v. Province of Bihar, 1948 FCR 79 AIR 1949 FC 55 94, 201
Ramjidas Mahaliram, In re, ILR 1935 Cal 1011 .......... . . 296
Rainnath v. India. 1984 Supp SCC 96: AIR 1984 SC 1178 ...............362
Randhir Singh v. Union of India. (1982) I SC 618 AIR 1982 SC 879 392
Ranee Sonet Kowar v. Mirza Himmur, 3 IA 92 .....................284
Rarij Chlirra Kurnari Debi v. Mohan Bikram Shah. 58 IA 279 ............281
Rashid v. I.T.I. Commission, 1954 SCR 73302
Rashid Ahrned v. Municipal Board, 1950 SCR 566 ..................209
RatInl P. Gandhi v. State ofBoniby, AIR 19.1 4 Sr- 388 : . 56 Born LR 1184
(1954) I MU 718 ............................ . . 345, 434
Rita v. P.etirainpur Uni ..AIR 1993 OiL 27 .......................413
Riian . ul-Hasan v. State of UP.. 1953 SCR 581 .....................209
Rootesli Thappar v. State of Madras. 1950 SCR 594 : AIR 1950 SC 124 .......209, 210, 354
Rudul Salt i'. Stare of I3ihzt,. (1983) 4 SCC 141 ...................390, 409, 412, 416
Rural 1-iii-anon & Entitlement Kendra v. State of UP., (1985) 2 SCC 431
AIR 1985 SC 1259 ................................415, . 420
Rylands v. Fletcher. (1868) LR 3 HL 330 ........................407
Ryors of GarabanJho v. Zarninciar of Parjakjinedi AIR 1943 PC 164 : 48 CWN
18 : (1943) 70 IA 129 ................................129, 296,
299, 303, 304
S. Kupptiswarni Rao t King, 1947 FCR ISO
I95
S. Nagraj v. State of Karnataka, 1993 .Supp (4) SCC 595
211
S.C. Ver,na v. Chancellor, Nagpur Univeisity, (1990) 4 S(.c 55 ............
293. 393
S.P. Gupta v. Union of India, 1981 Supp 5CC 87 ....................172. 405. 415
S.P. Sampath Kumar v. Union of India, (1987) I SCC 124 ...............179. 391
S.R. Bommat v. Union of India, (1994) 3 SCC I : AIR 1994 SC 1918 434, 435
S.T.O. v. Budh Prakash, (1955) 1 SCR 243 .......................303
Sadhu Ram v. Custodian General, (1955) 2 SCR 1113 .................297
Saghir Ahmad v, State of UP., (1955) I SCR 707 ...................354
Saheli v. Police Coiiintr., (1990)1 SCC 422 ; AIR 1990 SC 511 ...........412
Sajan Singh v. Stare of Rajasthan, AIR 1965 SC 845 .................356,357
Sampar Prakash s State of I&K, AIR 1970 SC 1118 ..................419
Sanjay Suri v Delhi Adorn, 1989 Supp (2) SCC 511 ..................416
Sanjiv Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) I SCC 147 ........345, 351, 389
Sarangapani r. Emperor, AIR 1946 Nag 30 .......................299, 300
Sasla Mudgal s'. Union of India, (1995) 3 SCC 635 ...................42S
Sarojiisj Aintital v. State of T.N.. AIR 1980 Mad 16 ..................351
Satish Sabharwal v. State of Maharashtra, (1986) 2 SCC 362 .............413
Satpal & Co. v. U. Governor of Delhi, (1979) 4 SCC 232 : 1979 SCC (Tax)
322 : AIR 1979 SC 1550 ..............................47
Satwant Singh i'. A.P.O.. AIR 1967 SC 1836 ......................45
Savage v. Bancharain, (1785) 1 Morley Digest 70 ..................
Sea Customs Act, 1878. Re, AIR 1963 SC 17 ....................207
Sebastian M. Hongray v. Union of India, (1984) 3 5CC 82 : AIR 1984 SC 1026 . 208, 409, 412, 416
Secy. of State s'. Han Bhanji. ILk (1882) 5 Mad 273 ..................411
Scwpujanra, v. Collector of Customs. AIR 1958 SC 845 303
Shamsher Singh v. State of Punjab. (1974) 2 SCC 831 ................292, 346
Sliankar't Prasad Singh Deo v. Union of India, AIR 1951 SC 458 ...........354, 357
Shankarlal v. Municipal Cornmr.. AIR 1939 Born 431 ...........'.... .
Shantarain D. Sairi v. M.M. Chudarna, AIR 1954 Born 161 ........... 101
3(33
Shaw Wallace v. Workmen. (1978) 2 SCC
206

TABLE OF CASES xxv
Sheela Barse Y. Union of India, (1985) I SCC 41 : AIR 1984 SC 1995 ........ 412
Sheela Bzirsc v. Union of India, (1986) 3 SCC 596 AIR 1986 SC (773 ...... 412
Sheo Kumar v. State of U P.. AIR 1978 All 386 .................... 351
So f4andan Paswart v Stole of Bihar, (1987) 1 ScC 288 416
Shivaji Rao PaLil Y. M.M. Cuavi, (1987) I SCC 227 .................. 416
Shnkkha Vidyarthi v. State of U P., (1991) I SCC 212 ................ 411
Shtirur Mutt v. Cotnior,, AIR 1952 Mad 613 ...................... 302
Sh yarn Sunder v. State of Raa.si1ian. (1974) I SCC 690 : AIR 1974 SC 89() .... 412
Soot Prakasb Rekhi v. Union of India, (1981) 1 5CC 449 ............... 407
Soma Raj v. State of Haryana, (1990) 2 SCC 651 .................... 398
Special Courts Bill. 1978, Re. (1979) I SCC 380: AIR 1979 SC 478 ......... 207, 211
Stale r N.M. Dayme. AIR 1958 Born 68 ....................... 345
State r. Rainji. AIR 1958 Born 381 ............................ 467
State of Bihar v. Karnesliwat Singli, AIR 1951 SC 252 354
Slate of Bihar v. Karam Chand Thapar, AIR 1962 SC 110 : (1962) I SCR 827 410
State of Bihar Y. Rameshwar Pratap Narain Singh. AIR 1961 SC 1649 ....... 354
Slate of Bombay v. Chhaganlal, AIR 1955 Born I : 56 Born LR 1084 ........ 189. 212
Stale of Bombay v. United Motors (India) Ltd., 1953 SCR 1069 ........... 354
Stale of Gujarat v. Mernon Mahotned Haji 1-lasan, AIR 1967 SC 1885 : (1967)
3 SCR 938 ...................................... 411
State of Gujaiat v. Vora Ficldalli. (1964) 6 SCR 461 ................ 189
Slate of H.P. v. A Parent of a Student of Medical College. (1985) 3 SCC 169
AIR 1985 SC 910 ................................... 415
State of Haryana v. Darshana Devi, (1979) 2 SCC 236 : AIR 1979 SC 855 ..... 412
Stare of J&K r. Ganga Singh. AIR 1960 SC 356 .................... 204
State of Karnataka i'. Ranganathan Reddy, (1977) 4 5CC 471 : AIR 1978 SC
215 ......................................... 345
Stare of Kerala v. Kutian Mohanan. (1987) 2 Reports (Ker) 187 422
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : AIR 1976 SC 483 ...... 351
State of M.P. v. Orient Paper Mills. (199{)) I SCC 176 413
Sn4e of M.P. p. Shobbaram. AIR 1966 SC 1910 ................... 383
Slate of Madras v. Chainpakairs Doraitajan, AIR 1951 SC 226 ............ 51, 353, 383
SLate OL Mysore .'. Chandrasekhara. AIR 1965 SC 532 ................ 298
State of Rajasthan v. Union of India, (1977) 3 5CC 592 : AIR 1977 SC 1361 . 434
State of Rajasthan v. Vidhyawati, AIR 1962 SC 933 : 1962 Supp (2) SCR 989 409. 411
Slate of T.N. v. L.AbrI Kavrir Bai, (1984) I SCC 515 : AIR 1984 SC 326 ...... 345. 351
Stale of U.P. r. Jairaj, AIR 1961 All 630 ....................... 205
State of U.P. v. Krishna Gopol. (1988) 4 SCC 302 ................... 370
State of W.B. v. Anwar Alt Sarkar. AIR 1952 SC 75: 1952 SCR 284 ....... 387
State of W.B. r. B.K. Mondal, AIR 1962 SC 779 : 1962 Supp (I) SCR 876 ..... 410
Stale of W.B. v. Bela Bancrjec, 1954 SCR 558 ..................... 354
State of W.B. v. Subodh Gopal Bose, 1954 SCR 587 .................. 354, 383
Sub-Committee for Judicial Accountability i Union of India, (1991) 4 SCC 699 202, 429
Subhani p. Nowab, (1940) 68 IA I ............................ 376
Subhach N. Pandya v. Secy., Baroda City Consumers Assn.. 1991 (2) CPR 537
(Guj) 418
Sudhir v. King, (1948) 58 CWN (FR) 44 ........................ 204
Suk Dat v. Arunachal Pradesh. (1986) 2 SCC 409 ................... 422
Sukhdeo Singh v. Teja Singh, AIR 1954 SC 186 .................... 173
Sultan All v. Nur Hussain, 1949 Lab 131 ........................ 303
Sunder Sitigh v. State of UP.. AIR 1956 SC 411 .................... 205
Sunil Batra (II) v. Delhi Aditin., (1980) 3 SCC 488 : AIR 1980 SC 1579
(1980)2 SCR 557 ................................. 412, 414, 415
Supdt. and Re,oeirtbrancer of Legal Affairs v. Corpn of Calcutta (II). AIR 1967
SC 997 : (1967) 2 SCR 170 ............................ 412
Supreme Court Advocates-on-Record As.-n. v. Union of India, (1993) 4 SCC 441 201, 211, 408
Suren&a Kornar v. Din. Board, AIR 1942 Cal 360 ................... 420

XXVI
LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY
Surya Narain Yrsdav v. Bihar SEI3, (1985) 2 SCC 38
Syed Sabir Husain v. FarijnJ Hacan, 65 IA 119 .................. 413
T.C. Bacappa t. Nagappzi. AIR 1954 SC 440: (1955) I SCR 250 ......... 425
TO. Shrrnivas Munhy v. REM L., (1982) I LU 268 ................. 209. 304
T. Krithnar. i'. Guruwayur De v 352
acwoni Managing Committee. AIR 1978 Ker 68 345
Tara ChanJ v. State of Maharashtra AIR 1962 SC 430 ................
205
Tara Singh v Kehar Singli, 1989 Supp (I) S(C 316 : AIR 1989 SC 1426 ......
413
Tata Iron and Steel Co i'. Saileir. AIR 1961 SC 65 .
210
Theatre Sanginesh v Enteitaijin,it Tax Dy. Co,nrnr., AIR 1995 AR 157
Tu g China Mandal i. State of UP.. AIR 1993 All 30 ....... 413
Tilokchand Morichand v lIB. Miinchj, (1969) I 5CC 110 ...... 413
Tin Sukhia Electric Supply o. v. State of Assam. (1989) 3 5CC 709
297
1990 SC 123 .................................. . . AIR 410
Tops v. Emperor. ILR f 1913) 46 Cil 52 .......
U.S. e. Ferre.sra. (1852) 13 How 40 299
... 207
Urnayal r. Laksbrni. AIR 1943 FC 25 ....... .....
207
Umesh Chandhari r. Preni Chandliari. Pail Papers 1831 ol 6 App V 20
102
Union of India v. Godfrey Phihp. India Ltd.. (1985) 4 5CC 369...
413
Union of India v. MoM. Nazirn (1980) I SCC 284 AIR 1980 SC 411 ......
412
Union of India v. N.K.(P) Ltd., (1973) 3 SCC 874 AIR 1972 SC 915
410
Union of India i. Ragliubir Singh. (1989) 2 SCC 754 AIR 1939 SC 1933
Union of India v. Ralia Ram, AIR 1961 SC 1685 (1964) 1 SCR 164 ....... 391
Union of India v. Safikulehand H. Sheth, (1977) 4 SCC 193 .......... 410
Union of India v. Sudhansu Mazumcjar, (1971) 3 SCC 205 173
.
United Province v. Governor. GeneraI . jflCouflcjI 1939 FCR 124 355
Upendra l3ai (Di) v. Slate of UP.. (1983) 2 .5CC 308 .............. 194
Vardeu Seth Sau v. Luckpathy, 9 MR 307 ............. 415
Vasaniha P. Naik v. ComopoIitan Hospitak, 2 (1991) CPJ 444 234
Vedenayaga MudaIia, V. Vedanimal 27 Mail 418
Vena Sht(ii 291
i. Slate of Bihar, (1982) 2 SCC 583 AIR 1983 SC 339 ........
Veerapa v. Raman, 1952 S( 'R 583 ........... 412
Venkatrainan Devarti i'. State of Madras, AIR 1958 SC 255 . . 302
345
Vj1 Re-sins (P) Ltd. v. Slate of J&I( (1939) 1 SCC 115 .....
........... 413
Vinayak L. More.chwar, AIR 1944 Nag 44 ....
................... 464. 407
Visha,nbhar Dayal v. Emperor, 1945 Oudh 117: 20 Luck ............
Vishwamitl i i Second AOl, AIR 1951 Nag 6 ..................... 300
Waghela Rajeanji V. Sheikh Ma.sludjn, (1887) 14 IA 89 ................. 30!
278, 284
Woman Rao r. Union of India, (1981) 2 SC 362: AIR 1981 SC 271 ........
Waryam Singh v Amarnath, 1954 SCR 565 ........ 35!
.............. 173
We,ctervelt v. Gregg 12 NY 202 .......
...... . .. ...........
William Mitchell i Nathanjal Turner, PC 2 (Vol 91) 619 393
. 185
Worthington i' Jeffries. 1875 LR 10 CR 379
Y. Minaksbi v. D.H. Nandish, 2 (1991) CRJ 533 (Kant) .......... 302
418
Ziyauddin l3urhaiiuddin Bukhari v. Brijmohan Raindass Mehra, (1976) 2 SCC.....
17 : AIR 1975 SC 1788 ...............................
434
--. w-
.4 . https://t.me/LawCollegeNotes_Stuffs
Landmark Years in the Legal and Constitutional History of India

Years Particulars
Before 1100 Ancient Hindu Period.
liii First attack of Muhammad of Ohor.
1206-1290 Slave Dynasty,
1290-1320 Khilji Dynasty.
1320-1399 Tuglaq Dynaty.
1414-1444 Tuglaq Dynasty.
1444 and Lodi Dynasty.
1451-1526
1536 Hindu Kingdom of Vijayanagar was founded along river
Tungabhadra.
1526 I3abar defeated Ibrahim Lodi and laid foundation of the Moghul
Empire.
1540-1545 Sher Shah ruled over India.
l556-1605 Moghul Emperor Akbar ruled over India.
1600 Queen Elizabeth issued a Charter incorporating The London East
India Company.
1609 Another Charter was granted to the Company.
1612 An English Factory was established at Surat due to Firroan by
King Jehangir.
1623 Charter issued to the Company ; introduction of English Law
into India.
1639 Privileges granted to the Company by Hindu Raja in the. South.
1657 Charter issued to the Company.
1660 The Company changes its character from a trading concern to a
territorial power.
1661 The Chatter of Charles 11 for the first time provided for the
exercise of Judicial powers by the East India Company.
1666 Madras was raised to the status of Presidency.
1669 Bombay was given by Charles II to the Company which he got
as dowry from the Portuguese King.
1683 The Charter empowered the Company to establish a Mayor's
Court at Madras.
1693 Company's Charter was reissued by the King of England.
1698 Another Company "English East India Company" was
incorporated by the Charter's of Willam III.
1698 Previleges granted to the Company by Prince Azim-ush-sha in
the East.
I xxvii ]

XXVIII LANDMARKS IN INDIAN LLtJAL AND CONSITUTIONAL HISTORY
Years Particulars
1708 .. Lord Godoipluin gave his famous award which established one
company, by uniting the existing two companies, came to be
known as "The United Company of Merchants of England
Trading in the East Indies.''
1726 .. The Charter of George I established the Mayor's Courts at three
Presidencies of Calcutta, Madras and Bombay as King's Courts.
1753 .. This Charter re-established the Mayor's Court at Calcutta,
Madras and Bombay.
1757 .. Battle of Plassey.
1764 .. Battle of Buxar.
1765 .. Moghul Emperor granted 'the rights of Diwani' of Bengal, Bihar
and Orissa to the Company. Acquisition of Diwani.
1772 .. Warren Hastings prepared the First Judicial Plan.
1774 .. The Supreme Court of Judicature was established at Fort
William.
1775 .. Trial and Execution of Raja Nand Kumar.
1781 .. The Act of Settlement.
1784 .. Pius India Act.
1793 .. The Charter Act ginted to the Company.
1793 .. Cornwallis Code and "Judicial Plan" were introduced in Bengal.
1797 .. Recorder's Courts were established at Madras and Bombay.
1800 .. The Supreme Court was established at Madras in place of the
Recorder's Court.
1813 .. The Charter Act granted to the Company.
1823 .. The Supreme Court of Judicature was established at Bombay in
place of Recorder's Court.
1833 .. This Act of British Parliament modified the constitution of the
Judicial Committee of the Privy Council.
1833 .. The Charter Act was the legislative mainspring of law reform
in India.
1834 .. The First Law Commission was appointed.
1853 .. The Charter Act provided for the appointment of the Second
Law Commission.
1857 .. First War of Indian Independence.
1858 .. The Government of India Act.
Proclamation by the Queen.
Indian Government was transferred to the British Crown.
1861 .. Indian Councils Act.
The Third Law Commission was apoointetl.
LANDMARK YEARS IN THE LEGAL AND CONSTITUTIONAL XXIX

HISTORY OF INDIA
Years Particulars
1864 • Act XI abolished the office of Native Law Officers (Pandits and
Maulvies).
1879 The Fourth Law Commission was appointed.
1892 Indian Councils Act.
1909 Indian Councils Act (Morley-Minto Reforms) and distribution of
seats on bais of castes, communities and interests.
1919 The Government ot' India Act (Montague-Chelmsford Reforms).
1927 The Simon Commission
1928 The Nehru Report (Pt. Mot] Lai Nehru).
1930 The First Round Table Conference.
1931 The Second Round Table Conference.
1932 Communal Award.
Third Round Table Conference.
1933 White Paper issued by the British Government.
1935 The Government of India Act.
1937 The Federal Court of India established.
1939 The Augnst Offer.
1942 The Cripp's Mission.
Quit India Movement.
1944 C. Rajagopalachari' s Formula
1945 The Wavell Plan.
1946 The Cabinet Mission Plan.
1947 Mountbatten Plan.
Indian Independence Act was passed by British Parliament.
15-8-47 India granted Independence.
1949 The Abolition of (Privy Council Jurisdiction) Act.
26-11-49 The Constituent Assembly passed new Constitution of India.
26-I-SO The Constitution of India came into force,
India became "Sovereign Democratic Republic".
27-1-50 The Supreme Court of India Inaugurated.
1951 The Constitution (First Amendment) Act.
1953 The Constitution (Second Amendment) Act.
1954 The Constitution (Third Amendment) Act.
1955 Fifth Law Commission was appointed.
The Constitution (Fourth Amendment) Act.
The Constitution (Fifth Amendment) Act.
xxx LANDMARKS IN INDIAN LEGAL AND CONSITUTJONAL HISTORY
Years Particulars
1956 The Constitution (Sixth Amendment) Act:
The Constitution (Seventh Amendment) Act.
1960 The Constitution (Eight Amendment) Act.
The Constitution (Ninth Amendment) Act.
1961 The Constitution (Tenth Amendment) Act.
The Constitution (Eleventh Amendment) Act.
1962 The Constitution (Twelfth Amendment) Act.
The Constitution (Thirteenth Amendment) Act.
The Constitution (Fourteenth Amendment) Act.
1963 The Constitution (Fifteenth Amendment) Act.
The Government of UnionTerritories Act.
1964
The Constitution (Sixteenth Amendment) Act,
The Constitution (Seventeenth Amendment) Act.
1966 The Constitution (Eighteenth Amendment) Act.
The Constitution (Nineteenth Amendment) Act.
The Constitution (Twentieth Amendment) Ad.
1967
The Constitution (Twenty-first Amendment) Act.
1969 The Constitution (Twent y -Second Amendment) Act.
The Constitution (Twcnty-hjjd Amendment) Act.
1971
The Constitution (Twenty-fourth Amendment) Act.
The Constitution (T w enty-fifth Amendment) Act.
The Constitution (Twenty-sixth Amendment) Act.
The Constitution (Twenty-seventh Amendment) Act.
1972
The Constitution (Twenty-eighth Amendment) Act.
The Constitution (Twenty-ninth A mendment) Act.
The Constitution (Thirtieth Amendment) Act.
[973
-. The Constitution (Thirty-first Amendment) Act.
1974
The Constitution (Thirty-second Amendment) Act.
The Constitution (Thirty-third Amend.rnei)t) Act.
The Constitution (Thirty-fourth Amendment) Act.
The Constitution (Thirty-fifth Amendment) Act.
1975
The Constitution (Thirty-sixth Amendment) Act.
The Constitution (Thirty-seventh Amendment) Act.
The Constitution (Thirty-eighth Amendment) Act.
The Constitution (Thirty-ninth Amendment) Act.
1976
The Constitution (Fortieth Amendment) Act.

LANDMARK YEARS IN THE LEGAL AND CONSTITUTIONAL Xxxi

HISTORY OF INDIA

Years Particulars
The Constitution (Forty-first Amendment) Act.
The Constitution (Forty-second Amendment) Act.

1977 The Constitution (Forty-third Amendment) Act.

1979 The Constitution (Forty-fourth Amendment) Act.

1980 The Constitution (Forty-fifth Amendment) Act.

1982 The Constitution (Forty-sixth Amendment) Act.

1984 The Constitution (Forty-seventh Amendment) Act.
The Constitution (Forty-eighth Amendment) Act.
The Constitution (Forty-ninth Amendment) Act.
The Constitution (Fiftieth Amendment) Act.
The Constitution (Fifty-first Amendment) Act.

1985 The Constitution (Fifty-second Amendment) Act.

1986 The Constitution (Fitly-third Amendment) Act.
The Constitution (Fifty-fourth Amendment) Act.
The Constitution (Fifty-filth Amendment) Act.

1987 '['he Constitution (Fifty-sixth Amendment) Act.
The Constitution (Fifty-seventh Amendment) Act.
The Constitution (Fifty-ei g hth Amendment) Act.

1988 The Constitution (Fifty-ninth Amendment) Act.
The Constitution (Sixtieth Amendment) Act.

1989 The Constitution (Sixty-first Amendment) Act.
The Constitution (Sixty-second Amendment) Act.
The Constitution (Sixty-third Amendment) Act.

1990 The Constitution (Sixty-fourth Amendment) Act.
The Constitution (Sixty-filth Amendment) Act.
The Constitution (Sixty-sixth Amendment) Act.
The Constitution (Sixty-seventh Amendment) Act.

1991 The Constitution (Sixty-eighth Amendment) Act.
The Constitution (Sixty-ninth Amendment) Act.

1992 The Constitution (Seventieth Amendment) Act.
The Constitution (Seventy-first Amendment) Act.
The Constitution (Seventy-second Amendment) Act.

1993 The Constitution (Seventy-third Amendment) Act.
The Constitution (Seventy-fourth Amendment) Act.
The Constitution (Seventy-fifth Amendment) Act.

1994 The Constitution (Seventy-sixth Amendment) Act.
I
Judicial Systems in India:
Ancient & Mediaeval Period
"First come the family arbw-iurj p
ç; the judges aresuperior to the fcwiitie.c; the Chief
Justice (Adhyaksha) Is superior to the judges; the k i ng is superior to all
decision beco,ne law . ((trihOspi) 00 theni curd his
Dr. Radhakumud Mulerjee Local
Govern.'nen, in Ancient India, pp. 29-34;
Dr. P.N. Scsi: Hindu Jurisprudence p. 363
Caste divisions in society. constant struggles, mutual distrust, lack of political unity, want
of leadership, old warfare system and treachery of local individuals in the states contributed
to the downfall of Early Hindu Kingdoms
SYNOPSIS
A. Hindu Period: Judicial System in
Ancient India (2) The Admirrisrjon of Justice: Cost-
Stitutiosi of Courts
I. Ancient Hindu Social Order, Institutionsand
Religious Philosophy (1) Central C4itaI
(i) Caste System (u) Provinces
(ii) Joint Family System (in) Districts
2. Ancient Kingdoms : Administrative Units (iv) Pargaiiati
3. Administration of Justice (v) Villages
(i) Constitut i on of Courts (3) App ointment of judges and judicial
(ti) Institution of Lawyers standard
(iii) Judicial Procedure 8. Judicial Rcfoirtis of Sher Shah
(iv) Trial by Ordeal 9 The Mughal Period: Judicial System
(a) Ordeal of balance (I) Adirurustrarjve Divisions
(b) Ordeal of lire (2) TheAdministration of Justice: Con-
(C) Ordeal by water stitution of Courts
(d) Ordeal of poison (i) The imperial Capital
(e) I)r(Iezil of lot ((I) Provinces
If) Ordeal of rice-grains (iii) Districts (Sarkars)
(g) Ordeal of fountain-cheese (iv) Parganah
(v) Trial by jury (v) Villages
(vi) Appointment of judges and judicial (vi) Institution of Lawyers
standard
(vii) Judicial Procedure
(vii) Crimes and punishments
(viii) Trial by Ordeal
B. Muslim Period: Judicial System in
(is- ) Appointment of judges and judi-
Mediaeval India
cial standard
4. Causes of the Downfall of Early Hindu Kin g -
dorms (s) Crimes and Punishjnt
(ri) Hadd
5. Muslim Social Order: Political Theory &
Religion (b) Tazir
(c) Qisac
6. Historical Introduction
10 Akbar's Policy of Tolerance
7. The Sultanate of Delhi: Civil Adininiiion II. Citizenship: position of
(I) Ad:ninistrauve Units
12. Next Phase
Legal history of India can conveniently be studied under four important

periods-.--. Hjndu period, Muslim period, British period and after Independence. Hindu
period extends for nearly 1500 years before and after the beginning of the Christian
era. Muslim period begins with the first major invasion by Muslims in 1100 A.D.
British period begins with the Consolidation of the British power in the middle of
the eighteenth century and lasts for nearly two hundred years. The modern period
[CHAP.
2
JUDICIAL SYSTEMS ININDIA
began with the withdrawal of the British when on 15th August 1947, India was
declared independent.
A. HINDU PERIOD JUDICIAL SYSTEM IN ANCIENT INDIA
During the Hindu period in ancient India, Hindu society, institutions and beliefs
gradually developed and a definite shape was given to them. Many important beliefs
and doctrines of today are deep-rooted in the ancient Hindu ideology. In order to
understand properly the ancient judicial system of India it is of vital importance to
consider briefly three important factors: Firstly, the social institutions in ancient
India, secondly, its political system and institutions and last!)', Its religion and
religious philosophy.
1. Ancient Hindu Social Order, Institutions and Religious Philosophy

In determining the social order two important concepts may be stated, namely,
the caste system and the joint family system.
(i) Cave svsGnt.—The caste system emerged in ancient India as unique and
oie of the most rigid social systems ever developed in any part of the world) A
caste was a social group consisting solely of persons born in it. 2 Whole society was
divided into four main castes. The four castes were precisely and clearly defined
and rules pertaining to their lawful activities and functions dominated all social
activities. The Brahmins were considered to be the most superior caste. The scholars
and priests of the Hindus belonged to this caste. They had in law and in fa:t
privileges and prerogatives not held by other sections of Hindu society. The
Kshatriyas were the nobles and warners and to this caste rulers of various States
and kingdoms mostly belonged. The Vaisyas were the merchants and traders. The
Sudras were the workers and ranked lowest. The caste was determined by birth.
The members of the three upper classes, namely, Brahmins. Kshairiyas and Vaisya.s
were the elite of Hindu society. Caste determined the pattern of life amongst Hindus
relating to their status, living, marriage, profession and social obligations. Caste
consciousness had become a marked feature in social relationship.' The basis and
continuance of caste system depended on the vast network of sub-castes. Sub-caste
relationships were based on specialisation of work and economic independence. The
caste association further diluted political loyalties. In later centuries caste exclusive-
ness became absolute and reached its peak in caste panchayats. Each caste panchayat
was regarded as a supreme authority for the particular caste in each village. It gave
stability to Indian society. Though the caste system was conservative still it was
most needed to suit the requirements of ancient India."
(ii) Joint family system—The joint family system was another important in-
stitution which determined the social order amongst Hindus in ancient India. A
L. Shamasas(ri, Evotuiwn of Indian Polity, p. 73 see also A.L. I3ashani, The Wonder ihal was/udja. Ch.
V., pp. 147 . 149 R.C. Dull, The Eaily Hindu Cjviliwiion, pp. 53,145, 227 Laier hindu Civi1iuuj,ri,
pp. 58-82.
2. See Ronald Segal, Th€ Crisis of India, Ch 11. pp. 34-37 Irawati Karve, hind" Siiciely—An
Inierpre/anon, pp. 90-92.
3. G.S. (Thurye, Cijsie and Class in India, p. 47, for CasiedisiincHons in Law, see i.W. Spelirnan, Puliricat
Theory offlncient India, pp. 111-112.
4 The Caste systein is gradually dying ow in Modern India See also Sir Percival Griffiths. Modern india
(New York, 1957), p. 31.
11
HINDU PERIOD
family was regarded as a unit of the Hindu social system- 5 An ancient family
included parents, children, grand-children, uncles and their descendants, and their
collaterals on the male side. This social group had common dwelling and enjoyed
their estate in common. At the head of the family was the patriarch, whose authority
was absolute over the members of his family. He represented all the members of
his family before the Jaw and claimed absolute obedience from them. The family
group was bound together by Sradha6 ceremony. A number of families constituted
a sect, gram or village which became an administrative unit also. The concept of
family led to private property which in turn led to disputes and strug
g les which
necessitated law and a controlling authority. In later centuries problems concerning
the division of land and inheritance came in for special attention. Two systems of
family law, namely, Mitakshara and Dayabhaga, became the basis of civil law.7
They dealt with property rights in a Hindu joint family and mostly amongst
land-owning families.
The political system and institutions were varied and complex in ancient India.
India was divided into various independent states—some monarchies and the rest
tribal republics. 8 Monarchy in various forms was prevailing in ancient Hindu period.
Dharma
was the most important concept of the Hindu political thought. "In the
context of the Dhar,nashas:rcis (or Hindu Political Science) the word
dharma came
to mean 'the privileges, duties and obligations of a man, his standard of conduct'
as a member of the Aryan community, as a member of one of the castes, as a person
in a particular stAge of life.' ' A careful examination of the ancient Legal and
Constitutional system, says Rama Jois J.'° would show that it had established a duty
based society. Its postulate was not only the duty of individual towards the Society
but also the duty of the Ruler towards the individuals and the Society. The legal
system which was the same for the whole of India, notwithstanding the existence
of large number of kingdoms, some larger in size and others smaller indicates that
the concept of absolutist monarchies had always been rejected and the supremacy
of "Dharma" (Law) over the Kings as declared in the authoritative texts was
respected in letter and spirit. The English doctrine of "King can do no wrong" was
not accepted and the King himself was subject to law. The Dharma Sastias impressed
upon the Kings to look upon the people as God (Praja Vishnu) and serve them with
love and reverence."
Moreover, the individualistic doctrine of Laissez-faire was never accepted and
the basic philosophy that for the good of the greatest number, interests of individuals
5. The rite of commemorating the ancestors at which balls of rice called pinda were offered. Sradha
defined the family and those who were entitled to participate in the ceremony were "co.pinda.c"
(Sapinclas), members of the family group.
6. Dr. L.D. Barnett. Antiquities of India, Ch. lIt. pp. 138 140.
See also A.L. Basharn, The Wonder that
was India, pp. 155-158.
7. Most families of Bengal and Assam follow the rules of Dayabhaga while the rest of India generally
follows Miiaksliara.
8. Romila Thapar. A ffisioiy of India. Ch. III, pp. 50-68.
9, K.P. Mukerji, The Stale (1952), p. 327, See Appendix I. (pp 321-346).
.
Dharma". See also Sarvapalli Radhakrishnan, Indian Philosophy (New"The Hindu Conception of
York, 1922), pp I, SI
Jawahar Lal Nehru, The Discovery of India. p. 77 Amaury de Riencourt.
The Soul if India, (New
York, 1960), p. 15.
10. Rama Jois Seeds of Modern Public law in Ancient Indian Jurisprudence,
1990 Edn (Eastern Book
Co.), pp. 1,2.
1. P.V.Kanc History oJ'bharina Shwlra, Vol. Ill, p. 25
quoied by Rama Jois.
4 JUDICIAL SYSTEMS IN INDIA [CHAP.
or smaller groups should be subordinated and sacrificed to the extent necessary, was
deeply embedded in and formed the foundation of Dharma)2
Dharma or Law constituted the blue print or master-plan for the all round
development of the individual and different sections of the society. Dharma is mostly
misunderstood as religion, but the fact remains that it is a word of the widest import,
having no corresponding word in any other language. Mahabharat' 3 explains it as
that which helps the upliftment of living beings, Madhavacharya 14 of Vijaynagar
Empire explains it as that which sustains and ensures the progress and welfare of
all. It is promulgated in the form of positive and negative commands (Vidhi and
Nishedha).
Another important concept was Saptanga (seven limbs) of the State) 5 These
were sovereign (Swamin). minister (Amatya), territory with people (Rostra). army
(Danda) and friends or allies (Mitra). The King was the supreme authority of his
State.' 6 His functions involved the protection not only of his kingdom against
external aggression but also of life, property and traditional custom against internal
foes.' 7 He protected the purity of class, caste and the family system as well as
maintained social order. The nucleus of the Mauryan system was the King whose
powers increased tremendously. Ashoka interpreted these as a paternal despotism.
In tribal kingdoms, which contained tribal units and villages, the King was assisted
by a court of the elders of the tribe and by the village headman.
The form of Hindu religion which prevailed in India previous to the spread of
Buddhism is generally known as the Vedic reli.o ion, 18 while the form of Hindu
religion which succeeded Buddhism is generally known as Puranic religion) 9 The
Hindu religion and philosophy laid down four great aims of human life: Dharrna
(religion and social law), Artha (wealth or economic well-being), Karma (doing
work) and Moksha (salvation of the soul). The correct balance of the first three was
to lead to the fourth. These concepts played a very important role in Indian thought.20
Amongst all the formal systems of Hindu philosophy the best known are Nyaya.
Vaishesika, Sanikhya, Yoga, Mimansa and Vedanta. They had a great impact on
Indian thought2 ' and Yoga and Vedanta are still having a great influence in various
ways. As Nehru stated, "It is this philosophy which represents the dominant
philosophic outlook of Hinduism today".22
2. Ancient Kingdoms Administrative Units

In ordtr_6 understand the ancient judicial system it is necessary to have a short
account of the administrative divisions prevailing in the ancient States. Ancient India
12. See Udyo8a Parva (Vidur Niti-h. 37-17): Rama Jois. p. 2.

13. Shanti Parva, 109-9-I1 R. lois. p. 8.
14. Para.shara Dharma Samhita, edited by Vaman Sharma (1893), p. 63: R. lois, p. 8.
15. P.V. Kane, History of DIwnnasastra Vol. III, Ch. II. pp. 17-55.
16. Throughout the Kingdom the adminisraiion of justice was done in the name of the King.
17. P.V. Kam, History ofDharmas.astra, Vol. III, Ch. Ill, pp. 56-103.
18. Vedic religion was of elemental Gods: of Indra, Agni, Surya. Varuna. the Asvinis and others.
19. Puranic religion dealt with image worship of deities.
20. See Sources of Indian Tro4izwn, compiled by William Theodore de Bary, Stephen Flay, Royal Weiler
and Andrew Yarrow (New York. 1958), pp. 205-36 see also R.C. Duit, LiEu Hindu Civslisution,
Ch VI, pp 58-64.
21. Norman D. Palmer, The Indian Political System, (1961), p. 21.
22. Jawahar Lal Nehru, The Discovery of India, (New York), p. 182.
-ww_w
4
I] HINDU PERIOD
was divided into various independent States and in each State the King was the
supreme authority. 23 The King, with the assistance of his chief priest (Purohita) and
military commander (Senani), earned on the administration of his kingdom. Each
State was divided into provinces and these into divisions and districts, which differed
in terminology as well as in area. For each province or district separate governors,
according to their status, were appointed with different designations. Most often they
were related to the King and in certain places their appointment was hereditary.
District officers were entrusted with the judicial and administrative functions.24
At the meeting place of districts (Janapada-SanIhishu), cities also existed. The
city was administered by a separate governor (Nagaraka, Purapala). According to
Kautilya 25 , each town was under the jurisdiction of a Prefect (Nagaraka). At the
end of the fourth century B.C., Patliputra was a very flourishing town under the
Maurya Emperor Chandragupta. Megasthanese, an ambassador of Seleucus Nicator,
who resided there for some time, has given a detailed account of the administration
of Patliputra. He states that it was under the care of a council of thirty officials who
formed six committees of five members each. Each committee looked after different
spheres of administration.
Apart from cities, there were a large number of villages all over India. In fact,
the village was the unit of government. In the North as well as in the South, districts
were classified according to the number of villages under their administrative
jurisdiction. 26 The Village was based upon the bond between the family or the clan.
Each village consisted of a village headman and village council or village panchayat.
They assisted the district authorities in controlling the village administration. The
office of the village headman was mostly hereditary. In villages he represented the
King's administration and, therefore, his appointment was also at the King's pleasure.
The pseudo-Sukra writing in the late Middle ages, speaks of the village headman
as the mother and father of the village, protecting it from robbers, from the King's
enemies and from the oppressions of the King's officers.27
Under the ancient Indian system of Government great importance was given to
Rajdhar,na which declareO'that it was the personal responsibility of the King himself.
His duties were manifold. It would be interesting to note that several of those duties
are similar to those prescribed under the directive principles of State Policy in the
Constitution of India. Naturally the number of duties were such as would require
the division of work of the State into different departments and put them in charge
of a person as head of the department concerned and each department would also
require a cadre of officers to carry out the work of the department concerned. On
this aspect as reiterated by Justice Rama Jois 28 , the ancient Indian legal and
23. A.L. Basham, The Wonder that was India. pp. 102-106.
24.Epigraphic Indica. Calcutta and Delhi. Ch. XV. pp. 130 if.
25. Kautilya, A1hashastra, Ch. II, p. 36.
26. A.L. Basham, The Wonder that was India, pp. 104-05
27. Sukmni:isara edited by Jivananda, Ch. 11. p. 172 (Tr. Sarkar. Ch. II, p. 343).
2. See Rams Jois Seeds of Modern Public law in Ancient Indian Jurisprudence, 1990 Edn., (Eastern
Book Co.), Ch. 1, pp. 39-50; Ch. 3, pp. Ill- I 17.Ttrsewere l8departmentsas analysed by R.S. Pandit
in Rajatarangiri, 1-120, and as mentioned in Mahabharata (11, 5.38). Ramayw2a (II, 100.36),
Panchwantra (Ktclhrn's Edition 111.67-70), Kabdasn's Ragiwva.nsa (XVII, 68) and inSisspilaradha
(X IV, 9).
6 JUDICIAL SYSTEMS IN iNDIA [CHAP.
conitutional system contained provisions which indicate a well developed govern-

mental System.
The very idea of having such governmental set up as early as prior to 1184
I.C. is certainly a valuable piece of evidence to sli0W that their necessity and utility
for discharging the obligations of the State Jiad been realised and provided for.2
Kautilya and Manu fortify this proposiifosL
In Kautilya's Arthasastra 3t . the realm was divided into four administrative units
called (i) Slhaniya, (ii) p ocrmukha, (iii) Kharvaiik and (iv) Swigrahanc. Slhaniya
was a fortre,ssc aM1r5d in the centre of eight hundred villages; a Dronmukha in
the of 400 villages; a Kharvazika in the midst of 200 villages and a
aangrahana in the centre of ten villages. In each of these places and at the meeting
places of districts (Janapada-Sandhishu), law courts were established to decide
disputes between citizens.
3. Administration of Justice
(I) constitution of courts--In ancient India, the King was regarded as the
fountain-head of justice. 32 His foremost duty was to protect his subjects. He was
respected as the Lord of Dhartna and was entrusted with the supreme authority o
the administration of justice in his kingdom. The Kings Court was the highest court
of appeal as well as an original court in cases of vital importance to the State. 33 In
the King's Court the King was advised by learned Brahmins, the Chief Justice and
other judges, ministers, elders and representatives of the trading community. Next
to the King was the Court of Chief Justice (Pradvivaka). Apart from the Chief
Justice, the Court consisted of a board of judges to assist him. Air the judges were
from the three upper castes preferably Brahmins. Sometimes some of these judges
constituted separate tribunals having specified territorial jurisdiction. Briliaspati 34 has
stated that there were four kinds of tribunals, namely, stationary, movable courts
held under the royal signet in the absence of the King, and commissions under the
King's presidency.
In villages, the local village councils or Kukmi, similar to modern panchayats,
consisted of a board of five or more members to dispense justice to villagers. 35 It
was concerned with all matters relating to endowments, irrigation, cultivable land,
29. Ibid.,p.1I3.
30. Ibid., p. 113.120.
31. Kautilya was the greatest Indian exponent of the art of government, the duties of kings, ministers and
officials and methods ofdiplonsacy. See Kautilya, Atihasastra, Ch. III, pp. 1, 147 Ch. XX, p. 22, see
also I.W. Fleet. Ins rodu.ctory Note in Kausz)ya's Ar1lwsaira. trans. by R. Shamasastry (41h Edition
Mysore, 1951), p. 5.
32. P.V. Kane, HLttore of Dhannasastra, Vol. III, Ch. Xl deals with "Law and Administration of Justi cc",
pp. 242-316. See also Justice S.S. Dhavan, "Indian Jurisprudence", (1963), Vol. , Journal of the
National Academy of Administration, p. 19.
33. Regarding the King's judicial jurisdiction, Kalidas in his Abhijruma Shakunsala,n, has referred to
Dhana Mit ra's ca.se. Dhana Miira was a wealthy merchant who died in a shipwreck. The dispute
relating to his properly caine before the King which he transferred to his Minister. The Minister passed
an order that the entire estate of the merchant be reverted to the King. Reversing this decision, King
Dushyania ordered an enquiry to be madc—whcthcr any or his widows was expecting a child, and he
was informed that one of them was pregnant. The King directed that the child alter birth was entitled
to the property of the deceased.
34. Brihaspar.i,Ch. Lpp. 1-3.
35. See S. Varadachariar, The Hindu Judicial System, p. 88.
I]
HINDU PERIOD
7
punishment of crime, etc. Village councils dealt with simple civil and criminal cases.
At a higher level in towns and districts the courts were presided over by the
Government officers under the authority of the King to administer justice The link
between the village assembly and the official a
dministration was the headman of
the village. In each village a local headman was holding hereditary office and was
required to maintain order and administer justice. He was also a member of the
village council. He acted both as the leader of the village and the mediator with the
government.36
In order to deal with the disputes amongst members of various guilds or

as sociations of traders or artisans (Sreni), various
c orporations, trade-guilds were
authorised to exercise-an effective jurisdiction over their members. These tribunals
Consisting of a president and three or five c
o-adjudicalors were allowed to decide
their civil cases regularly just like the other courts. No doubt, it was possible to go
in appeal from the tribunal of the guild to local court, then to royal judges and from
them finally to the King, but such a situation rarely arose. Due to the prevailing
Institution of the joint family system, family courts were also established.
Puga
assemblies made up of groups of families in the same village decided civil disputes
amongst family members.- According to Briliaspati: -
'First come the family arbitrators; the judges are Superior to the fanillies:
the Chief Justice (Adhyaksh is
superior to the judges; the King is superior to
all of them and his decision becomes law.-37
Criminal cases were ordinarily presented before the Central court or the courts
held under the Royal authority. The smaller judicial assembly at the village level
was allowed to hear only minor criminal cases.
Vachaspati Misra has pointed out that even in ancient India the decision of each
higher court superseded that of the court below. Each lower court showed full respect
to the decision of each higher court. As such the King's decision was supreme.
One of the cardinal rules of the administration of justice in ancient India was
that justice should not be administered by a single individual A Bench of two or
more Judges was always preferred to administer justice. ''No decision shall be given
by a person singly- 38 , is a formula found frequently repeated in the old texts.
Thus
Vasistha says, ''Let the King or his ministers (or the King taking counsel with
Brahrni,:s) transact the business on the Bench'')
9 The King sitting in his
heard the cases and administered justice. council
(ii) Institution of Layers.—_gmrjtjs

do not refer to the existence of any separate
in stitution of lawyers in the ancient Hindu judicial system. According to Kane"',
"This does not preclude the idea that persons well-versed in the law of the
Smritis
36. P.V. Kane history of
Dhar,nacj.cr Vol. II, p.65 See also K.P. Jayaswal,
37. Dr. RadhaJumud Mukerji, ["at Government Hindu Polity, Ch XIII
Sen. Hindu JUrLSpnlden(e p.'163. in Anc,er,t India, pp. 29-34. 132 . 142 See al Dr P N
38. 1 tT1 ffzj
Cited by S. V aradar-Nariar, The Hindu Judicig
l System, (1946), p. 64 -
39. ji mi fci,i
See, ibid. p. 65. See also K.P. Jayaswal,
Hindu Polity. p. 313.
40. P V. Kane, Hi.ff Ory of Dh
that was India, p. 1]7, Ranatra Vol. III. Ch. XI. pp. 288-289. See also A. L. Basham, The Wonder
N. Mehuji, Crime and Punishffle,If in the Jt'itakas, I. HO.. Vol XII, No. 3,p.
438.
JUDICIAL SYSTEMS 114 INDIA [CHAP.
and the procedure of the courts were appointed to represent a party and place his
case before the court. T he procedure prescribed by Narada-srnriii. Sinriti of Brthas-
pcIi and Srnriti of Kaiyayana reaches a very high level of technicalities and skilled
help must often have been required in litigation." After considering Kane's obser-
vations and other historical material it becomes quite clear that the organisation of
the Lawyers as it exists today was not in existence in the ancient Hindu period.
(iii) Judicial Procedure.—Judicial procedure was very elaborate. According to
Brihaspati a suit or trial (Vyavahara) consis ted of four parts: (i) the plaint (poorva-
paksha) ; ( ii) the reply (ultar) ; (iii) the trial and investigation of dispute by the
court (kriyaa), and (iv) the verdict or decision (nirnaya).4 ' Filing of plaint before
the court meant that the plaintiff submitted himself to the jurisdiction of the court.
The court wa then entitled to issue an order to the defendant to submit his reply
on the basis of allegations made in the plaint. If the defendant admitted the
allegations levelled against him in the plaint, the business of the court was to decide
the case. Where the defendant contested the case before the court, it was the duty
of the court to provide full opportunity to both the parties to prove their cases. After
the trial was over final decision was given by the court. During the course of
proceedings both parties were required to prove their case by producing evideqce.
Ordinarily, evidence was based on any or all the three sources, namely, documents,
witnesses 42 and the possession of incriminating objects.
This aspect of the subject has been discussed in detail by Rama Jois 43 , showing
that this subject was given utmost importance under the ancient Indian legal system.
The provisions made gave the description of the highest court to be located at the
capital city, of lower courts under royal authority, and of people's courts recognised
as having power to decide cases. The qualifications of judges and other officers of
the court were prescribed. Appointment of experts as assessors to assist the Court
on technical questions, whenever necessary, was provided for, laws of procedure
and of evidence were laid down. A code of conduct for judges and others concerned
in the administration of justice and provisions for punishment of officers committing
offences in the course of the administration of justice, had also been provided. A
detailed survey in this connection is made by Sir S. Vardachariar which goes to
41. P.V. Kane, History (if Vol. III, Ch. XV, pp. 379 .410. S.C. Baneijee, DliarniaSutras:
A Study in their Origin and Development. pp. 99-108.
42. P.V. Kane. History of Dharnw.sastra, Vol. III. (1. XIII. pp. 330-360. See also The Sacred Book of the
East, edited by F. Max Muller, Vol. XXXIII, pp. 79, 244.
43. Rama Jois : Seeds of Modern Public Law in Ancient Indian Jun.cprudence. 1990 Edit, Ch. 3, pp.
121-166.
44. The following topics are elaborated:
(1) Gradation of Courts, (ii) The People's Courts, (iii) Jurisdiction, (iv) AppeHale Jurisdiction, (v) Right
to Appeal to the King in all cases, (vi) The King's Court, (vii) Appointment of Judges and their
qualifications, (viii) Responsibility of the King as the Highest Court. (ix) The Chief Justice to preside
in the absence of King, (x) Unanimous decision recommended, (xi) Assistance by Experts, (xii)
Personal responsibilityof the Kingindeciding cases, (xi::) Requirements ofajudicialproceeding, (xiv)
Cause of action for a suit or complaint. (xv) Institution of the suit or complaint, (xvi) How to write a
plaint (Pratig;ia). (xvii) Contents of a plaint, (xviii) Grounds of rejection of plaint or complaint in
limine, (xix) Amendment of declaration by additional statement, (xx) Adjournments, (xxi) Consequence
of undue delay by litigant. (xxii) Both plaintiff and dependant to furnish security, (xxiii) Rule regarding
burden of proof, (xxiv) Court to decide on whom the burden of proof lies, (xxv) Trial to begin with the
party on whom burden of proof lay, (x.xvi) Rules regarding examination of witnesses, (xxvii) Rules
regarding oral and documentary evidence. (xxviii) Ordeal excluded where human evidence is possible.
(xxix) Presumption in Favour of Royal documents. (xxx) Open and fair trial, (xxxi) Examination of
ii HINDU PERIOD
.
show that a fairly well developed system of administration of justice existed at that
time.
In civil cases, the social status and qualification of the witness was always
enquired into by the court.
In criminal cases, sometimes circumstantial evidence was sufficintto punish
the criminal or to acquit him. The accused was allowed th produce any %vitnesi in
his defence before the court, to prove his innocence. Witnesses were required to
take an oath before the court. Ordeal as a means of proof was not only permitted
but frequently used. In criminal cases, the courts were enjoined to convict only
accfing to the procedure established by law. False witnesses were very severely
fined by the courts. Narada says that they were condemned to go to a4lorrib]e hell
and stay there for a Kalpa. 45 .
h) Trial by Ordeal.—Trial by ordeal was a method to determine the guilt of
a person. The ancient Indian societ y . 47 which was largely dominated by religion and
faith in God, considered the trial by ordeal as .3 valid method of proof. it was very
common to swear "b y my troth" or to call upon the Gods to witness the truth of
a statement, as is clear from various illL1:trations of the ordeal given in the Fpics.
S,nrrtj writers generally limited its application to cases where aiiv conciete evidence
on either side was not available. Its greatest drawback was that sOmetimes a person
7r0 i,'ed hir j'inneence b y death as the nrde.-s l wi-z ""v 1ra!nfll and
A detailed account of ordeals, as they existed in ancient India. is given in Agni

Purana. 49 it points out that only in cases of high treason or very serious offences
the trial by ordeal was used. In other pett y matters. it was sufficient to prove the
truth by taking an oath. Some important types of ordeal, which were commonly
adopted, may be stated as follows:
These ordeals were (a) Ordeal of Balance 50 , ( b) Ordeal of Fire 5t , ( c) Ordeal
b y Water-52 , ( d) Ordeal of Poison. e) Ordeal of Lot, 53 (f) Ordeal of Rice-Grains.
and () Ordeal of Fountain.cheese54,
witnesses to he in open Court and Its exceptions, (xtuI) Judgment, (xxxiii) Review of Judgment, (xxAiv)
Pwiarnyaya (Review cifjudgrneni or dc novo trial). (cr51,) Fresh evidence nor irinriijnri1 earlier roild
be adduced at retrial or review, xxxvi) Caution regarding accepting circumstantial evidence, (Luai)
Historical reference to Jayapa:ra (Judgment).
45. t'larada. Quotations, Vol V, p. 10.
46. In England, the trial by ordeal was also very common during the early period. See V.D. Kulshrcshtha,
English Legal Ht.croiy, (2nd Edo.). p For History of Ordeals in India, see P.'s/. kane. Hicrv of
Dhurnw,casi;u Vol. III, Ca. XIV, pp. 361.378.
47. As far back as Atliarija Veda and the UpanLchnds ordeal was adopted as a special feature of Indian
law. AlItarva Veda passim ChIwitdaga tJptailsIfr.id, Vol. VI, p. 16. See also L.D. Barnett. Aiuzqwi:ies
of Indin (Repnnr 1964), p. 155 John W Spellman. Political Tbpnri' of Aneji'nt India, pp. 119- 121
S. Varadachariar. The Hindu Judicial Svr:eni, pp. 164-166.
48 F.W. Hopkins. Journal ci) the Americazi Oriental Sociert, Vol XIII, p. 135. Sc also Vepa P. Sarathi.
Law qf &,dcnre in India.'pp- 7.8.
4', Agni Purcinu, CCLV. p. 28 Mw,usrnnis, Ch. VII. pp. 114-115. According to D/zornuj Sufro,
ordeal
was classified into live, namely (1) Ohaw (Balance), (n) Agni. (Iii) UdiIza (Water), ( ii ) Visa (Poison).
(i') Ktoo ('Water of deities) See Dr. S.C. Baneqee. Dlujrni Sutra.c.' A Stud y
in their Origin and
Dcvc'Iopmni. pp. 1013 . 109; The .cocred Book of the Ea.cicdiicd b y F. Ma\ Muller. Vol. XXXIII. Part
I Narnda. pp. 100-120, Brihaspati, pp. 315.318.
50 Agni Purana, Vol. CCLV pp. 32-37 ; John W Spcllman, Political Theory rcf Ancient India. p. 120. In
ordeal of balance the accused was made to sit in a balance and weighed. He was then made to pray to
God If his par' of balance was lowered after prayer be was deemed guilty.
Si There iF a reference to this Order in the Ramnyana where Sun had to prove hcr chastity of her captivity
10
JUDICIAL SYSTEMS IN INDIA
[CHAP.
(v) Trial by Jury.—In the ancient judicial system of India trial by jury existed
but not in the same form as we understand the term now. 55 In the court scene of
the Mrichcfl/iakatj/r,
which according to Jayaswal is a product of the third century,
the jury is mentioned. Sukraniti, Brihaspati and Narada defined the functions of the
jury. This shows that the members of th e community assisted in the administration
of justice.
(vi)Appointment of Judges and Judicial Standard.--Caste
c onsiderations played
an important role in the appointment of the chief judge and other judges. Almost
all the law books dealing with the ancient judicial system mention that preferably
a Brahmin must be appointed a chief judge or judge.
56
came Kshatriyas, and Vaisyas. But in no case was aIn order of preference next
Sudra appointed a judge.
Regarding the qualifications of judge, it is staled that persons who are ignorant of
the customs of the country, non-believers in the caste system and God, despisers of
sacred books, insane, irate or distressed will not be appointed judges. 57
The law
books insisted on the appointment of persons, who were highly qualified and learned
in law, for the post of a judge. Women were not allowed to hold the office of a
judge.58
The standards laid down for judges and magistrates were very high. Judges
were required to take the oath of impartiality when deciding disputes between
citizens. 59 integrity was the first qualification. Referring to the integrity of a judge,
Brihaspati states, "A judge should decide cases without consideration of personal
gain or prejudice or any kind of bias (nowadays the term used is "without fear or
favour") and his decision should be in
accordance with the procedure prescribed
by the texts. A judge who performs his judicial duties in this manner achieves the
same spiritual merit as a person performing a Yajna". 1
regarded as the most reprehensible crime. Dishonesty in a judge was
(vii) Crimes and Punishments.—In
ancient Hindu period punishment was con ..
sidered to be a sort of expiation which removed impuritics from the
promptings and reformed his character. Manu 6t man of sinful
states that men who are guilty of
by Ravana
he was by walking through fire. Accused was made to walk through fire. If he suffered no hai-r,
held innocent. Instance of Sit., walking through fire to prove her chastity is well known (see
Ramayan) See I.D. Barnett: Antiquities r5'India
52. John W. Spellman, Political Theory ofAncientJ,.ja(Reprint 1964). p. 155.
p. 120. Here the accused was made to drink waler
used in bathing the idol. If within next 14 days he had no hartnfw effect he was considered
53. L.D. Burnett, Antiquities of India (Re print 1214), innocent.
Poi son. If no harm came to him, he was held innocent. p. 155. In Ordeal of poison the accused was to drink
In ordeal of lot he was to draw from two lots.
If he drew the tot of Dharma, he was held innocent
54. J.W. MeCrindic,
Ancient India as Described by Ktesiac, pp. 17-18.
accused chewed unhusked nec and if no blood appeared in his mouth he In was
ordeal of Rice-Grains if the
held
of Foun n-cheese the accused was to drink some special type of water. If he becomes innocent. In ordeal
confesses his misdeeds, he was held guilty, de lirious an d
55, See V.R. Dikshjur,
Hindu At6ninistrativv Institutions, pp. 246-247 -
I,p.54. 1 K.P. Jayaswai, Hindu Polity, Part
56. P.V. Kane, History of Db 'ma.casr, Vol.
57. Brihaspati, 1, p. 33. I II, Cit. XJ, pp. 272-275.
58. Angwara Nikaya, IV. VIII, p. 80.
59. Narada, p. 1-3, Vratant Narada; pp. 1-34.
60. See Justice S.S. Dhavan,
Indian JuriSprud,,-e (1963), Vol. 8, journal of
Administration, p. 22. the National Academy of
61. Manusmrjti VIII 318
I) HINDU PERIOD 11
crimes and have been punished by the King go to heaven, becoming pure like those
who rierform meritorious deeds. Ancient Srn r it, writers were alco fully aware of
various purposes served by punishing the criminals. , The punishments served tour
main purposes, namely, to meet the urge of the person who suffered, for revenge
or retaliation, as deterrent and preventive measures, and for reformation or redemp-
tion of the evil-doer.63
Manu, Yajnavalkya65 and Brihaspati6b state that there were four methods of
punishment, namely, by gentle admonition, by severe reproof, by fine and by
corporal punishment: and declare that these punishments may be inflicted separately
or together according to the nature of offence.
Kautilya67 lays down that the awarding of punishment must he regulated by a
consideration of the motive and nature of the offencc, time and place, strength, age.
conduct (or duties). lcauiing and monetary position of the offender, and by the fact,
whether the offence is repeated. This means judges always considered the relevant
circumstances before deciding the actual punishment. The Daudavivcka 68 quotes a
verse in which the considert,onc that should weigh in awardin g p unishment are
brought together, namely, the ofTender's caste!° the value of the thing, the extent
or measure, use or usefulness 01 the thing with regard to which an oifeticc 'i's
committed, the person against whom an offence is committed such as an idol or
'S t,i,, th, ns',tori
of the offence (whether it was repeated or was a first offence) 71 The severity of
punishment depended on caste also.7'
Certair1 classcs of person vcre exempted from p ishment i1nder the ancient
criminal lwin India. Angiras quoted by the Mitak.rhari 72 states that an old man
over eiehtv. a bo y below sixteen, women and persons suffering from diseases are
to be given half Prayaschitta and Sankha; a child less than five commits no crime
r' by any act sind ic nr'st ti' cuffor -any p unishment nor to undergo any
Prayaschirta.73
Certain Smrr/ writer-, 74 prescribe that as a general rule a Brahmin offender was
not to be sentenced to death or corporal punishment for any offence deserving a
62. Harty Elmer Barnes in his book, The Study of Punishmer (1930. New York), refers to the horrible and
revoking methods for punishing criminals which were used in the Western countries But in Ancient
India a comparatively human treatment was given to the criminals
b3. P V Kane, H,crorv oJ flhirrmacttctm. Vol. Ill. PP 388-390. Where there is no conflict between
Dlitirinastistra and Arthasartra, both should be toltowed. in the case of conflict whatever is stated in
Dharma.castra should be followed This was the rule of interpretation adopted by the Courts in ancient
India.
54 Manu.cmriii. V1Il,p 129
65 Yojuunalkvacmriu. I. P. 367.
66. Bnhaspotr.cinriti. see Sticred Bik-c is/ the East. Edited by MaA Muller. Vol. XXXIIt, p. 387.
67. Kautilyas Arihasa.czru, Vol. IV, p. tO.
tSR T)andi.n-iveka of Vardhanujns, (Gajkwnd Oriental Series), P. 36.
69. Manu.cmritj, VIlt. pp. 337-338 (for theft).
70 /bid. p. 320
' hzd.p 2
72. Yujnavdlk y asmritj, Ill, p. 243.
73 Wtzradasmnt,. Vol IV. p 95 Section 1(2 of The hulti,,, I'enit! Code provides that nothing is an offence
which us done by a child under seven years of age
74. C;auiw l
f . tllanmoUJ,a. Vol Xli. p.43, KnuItha .rflrtisasur,rs,, Vol IV, p K.Afanimnrin, Vol VIII.
op 125, IRO-381 . Vaj,u:si,!kaco. Vol Il. p 270
12 JUDICIAL SYSTEMS IMINDIA [ChAP.
death sentence, but in such cases other punishments were substituted. Katyayma75
and Kau l ilyalô were against exempting Brahmins.
Under the ancient criminal law, criminals were required to pay a fine as well
as to undergo corporal punishment for their offences. In certain cases, the court was
empowered to grant compensation to the aggrieved party in addition to the punish-
ment given to the offender.
Gautarna77 and Manu78 prescribe the details of penalty to be paid by Sudras,
Vaishyas, Kshatriyas, Brahmins and upper class persons. On a large scale serious
thefts were punished with death. In certain eases the whole village was held
responsible for theft or lost property. The villagers were held liable to make
restitution of lost property if they were unable to prove that the lost property was
taken away from their village. The King or his local representative was held liable
to pay for the missing property or theft, as they were responsible for the police and
maintaining law and order.
In adultery and rape, punishment was awarded on the basis of the caste
considrations of the offender and of the woman. Yajnavalkya 79 prescribes the
amercement.8°
- In abuse or contempt cases, every care was taken to see that each higher caste
got due respect from persons of the lower caste. Gautama, Manu 82 , Yajnavalkya83,
prescribe that a Kshatriva or a Vaisya abusing or defaming a Brahmin was to be
punished respectively with a fine of 100 panas and 50 panas. A Sudro was punished
by corporal punishment (cutting off the tongue). While a Brahmin defaming a
Kshatriya or Vaisya was to be fined 50, 25 or 12 panas respectively. According to
Gautama 4 , a Brahmin could flout a Sudra with impunity. If a person of a lower
caste sat on the same bench with a man of a higher caste, the man of the lower
caste was branded on the breech.
For committing murder, early Sutras prescribe that the murderer should pay fine
according to the caste of the person murdered. Mostly the penalties were based upon
caste-considerations as informed by Baudhayana. Other ancient law hooks lay clown
that punishment for murder was death with confiscation of the murderer's property.
The Arthasactra prescribes death penalty for the murder, even if it occurred in a
quarrel or duel. Capital punishment was given in varied forms, namely, roasting
alive, drowning, trampling by elephants, devouring by dogs, cutting into pieces,
impalement, etc. Mutilation, torture and imprisonment were common penalties for
many other crimes. 85
75. karyavwias S,nriti. p. 806.

76. KuuuyusArtIzasastra. IV. p. II.
77. Gauuima-dharmasutra. XII, pp. 15-16.
78. ManiurnrTh, VIII. pp. 338-39.
79. Yajnavulkyostnrin II. p. 286.
80. According to Sanka-Likhila. the first amercement is fine from 24 patios (a copper Coin) to 91, the
middling one is from 20010 SOOpa.na.s and the highest is from 600 to lOGo in proportion of the value
of the matter in dispute or the injury caused.
81. Gauranio .dharmasuira, XI 1. pp. I. 8.12
82. Manu.cmrui. VIII, pp. 267-268.
83. Yajnavalkyacrnrili. II. pp. 206-207.
84. Guuiama-dharrnarutra. XII, p. 13.
85. See P.V. Kane, History of Dhar,na Sastra, Vol. III. pp. 391-410.
I MUSLIM PERIOD
13
Henry Maine86 , made the generalisation that "Penat law of ancient communities
is not the law of crimes, it is the law of wrongs or to use the English technical
word, of Torts..........But Dr. Priya Nath Sen 87 has proved that this generalisation'
is not true for Ancient Hindu Law.
Kane points out, "It will be seen from the early Sutras like that of Gautama
and from the Maiwsmriri that the more ancient criminal law in India was very severe
and drastic, but that from the times of Yajnavalkya, Narada and Brihaspati the rigour
of punishments was lessened and softened and fines came to be the ordinary
punishments for many crimes ............ 88
Sir S. Varadachariar, Judge, Federal Court of India, in his Raclhakuniud Mooker-
fee Endowment Lectures on the Ancient Hindu Judicial S y stem 89 , quoted Lee 90 who
observed that there were guild Courts or popular Courts and the villagers had a
system of their own. It was only in grave crimes or when the condemned party
refused to obey the local judgment that the King was concerned with litigation.
But according to Varadachariar this cannot be said 10 be quite a correct
description of the position of the King as stated by the Suiras and the Smritis. He
points out, ''the administration of justice seems largely to have been the work of
village assemblies or other popular or communal bodies, whether with or without
the authority of the King and whether with or without his presence, or the presence
of some public officer .... There is no trace of an organist) criminal justice vested
either in the King or in the people. There seems to have prevailed the system of
Wergild (Vaira) which indicates 'that criminal justice remained in the hands of those
who were wronged'. In the Sutras, on the other hand, 'the King's peace is recognised
as infringed by crime'."
From this it can be inferred that the King's power and jurisdiction gradually
increased and extended throughout his Kingdom.
MUSLIM PERIOD JUDICIAL SYSTEM IN MEDIAEVAL INDIA

Muslim period marks the beginning of a new era in the legal history of India.
Arabs were the first Muslims who came to India. They came in the eighth century
and settled down in the Malabar Coast and in Sind but never penetrated further.
This was most unfortunate, for, if they had done so as they did in Europe, Indian
culture and civilization would not have stagnated."' The synthesis between Islamic
and Hindu cultures would have blossomed and Indians would have taken the palm
in scietiflc advancement instead of the Europeans who had the benefit of Arabic
culture As it is, the Arabs conquered the Persians, Afghans and Turks, and converted
the m t6 Islam; and it was the Afghans and Tth'ks who were let loose on India.
Though the Prophet prohibited unprovoked attacks, the Ghaznis and Ghoris who
were animated by the lust for gold and pretended zeal for Islam had an easy victory
over the Hindus who were enfeebled by their comforts, luxuries and internal
86. Henry Maine, Ancient Law (1866, 3rd Edn.), Ch. X, 370.
p.
87. Dr. Pnya Nath Sen. Tagore Law Lei ture y
on Hindu Jurisprudence (1918). Lecture XII, at pp 264-266,
88. P.V. Kane. II jsro,v olD nlasa.ctr(4 Vol. Ill. p. 390.
89. S. Vara(Jach3rj Anc rent Hindu Judicial Sr.cteni
(Lucknow, 1946) pp. 62-63
90 Lee, Historical Jurisprudence,
p. 141.
91. See India on the Eve of Musljnj Contract, by K.M. Panikkar in A Surve
y of I,idiwi history (1974). Ch
XII. See also Dr. A.B.M. Habibullah. The Foundation of Mu.cli,n Rule in India (1945).
dissensions. Just as the Roman Empire collapsed before the German barbarians—the
Huns and Goths—so too the Hindu Kingdoms fell before the Asian barbarians—the
Afghans and Turks.
But having come to India as rulers, they were politic enough not to antagonise
the Hindus completely though now and then they indulged in acts of mere vandalism
and brutality. If things continued as they were, all would have been well, because
in spite of some antagonism the two cultures would have become one in course of
time. Rulers like Akbar the Great and Saints like Kabir strove hard for such unity,
but unfortunately for Indians, the Britishers arrived on the scene. To advance
themselves, to establish themselves as traders and acquire power and having acquired
power to consolidate themselves as rulers and sit firmly in the Red Fort at Delhi,
the)' fanned into fl am es the dying embers of antagonism between Hindus and
Muslims. As long as they stayed in India they kept it up, and even while quitting
India they deliberately partitioned the countr y into India and Pakistan in order to
politically weaken the sub-Continent. The process is being continued by similar
so-called civilised countries.
In this context, it is of some importance to determine briefly the main reasons
for downfall of the Hindu Kingdom and study the Muslim social order, political
theory and religious philosophy.
4. Cuses of the Downfall of Early Hindu Kingdoms

T owards the end of the eleventhand the beginning of the twelfth century. began
the dowpfall of the Hindu period. 92 Local Hindu Rajas were attacked and defeated
by forthgn invaders of Turkish race. Gradually, old Hindu Kingdoms began to
disintegrate. Out of the various political, military, social and economic factors, some
mportqpt causes of the downfall of the Hindu period may be stated as follows:
The political history of this period is lull of constant struggles between a few
powerful states for supremacy. 93 An atmosphere of great mutual distrust was created
amongst the contending States which prevented their political unit y against the
common enemy. 94 It resulted in the frittering away of the economic and military
resources of the country at a time when the country faced great danger from foreign
invaders. A leadership capable of controlling and guiding the political and military
talents and uniting Indians against the common foreign enemy was also lacking.95
Indians failed to adopt their time-honoured system of warfare to meet the require-
ments of the new situation. The real weakness in Indian administration lay in the
influence of the great feudatory families whose power and ambition constituted a
perpetual threat to the stability of the central government, Hindu Kingdoms also
suffered from the prevailing caste divisions.96
Among the contributory causes of the defeat may be mentioned the treachery
of local individual chiefs or high officers for the sake of power and money. The
enemy took full advantage of this weakness.
92. U.N. Ohoshal, Studies in Indian history and Culture, Ch. XVII, pp. 353-373. See also Romesh Chunder
Dun. A History of Civilization in Ancient India (ciIctittn, 1890), Vol. fit, Book V,
494-95. pp. 476-82.487-88,
93, V.A. Smith, The Oxford History of India, 4th Edn., p. 371.
94. Dr. A.L. Srivastava. The Sutranaje ofDej/u (2nd Edit., 1953). See Ch. HI 'India on the Eve of Mahmud
of Ghazni 's Invasion".
95. See Barthold, Turkistan Down to the Mongol Invasion, Eng. Tr.
pp. 287-92.
96. Dr. R.C. Mazunidar, Ancient India (Vamanasi, 1952), Ch. XXI.
11
MUSLIM PERIOD
15
One of the main secrets of the success of the Sultans of Ghazni and Ohor was
the use of shock tactics, [ i.e.
the sudden raid followed by the equally swift victorious
return home. Against this the Indian leadership was not vigilent, it was shambling,
unpatriotic and politically disunited. Against the Hindus the Turks were militarily
superior and religiously fanatic.
5. Muslim Social Order Political Theory and Religion
The social system of Muslims was based on their religion, Islam, which may
be described as a reformist version of current seventh-century Arabian practice.2
The Muslims followed the principles of equality for men and they had no faith in
the graded or sanclifjed inequality of caste s y stem. Muslim religion places every
man on an equal footing before God, overriding distinctions of class, nationality,
race and colour. It was in a sense more patriarchal and of necessity, arbitrary i.e.,
not bound by rigid rules. Polygamy was restricted by Islam to the taking of four
wives. The main
underlying idea of the Muslim rule in India was its own self-pres-
ervation and political domination over Hindus. In the early days. no doubt, the
Muslim s
who came from Persia, Turkey and Afghanistan kept themselves aloof from
the Indians, but in due course the old harriers were lifted and a process of
Indianization began which reached its climax during the Mughal period. The
Muslims adopted many habits, wa y
s and manners of Hindus and lice versa.
The political theory of Muslims was governed by thei r
religion, Islam. It was
based on the teachings of the Qurwi,
their religious book, the traditions of the
Prophet and precedent. The teachings laid down only the fundamental principles on
which the Islamic policy was based. No well defined political institution was
specifically created by the Quran.
The political institutions which were adopted and
developed by the Muslims were based on the ideas given by the Greek
Sovereignt y P hilosophers.
in a Muslim State belonged to God. The Muslim Kings in India in
general regarded themselves as God's humble servants
(N)-aziiatldefldargaJtj//,j)
The ruler was His delegate, duly elected by the people to perform certain functions
according to the Quran.
The Muslim polity was based on the conception of the legal
sovereignty of the Shara
or Islamic law. The political theory laid emphasis on the
fact that all Muslims formed one congregation of the faithfuls and it was necessary
for them to unite closely in the form of an organised community. Any attempt to
break away from the organised community was condemned by the religion.' All the
members of ihe community elected the Khalifa or Caliph as the Commander of the
faithfuls. It was made obligatory on all Muslims to owe allegiance to the Caliph
who was also their ruler, In India the Sultans of Delhi, though absolute regents,
claimed to be the representatives of the Caliph.5
The Quran
being of absolute authority, all controvers y
interpretation, from which arose the Muslim law or Sharjaj. centred round its
But the Muslims also
I, Dr. A.L. Srivastava, The 5'ultte of Delhi, pp
394-98... . .
2. "Islam and MedIaev i t and Modern
ln.rtirure Olfld vanced Study, Societies", by S. Maqbul Ahmed in Trwzsacth,n.c f the Indian
1965. Vot. I. pp. 132-236
3. Percival Spear, India., A Modern Hic((,fl
' See
Politic al Theory". see The Histor', and CultureCh. VIII, pp. 94-101, "Islam in lislia", For "Islamic
of ate, Indian People: The Delhi Sultanate.
Vidya Rhavan, Vol. VI, Cli. XIV, pp. 438-444. Hharaiiyi
4. Quran, III, 192 XLII, 38 V 2.
5. 1.F1.Qur',1 Athmn,.rtrat,r of the Sultirnate of Delhi,
pp. 22-23
proliferated into many sects. Two main sects were—the Sunnis, to which the Turks
and Afghans in India adhered, and the Shias who became dominant in Persia. The
Muslim religion, modified by its Turkish and Afghan influences, was further
modified by the Persian culture by which all the invadr 5 were more or less
influenced. Kulkarni has pointed out,' 'The Turkish invaders of India presented a
political and religious arrangement in the country, the essential injustice and irsequtty
of which could not be wholly removed even by the most enlightened Muslim rulers.
Religious intolerance and racism were the bed-rock of their policy." 6 The policy of
intolerance inspired the Sultans to propagate strange doctrines. While Ala-ud-Din
Kbilji asserted that non-Muslims in the country could claim no rights, Firoz Shah
declared with admirable finality that India was a Musalinan country."
6. Historical Introduction
In the late tenth and early eleventh centuries, Mahmud of Ghazni, 8 a Muslim
of Turkish race, attacked India from the north-west. Subsequently, Mahmud led a
series of raids on north-west India plundered, destroyed the temples and each time
returned with huge wealth. 9 In 1191 Muhammad of Ghor attacked India, but he was
defeated by Hindu Rajas led by Prithvi Raj, a Rajput hero. Next year in 1192,
Muhammad of Ghor defeated Prithvi Raj at Thaneswar and marched to Delhi. Thus
by the end of twelfth century he established a Muslim Sultanate at Delhi conquering
most of northern India. A new political factor was introduced into the Indian
sub-continent as the Sultans of Delhi initiated the rule of Turks and the Afghans.
From 1206 till 1526 not less than thirty-three Turkish Kings, belonging to five
dynasties, 10 occupied the throne of Delhi. In 1398, Tamurlane or Timur, a Mongol
conqueror, captured Delhi and ended the Sultanate of Delhi. The Sultanate was
revived in the middle of fifteenth century. The Delhi Suitnate was characterised by
dynastic instability and the Sultans were mostly engaged in a series of dynastic
blood feuds and Hindu persecution. They practised a military despotism, ruthlessly
weeding out the incompetent in the perpetual struggle for succession to the throne.
Earlier, the Sultans certainly envisaged establishing an empire embracing the whole
of India. Though they conquered northern India, the Deccan proved to be an obstacle.
In 1336, the Hindu Kingdom of Vijayanagar was founded in the South." It protected
Southern India from any further Muslim expansion and for the next two centuries
it remained as a dominant power in the South.
Sultans of Bahaumani Dynasty ruled the southern parts of India from 1347 to
1587. Sultans of 9ijapur ruled the vast territories in the south from 1490 to 1686.
Nizams of Hyderabad ruled the State from 1730 to 1948. In the north, the Nawabs
6. V. Kulkarni. British Domination in India and After. p. 6.

7. The History ar.d Culture of the L'2dian People: The Delhi Sultanate, Bharatiya Vidya BMwan, Vol.
VI, p. 104.
S. Ghazni is located between Kabul and Kandhar in modem Afghanistan.
9. Mahniud of Ghazni destroyed the great temple of Somnath on the coast of Kathiawar (now Saurashtra)
in 1024-1025 and plundered huge wealth.
ID. Kings of the Slave Dynasty ruled from 1206 to 1290; The KhiIji Dynasty ruled from 1290 to 1320;
the Tughlaq Dynasty ruled from 132010 1399; the Saiyad Dynasty ruled from 1414 to 1444; the Lodi
Dynasty ruledin 1444 and again from 1451 to 1526.
II. Hindu Kingdom of Vijyanagar was founded along the river Tungabhadra in 1336 by two brothers from
Telengana (in modern Andhra Province). It represented a revival of Hinduism against Isbn,.
MUSLIM PERIOD 17
1]
of Oudh ruled from 1722 to 157 and in the east Nawabs of Bengal ruled from
1740 to 1770.
"The sixteenth century,"says Romila Thapar, "brought two new factors into
Indian history—the Mughals who came by land and began by establishing them-
selves in the North and the Portuguese who came by sea to establish themselves in
the South and the West. Both these new factors were to shape the course of Indian
history—the Portuguese by striving to win a monopoly of the overseas trade of
India, the Mughals by founding an empire. Though the Portuguese failed, the
Mughals succeeded and between them they carried India into a new age."2
In 1526, Babar, a descendant of Tatnurlane and Chenghis Khan, defeated
Ibrahim Lodi at Panipat and captured Delhi. Babar founded the Mughal Empire13
in India and the old period of Delhi Sultanates caine to an end. After Babar's death"
his son Humayun ruled, but the constant fighting wiLl, rebels kept him engaged.
Front to 1545 Sher Shah ruled over North India. By introducing various reforms
during his reign, it is said that he laid the foundation for Akbar's greatness. Akbar,
son of Humayun, was the greatest Mughal ruler. He ruled over a large part of India
from 1556 to 1605. He consolidated his empire by defeating his enemies and
developing friendly relations with the non-Muslim martial races of India. He
developed an administrative and judicial system in his empire. His Successors
Jchangir 15 . Shah Jahan 16 and Aurangzeb' 7 lacked the ability, integrity and states-
manship and foresight of Akbar. After the death of Auran g zeb in 1707, the Mughal
empire began to disintegrate due to the rising power of Sikhs and the Marathas.
Practically, the Mughal empire came to an end but continued theoretically under a
series of puppet emperors up to 1862.
Thus the Mughal empire which was founded by Babar in 1526 lasted for nearly
two centuries until the British took over.' 'The Mughal Empire,' 'Vincent Smith
observes,"like all Asian despotisms, had shallow roots. Its existence depended
mainly on the personal character of the reigning autocrat and on the degree of his
military power. It lacked popular support, the strength based on patriotic feeling,
and on the stability founded upon ancient
The judicial system of India during the Mediaeval Muslim period, may therefore
be divided and studied under two separate periods—the Sultanate of Delhi and the
Mughal period. The judicial reforms of Sher Shah formed a bridge between the two
periods.
7. The Sultanate of Delhi: Civil Administration

In order to understand the set-up of the judicial machinery during the period
covered by the Sultans of Delhi, i.e. from 1206 to 1526, it is necessary to have a
brief account of the prevailing administrative units.
12. Rummla Thapar, A History of India. p. 336.

13. They were really Chagati Turk.s
14. Emperor Babar died in 1530.
IS. Emperor Jehangir ruled from 1605 to 1627.
16. Emperor Shah Jaharm ruled from 1627 in 1658.
17. Emperor Atirangzeb ruled from 1658 to 1707.
18. Vincent A Smith. The Or/ord H,.c:ory of Indu, (2nd Edn., London, 1923), p. 465.
18 JUDICIAL SYSTEMS IN INDIA
https://t.me/LawCollegeNotes_Stuffs [CHAP.
(1) ADMINISTRATIVE UNITS

The civil administration of the Sultanate' 9 was headed by the Sultan and his
Chief Minister ( Wazir). The Sultanate was divided into administrative divisions from
the province to the village level. The Sultanate was divided into Provinces (Subalrr).
The Province (Subah) was composed of Districts (Sarkars). Each District (Sarkar)
was further divided into Parganahs. A group of villages constituted a Parganah.
(2) Tm ADMINISTRATION OF JUSTICE: CONSTITUTION OF CouR1
In Mediaeval India the Sultan, being head of the State, was the supreme
authority to administer justice in his kingdom. The administration of justice was one
of the important functions of the Sultan, which was actually done in his name in
three capacities. Diwan-e-Qaza (arbitrator); Diwan-e-Mazaiini (as head of bureau-
cracy) and Diwan-e-Siyasat (as commander-in-chief of forces). The courts were
required to seek his prior approval before awarding the capital punishment.
The judicial system under the Sultan was organised on the basis of administra-
tive divisions of the kingdom. A systematic classification and gradation of the courts
existed at the seat of the capital, in Provinces, Districts, Parganahs and villages.20
The powers and jurisdiction of each court was clearly defined.
(i) Central Capital.—Six courts which were established at the capital of the
Sultanate, may be stated as follows:—
The King's Court, I)iwan-e-Muzajj,n Diwan-e-Rjsajat, Sadre Jehans Court,
Chief Justice's Court and Diwan-e-Siyasat.
The King's Court, presided over by the Sultan, exercised both original and
appellate jurisdiction on all kinds of cases. It was the highest Court of Appeal in
the realm. 2 ' The Sultan was assisted by two reputed Muftis highly qualified in law.
'The Court of Diwan-e-Muzaljm was the highest Court of Criminal Appeal and
the Court of Diwan-e-RLralat was the highest Court of Civil Appeal. Though the
Sultan nominally presided over these two courts, he seldom sat in them. The Chief
Justice (Qazi-ul-Quzat) was the highest judicial officer next to the Sultan. From
1206 to 1248 in the absence of the Sultan, the Chief Justice presided over these
courts. In 1248 Sultan Nasir-ud-Din, being dissatisfied with the then Chief Justice,
created a superior post of Sadre Jahan and appointed Qazi Minhaj Siraj to this post.
Since then Sadre Jahan became de facto head of the judiciary. The Court of
Ecclesiastical cases, which was under the Chief Justice up to 1248. was also
transferred to the Sadre Jahan and later on became popular as Sadre Jahan 's Court.
Sadie Jahan became more powerful and occasionally presided over the King's
Court, 22 The offices of the Sadre Jahan and Chief Justice remained separate for a
long time. Ala-ud-Din amalgamated the two. They were again separated by Sultan
Firoz Tughlaq. The Court of Diwan-e-Siyasar was constituted to deal with the case
of rebels and those charged with high treason. Its main purpose was to deal with
19. See BIIaraLIya Vidya Hhavan, The History and Culture of the Indian People: The Delhi
Suftanaie,Vol.VI I.H. Qurshi, Administration of the Sultanate of Delhi; Dr.A.L. Srivastava, The
Sultanate of Delhi.
20. See M.B. Ahnwd, The Administration of Justice in Mediaeval India, pp. 104.125.
21. H. Beveridge, History of india, Vol. 1, p. 102.
22. Badaoni, Munsaklwb-ut-Ttiwankjt, Bib Ind., p. 239.
I] MUSLIM PERIOD 19
criminal prosecutions. It was established by Muhammad Tugtilaq and continued up
to 1351.
The Chief Justice's Court was established in 1206. It was presided over by the
Chief Justice (Qazi-ul-Quzat). It dealt with all kinds of cases. Earlier, Chief Justice
or Qazi-ul-Quzat was the higher judicial officer but with the creation of a new post
of Sadre ia/ian, its importance was reduced for some time. The Chief Justice and
Puisne Judges were men of ability (Afazi1-e-Raz,ar) and were highly respected.
Many Chief Justices were famous for their impartiality and independent character
during the Sultanate period. Four officers, namely, Mufti", Pandit 14, Mohtasjh25 and
Dadbak Th , were attached to the Court of Chief Justice.
(ii) Provinces.—In each Province (Suhah) at the Provincial Headquarters five
courts were established, namely, Adalat Nazim Subah, Adalat Qazi-e-Subah, Gov-
ernor's Bench (Nazirn-e-Subah'.c Bench), Diwon-e-Subuh and Sadre Subah.
,4dalat Nazirn Sithah was the Governor's (Subeirdar) Court. In the Provinces
the Sultan was represented by him and like the Sultan he exercised original and
appellate jurisdiction. In original cases he usually sat as a single Judge. From his
judgment an appeal lay to the Central Appellate Court at Delhi.
While exercising his appellate jurisdiction, the Governor sat with the Qazi-e-
Subah constituting a Bench to hear appeals. From the decision of this Bench, a final
second appeal was allowed to be filed before the Central Court at Delhi.
Ada/ui Qazi-e-Suhah was presided over by the Chief Provincial Qazi. He was
empowered to try civil and criminal cases of any description and to hear appeals
from the Courts of District Qazis. Appeals from this Court were allowed to be made
to the Adalal Nazi,n-e-Subah. Qazi-e-Subah was also expected to supervise the
administration of justice in his Suba/i and also to see that Qazis in districts were
properly carrying out their functions. He was selected by the Chief Justice or by
Sadre Jahan and was appointed by the Sultan. Four officers, namely, Mufli, Pandit,
Mo/uasth and Dadbnk, were attached to this court also.
The Court of Diwaiz-e-Suhah was the final authority in the Province in all cases
concerning land revenue.
The Sadre-e-Subah was the Chief Ecclesiastical Officer in the Province. He
represented Sadre Jahan, in Subalz in matters relating to grant of stipend, lands, etc.
(iii) Districts—in each District (Sarkar), at the District Headquarter, six courts
were established, namely, Qazi, Dadbak.s or Mir Adds, Faujdars, Sadre. Arnils,
KotwaLc.
The Court of the District Qaz127 was empowered to hear all original civil and
criminal cases. Appeals were also filed before this Court from the judgments of the
23. Mufti was a lawyer of eminence attached to the Court to expound law and was appointed by the Chief
Justice in the name of the Sultan. Law as expounded by Mufti was accepted by the Judge as
authoritative. (l3arni, p. 441).
24. A Brahmin lawyer, generally known as Pandit, was appointed to explain personal law of Hindus in
civil cases. His status was the same as that of Multi (Barni. p. 441).
25. He was in charge of prosecutions on original side and in appeal he answered forthe prosecution (Barni,
p. 44!).
26. An Administrative Officer of the Court (Barni, p. 441).
27. Person selected as Qazi usually possessed a good knowledge of law . See M. Elphinstone. History of
India. p. 421.
Parganah Qazis, Kotwals and Village Pan chayats. The Court was presided over by
the District Qazi who was appointed on the recommendation of the Qazi-e-Subah
or directly by Sadre Jahan. The same four officers, namely, Mufti, Pandit, the
Mohiasib and the Dadbak, were attached to the Court of District Qazi.
The Court of the Faujdar tried petty criminal cases concerning security and
suspected criminals. Appeals were filed to the Court of Nazim-e-Subah. The Court
of Sadr dealt with cases concerning grant of land and registration of land. Appeals
were allowed t o be filed before the Sadr-e-Subah. Court of Amils dealt with the
Land Revenue cases. From the judgment of this Court an appeal was allowed to
the Court of Di .t'an-e-Subt-th. Kotwals were authorised to decide petty criminal cases
and police cases.
(iv) Parganah.—At each Parganah Headquarter two courts were established.
namely, Qazi-e-Parganah and Korwal. The Court of Qazi-e-Parganah had all the
powers of a District Qazi in all civil and criminal cases except hearing appeals.
Canon law cases were also filed before this court. Petty criminal cases were filed
before the Kotwal. He was the principal Executive Officer in towns.
(v) Villages.—A Parganah was divided into a group of villages. For each group
of villages there was a Village Assembly or Panchayaz, a body of five leading men
to look after the executive and judicial affairs. The Sxirpanch or Chairman was
appointed by the Nazi,n or the Faujdar. The Panchayats decided civil and criminal
cases of a purely local character. 28 Though the decrees given by the Pan cha vats
were based on local customs and were not strictly according to the law of the
Kingdom Still there was no interference in the working of the Panchayats. As a
general rule, the decision of the Panchayat was binding upon the parties and no
appeal was allowed from its decision.
(3) APPOINTMENT OF JUDGES AN!) JUDICIAl. STANDARD
During the period of Sultans. Judges were impartially appointed by the Sultan,
on the basis of their high standard of learning in law. From amongst the most
virtuous of the learned men in his kingdom, the Sultan appointed the Chief Justice
(Qazi-ul-Quzat). Judges were men of great ability (Afazil-e-Razgar) and were highly
respected in society. Many Chief Justices of the Sultanate period were famous for
their independence and impartiality in the administration of justice. Ibn Batuta 2° has
stated that the Qazis were occasionally teachers of law who had the ability to give
correct judgment. Whenever unpopular and corrupt persons were appointed Qazis,
public resentment was often expressed. 3° Persons of doubtful character were removed
from their judicial offices. Even a Chief Justice was liable to be dismissed or
degraded to the post of a Qazi of lower rank where the Sultan found him incompetent
and corrupt 3 ' Incompetent and corrupt Qazis were ridiculed, condemned and dis-
missed from their offices.
28. W.Briggs, Rise of the Mahomedan Power in India. Vol.111. p. 420.

29. Ibn Batuta, Trave/.El hot III, pp. 56, 71.
30. It happened during the reign of Sultan Ala . ud-djn KhiIji and Qutub. ud. Din Aibak. See Zia
Uddin Barni,
Tar jkh-e-Fir(, S/ui/il. Bib, Ind., p. 352.
31. Badaoni Munfak/zah-ul-Tczwarjkh Bib. Ind., Vol. 1, 234.
p.
1] MUSLIM PERIOD 21
8. Judicial Reforms of Sher Shah
In 1540 Sher Shah laid the foundations of Sur Dynasty in India after defeating
the Mughal Emperor Humayun, son of Babar. During the reign of the Sur Dynasty
from 1540 to 1555, when Sher Shah and later on Islam Shah ruled over India, the
Mugha! Empire remained in abeyance. Sultan Sher Shah was famous not only for
his heroic deeds in the battlefield but also for his administrative and judicial abilities.
It was said by Sultan Sher Shah that "Stability of Government depended on Justice
and that it could be his greatest care not to violate it either by oppressing the weak
or permitting the strong to infringe the laws with impunit y ".32 In spite of the fact
that Sher Shah ruled only for five years, he introduced various remarkable reforms
in the administrative and judicial system of his kingdom. His important judicial
reforms, as summarised by M.B. Ahmad33 , may be stated as follows-
(i) Sher Shah introduced the system of having in the Parganahs, separate
courts of first instance for civil and criminal cases. At each Parganah
town he stationed a civil judge, called Munsif a title which survives to
this day, to hear civil disputes and to watch conduct of the Amils and the
Moqoddan& 4 (officers connected with revenue collections).
The Shiqandars who had uptil now powers corresponding to those of
Kotwals were given magisterial powers within the Parganahs. They
continued to be in charge of the local police.35
(ii) Moqoddams or heads of the Village Councils were recognised and were
ordered to prevent theft and robberies. In cases of robberies, they were
made to pay for the loss sustained by the victim. Police regulations were
now drawn up for the first time in India.
(iii) When a Shiqandar or a Muns(f was appointed, his duties were specifically
enumerated.
(iv) The judicial officers below the Chief Provincial Qazi were transferred
after every two or three years. The practice continued in British India.
(v) The duties of Governors and their deputies regarding the preservation of
law and order were emphasised.36
(vi) The Chief Qazi of the Province or the Qazi-ul-Quzat was in some cases
authorised to report directly to the Emperor on the conduct of the
Governor, 37 especially if the latter made any attempt to override the law.
9. The Mugital Period: Judicial System

In India the Mughal period begins with the victory of Babar in 1526 over the
last Lodi Sultan of Delhi. His son, Humayun, though he lost his kingdom to Sher
Shah in 1540, regained it after defeating the descendants of Sher Shah in July 1555,
The Mughal empire continued from 1555 to 1750.
32. Stewart, History of BengaL p. 128. See also W.Briggs, Rue of the Mahomedan Power in India. Vol.11,
p. 124.
33. M.B. Ahinad, The Admi,us:rahrin of Justice in Mediaeval India. p. 129.
34. Henry Elliot and Dowson, History of Indta, Vol. IV, p.414.
35. W.Erskjnc, History of India Vol.11, p. 443.
36. Henry Elliot and [)oWson. History of India, Vol. IV, p. 420.
37. Stewart, History of Bengal. p. 143.
22 JUDICIAL SYSTEMS IN INDIA JCIIAP.
(I) ADMINISTRATIVE DIVISIONS
The Mughat empire (Sultanat-e-Mughaliah) was administered on the basis of
the same political divisions as existed during the reign of Sher Shah. For the purposes
of civil administration the whole empire was divided into the Imperial Capital,
Provinces (Suhahs), Districts (Sarkw-s), Parganahs and Villages. Just like the Sultans
of Delhi, the Mughal Emperors were also absolute monarchs. The Mughal Emperor
was the Supreme authority and in him the entire executive, legislative, judicial and
military power yesided.
(2) TIlE ADMINISTRATION OF JUSTICE: CONSTITUTION OF COURTS
During the Mughal period, the Emperor was considered the "fountain of
Justice". The Emperor created a separate department of Justice (Mahukna-e-Adalat)
to regulate and see that justice was administered properly. On the basis of the
administrative divisions, at the official headquarters in each Province, District,
Parganah and Village, separate courts were established to decide civil, criminal and
revenue cases. 38 At Delhi, the Imperial capital of India, highest courts of the Empire
empowered with original and appellate jurisdictions were established. A systematic
gradation of courts, with well defined powers of the presiding Judges, existed all
over the empire.
(i) The Imperial Capital—At Delhi, which was the capital (Dural Sultanat)
of the Mughal Emperors in India. three Important courts were established.
The Emperors Court, presided over by the Emperor, was the highest court of
the empire. The Court had jurisdiction to hear original civil and criminal cases. As
a court of the first instance generally the Emperor was assisted by a Darogha-e-
Adala:, a Mufti and a Mir Ad!. 39 In criminal cases the Mohtasih-e-Mu,naljk or the
Chief Mohtasib, like the Attorney-General of India today, also assisted the Emperor.
In order to hear appeals, the Emperor presided over a Bench consisting of the Chief
Justice (Qazi-ul-Wazat) and Qazis of the Chief Justice's Court. The Bench decided
questions both of fact and law. Where the Emperor considered it necessary to obtain
authoritative interpretation of law on a particular point, the same was referred to
the Bench of the Chief Justice's Court for opinion. The public was allowed to make
representations and appeals to the Emperor's court in order to obtain his impartial
judgment.
The Chief Court of the Empire was the second important court at Delhi, the
seat of the Capital. It was presided over by the Chief Justice (Qazi-ul-Quzat). The
Court had the power to try original, civil and criminal cases, to hear appeals from
the Provincial Courts. It was also required to supervise the working of the Provincial
Courts. In administering justice, the Chief Justice was assisted by one or two Qazis
of great eminence, who were attached to his court as Puisne judges. Fojr officers
attached to the Court were—Darogha-e-Ada!at, Mufli, Mohtasib, Mir Ad!. The Mufti
attached to the Chief Justice's Court was known as Mufti-e-Azani.
The Chief Justice was appointed by the Emperor. He was considered the next
important person, after the Emperor, holding the highest office in the judiciary.
Referring to the qualifications of a Chief Justice, Sir J. Sarkar has observed, "Men
3 B.Ahmaci, The Adrriinisirauo,i of Justice in Mediae vat India
pp. 143-166.
39. AlamgirNwnuh. p. 1077.
I MUSLIM PERIOD
23
of high scholarship and reputed sanctity of character wherever available were

chosen.' '40 Sometimes a Chief Provincial Qazi was promoted to the post of the
Chief Justice,
The Chief Revenue Court was the third important court established at Delhi. It
was the highest Court of Appeal to decide revenue cases. The Court was presided
over by the Diwan-e-Ala.
Apart from the above-stated three important courts, there were also two lower
courts at Delhi to decide local cases. The Court of Qazi of Delhi, who enjoyed the
status of Chief Qazi of a Province, decided local civil and criminal cases. An appeal
was allowed to the Court of Chief Justice. The Court of Qazi-e-Askar was specially
constituted to decide cases of the military area in the capital. The Court moved from
place to place with the troops.
In each court, as stated above, the four officers attached were—Darog ha-c-Ada-
lar, a Mufti, a Mohiasib, Mir Adi.
(ii) Provinces.—In each Province (Subah) there were three courts, namely, the
Governor's OWfl court and the Bench, the Chief Appellate Court, the Chief Revenue
Court.
The Governor's own court (Adalat-e-Naziin-e-Subah) had original jurisdiction
in all cases arising in the provincial capital. It was presided over by the Governor
(Nazun -e-Suhah).
The Provincial Chief Appellate Court was presided over by the Qazi-e-Suba/i.
The Court had original civil and criminal jurisdiction.
Provincial Chief Revenue Court was presided over by Diwan-e-Subah. The
Court was granted original and appellate jurisdiction in revenue cases.
(iii) Districts (Sarkars).—In each District (Sarkar) there were four courts,
namely, the Chief, Civil and Criminal Court of the District, Faujdari Ada/at, Kotwali
and Amalguzari Kachehri.
The Chief Civil and Criminal Court of the District was presided over by the
Qazi-e-Sarkar. The Court had original and appellate jurisdiction in all civil and
criminal cases and in religious matters. Qazi-e-Sarkar was the principal judicial
officer in a District. He was officially known as "Shariyat Panah". Six officers
attached to his Court were—Darogha-e-Adalat, Mir AdI, Mufti, Pandit or Shastri,
Mohtasib and Vakil-e-Sharayat. Appeals from this court lay to Qazi-e-Subah.4'
Faujdari Adalat dealt with criminal cases concerning riots and state security. It
was presided by the Faujdar. Appeals lay to the Governor's Court.
Kotwali Court decided cases similar to those under modern Police Acts and had
appellate jurisdiction. It was presided by Kotwal-e-Shahar. Appeals lay to the District
Qazi42
The Amalguzari Kachehri decided all revenue cases. Amalguzar presided over
this Court. An appeal was allowed to the Provincial Diwan.
40. Sir J1unnth Sarkar, Mughal Administration, (1935), p. 29.

41. Henry Eilioc and Dowson, History of India. Vol. III. pp. 172-173.
42. Alexander Dow. !/story of Hindustan. Vol. III, p 752.
(iv) Parganah.—In each Parga.rzah there were three courts namely, AdaIat-e-
Parganah, Kotwaü and Kachehri.
Adalat-e-Parganah was presided over by Qazi-e-Parganah. The Court had
jurisdiction over all civil and criminal cases arising within its original jurisdiction.
It included all those villages which were under the Parganah court's jurisdiction.
Four officers attached to Adalat-e-Parganah were—Mufti, Mohtasib-e-Parganah,
Darogha-e-Adi.1a: and Vokil-e-Shara.
Court of Kotwali was presided by Korwal-e-Parganah to decide such cases as
are found in the modern Police Act. Appeals were made to the Court of District
Qazi.
Amin was the presiding officer in Kachehri which decided revenue cases. An
appeal lay to the District Amalguzar.
(v) Villages.—The village was the smallest administrative unit. From ancient
times the village council (Panchayats) were authorised to administer justice in all
petty civil and criminal matters. 43 Generally, the Panchayat meetings were held in
public places. It was presided by five Panch.s elected by the villagers who were
expected to give a patient hearing to both the parties and deliver their judgment in
the Panchayat meeting. Sarpanch or Village-Headman was generally President of
the Panchayat. No appeal was allowed from the decision of a Panchayai. Village
Panchavats were mostly governed by their customary law.
(vi) Institution of Lawyers.—Litigants were represented before the Courts by
professional legal experts. They were popularly known as Vakils. Thus the legal
profes4on flourished during the Mediaeval Muslim period. Though there was no
institution of lawyers like the "Bar Association" as it exists today, still the lawyers
played.a prominent role in the administration of justice. Two Muslim Indian Codes,
namely, Fiqh-e-Firoz Shahi and Fatwa-e-Alamgiri, clearly state the duties of a Vakil.
Ibn Batuta, who was working as a judge during the reign of Mohammad Tughlaq,
mentions Vakils in his book."4 Mawardi 45 , referring to the legal profession, states
that specialised knowledge of law was necessary both for acting as a Qazi and for
the legal practice. Moreland appears to be misinformed, where he expresses the
view that the legal profession did not exist during the Muslim period in India. On
the basis of other contemporary material 47 available in India it is clear that the legal
profession existed at any rate in the Mughal period.
Government advocates were for the first time appointed in the reign of Shah
Jahan to defend civil suits against the State. During Aurangzeb's reign, wholetime
lawyers were appointed in every district, who were known as Vakil-e-Sarkar or
Vakil-e-Shara. They were appointed either by the Chief Qazi of the Province or
43. Sir Charles Metcalfe in the Report of the Select Committee of the House of Commons, Vol. Ill, App.
84, p. 331:
"The village communities are little republics having nearly everything they want within
themselves and almost independent of any foreign relations. They seem to last where nothing lasts.
Dynasty after dynasty tumbles down revolution succeeds revolution."
44. Ibn Batuta, Travels, p. 194.
45. Mawardi Al, Akhamus Sultanyah (J.R.AS. 1910), p. 764.
46. W.H. Moreland, India at the Death of Akbar. p. 35.
47. For details, see Kalematut Tayyehat K .C.C. "Lawyers who were employed by Litigants'. (Br. Mus
M.S. Add. 26238).
MUSLIM PERIOD 25
I]
sometimes by the Chief Justice (Qazi-uI-Quzat). Sometimes they were appointed to
assist the poor litigants by giving them free legal advice. Vakils had i rigiii of
audience in the Court. It was expected that the Vakils should maintain a high standard
of legal learning and behaviour.
(vii) Judicial Procedure—A systematic judicial procedure was followed by
the courts during the Muslim period. 8 It was mainly regulated by two Muslim
Codes, namely. Fiqh-e-Firoz Shahi and Fatwa-i-Alamgiri. The status of the Court
was determined by the political divisions of the kingdom.
In civil cases, the plaintiff or his duly authorised agent was required to file a
plaint for his claim before a court of law having appropriate jurisdiction in the
matter. The defendant, as stated in the plaint, was called upon by the court to accept
or deny the claim. 49 Where the claim was denied by the defendant, the court framed
the issues and the plaintiff was required to produce evidence supporting his claim.
The defendant was also given an opportunity to prove his case with the assistance
of his witnesses. Witnesses were cross-examined. After weighing all the evidence,
the presiding authority delivered judgment in open court.
In criminal cases, a complaint was presented before the court either personally
or through representative. To every criminal court was attached a public prosecutor
known as Mohrasib. 51 He instituted prosecutions against the accused before the court.
The court was empowered to call the accused at once and to begin hearing of the
case. Sometimes the Court insisted on hearing the complainant's evidence before
calling the accused person. Ordinarily, the judgment was given in open court. In
exceptional cases, where either the public trial was against the interest of the State
or the accused was dangerously influential, the judgment was not pronounced in the
open court.
Evidence was classified by the Hanafi law into three categories: (a) Tawatur
i.e., full corroboration; (b) Ehad i.e., testimony of a single individual ; (c) Iqrar i.e.,
admission including confession. The Court always preferred Tawatur to other kinds
of evidence. All those who believed in God were competent witnesses. The pres-
umption was that believers in God could not be rejected as untruthful unless proved
to be so. Oaths were administered to all witnesses. Women were also competent
witnesses but at least two women witnesses were required to prove a fact for which
the evidence of one man was sufficient. The testimony of one woman was recognised
only in those cases where women alone were expected to have special knowledge.
The principles of Estoppel and Res judicata were also recognised by the Muslim
law.
(viii) Trial by Ordeal—The Muslim law prohibited the use of trial by ordeal
to determine the guilt of a person. It was not favoured either by the Sultans or by
the Mughal Rulers in India. As stated earlier, 51 the trial by ordeal was mostly used
during the ancient Hindu period. In the non-Muslim States, which were under the
protection of the Sultans and Mughals, however, the old system of trial by ordeal
48. See M.B.Ahmad. The Administration of Jusiice in Mediaeval India. pp. 176-188.
49. Fatwa-e-AIam girl. Calcutta. Vol. IV. pp. 1. 84-87.
50. Badaoni, Mwuakhab. uv. Tawarikh. Bib, Ind., Vol-I, p. 187.
51. See Trial by Ordeal.
26
JUDICIAL SYSTEMS IN INDIA [CHAP.
somehow continued. The Muslim Rulers neither adopted it nor interfered in the
non-Muslim States to stop it.
Sultan Jalai-LJd-Din Khilji (1290-1296) made the earliest attempt during the
Muslim period, to adopt the system of trial by ordeal in the case of Sidi Maula
when the court declined to convict him for sedition, The Sadre Jahan and other
Judges refused to allow Sultan Jalal-Ud-Din to test the truthfulness of Sidi Maula
by Ordeal of Fire. 52 Emperor Akbar also tried to encourage the system of trial by
ordeal, most probably in order to please the Rajputs. 53 The Muslim law experts
strongly opposed this move to introduce the trial by ordeal and therefore Akbar gave
up the idea. In his records, Hamilton, 54 who came to India during the reign of
Aurangeb, has mentioned a trial in South India where the accused person was
required to put his hand in a pan of boiling oil.
It may, therefore, be concluded that though at times even the Muslim Rulers
tried to encourage the trial, the system on the whole fell into disuse due to the
impact of Muslim law in India.
(ix) Appointment of Judges and Judicial Standard— During the Mughal
period, the Chief Justice (Qazi-u,-Quzat) and other judges of higher rank were
appointed by the Emperor. 55 Sometimes, the Chief Justice and other judges were
directly appointed from amongst the eminent lawyers. Jadunath Sarkar has pointed
out, "Men of high scholarship and reputed sanctity of character wherever available
were chosen. `56 A Chief Provincial Qazi
having high judicial reputation was also
promoted to the office of the Chief Justice. 51 Similarly, Provincial and District
Qais
were also appointed from lawyers. The selection of a Qi as a ru1 was made from
amongst the lawyers practicing in the courts. Lawyers were also appointed as Chief
MohrasiJ of the Province. Corrupt judicial officers were punished and dismissed.
Every possible effort was made to keep up the high standard of the judiciary.
Emperor Aurangzeb's order for the appointment of a judicial officer contained
the following instructions:
"Be just, be honest, be impartial. Hold the trials in the presence of the parties
and at the Court house and the seat of the Government. Do not accept presents from
the people of the place where you serve, nor attend entertainments given by anybody
and everybody. ..know poverty(Faqr) to be your glory(Fakhr)' '.
(x) Crimes and Punishments—During the Muslim period Islamic law or
Sliara
was followed by all the Sultans and Mughal Emperors. The Shcira is based on the
principles enunciated by the Quran. Under the Muslim criminal law, which was
mostly based on their religion, any violation of public rights was an offence against
the State. Islam provides that the State belongs to God; therefore, it was the primary
duty of any Muslim ruler to punish the criminals and maintain law and order.
Offences against individuals were also punishable as they infringed private rights.
52. Zia-Ud. Din Barni, Tarikh .e-Fjroz Shhj, p. 211.
53. Vincent A. Smith, The Oxford History of India. p. 345.
54. Captain Hamilton, A New Account of East Indies. Vol. 1. p. 315.
55. Fa,wa-e-Alaingjrj, (Calcutta), Vol. III. p. 387.
56. Sir Jadunath Surkar. Mug haIAdm,ijs,raj,on (1935),
p. 2,
57, Qazi Khan was promoted to the post of the Chief Justice -
58. Quotation cited by M.S. Ahmad, The Administration of Justice inMedlac
yaf India, p. 155.
1] MUSLIM PERIOD 27
Three forms of punishments, as recognised by the Muslim law, were—' 'Hadd",
"Tazir" and "Qisas".
(a) "Hadd" provided a fixed punishment as laid down in Shara, the Islamic
law, for crimes like theft, robbery, whoredom (Zina), apostasy (Ijtidad), defamation
(ltteham-e-Zina) and drunkenness (Shurb). It was equally applicable to Muslims and
non-Muslims. The State' was under a duty to prosecute all those persons who were
guilty under"Hadd". No compensation was granted under it.
(b) "Tazir" was another form of punishment which meant prohibition and it
was applicable to all the crimes which were not classified under 'Hadd'. it included
crimes like counterfeiting coins, gambling, causing injury, minor theft, etc. Under
"Tazir", the courts exercised their discretion in awarding suitable, punishment to
the criminals. The courts were free to invent new methods of punishing the criminals
e.g. cutting off the tongue, impalement, etc.60
(c) "Qisas" or blood-fine was imposed in cases relating to homicide. It was a
soil of blood-money paid by the man who killed another man if the murderer was
convicted but not sentenced to death for his offence. Muslim Jurists supported Qisas
on the basis that "the right of God's creatures should prevail" and only when the
aggrieved party .had. expressed his desire, the State should intervene. The court
exercised its discretion to compound the homicide cases. Qisas may be compared
with the Weregild of the contemporary English period. The State was authorised to
punish the criminals for grave offences although the injured party might "waive his
private claim to compensation or redress".6'
The Muslim law considered "Treason" (Ghadr) as a crime against God and
religion and, therefore, against the State. Persons held responsible for treason by the
court were mostly punished with death. No consideration was shown for their rank,
religion and caste. Only the ruler was empowered to consider a mercy petition.
Contempt of the court was considered a serious offence and was severely
punished in the Muslim period.
10. Akbar's Policy of Tolerance

The Great Mughal Emperor Akbar by his foresight displayed a policy of
tolerance repealing the discriminatory law regarding citizenship. He created one
common citizenship and a unanimous system of justice for all. Besides he prohibited
the making of war prisoners into slaves (1562 A.D.); abolished Hindu Pilgrims' tax
and also Ji zya (1564 AD.); permitted Hindus and Christians to build temples and
churches; permitted the forcible converts to Islam to revert to their original religion
(1580 A.D.); prohibited slavery; repealed the death penalty clause for criticising
Islam or Prophet Mohammad; prohibited the forcible practice of Sati; enjoined
monogamy for Muslims unless the first wife was barren; prohibited child marriages
and marriages between cousins and near relations .62
However his policies were allowed to lapse by his successors and the taxes
were reimposed.
59. Mirar-e-Ahnied, Vol. I, pp. 282-283.

60. See M.B. Ahmad, The Administration of Justice in Mediaeval India. p. 225.
61. Dr. M.U.S. Jung. Administration of Ju.crice of Muslim Law, p. 102.
62. The History & culture t#'Ihe Indian People: Bhnrtiya Vidya Shavan. Vol. 7. pp. 539-542
28 JUDICIAL SYSTEMS IN INDIA
https://t.me/LawCollegeNotes_Stuffs [CHAP.
11. Citizenship Position of

The non-Muslims had no right to full citizenship as noted by Majumdar 63 and
Mishra. (i) They were not treated as equal to Muslims in law and were called
"Zimmis"; (ii) Their evidence was inadmissible in the courts against Muslims: (iii)
They did not enjoy all rights and privileges which the Muslims did; and (iv) They
had to pay an additional tax called Jizya; (v) Regarding other nomml taxes they had.
to pay the taxes at double the rate than what a Muslim paid. However, when once
the suzerainty of the ruler was accepted and the taxes paid they acquired right of
protection of their mode of worship and enforcement of their personal laws.65
12. Next Phase
While the great Mughal was ruling in Delhi, there appeared on the Indian scene
a phenomenon almost unparalleled in the history of the world. After a brief episode
of Portuguese domination, a handful of adventurers from the distant island of
England in the Atlantic, forming the English East India Company, came to India as
a trading body which possessed some sovereign prerogatives for the purpose of trade
and became transformed into a sovereign body,' 'the trade of which was auxiliary
to its sovereignty". Some of those who were sent out from England to guide the
destinies of India were actuated by the loftiest of motives, while others were
definitely hostile to Indian interests. But disinterested as they wce in the petty
squabbles between individuals, they could evolve an efficient system of administra-
tion of justice in which fair play predominated and which we have inherited. But
English Justice, as we shall see, was always pragmatic even in their own country
and necessarily SC) in India. Some of the rules evolvei to protect the ruler were
certainly not conducive to a proper administration of justice. The British period,
however, constituted a major and fundamental breakthrough from our past practices
and traditions.
Additional Readings
Rama Jots . Legal and Constitutional History, Vol. I, Part I, Ch. t to 5 and Appendix I for concept
of Dharma, its definition and Legal Literature and Jayapatra of a Hindu Court.
For Ancient & Mediaeval Period Vol.!, Pis. I. II, IV, VII, VII!.
For Muslim Period; op. cit. Vol 2. Pt. 1, Ch. 1. 2, 3.
Rama Jois Seeds of Modern Public law in Ancient Indian Jurisprudence (Eastern Book Company)
1990 Edn
..'.,. . ;. ,...';
63. The History & Culture of the Indian People: Bharatiyn Vidya Bhavan, Vol. 7, pp. 538-539 and Vol.
6. pp. 445-447.
64. Misra, The Judicial Administration of the East India Co. in Bengal, pp. 50-51.
65. Rama Jois : Legal & Constitutional History of India, Vol. 2. I984. p. 7.
2
Early Administration of
Justice in Bombay, Madras & Calcutta '(I3
The Mug/al Emperor granted the right of self-government to the English. It proved to
be a turning point in the legal history of India... ti little mistake in the form of commercial
concession by Jehangir in 1612 cost his successors the Indian Empire... the same mistake was
committed in 1639 by Raja of Chandragiri in the South and in 1698 by Prince Azirn L/h-5han
in the East.
After 1660... the Company regained its prosperity and it changed its character from a
purely trading concern into a territorial power.
In 1687. the Company declared its determination to 'establish such a policy of civil
and military power and create and secure such a large revenue as may be the foundation of
a large. well-grounded, sure English dominion in India for all time to come." . .. •... ...
V.B. Kutkarni: British Dominion in India & Alter, p. 37. 1.h
The Charter was a 'transition of the Company from a trading association to a territorial
sovereign invested with powers of civil and military government."
Courtney Ilbert: Government a] India, 18(1915)
SYNOPSIS
1. European Settlements in India (ii) Establishment of Corporation of
2. The English East India Company Madras: The Mayor's Court
(a) Charter of 1600 (iii) Drawbacks of the Court
(6) Charter of 1609 (iv) The Choultry Court
(c) Charter of 1635 (v) Standard of Justice
(d) Charter of 1657 I. Administration of Justice in Bombay : The
(e) Charter of 1661: Its provisions Bombay Settlement
(1) Legislative Power of the Company (r) Political position of Bombay
3. Subsequent Charters: Transition from a Trad- (ii) The Charter of 1668
ing Body to a Territorial power (iii) Judicial Reforms of 1670
(a) Charter of 1668
(iv) New Judicial Plan of 1672
(b) Charter of 1683
(v) Admiralty Court conflicts with Coun-
(c) Charter of 1686
cil: 1684-1690
(d) New Company of 1693: General So-
(vi) Siddi Yakub's invasion and setback to
ciety
Judicial Administration
(e) Charter of 1698
(vii) Revival of Judicial Machinery: 1718-
Organisation of Company's Factories or
1728
settlements in India
(viii) Rama Kamali's Case: The Dark Justice
5. The Factory or settlement at Surat
at Bombay
6. Madras Settlement and Administration of
Justice front 1639-1726 8. Administration of Justice in Calcutta
A— First Phase: 1639 1678 (i) Grant of Zcunindari Rights to the Com-
pany
(i) The Charters and Courts
(ii) The Trial of Mrs. Dawes (ii) Justice in Criminal cases
B— Second Phase: 1678-1683 (iii) Justice in Civil cases
(I) Reorganisation of Judicial system (iv) Concentration of power in Collector
(ii) English as Court language (s') Effective Introduction of English laws
(iii) Trial of Gilbert & Dc Lirna (vi) Mayor of City of Lyons v. East India
C— Third Phase: 1683-1726 Co.
(I) The Admiralty Court (vii) Other Cases
29 1
30 EARLY ADMINISTRATION OF JUSTICE --ICHAP.
1. European Settlements in India

About the end of the fifteenth century some European nations came to India as
trading merchants) In 1498, Vasco de Gama, a Portuguese, discovered the passage
to India round the Cape of Good Hope. He landed at Calicut on the Malabar Coast.
During the second half of the sixteenth century the Protestant nations of Western
Europe got inspiration from the Reformation movement and defying the Papal
allocation of the East to Portugal began to compete for trade with India. The Dutch
were the first in the field and English merchants followed them. The Dunes came
next but they were few in number.' Though French made earlier voyages to India,
the foundations of French trade were laid by Colbert only in the middle of the
seventeenth century.
The power of the Mughal Emperors was at its zenith when the trade centres
were first established by the Europeans in India. 5 In the seventeenth century the
purely commercial attitude of foreign traders was suited to the conditions then
prevailing in India. But kith the weakening of the Mughal power in the eighteenth
century in India, nobles and chiefs were establishing separate kingdoms, and the
English and French companies, on the basis of their increased strength, began to
take sides in the wars amongst the local kingdoms. The English East India Company
finally emerged victorious and developed its area of influence and finally established
its empire in India.
•21T1e English East India Company : Development of Authority under Char-

' ters
jish people came to -India in 1601 as a 'body of trading merc ia\6 On
31st December, 1600 Queen Elizabeth I granted a Charter to the Coinpati which
incorporated the London East India Company "to trade into and from the East
Indies, in the countries and parts of Asia and Africa .... for a period of fifteen years...
subject to a power of determination on two years' notice if trade was found
unprofitable". the Company became a juristic person with the exclusive
privilege of trade with the East Indies. The same Charter further grantedlegislative
power to the Company "to make bye-laws, ordinances, etc. for the good government
of the Co an and its servants and to punish offences against them by fine or
imprisonment according to laws, statutes and customs of the realm."
\(a)Charter of 1600.-4-l'be.. provisions of the Charter of 1600 were only in
connection with the trade and were not intended for acquisition of dominion in 1.ndia"'
The legislative authority was given to the Company in order to enable it to regulate
its own business and maintain discipline amongst its servants. Due to subsequent
1. For details, see V.B. Kulkarni, 8rivIxls Doninwn in India and After, Vidya Bhavan, Bombay, 1964i,
pp. 1-17.
2. Vasco de Cama came to the coast of Cochin on the west coast of India on 20th May, 1498. The
Cambridge History of India, Vol. V, Cambridge University Press (1929), p. Il. See also Dr. J.B. Trend,
Portugal, Ernest Been, (1957), pp. 145-46; R.S. Whiteway, The Rise of Portuguese Power in India,
Archibald Constable, (1899) p.21.
3. I.A. Veroat, Holland, MacDonakj& Co. (1945), pp. 41-45.
4. Trading Corn pany of the Danes was established at Tranquebar on the east coast of India in 1620.
5. See W.H. Moreland, From Akbar to Aurangzeb, Macmillan, (1923).
6. The first Englishman to set foot on Indian soil was Thomas Stephens. He set sail for India from Lisbon
on 4th April, 1579 and reached Goa in October 1579.
21 THE EARLY CHARTERS 31
i nterpretation of Jiicse provisions to meet the requirements of controlling and

administering teri1i1ial expansion of the Company in Ilbert stated it as 'the
germ out of which the Anglo-Indian Codes were ultimately developed' '.
j).yeharter of 16O9.— .ItL l st May, 1609, James I granted a fresh Charter to
the Company which continued its privileges in perpetuity, subject to the proviso that
they could be wi thdrawn alter three years' notici.lThe Company was also authorised
to continue the enjoyment of all its privileges, powers and rights which were earlier
granted to it by Queen Elizabeth under the Charter of 1600.
In order to enable the Company to punish its servants for grosser offences on
long voyages, the Company secured the first Royal Commission in 1601. Later on
14th December, 1615, the King authorised the Company to issue such Commissions
to its Captains subject to one condition that in case of capital offences, e.g.,wilfuj
murder and mutiny, a jury of twelve servants of the Company will give the verdict.
The Company was given this power in order 10 maintain discipline on board during
the voyages. Some additional powers were given to the Company for enforcing
martial law by the Charter of 1623..
Under one such commission criminal trial of Gregory Lellington was held on
28th February, 1616, on board the ship Charles that was lying at Surat port.
Lellington killed Henry Barton, an Englishman near Surat. He was convicted on his
own confession and was sentended to death. As reported by Kaye this is the earliest
available account of a trial held on the shores of India during the Company's regime.
Entrusted with these powers, the English people came to India in the reign of
Emperor Jehangir and settled at Swat in 1612. Surat was one of the most important
centres of trade and commerce on the Western coast of India.' With a view to
strengthening their power and to secure advantages, the Directors of the Company
tried to contact the Mughal Emperor. In 1618, Sir Thomas Roe)° Ambassador of
James I, succeeded in gaining the Emperors favour and the English Company
entered into a treaty with the Mughal Emperor. The Mughal Emperor granted the
right of self-government to the English by issuing a Firmwi (Order) and this proved
a turning point in the legal history of India as the English Company secured various
privileges from the Mugha] Emperor. It provided:
That the disputes amongst the Company's servants will be regulated by
their own tribunals.
That the English people will enjoy their own religion and laws in the
administration of the Company.
That the local native authorities will settle such disputed cases in which
7 Englishmen and Hindus or Muslims were the parties.
That the Mughal Governor or Kazi of the relevant place will protect the
English people from all sorts of oppression and injury.
At this time, therefore, the En g lishmen at the Swat factory were living under
two different systems of law. In som cases they were under the provisions of Indian
7. Ilbert. Gcivepne'jenr of India, p. 10.
8. See J.W. Kaye. History rf Administration of the East India Company, (1853), p. 66
9. William Foster. Introduction to English Factories in India, (1906),
pp. V & VII
10. William Fosier, The Embassy 0/Sir f'/mas Roe to the Court of (he Great Mug/mat, (1615-1619), Vol
II, pp. 506-514. See also English Factories in India, (1618-21), Vol. I,
p. 23.
32 EARLY ADMINISTRATION OF JUSTICE [CHAP.

law while in certain other cases they were governed by English law. The President and
members of this Council at the Surat factory were working as executive officers of the
Company. They were also having judicial authority over English people as the Indian
Emperor allowed them to be governed by their own laws. As the presiding judicial
authorities were laymen, they mostly applied their ideas of justice instead of the settled
rules of the English law. The English people exploited the native judiciary to their own
advantage due to the prevailing corrupt practices in local courts.
4-
\C)6iarter of 1635. Iij63 5, Charles I permitted Sir William Courten to
establish a new trading body for the purpose of trading with the East Indies under
the name of Gourten's Ass2atio,i The old Company faced competition at the hands
of the new Company and many other difficulties were created in England which
continued up to 1657.
\.td)-ehrter of 1657.—In-107, Sir Oliver Cromwell granted a new Charter
which amalgamated the various joint-stocks into one joint-stocEThe Charter also
ended the old rivalry between the Courten's Association anThold Company by
unitingthem into one.[G fact the Charter of 1657 changed the very character of the
Compan According to Hunter, the new joint Company was now "transformed
fr6iiT1ble relic of the mediaeval trade guild into a vigorous forerunner of the
modern joint-stock Company".
\_(eCirter of 1661: Its provisions. _In the reign of Charles 11, the Company
entered into a period of unprecedented prosperityj After 1660, the year which proved
another turning point in the history of theCrnpany, the Company regained its
prosperit y and it changed its character from a purely trading-concern into a territorial
power. On 3rd April, 1661, Charles II granted a new Charter to the Company.
Besides extending the privileges of the Company on new territorial lines, the Charter
reorganised its structure.
The Charter of 1661 reorganised the Company on a joint-stock principle and
each member who had a share capital of £ 500 was given the right to one vote in
the General Court of the Company. In order to meet the existing circumstances more
effectively, the Company's power and command over its fortresses was strengthened.
The Company was authorised to appoint Governors and other officers for proper
administration. The Company's power to govern its employees and to punish their
disobedience and misdemeanour was enhanced. The Charter further authoriscd the
Company to empower the Governor and Council of each one of its factories or
trading centres at Madras Bombay and Calcutta to administer, with respect to the
persons employed under them, both civil and criminal justice according to the
English law. Where there was no Governor, the Chief Rector of a trading centre
and his counsel was authorised to send a man for trial to a place where there was
a Governor.
Islative Power of the Company.4jhe first Charter of 1600 the
Company's power to legislate was subjected to two conditions, that the provisions
of its legislation should not contravene the English law whether statutory or
customary and that it should be reasonah1, This power though meagre it was, writes
Jois, 1 ' constituted the starting point Ti' ew legal system. As the activities of the
II. Legal and Con.cvuuvional History of India. 1984, Vol. 11. p. 26.
2] SUBSEQUENT CHARTERS 33
Company increased, the Charter of 1661 was issued to the Company and for the
first time the Laws of England were made applicable in the territory of India. These
powers gradually started developing into a government for the locality.
If one compares the scope of these two charters the Charter of 1661 handed
over a much extensive power to the Governor and Council of a factory. Whereas
the power under the Charter of 1600 was with respect to persons i.e. applicable only
to the Company's servants and Capital punishment under the the Charter could not be
awarded, the powers under the 1661 Charter was extended to all those who lived
in the Company's settlements and all punishments including death penalty could be
awarded. The former Charter was designed to maintain discipline among the servants
of the Company while the latter's purpose was to develop into a government for
the locality and give a judicial system to the Company's territorial possessions. The
second important feature of the 1661 Charter was that it drew no distinction between
the executive and the judiciary and justice was required to be administered according
to English law.tlthe Charters tenaciously guarded and protected the rights of
Englishmen and put the Indians to a great disadva
3. Subsequent Charters: Transition from a Trading Body to a Territorial
power
(a) Charter of 1668.—The Charter of 1668 was a step which further assisted
the transition of t1m trading body into a territorial power. Charles II transferred in
1669 the island of Bombay, which he got as a dowry from Portugal, to the East
India Company for an annual rent of £ 10. The Charter of 1668 authorised the
Company to make laws, orders, ordinances and constitutions for the good govern-
ment of the island of Bombay. It was specifically provided that such Jaws and
regulations should not be repugnant or contrary to, but be as near as possible to the
laws of England. The same Charter also empowered the Company to establish Courts
of judicatures similar to those established in England for the proper administration
of justice.
(b) Charter of 1683.—The Charter of 1683, granted by Charles H, was the
next step.' 2 It authorised the Company to raise military forces. The 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 Company—and decide according to equity, good con-
science, laws and customs of merchants by such dates as the Crown from time to
time directs. Thus, under this Charter the East India Company was authorised to
establish Admiralty Courts at places of its own choice.
(e) Charter of 1686.—James II, by the Charter of 1686 further renewed and
added to the various powers and privileges earlier granted to the East India Company.
The Charter authorised the Company to appoint admirals and other sea-officers in
any of their ships, with power for these naval officers to raise naval forces and
exercise martial law over them in times of war, to coin money in their Forts and
to establish Admiralty Courts. In 1687 the Company was authorised to establish a
municipality and a Mayor's Court at Madras. Under the guidance of Sir Jasiah Child,
Governor of the Company and Chairman of the Court of Directors, the Company
12. See Keith. Constitutional History of First British Empire. pp. 26-32.

considered it wise to declare in 1687 in one of its despatches, its determination to
"establish such a polity of civil and military power and create and secure such a
large revenue as may be the foundation of a large, well-grounded, sure English
dominion in India for all time to come"." The constitutional government of the
Company was thus further extended to the Company's territories in India.
(d) New Company of 1693: General Society.—The continued progress of the
old Company created jealousy in England. When the Whigs came to power in
England, a new Company was established in 1693 to break the monopoly of the
old Company. This new Company received statutory recognition in 1698 under the
name "General Society". Later it led to serious conflicts and competition between
the two companies. Certain steps were taken to remove these conflicts. Lord
Godolphin gave his famous award on 29th September, 1708 equalising the capitol
of the two companies and settling other related difficulties between them. Godolphin
united both the companies in the name of "The United Company of Merchants
Trading to the East Indies"-
(e) Charter of 1698.—On 13th April,1698 William Ill granted a Charter to the
Company whereby certain changes were made in the existing rules to improve the
administration of the Company. The Charter created a Court of Directors and
authority and control over the affairs of the United Company was entrusted to the
Court of Proprietors. The constitution of the Company continued till the passing of
the famous Regulation Act in 1773 which completely overhauled the constitution
of the Company.
4. Organisational set-up of the English Company's Factories or Settlements
in India
The English Company was growing in power and strength gradually during all
these years. After the death of Emperor Aurangzeb in 1707, when the Mughal empire
began to disintegrate, the English Company got an opportunity to lay its foundations
very strong in England as well as in India. In India it was in. possession of three
factories and settlements at Bombay, Madras and Calcutta. Gradually, the Company
exercised wider authority at Bombay, Madras and Calcutta, under the changing
condtions.
English factories and settlements were governed by a President or Governor
and Council at the three places. Members of the Council were generally taken from
senior merchants of the Company. The Governor who was executive head with his
Council was also looking after the administration of justice in his settlement. The
Company derived the power and authority which it exercised in its settlements from
two different sources—the Crown and the Parliament in England on the one, hand
and the Mughal Emperor and other native rulers in India on the other. At the three
settlements of Bombay, Madras and Calcutta the Companyhad to deal with different
local political powers.
At Bombay, the Company exercised its powers as the representative of the
English Crown. The position at Madras was different. Madras was granted to the
Company by the local Raja in 1639. The Company ruled over both Englishmen and
Indians but its authority over the former was derived from the Royal Charters while
13. Quoted by V.B. Kulkami in his book, British Dominion in India and After. p. 37.
21 FACTORY ATSURAT 35
its power over the latter was derived from the grant of the local Raja or Nawab. At
Calcutta, the Company purchased the Zamindari of the three villages which later
came to be known as Calcutta. There the Company exercised its authority under the
Mughat Emperor's grant of Zarnindari. The policy of the Company, therefore, varied
according to the principle by which control was to be exercised in all these three
settlements.
Thus by the end of the seventeenth century, the East India Company was firmly
established in India at Surat, Madras. Bombay and Calcutta, though it still declared
its mission purely as a trading Company. These activities of the Company in fact
paved the way for the adoption of a new policy by the British Parliament in the
beginning of the eighteenth century regarding its aims and relations with India. The
gradual passing of various Charters for regulating the Company's acquisition of
territory and administration of justice in India, from time to time, may be said to
be the gradual but inevitable steps on the road that led up eventually to the settling
up of the British Empire in India.
S. The Factory or Settlement at Surat

A factory consisted of warehouses for storage of goods and residential buildings
for its employees. Out of this humble innocent looking beginning there grew an
Empire subjugating practically the whole of India. A little mistake in the form of
commercial concession by Jehangir in 1612 cost his successors the Indian Empire.
As we shall see later on the same mistake was committed in 1639 by Raja of
Chandragiri in the South and in 1698 by Prince Azim Ushan in the East.
Surat was a famous international port in those days and Muslims in thousands
sailed every year from Surat to Arabia for Haj (pilgrimage) purposes. The place
from where the ships sailed was called Makkai Darwajah (gate used for going to
Macca for Haj). The factory was in a hired house. The firman of the Moghal Emperor
granted these traders a veritable Empire within an Empire with an instruction that
the Kazis should do speedy justice to Englishmen, protect them from all injuries or
oppressions whatsoever and "aid and entreat them as friends with courtesy and
honour." With this favour conferred on them the British routed their competitors,
the Portuguese in the waters of Surat. In those days in India the law was personal
and religious in character and the English did not like to be governed by that law
and the local courts. It is rightly observed" therefore that:
"There was no concept of territorial law. There was no uniform or common
lex loci to regulate inheritance, succession and other subjects. Practically in all
civil cases, justice was administered according to the personal laws of the Hindus
or the Muslims. The criminal law was, however, entirely Muslim. The result of'
all this was that the Englishmen tried to secure from the Moghul Emperor the
privilege of being governed in their factory by their own laws. The Moghul
Emperor was hardly interested in interfering with the internal affairs of these
people and bringing them under the local law in matters arising among them
inter Se. The Emperor, therefore, obliged the British people by acceding to their
request for being governed by their own internal affairs through their own
officers. Accordingly, the Moghul human noted above, conceded the right of
14. Jam, Indian Legal His:oiy, 1972, pp. II. 11

self government to them. The affairs and relations among them inter se were
to be regulated according to their own law and by their own authorities within
the factory and to this extent, they were to be exempt from the authority of the
local courts functioning at Surat.... Wherever the Englishmen settled in India,
they sought to administer justice to themselves according to the English law
and this proved to be a very important single factor which exerted a profound
effect on the growth and development of the Indian legal system."
..."Justice was administered in a very summary manner and none seemed
to care for even the elementary processes of law, Though the English law was
required to be administered, yet, in practice hardly any law was administered."
In the words of Kaye "At first, all that we had to do was to govern ourselves,
and this we did in a very loose manner rather according to the Jaws of power and
impulses of passion, than to principles of justice and i-eason."15
As to why this was so, two reasons look plausible, one, those who administered
justice were merely traders having no knowledge of law and, two, they did not
belong to any high social strata. But the most valid and important reason seems to
be that they did not have any moral values and were most pragmatic in their dealings.
The Englishmen, consequently often took law into their own hands, by-passed
local courts and extracted "justice" themselves from the Indians without resorting
to local courts. Malabari 16 quoting Anderson mentions the following episode : On
one occasion, a party of dancing girls refused to appear before the Governor of
Surat, as they had been ill-paid on a former occasion. The Governor administered
to them justice. They were dragged into his presence and beheaded then and there.
It should be noted that the Surat Factory had no contribution whatsoever in the
development of the administration of justice. Its importance was reduced because
of the transfer of the establishment from Surat to Bombay in 1687, so much so that
the Surat establishment was subordinated to Bombay.
6. adras Settlement and Administration of Justice from 1639 to 1726
In 1639 on 22nd July, an Englishman, Francis Day, acquired a piece of land
from a Hindu Raja of Chandragiri, for the East India Company. It was known as
Madraspatnam. The consequence of this grant of land was that Francis Day built
the Fort St. George in 1640 for the Company's factory and also for the residence
of English people employed in the service of the Company. This Fort was later on
known as "White Town", while the village nearby inhabited by native Indians was
known as "Black Town". Thus the whole city of Madras was founded by Francis
Day. The Raja empowered the Company to mint money and to govern the whole
city of Madraspatnam. Due to the initiative of English traders, trade and commerce
gradually developed. Certain villages in the neighbourhood also gained importance
and progressed. The Hindu Raja further granted certain other privileges to the
English Company.
A—FIRST PHASE: 1639.11178
he
KE and Courts.—The Company's factory at Fort St. George was
under the administration of an Englishman, who was called Agent. The agent and
15.Kaye, AthnrnLo pv,ion of Eo51 India Co., pp. 64, 65, 67.
16.Malbari. Bombay in the Making (1910).60-61.
21 ADMINISTRATION OF JUSTICE IN MADRAS . 37

the Council were authorised to decide both civil and criminal cases of English people
residing at Fort St. C&\
Cases The Agent and Council tried two English people, Thomas Paine and
Thomas Morris, found them guilty of sedition and ordered them to receive severe
lashes by way of punishment. A broad distinction appears to have been made
between cases in which one or both parties were Indians and those in which both
parties were Englishmen. Henry Davidson Love, in his great historical work, known
as the Vestiges of Old Madras", has given a detailed account of the administration
of justice at the beginning of the Company's administration at Madsas. 18 Few
interesting cases referred to by Love may be stated here. It is necessary to point out
that the authority to punish offenders conferred by the Charter of Queen Elizabeth
and later confirmed by King James I, was so vague that it was not clear whether
the Agent and Council could exercise judicial authority over the native Indians. In
1641, a native Indian woman was murdered by another native man. A trial of some
sort was held and the accused, who was an Indian, was found guilty.. The English
authorities immediately reported the matter to the local Naik, who ruled that justice
should be done according to English law. The offender was found guilty and was
duly hanged) 9 In 1642, a British soldier was murdered by Antonio Mirando, a
Portuguese. The Agent and Council were hesitating to punish the offender on the
ground that the foreigner was a European and subject of a foreign power. The local
Naik ordered that they must not desist from their duty and accordingly the Portuguese
offender was shot dead. 20 In 1644, a Sergeant Bradford caused the death of an
Indian, The Agent and Council referred the matter to some principal Indian residents
of Madras. The verdict of the jury was that the Indian died because of accident and
Sergeant Bradford was acquitted.2'
Though the Raja granted rights to administer justice to the English people, they
thought it better to allow old traditional courts to continue to govern natives.
According to the old native system, a Choultry Court was administering justice in
the village area of Madraspatnam. This Court was presided over by the village
headman known as "Adigar" or a Governor of the Town as he was called. 22 An
Indian native Kannappa, a Brahmin by caste, was appointed first Adigar and
Magistrate of the Town in 1644 to decide petty civil and criminal cases. Due to
some charges of bribery and corruption against Kanriappa, he was arrested and placed
behind the bars. 23 His downfall encouraged his enemies and a petition was handed
over to the higher authorities against him stating certain serious charges. 24 The agent
and the Council made enquiry into these charges and held Kannappa guilty, 25 and
dismissed him from the office dishonourably. One important consequence of this
17. Henry Davidson Love, Vestiges of Old Madras, published in four Volumes.
18. For detailed study, see V.C. (jopafratnam, A Century Completed: A History of rhe Madras High Cowl.
See also V.N. Srimvasa Rao. A Peep into the Past History ofMadras Law Courts, May, 1959, Lawyer
156.
19. Love, Vestiges of Old Madras, Vol. I, p.272.
20. Ibid.. p. 273.
21. Ibid., p. 273.
22. TIr term is derived from the term "Adhikari" i.e. an officer.
23. Love, Vestiges of Old Madras. Vol. 1, p. 128.
24. India Office Records, Original Correspondence, Series No. 2541
25. Love, Vestiges of Old Madras, Vol. I.
incident was that European persons were appointed judges to preside over the
Choultry Court from 1648 onwards. Captain Martin and John Leigh were appointed
to sit as magistrates. 26 Due to non-availability of the old records nothing more can
be stated about the early period. Thus, during the period from 1639 to 1661, two
separate bodies were administering justice at Madras. The Agent and Council were
acting as supreme judicial authority fot. in the Fort St.
George, known as White Town, and the native people, residing Friso-called Black
Town locality, were under the jurisdiction of the Choultry Court, It may be pointed
out that in serious cases reference was made to the Raja, who always laid emphasis
on the fact that the accused must be punished according to the provisions of English
law. No fixed procedure was laid down to decide cases and each case was decided
In its-own way by the Court.
Charter of 1661 Charles 11 granted a very important Charter in 1661. It played
an important historical role by considerably improving the existing judicial system
of the Company's settlement at Madras. The Charter empowered the Company to
appoint a Governor and Council in each of its settlements in India. The Governor
and Council were authorised tojude all persons belonging to the Company or living
under them in all causes, civil and criminal, according to the laws of England, and
to execute judgment in the respective settlements. In other words, even the Indian
inhabitants who were residing in the Company's settlements were also included in
the Jurisdiction of the Governor and Council. Thus the Charter expressly provided
for the application of English law and empowered the Governor and Council to
exercise control over both the judiciary and the executive. It was later on realised
as a defective provision because the Governor and Council were not legal experts.
Under the Charter of 1661, the Company appointed Foxcroft as the first Governor
of Madras. The Company's order stated, "We have thought fit to constitute you
Governor of our town and fort.., as well as agent, and to appoint you a Council
under our Seal." 27 Foxcroft came into conflict with Sir Edward Winter and finally
emerged out victorious against his rivals. 28 In 1665 Foxcroft wrote a strong letter
to the Company complaining against two magistrates appointed by Sir Edward
Winter, his rival. Foxcroft utilised this opportunity and appointed William Dawes
as magistrate. In order to gain favour of the natives as well as English people,
Foxeroft invited certain chiefs of the inhabitants to a ceremony and in their presence
advised William Dawes, the magistrate "to be careful without partiality to administer
equal justice to all men without oppression or arbitrary will". Further, he declared
that "if any -person should have just occasion of grievance, I would myself hear the
case and give such relief as should be right."29
26. Love, Vestiges of Old Madras, Vol. I. P. 273.

27. India Office Rccoid, Letter Book Vol. IV.
28. Before the appointment letter reached Foxcroft. one Sir Edward Winter, a Royalist, seized power and
reverted to the judicial system of 1644 and appointed Timrnanna and Veeranna as the Magistrates for
Madras. These were two important inhabitianu of the town of Madras. Foxeroft was a Cromwellian
who emerged victorious against a Royalist. Sir Edward Winter. See Love, Vestiges of Old Madras,
Vol. 1., p. 23 1.
29. Assuring the company about judicial administration. Foxcroft wrote to the Company, "These things
being new and strange to these enthralled people, did marvellously please them". See India Office
Records, Original Correspondence. Series No. 3098.
21 ADMINISTRATION OF JUSTICE IN MADRAS 39
Trial of Mrs. D awes/=Jjt.J..fi65, the trial of Mrs. Ascentia Dawes gained

historical importance in the judicial history of Madras. It was the first trial by jury
in Madras during the Governorship of In this case, one Mrs. Ascentia
Dawes murdered an Indian slave girl named Chequa duos Francisca. She was
charged with the commission of a capital.crime. The indictment was drawn out in
accordance with a form prescribed by the Company and a Grand Jury was summoned
to return to indictment billa vera. The Jury found her guilty of the offence of murder
of the slave girl, but not in the manner and form as stated by the prosecution. The
members of the Jury asked the Court for further directions. In its answer the Court
stated that the members of the Jury were bound to bring in a verdict of guilty or
not guilty without any reservation or limitation. The most surprising part of the
whole trial was that the foreman of the Jury, Mr. Reade, gave the verdict not guilty,
contrary to all expectations. Due to this reason, the court acquitted Mrs. Ascentia
Dawes. It is not surprising to note that this typical situation arose because the Court
had no person well qualified in law to guide its working. The letter from the
establishment at Fort St. George to the Company expresses its grief, "We found
ourselves at a loss in several things for want of instructions, having no man
understanding the laws and formalities of them to instruct us as... whether anything
more had to be said to the Jury when they brought in such an unexpected verdict.
We proceeded in those and other particulars according to the best of our judgments...
but if any like case shall occur we shall need the direction and assistance of a person
better skilled in the law and formalities of it than any of your servants here are.' '30
As a consequence of this trial, the ignorance of the Court was ludicrously
exposed. Necessity of suitable legal assistance to assist the Court was greatly felt.
The President and Council at Madras realised great difficulty in administering justice.
As a result of this trial, the Agency at Madras was raised to the status of Presidency
of Madras. The Agent became Governor of Madras. Though the Charter of 1661
stipulated administration of justice according to English law, steps were not taken
to appoint any legal expert to assist the Court in the administration of justice.
Surveying the period from 1639 to 1665, it may be stated that the machinery to
administer justice was at a very rudimentary stage. The Charters of Charles II issued
in 1669 and 1674 made it further plain that the King of England actually favoured
the establishment of Courts of Judicature to be administered by the East India
Company.
In this first phase due to elementary judicial methods regular and systematic
administration of justice was absent. Two bodies were administering justice: the
President and his Council for the White Town and the Choultry Court for the Black
Town; the former, as Dr. Jain writes, "inefficient as it was a very hesitating sort
of court not sure of its power, while the latter could decide only petty cases' '•31
B—SECOND PHASE: 1678-1683
iorganisation of Judicial system.[ W i th the appointment of Streynsham
Master as Governor in 1678, began the next phase in the early judicial history of
He was Governor of Madras from 1677 to 1681. The whole judicial system
was reorganized under his guidance. The Court of Governor and Council was
30. India Office Records, Original Correspondence, Series No. 3171.
31. Jam: Indian Legal History. 1972. p. 16.
Vb

designated as the High Court of Judicature. Proper arrangements were made for
regular meetings of the Court of Governor and Council. It was clearly stated that
the Court will meet twice a week and will be authorised to decide all civil and
criminal cases with the help of a jury of 12 men. The Court of Judicature sat for
the first time on April 10, 1678 to try and decide a case between John Tivil (plaintiff)
and William Jearsey'(defendant), 32 Another important step of the Governor was to
reorganise the old Choultry Court. According to his scheme the Indian officers of
the Court were replaced by the English Officers of the Company's service. The
number ofjudges was increased to three out of which not less than two were required
to preside over the trial of cases and registration of bills of sale of land and other
property.33 Justices were directed to sit in the Court for two days in each week. i.e.
every Tuesday and Friday. The Judges of the Choultry Court were required to take
care that the copyist clerk of the Choultry was duly registering all sentences in
Portuguese as before and that proper account was maintained of all alienation or
sale of slaves, houses, gardens etc. in a separate register.34 The Court was empowered
to try civil cases up to 50 Pagodas, 35 and petty criminal cases. The High Court of
Judicature consisting of the Governor and Council were authorised to hear appeals
from the Choultry Court. Thus a judicial system based on a hierarchy of Courts
with well-defined jurisdiction, came ito existence in Madras.
\. i,WfEnglish as Court language..$jLsvernor of Madras, Streynsham Master,
made a very important declaration in 1680 by which the English language was
recognised as the only official language in Mg Till 160 three languages were
used in the Court, namely Portuguese, Tamil and Malyalam. On December 9, 1680
an official order from Fort St. George at Madras stated: "Whereas it has been
hitherto customary at this place to make sale and alienations of houses in writing
in the Portuguese, Gentoo and Malabar languages, from which some inconveniences
have arisen, it is, therefore, ordered that.., all sales and alienations of house and
grounds shalt be written in English, and the Choultry Justices shall not license nor
register... the sale or alienation of any ground unless the seller or conveyor thereof
can prove his title to the same under the Hon'ble Company's seal." 36 Thus the
English language was firmly planted initially as Court language in Madras and
played an important role in moulding the local population of Madras in favour of
political leadership controlled by English people employed by the Company.
\.(
,, frial of Gilbert and De Lizna37 ,—William Gilbert was an Englishman. He
was alleged to have committed murder of one John Hartley. Manoell Brandon Dc
Lima a Portuguese inhabitant of Madras was alleged to have committed the murder
of a black Christian. The Governor and Council sought instructions from the
Company in connection wiTh their trial. As a result the trial was delayed and the
accused had to remain in jail as undertrial for a longperiod.
32. V.C. Gopairatnam, A Century Completed: A History of the Madras High Court, p. 82.
33. Love, Vestiges of Old Madras, Vol. 1, p. 404.
34. Fort Sr. George Records, Public Consultations, Vol. 11.
35. A Pagoda was a gold coin equivalent to three Rupees. Fifty Pagodas were equal to Rupees one hundred
and fifty.
36. India Office Records, Factory Records: Fort St. George, Vol II, p. 1680.
37. Rama Joi: Legal and Constitutional History of India (1984), Vol. II, pp. 105-106; Love, Vestiges of
Old Madras, Vol. I. pp. 406-07,
ADMINISTRA'TON OF JUSTICE IN MADRAS 41

21
Gilbert presented a petition to the Couni.l indicating that he acted in self-defence
and he was in prison for 31 months awaiting trial. In that petition after narrating as
to how the incident took place, he said:
"... whereupon your petitioner was committed close prisoner, and hath
continued so for 31 months contrary to the known practice of the laws of
England, where no prisoner, for any fact (unless in case of Treason), is detained
more than six months before he receives a legal trial."
The Company by its direction dated 5th December 1677 directed the holding
of trial against both the accused. The plea of Gilbert that he killed Hartley in
self-defence was accepted. Dc Lima was found guilty of the charge, but on appeal
he was sent home.
During the second phase also the working of the Court was irregular and
inefficient. As observed by Love, prisoners were rotting in prison without trial and
much time was lost in consultations and demand from the Company for more power.
However a serious study of 1661 Charter would show that it was not the lack of
power but hesitation and apathy to use it that was responsible for the sorry state of
affairs prevailing at that time.
C—THIRD PHASE: 1683-1726
Gradually the Company realised that its monopoly of trade was being infringed
by other foreign and independent traders who were not authorised to trade with
India-39
'44–,4ñr4lty Court 1 i7ier
to curb the unauthorised activities of these
interlopers and to safeguarthtrading interests, the Company obtained a Letters
Patent from King Charles U jni) Thc Charter of 1683 marks the beginning of
the third phase. it cuipowered the Company to establish Courts of Admiralty in
India- las main purpose was to try all traders committing various crimes on the high
s. The Court was empowered to hear and determine all cases concerning maritime
and mercantile transactions. The Court was also authorised to deal with all cam 1
forfeiture of ships, piracy, trespass, injuries and wrongs. It was specifically stated
that in its difficult task of administering justice, the Cia1 will be guided by the
laws and customs of merchants as well as the rules of equity and good conscience.
The provisions of the Charter of 1683 were repeated by James U in a Charter
issued on April 12, 1686. On 10th July, 1686 the Court of Admiralty was established
at Madras. John Grey was appointed Judge of the Court of Admiralty and to assist
him two other English people—John Lyttleton and Nethanial Higginson, were also
appointed as his assistailts. Seven months later John Hill was appointed Attorney-
General of the Admiralty Court. 39 On 22nd July, 1687 Sir John Biggs, who was
Recorder of Plymouth and a learned lawyer in civil law, was appointed "Judge-Ad-
vocate". Le., the Chief Judge of the Court of Admiralty at Madras. His first duty
was to preside at the Quarter Sessions. He tried four criminals and convicted them
for robbery. All of them were sentenced to death. 4° The decision created terror
38. Cambridge History Of Andim Vol. V, p. 102.
39. Love. Vestiges of Old MndnUVCJ1.Lp 40 Sep w V Gopairatmm, A Century Completed: A
History of the Madras High Court, p. 83.
40. The relevant Fort St. George Consultation giving details proceeds to stale. "Buttha owtcofdcring
that justice mchned to mercy and that these were the first crimes they wctrelsirged with and probably
'42 EA jy ADMINISTR ATION

OF JUSTICE ICHAF.
amongst the inhabitants and converted
the criminals into assets of the
transforming them into slaves of the Company. It co mpany by
task of restoring law als o- assisted in tackling the difficult
and order. Sir John fliggs with
and legal expertise Contributed to the his professional background
ad ministration of justice. During his tenure
the Court became famous as 'General Court" of the
town of
the sudden death of Sir John Biggs in 1689 checked the.. Madras. Unfortunately,
Admiralty Court. future progress of the
e A year before the death of Sir John Biggs, the Mayor's Court had come into
xistence It was realised in 1690 that the powers of the Mayor's Court were limited
and therefore the Government coizldered it suitable to revive the old Court
Judicature established by a previous of
'Gov ernor of Madras,
Earlier, the Court of Judicature was Superseded by the Judge Streynsham Master.
Court s,if'cce a temporary eclipse, 4 Adv10 and thus the
care one of the five Judges of ' The Govrnor,
the new Court. 42 It himself be-
is a matter of gratification and
interest that the list of
Pillaj , Daniel Du Bois was Judges of this Cott included the name ofan Indian, Allingaji
a ppointed Aitorney Genera].
Allingali Pf!!j WS the
earliest Indian judicial officer appointed to the Leflc/? at 4Ladras.
In 1692, John Dolben, an EngJji,, wellversed in
JudgeAdy< law, was appointed
ind in the vacancy caused by the death of Sir John Biggs. He was
influependent fn his decisions and refused to decide cases under any pressure or be
C enced by favouritjsm He even gave judgment against his employers the
ompany, when they sued the ex-Governor Elihu Yale. The Company officials were
not happy at this event and waited for an
O pportunity to remove him. Shortly
afteards Dolben was made the victim of a bribe-giver and the order of dismissal
followed. Though in 1694 the Compa
it43 ny again offered him a ppointment, he declined
In place of Dolben William Frazer was appointed
Irlembers Judge -Advocate.In 1696 the
Acc of the Council were directed to serve in succession as the Judge-Advocate.
ordingly John Styleman a senior member of the
Frazer in 1696. The Court of C ouncil, replaced William
Ad
miralty was functioning regularly up to 1704. After
1704 it appears that the Company paid more attention to the Mayor's Court and the
Court
its of Admiralty ceased to have its regular sittings which ultIniately resulted in
gradual disapp
Of appeals from the earance from the judicial scene. Its jurisdiction,
Mayor's Court i ncluding hearing
was
may be concluded that the Governo transferred to the Governor and Council. It
Court at Madras. r and Council gradually replaced the Admiralty
instigated thereto by
con youth, the temptation of a no
torious rogue their ring
sicferafloo it is agreed that the principal and bold offender, Mannangatti Thambjleader... upon
do suffer which
death on
Thursday
and
to deter others from the like crirnc.c; and
that the other criminaLs Pandar
Thannappa be burnt on the shoulder and mished to Sumatra arn, Vecraraghava
to the ... Company during life, and never to where they were to remain slaves
R ecords, Public Con.c5l,a1j return hither upon pain of death"
5 Vol. XIII. See Fort Si George
41. V.N. Srizijv, Rae,
"Peep1, Ouo the Past Ffisto,-y
p. 160. of Madras Law Courts"
42. Apartfmm the I udge- May 1959, Lawyer, at
and a Hindu. Advocate four other y
of the Bench included two merchants, an Armenian
43. After his dismissal ,Dolben
became prospero and earned showed his interest in trade and became a free merchant
goodwill, He was again offered an appoint of the town. He
to accept
Pj. p. 142.it on the ground of his being engaged on a voyage to China. in 1694 but he refused
See Dalton,
The Lfe °fl(w?(c
21 ADMINISTRATION OF JUSTICE IN MADRAS 43

The Admiralty Court exercised a wide jurisdiction in all cases: Civil, Criminal,
maritime and mercantile. It has to be noted that it was in 1687 that a professional
lawyer was appointed to administer justice and it was again in 1687 that the
executive gave up judicial functions in favour of Admiralty Court. That the Court
used jury in Criminal cases was evident from the case of Elihu Yale, ex-Governor
of Madras against whom the Company filed a sui to recover Rs 50,000.
\u'r 'rablishinent of Corporation of Madras he ayor's Court.-JFhe
issued a Charter in December 1687 which authorised it to createa Corporation
of Madras and establish a Mayor'sCi5iiif The Mayor's Court was a part of the
Corporation of Madras. It was empowered to carry out judicial functions. The
Company preferred to establish the Court under its own authority, as it was not
willing to invite English officers who were working in the judiciary of England
under the Crown. These officers, because they were appointed under a Royal
Commission, it made them arrogant and haughty as the wind of extraordinary honour
entered their minds. The Company officials were afraid of interference by the British
Parliament in the Company's matters and, therefore, were not inclined to invite
superior officials to its settlements in India. In 1688 the Company created a
Corporation of Madras consisting of a Mayor, twelve Aldermen and sixty or more
Burgesses. In the first instance, the Company's Charter nominated the persons who
would occupy these positions in the Corporation. It provided that an Englishman
would be elected every year as Mayor by the Aldermen. Aldermen were appointed
for their life or during their residence in Madras. Out of twelve Aldermen,three were
required to be Englishmen compulsorily. The quorum fixed for sitting of the Court
was a Mayor and two Aldermen. The Mayor and Aldermen were to elect Burgesses
from amongst the people who were in the Company's service. The Company's
Charter also created a Mayor's Court consisting of a Mayor and two Aldermen,
which formed its quorum. It was a Court of Record for the town of Madras. The
Mayor's Court exercised its..jurisdiction in civil cases where the value of the cases
exceeded 3 Pagodas, and in criminal cases with the assistance of juries. An --ppeal
was allowed to sa to die Court of Admiralty from the decisions of the Mayor's
Court in all civil cases exceeding three Pagnds. aiJ in criminal cases where the
accused was given death sentence. The Charter also provided for the appointment
of sin expert in law as Recorder, to assist the Mayor's Court in deciding cases. Sir
John Biggs, the Chief Judge of the Court of Admiralty was also appointed first
Recorder of the Mayor's Court.
The procedure of the Court was not any definite procedure of law. As noted
by Love45 its proceedings were conducted in a summary way according to justice,
equity and good conscience and the laws framed by the Company. Its decisions
were on ad hoc basis and lacked uniformity. It imposed death sentence in several
cases against the natives.
Drawbacks of the Court.-L The Court had no reputation for impartiality and
incorruptibility. Love, quoting Alexander Hamilton remarks that ........the City had
44. Fawcett, First Century of British Justice in India, p. 212: Jam, Indian Legal History, 1984. p. 20.
45. Love. Vestiges of Old Madras, Vol. 11, pp. 174-175; R. Jois: Legal and Constitutional History of India.
1984. Vol, 11, p. 107.
46. Love, Vestiges of Old Madras, Vol. II, p. 87.
Laws and Ordinances for its own preservation, and a Court kept in Form, the Mayor
and Aldermen in their gowns, with Man the table, a clerk to keep a register
of transactions and cases, and Attornies and Solicitors to plead in form before the
Mayor and Aldermen; but after all it is but a farce for by experience I found that
a few Pagodas rightly placed could turn the scales of Justice to which side the
Governor pleased, without respect to Equity or Reputation.'
It should be noted that the court was subservient to the Executive as the power
of removal of the Mayor and Aldermen from their office was vested in the Governor
and Council.
-The Choultry Court. As stated above, the creation of the Mayor's Court
at Madras ]eft only petty cases o decided by the Chou cur The Choultry
Court, therefore, decided only petty criminal cases and civil cases amounting to two
Pagodas. Two Aldermen constituted the quorum of the Choultry Court, who were
to sit for two days in every week, to decide petty civil and criminal cases. The
Choultry Court continued its work in the Madras Presidency till 1726.
Before passing to the eighteenth century it will be worthwhile to state briefly
the types of punishment given to the criminals in the seventeenth century at Madras.
Love has given a detailed and interesting account of the Madras Courts. He refers
to an execution of a criminal whose body was hung in chains on a gibbet near the
high road leading to Poonainalli; a standing in the Pillory by a merchant who was
driving the trade of stealing children; whipping of peons found asleep at their posts
of duty and the branding of the letter "P" on the foreheads of convicted pirates.49
In fact there was no clarity as to what the law was and what were the jurisdictions
of the various Courts. It may very well be stated that there was only one type of
"crime which could be tried at Madras without legal uncertainty" and that was
"piracy".50
With the dawn of the eighteenth century, there were four different courts
working in Madras—First, the Mayor's Court as the Court of Record; secondly, the
Court of Admiralty with the Judge-Advocate as President to try pirates; thirdly, the
Old Choultry Court whose presiding 'officer was called the Chief Justice of the
Choultry; and finally, the Court of the President or Governor-in-Council, which
heard appeals from the decisions of the Admiralty Court as well 'as-from the Mayor's
Court. These Courts continued up to 1726 when the Charter of George I introduced
a uniform set of Courts in all the three Presidency Towns,
y ndard of Justice.—Describing the state Of justice in those days it has
been said" that the quality of administration of justice principle of
substantive or procedural law governed the judicial proceedings. Judgment-debtors
and criminals were sent to prison for indefinite periods. Englishmen guilty of serious
offences were being sent to England. The Governor could pardon death sentence.
Pirates and interlopers were awarded death penalty. Robbery was punishable with
death. For stealing, punishment was slavery.
47. R. Jois: Legal and Constitutional History of India, 1984, Vol. II,
p. 107.
48. Love: Vestiges of Old Madras, Vol. II, p. 80.
49. IbhL, Vol. I, pp. 494,496.
30. Henry Dodwell: The Nababs of Madras, p. 149.
51. Love: Vestiges of Old Madras, Vol. I, p. 496.497.
ADMINISTRATION OF JUSTICE IN BOMBAY 45

21
Thus there was no standard or criteria for imposing penalties or methods of
execution. Conditions of imprisonment were horrible. The eases were decided, and
the quantum of punishment which had absolutely no relation to the gravity of the
offence was being imposed 'according to whims and fancies and prejudices of the
judges. The modes of punishment were generally inhuman and barbarous and were
52
being used against those who were caught to deter others.
7. Administration of Justice in Bombay The Bombay Settlement

53
(i) Political position of Bombay—The political position of Bombay was quite
different from that of Madras. The Portuguese acquired the island of Bombay from
Sultan Bahadurshah, the King of Gujarat, in 1534 and from that time onwards it
was under the political control of the Portuguese. The King of Portugal, Alfonsus
VI, gave Bombay in dowry to the King of England, Charles U, when the English
King married his sister Princess Catherine in 1668. Charles 11 thought that Bombay
being a very backward place, was economically not profitable and as it was difficult
to exercise control from England, he transferred Bombay to the Company in 1668
for a very nominal annual rent of £10. The position of Bombay was completely
changed with this transfer by the new Charter of 1668. The Charter authorised the
Company to legislate and to exercise judicial authority in the Island of Bombay. It
was further stated that such laws should be consonant to reason and not repugnant
or contrary to the laws of England and they were also required to be as near as
may be agreeable to the laws of England. The system of courts and procedure was
to be similar to that established and used in England.
The President of Surat, Sir George OxeniJen, received the Company's orders in
September 1669 to visit the Island of Bombay and establish the executive govern-
ment under a Deputy Governor and Council. Thou g h Oxenden visited Bombay in
January 1669, it was only after the death of Oxenden in July 1669 that the laws
enacted by the Company under the Charter of 1668, actually came; into force for
the government of Bombay. 55 Thomas Papillon drafted these laws which were
subsequently revised by:the Court of Committees and the Solicitor-General. Finally,
these laws were brought to Bombay by Gerald Aungier, the Governor of Surat, in
)670.
(ii) The Charter of 1668.—The Charter of 1668 conferred full powers, privileges
and jurisdiction on the Company so that it could make laws, ordinances and
constitutions for the good governance of the island and could impose appropriate
and suitable pains, penalties and punishments by way of fine, imprisonment and
even death. Thus the power of administration including power of legislation and
administration of justice was granted (Keith, pp. 9-10). There were two conditions
prescribed for the purpose that the laws were to be consonant to reason and not
repugnant but as near as may be, agreeable to the laws of England. The Company
thus came to establish courts to judge all persons and all actions. As expressed by
the Charter contained the fullest
Perry J. in Peerozeboye v. Ardeshir Cursetjee 56 . "
lOS.
52. R. lois: Legal and Consiiiuiu,,int History of India. 1984. Vol. II, P.
53. See for details. B.M. Malabari. Bombay in the Making (1661-1726).
54. Keith, Constitutional History of First British Empire. pp. 127-131.
55. Fawcett: First century oJBritish Justice in India. pp. 18-28.
56. Indian Decisions (Old Series), Vol. IV. p. 53: lain, 1472. p. 27.
46 EARLY ADMINISTRATION OFJUSTICE (CHAP.
power for governing the island, which any form of words could convey; it concedes
imperurn and jurisdicria and although it indicates the, model on which the legal
ud the 1i% huuld bc framed, it dUCS fluE fener 111L gfaffiCeS with
any technical rules derived from English Judicature—which might prove wholly
unsuitable to a mixed community in the East." As libert 57 puts it the Charter was
'a transition of the Company from a trading association to a territorial sovereign
invested with powers of civil and military government
(iii) Judicial Reforms of 1670.—The first important legislative work of the
Company was done by Gerald Aungier in 1670. He reorganised the old judicial
set-up of Bombay. Old laws which were initiated by Oxenden were given a final
shape and were classified into six sections. First section related to the freedom of
worship and religious beliefs granted to all inhabitants. The laws prohibited the use
of abusive and contemptuous language in respect of the religion of other persons.
The defaulicis were liable to pay fine or imprisonment. The second section dealt
with the impartial administration of justice. The existing rights of persons were
confirmed and the principle of fair trial and convictions was recognised. It provided
or a trial hy a jury of twelve persons in cases concerning deprivation ci rights,
etc.
The third section provided for the establishment of a Court of Judicature to decide
all criminal cases. The Governor and Council were authorised to appoint a judge.
All trials were required to be b y a jury of twelve Englishmen. Where a party to the
•' Uiiy .& L'' Lc- Z1 q; ;1S11J11Cn anu
remaining six were chosen from Indians. Ri g ht of appeal from the Court to the
(jO\ernu and Council was also granted. It provided for the appointment of Justices
of the Peace and Constables to maintain peace and order and in anct criminals,
etc. The fourth section dealt with the registration of transactions concerning sale of
land and houses. The fifth section contained miscellaneous provisions dealing with
penalties for different crimes. In many cases the severity of English law was reduced.
The last section dealt with military discipline and p revention of disorder and revolt
Death penalty was given for mutiny, sedition, insurrection or rebellion.
Aungier introduced certain reforms in the old set up of the judicial machinery
at Bomba y . He improved the judicial system gradually, as he was aware that it
would not . h' possible and wise to supersede immediatel y
the old system of the
administration of Portuguese law. According to the reforms of 1670, the Island of
Bombay was divided into two divisions - one division consisted of Bombay,
Mazagaon and Girgaon the other comprised of Mahim, Parel, Sion, and Wtlj. A
separaic Court of Judicature was etablished for each division at Bombay and
Mahim. Each Court consisted of five judges. The customs officer of each division.
an Englishman, was empowered to preside over the respective Court. Three judges
formed the quorum of the Court. As it was not possible for an Englishman to have
adequate knowledge of Indian Laws, some Indians were also appointed judges to
assist him in the Court of each division. The Courts were authorised to hear, try
and determine cases of small thefts and all civil actions up to 200 Xeraphins in
value An appeal from the Court of each division was allowed to the Court of
57. ( w,"rnrnenr to/'India. ii( 1916) Jam. 1972. 27

p.
58 H M. Malabarj, Bombay in the Making. Ch V. pp. 146-182.
59. It was a l'ortuguc.cc Coin. 20 Xraphins weje quaI lo waily Rs 130.
21 ADMINISTRATION OF JUSTICE IN BOMBAY

47
Deputy-Governor and Council. Apart from the appellate jurisdiction, the Court also
had original jurisdiction in important felonies, which were to be tried with the help
of jury and the laws of the Company. Englishmen were under the jurisdiction of
this Court. Further appeal to the President and Council at Surat was discouraged
except in rare cases.
It was realised within the next two years that the judicial system of 1670 was
defective in various respects. Aungier, the Governor, was himself not satisfied with
the working of the Courts. The judges of the superior and inferior courts had no
knowledge even of the elementary principles of law; they were merely traders. The
judicial and executive powers were exercised by the same persons. As a conse-
quence, the abuse of power created various new problems. In order to remove these
defects Aungier requested the Company authorities to provide persons who were
experts in Jaw. Initially, the Company paid no attention to it. After some insistence
the Company asked Aungier, the Governor, to select any such experts in law from
the existing persons who were in the employment of the Company in India. After
some time, Aungier selected George Wilcox with whose ad', ice he prepared a new
plan in 1672 for the administration of justice in Bombay.
(iv) New Judicial Plan of 167
2.—Accordinc to the new plan the Government
issued a proclamation on 1st August, 1672 declaring the introduction of English
Law into Bombay. It may be recalled that in the judicial pin of 1670. the Portuguese
laws and customs were left untouched. They were totally abolished under the new
plan, and with this change, the old confusing state of laws also came to an end in
Bombay. The judicial machinery was again organised. A new central court known
as the Court of
Judicature was established. The Court was inaugurated on 8th August,
1672 by the then Governor of Bombay, Gerald Aungier, with pomp and ceremony,
after a colourful procession which included four attorneys or pleaders had marched
through the main thoroughfares of the city of Bombay. In his inaugural address the
Governor AunLr ennnciaud ti principles which subscquently set the pattern for
the;1d'a-i nistration of justice not Only
in Bombay but all over the country. He
emphasised that all the inhabitants of this island, irrespective of cast or creed had
an equal title and right to justice. 50
of in d Thus he laid special emphasis on the principles
ependence, impartiality and equality for the future guidance of the judiciary.
Aungier is rightly remembered as the "true founder" of Bomba y . He was a man
of liberal ideas and he believed in a sound and impartial adminis tration of justice
without fear or favour. He projected basic principles of ethics for judiciary too. Dr.
Jain6 '
in regard to Aungier's speech observes that "No one could have kept before
him a higher ideal of justice than did Aungier. It was a good augury for the judicial
system, but unfortunately the later Governors did not follow Aungier's traditions."
The Court of Judicature was empowered to exercise its jurisdiction over all
civil, criminal and te
stamentary cases. George Wilcox was appointed its Judge,
assisted by other Justices. The Court sat once a week to try civil cases with the help
of the jury. The Court charged a fee of five per cent of valuation of the suit from
60. Governor Aungiersaicj, "Laws though in
or a little force except there be a due themselves never so wise and pious are but a dead letter and
the British Justice in Jntha, pp. 52-55.and impartial execution of them". Fawcett, The First Century of
See also, M.C. Setalvad, The Common Law
61.Jam: Indian Legal History. 1972, p. 30. See also in Jndk4 p. 10.
Bombay, P.B. Vachha: Famous Judges. Lyers and Cases of
1962, pp. 3. 5,7
t. \.

the litigants. -The Judge was prohibited from carrying on private trade or business,
and instead he was granted a salary of Rs. 2,000/- per year to meet his expenses.
An appeal from the Court of !udicaturc was allowed to the Deputy Governor and
Council Juries were duly employed and paid. Attorneys were allowed to practice.
English procedure, including arrest and imprisonment, was followed. As far as
possible the English substantive law including statute law was made applicable. In
framing the new scheme Aungier was primarily concerned with the speedy and
impartial administration of justice. -
Justices of the Peace were appointed to administer criminal justice. For this
purpose Bombay was divided into four divisions, namely, Bombay, Mahim, Maza-
gaon and Sion. In each division a Ju5Lft O1'thc Peace, an Englishman, was appointed.
They acted as committing magistrates to arrest the accused and to examine the
witnesses. The record was then placed before the Court of Judicature which met
once a month to decide criminal cases with the assistance of all the Justices of
Peace, who ti--d asscsaors in the Court.
me scheme of 1672 also created a Court of Conscience to decide petty civil
cases. Once a week the Court dealt summarily with civil cases under twenty
Xeraph ins 62
. The decision of the Court was final and no further appeal was allowed
No court-fee was charged from poor persons and, as such, the Court became famous
as, "Poorrnan' Court". George Wilcox, Jud g
prcsiij:J e of the Court of Judicature, also
er lo. Cjur of C 1setcncc which met .:fliy 011cc a
petty civil cases. week to deal with
Georg e Wilcox, the first Judge of the Court of Judicature died in 1674. James
Adams was chosen to succccd Judge Wilcox but he wa.s not well-versed in law.
After a few months in 1675, his assistant Niccolls was appointed Judge in his place.
In 1677 NICCOIJS was suspended and later d i
smissed by the Council on various
charges. As noted by Malabarj and Fawcett there is a view that Niccolls was
P unishe d for his judcia) coura ge 2nd
rclish. M independence which the executive did not
Regarding "injudicious interference with the Court by the Council" Keith
says. "It seems probable that the chief weakness of the Court lay in the fact that
the Judge was dependent on the goodwill of the Council, as was seen in the dismissal
of Niccolls mn 177, but there is no clear proof.. - 65 Gary succeeded Niccolls as
Judge and remained in the office up to 1683. During his tenure, the salary and rank
of a Judge was reduced and the Council became superior in power and position. In
1679 the Council reversed a decision of Judge Gary regarding the grant of adrnin-
tstra(ir)
n in respect of a widow's piece of land, who died intestate without relative06
Keignwin's rebellion which began in December, 1683, and continued- up to No-
vember, 1684., gave a death-blow to Aungier's judicial system in the Island of
Bombay.
62. A Porniguese coin equal to about I Sh. 6 d.

63.
Judge Wmtco died wiUioui drawing cvn a riipceby way of salary and his poor widow war left dc'ritit
ri I nF,as 1-al er in the w,dtiw rcqiw sic d the Gaveriuneru lam the alilauni of her deceased hucband s
salary. See Malabari, Bornb(0' in the Making. p. 150.
64. Malaharj 153 Fawcett, 979
65. Keith, Arthur Bem-rimlaic A Consfitutimf
ijl Ifisir,rs' sif Idi. p.
66 ci. ./o,urna lcriuuri'Je . v. 0c
5,1wi, (1,5/ '): Mole'. /)ige.c,, ; p 214
21 ADMINISTRATION OFJtJSTICL tNt BOMBAY 49
(v) Admiralty Court conflicts with Council: 1684 to 1690.—As stated above,
the development of Courts at Bombay was interrupted due to the Keignwin's
rebellion. After the rebellion was suppressed, efforts were made to set-up a regular
judicial system at Bombay. The Company found its authority to establish courts
under an earlier Charter of 1683 granted by Charles 11. The authorities at Bombay
were also aware of the judiciary which was set-up at Madras under the Charter of
1683 . 67 The Charter provided for the establishment of Courts at such places as the
Company might direct for maritime causes of all kinds, including all cases of
trespasses, injuries and wrongs done or committed upon the high seas or in Bombay
or its adjacent territory, and each Court was to be held by a learned judge in civil
law assisted by two persons chosen by the Company. Such Courts were required to
decide cases according to the rules of equity and good conscience and the laws and
customs of merchants. Accordingly, an Admiralty Court was established at Bombay
in 1684. Dr, St. John68 , a person learned in civil law, was selected by the Company
at England to be appointed as Judge-Advocate of the Admiralty Court. Dr. St. John
also succeeded in getting authority frotn the Governor to act as Chief Justice of the
Court of Judicature. The Court of Judicature was again created, as the authority of
the Admiralty Court was not sufficient to Cover all other civil business.
John Child, Governor of Bombay at Surat, was not in favour of accepting the
theory of judicial independence which was adopted by Dr. St. John in his judicial
decisions. It gave rise to conflicts between the Governor and the Chief Justice. Di-.
St. John's judicial independence was interpreted by the Governor John Child as
insubordination towards himself. in 1685 the Governor got all and the
powers of Dr. St. John to act as Chief Justice of the Court of Judicature were
withdrawn. Vaux, a member of the Bombay Council was also appointed Judge to
preside over this Court, in place of Dr. St. John. These steps further developed the
existing conflict between the Governor and the Chief Justice. Dr. St. John strongly
criticised the transferring of his powers to Vaux, a new judge, who according to
him was ignorant o civil laws. In due course the Governor and Dr. St. John further
came into serious conflict and their relationship became strained which ultimately
resulted in the dismissal of Dr. St. John in 1687 from the Court of Admiralty- l' The
incident made the Company all the more reluctant to appoint professional lawyers
as judges in India. In words of Keith70 this "is suggestive of the period of prerogative
run mad." Persons were appointed as judges not for their legal knowledge but for
their pliability to the executive. 71 After Dr. St. John's dismissal, Sir J. Wyborne,
Deputy Governor of Bombay, was appointed Judge of the Admiralty Court. In 1688
Vaux succeeded Sir J. Wyborne and remained in the office up to 1690. 72 The Court
practically ceased to function independently due to the strong position of tile
Governor and the President of the Board of Directors in London.
67. 3rd August, 1683. Charter of 1683 authorised thc establishment of a Maritime and Mercantile Court.
68. Despatch from the Court of Directors to the President at Surat on April 7. 1684 refers in detail to the
appointment of Dr. St. John. Campbell's Bombay Gazetteer Materials, xxvi, Pt. I. pp. 83-84.
69. For details, see Fawcett. First Century of British Justice in Indin. pp. !24-142. In 1687 the seat of the
Governor-in-Council was transferred from Surat to Bombay.
70 Keith: Constitutional History of Indite, 1936, p. 39.
71. Jam: Indian Legal History. 1972. p 32.
72. Anderson's English in Western India, p. 257.
50 EARLY ADMINISTRATION OF JUS1 ICE [CHAP
(vi) Sddi Ycthub's invasion and set hack i., Judicia Ad;nri-am,t.—I )Uc Lu
the invasion of Siddi Yakub. Admiral of the Mughal Emperor in 1690, the judicial
system of Bombay also came to an end. Judge Vaux, who was also in the Company's
military service and a member of the Council, was sent back to England in order
to gain Aurangzeb's forgiveness. After 1690 for a few years the practice of
appointin g-a separate judge was not adopted and the administration of justice was
also entrusted to the Governor and his Council. From 1690 to 1702 i.e., for a period
of twelve years there were no Courts. Whenever the Governor and Crn,ncil wrote-
to the Directors of the Company to send a qualified lawyer, the Directors expressed
their inability to get an honest and qualified lawyer. As Vachha rernarked,"lt was
probably the difficulty of getting the right sort of man from the Company's
standpoint, which resulted in no judge being sent out.' ' Such a state of affairs
continued up to 1718 and the machinery to administer justice was almost paralysed
in Bombay. Thus the period from 1690 to 1718 is it dark period in Bombay's Legal
History.
(vii) Revival of Judicial Machinery: Period 1718 to 1/2.—A new period in
the Judicial history of Bombay began with the revival and inauguration of a Court
of Judicature on 25th March, 17 IS by Governor Charles Boone. It was established
by the order of the Governor and Council which was later on approved by the
Company authorities. It differed from We earlier Court of Judicature which was
established under Aungier's judicial plan of 1672. as it was constituted according
to the laws of the Company and not by the Governor and Council. The Court of
Judicature of 1718 consisted of ten judges in all. It was specially provided that the
Chief Justice and five judges will be English. The remaining four were required to
be Indians representing four different communities, namely, Hindus, Mohammedans,
Portuguese-Christians and Parsis. 74 All English judges were also members of the
Governor's Council and enjoyed a status superior to Indian judges. Three English
judges formed the quorum of the Court. The Court met once a week. Indian judges,
who were also known as "Black Justices", were included mainly to increase the
efficiency of the Court and their role was mostly that of assessurs or assistants of
the English judges. They do not appear to have enjoyed equal status with English
judo S.71
The Court of 1718 was given wide powers. It exercised jurisdiction over all
civil and criminal cases according to law, equity and good conscience. It was also
guided by the- rules and ordinances issued by the Company from time to time. It
was necessary for the Court to give due consideration to the customs and usages of
the Indians. Apart from its jurisdiction over probate and administrative matters, it
was further authorised to act as a Registration House for the registry of all sales
concerning houses, lands and tenements.
An appeal from the decision of the Court of Judicature was allowed to the Court
of Governor and Council in cases where the amount involved was Rs. 100 or more.
A notice to file an appeal was to be given within forty-eight hours after the judgment
was delivered to the Chief Justice of the Court of Judicature. Moderate fees were
73. Vachha, PB.. Fwnous Judges. Lawyers and Cases of&imbay, p. tO.
74. For details. see, Fawceit: The Iirsi Century of fithisli Justice in India.
pp. 171-174: Keith: A
Consn,,aio,iat History of India, p. 41.
1 .... -
21 ADMINISTRATION OF- JUSTICE IN BOMBAY
prescribed by the Court for different purposes. For filing an appeal a fee of Rs. 5
was to be paid.
As regards the working of the Court, earlier studies of Fawcett 76 and Malabari77
state, that in spite of the fact that the Court met onl y
once a week it was famous
for its impartiality, speedy justice and also for the cheapness of its process Most
Of the civil litigation was concerned with the recovery of debts. In order to recover
debts the Courts generally adopted English practice. Where a person was not having
an y property, he was kept in prison so ion as the debt due was not
p aid. In criminal
cases, whipp i ng in a public place was the must coinn)on punishment given by the
Court. Banishment from the Island, imprisonment for a period at the Court's
discretion were other common ways of punishing the criminals. For perjury and
M a licious complaints there were summary trials. Laws applied were very vague and
mostly uncertain as we find neither an y reference to any proper code nor any law
report nor law books in the old records.
Fawcea has pointed out certain cases where the Court applied En g lish lw and
even inteinaliorial law which was
vague and underdeveloped at that time. This
vagueness and uncertainty was bound to lead to injustice and lack of uniformity in
Punishing the criminals. Fawce tt has described the famous trial of
Raino Kwnzi, who
was made the target of a plot based on lies and forgeries in which even the Governor
Boone himself was involved. Thus o rave injustice was done to
Rama Kanrii by the
Court.
(vu:) Rania A'anui caae 7 °
The Dark Jir.vi ice a; Boinbc,v.— . Ri,na Kanitj was a
rich and influential person. He was the supporter of the Company. On a charge that
he was corresponding with one Angria, a pirate chief, Kamti was arrested. Angiia
was troubling the Company. The trial was held before Governor Boone and his
Council.
There was no conclusive evidence whatsoever a g ainst Kamli but a round about
gossip story by a w itness. The witness had been told by one dancing girl that the
pirate chief Angria had told her that Kamti had written to him. His servant was
tortured by cutting off his thumb to extract evidence and a statement implicating
Kamti. Some letter making it appear to have been written to Angria were manufac-
tured by forgeiy. Kaniti was found guilty and sus sentenced lu an indefinite period
of imprisonment. His property was confiscated and auctioned.
The charges against Kainti were drawn by Governor Boone and his Council.
His trial was held before an ad hoc tribunal which was presided over by Governor
Boone and consisted of members of the Council and Parker, the (Thief Justice of
the Court.
During the trial Parker objected t he toiture of Kaiuiii's servant which was
inflicted at the instance of Boone. 'l he result of showing this judicial independence
was his dismissal fron t
by the Governor. After auctioning of Kamti's property,
claims against him were being considered by the Governor and the Council. The
76 Fawcett, The Fira Centur y n[ British include in 1,1(11,1

77. t\1 atahar i iloinha', in g lue Mu,ki,7 1 (]'X)!).
7. Fawccte The Firc, Centur y of
Si -inch Justice in I,iuiio, p 179: Vactiha I-ornoi,s Judges. Lineyerc and
ase.c of Boniiiy. pp. 235 . 239: Malabu
i, Bwnbur an the Miking. pp. 328-345; Jan laudian Legal
Husio,'v. 1972. pp. 36-37: R. Joi. 1984, Li'cal & On, ctiluuio,un/ Hiumn of lmlea
. Vol. 2, p. 11 2.
79 Raina iis. Legal & Catiu g u g , oq j juan,-, '
of I,ui,o. 1984,
Vol 2. pp 111-112: Jam: Indian t.e Rol
H,.qnr,. 1972, pp. 36 . 37. Mzilabari:
Btinuluuy in the Makiiig. pp. 328-145.
/1 23
52 EARLY ADMINISTRATION OF JUSTICE [Ci lAP.
Governor made a claim for about Rs. 32,000 and got it accepted. He thus got his
booty. After Kamti's death the truth was out that he was innocent. The whole trial
was a plot, evidence was concocted and Governor Boone was behind the misuse of
power and such an inhuman and atrocious act.
The trial and conviction in this case throws light on the methods and standards
of administration of justice prevailing in those days and also the moral attitude of
the judges.
There is no other case on record, writes Prof. Jam 80 where a more profound
injustice was ever committed. Never were perjury and forgery used with so much
unscrupulousness as in Kamti's case. This trial conclusively proves that justice was
rough and ready in those days and at times there was miscarriage of justice. There
were no codes for the Court to bother whether the definition of a crime was satisfied
by the circumstances coming to light in a particular case or whether correct procedure
was being followed or not. Kamfi's case shows the dark side of the system of law
and justice in Bombay : The system has been criticised scathingly by Prof. Jain.`
There was thus, as Rama lois 82 puts it, "no substantive law to be enforced and
no procedural law to be followed. The whole system was capricious and arbitrary."
The Court even sanctioned torture to extract confession and extort evidence.
This case shows the poor stale of judicial and executive affairs. However, there
appears to be sufficient truth fit concluding remarks: "The Court though
its administration of justice was rough and ready and though it fell short of the
ideal's that attended its establishment in Aungier's time clearly served a useful
purpose during the ten years of its renewed existence.8
The Court of 1726 by providing for trial by jur y , introduced in India a very
important English ideal. The Court of 1718 abolished the use of the old practice of
jury trial in deciding cases. Another important factor was that all the members of
the court of 1718 were also members of the Governor's Council. In appeals the
members of the Council constituted the appellate court with the Governor. Naturally,
the executive was bound to play a vital role in influencing the judges while deciding
important cases. It appears that the Company's authorities were not interested in
granting independence to the judiciary and, therefore, the executive always controlled
the independence of the judiciary. This is also clear from the fact that during the
tenure of Governor Boone, two Chief Justices, namely. Parker in 1720 and John
Braddy in 172 I were dismissed from their offices. This state of affairs continued
up to 1728. Under the Charter of 1726 the Mayor's Court was established at Bombay
in 17 8 which replaced the old Court of 1718.
Adj, istrauon of Justice in Calcutta

((IJ G.cantof Zamindari Rights to the Compiny—The English Company's
settlement at Calcutta was quite different from that of Madras and Bombay. As early
80. Jam: Indian Legal Hiswrv, 1972 p 36; Fawcett. The First century of British Justice in India, op. cit.
179; M3ibari: Bomba y in she Making. 1901, op. cit. 328-345.
81. Jam: Indian Legal History at pp 36.37
82. R. Jois: Legal & Constitutional History of India, 1984, Vol. 2, pp. 111-112.
83. Fawce tt: The First Century of British Justice in India, p. 200.
84. For details about Reforms during 17I8 to 1726; See Rama Jois: Legal & Constitutional History of
India. 1984, Vol. 2. pp. 111-112.
21 ADMINISTRATION OF JUSTICE IN CALCUTTA 53
as 24th August. 1690 the English East India Company constructed Fort William for
its factory, by the side of the river HooglyiBl en In 1698, Prince Aziin-Ush-
Shan, Subedar of Bengal and grandsorf Srffi Empëior Aurangzeb, granted Zamin-
dari rights of three villages—Calcutta, Sutanati and Govindpur—to the English
Company." This proved a historical event as the grant of Zamindari rights em-
powered a foreign company to exercise all those powers which the native Zamindars
were authorized to have under the Muglial administrative and judicial system. The
Company took full advantage of this authority and appointed a Collector to control
the administration of all the three villagesY h The Collector began regularly to hold
Zarnindari court for both civil and criminal cases. The local council was required
in 1698 to send all prisoners to Madras for trial, as the Emperor kept in abeyance
certain privileges of the English Company.
In 1699, the status of Calcutta was raised to that of a Presidency and its
Governor and Council were entrusted with all the necessary administrative and
judicial powers. The Collector who was the company's officer, was also appointed
a member of the Governor's Council at Calcutta. The Company thus secured for
(self a legal and constitutional status which made it as good as 7amindar exercising
full rights of Zamindari. This again was a blunder by the Moghid King who trusted
blindly these merchants. This was political shortsightedness.
(ii) Justice in criminal cases—In order to administer justice in criminal cases,
the Company decided to adopt the existing Mughal pattern. As such a Faujdaree
court, presided by an English Collector, was established to decide criminal cases of
the natives of three villages, Sutanati, Govindpur and Calcutta. The Collector was
empowered to decide the criminal cases summarily. 88 As the records show, generally
the criminals were punished by whipping, imposing fines, imprisonment, banishment
or work on roads. Capital punishment was not inflicted unless the sentence was
confirmed by the Governor or President and Council of Calcutta. In those days,
death sentence was executed by whipping to death and not by hanging to death as
was done later on.87 Apart from its jurisdiction on Indians, the Court also look
cognizance of petty crimes committed by English people. For serious crimes the
Governor and Council were authorised to try by the Charter of 1661.88
(iii) Justice in civil cases—To deal with civil litigation, the Collector presided
over a civil court or the court of Cutchery. 89 Ordinarily, the civil cases were referred
to arbitrators by the Collector. The Collector decided cases in a summary way on
the basis of the prevailing customs and usages of the country. In the absence of
such native customs, the case was decided according to natural justice and equity.
In rare important cases only appeals were allowed to the Governor and Council.
The Collector in the capacity of a Zarnindar was also responsible for the
collection of land revenue from natives of three villages. Whipping was the most
85. W.K. Finninger: Affaii.c f:lie Ea.ci India Cu'npmiy. Report V, Vol. I. Ch. IV. See aLco. Wilson: Old
Fort Wdhjwn in Bengal. Vol. I, pp. 40-48.
86. Wilson. The EariyAnnal.c of the English in Bengal. Vol. I. p. 163.
87. Long. Selections front Unpublished Reord.c of Ginernineni, Vol. I. pp 224, 298: Will ion Bolt's,
Cons ,deraiions and etc. 1771). Vol. I. p. 81.
88. W.K. Finninger. Affairs of the !i'jst India Company. Report V. Vol. I, p. 70.
89. WK.Firminger:lbid.,p.71.
54 EARLY ADMINISTRATION OF JUSTICE [CHAP

common punishment given by the Collector for the defaulters of revenue. Appeals
were made to the Governor and Council.90
(iv) Concentration of power in Collector—In the judicial system of Calcutta,
the office of Collector became a very important office. It was dealing with civil,
criminal and revenue matters. It was also authorized to decide petty civil and criminal
cases concerning Europeans in India. The Governor and Council were also em-
powered to decide serious criminal cases and important civil cases. All judicial and
executive powers were exercised by the Collector and the Governor and Council.
It created conflict and confusion resulting in dissatisfaction.
As regards the Judicial system at Calcutta it may also be mentioned that before
the acquisition of Diwani by the Company the Moghul judicial system was in
shambles. Unscrupulous and ignorant people came to occupy the offices of KOZI
and extortion and corruption was rampant. Justice could be purchased in those times.
General confusion prevailed in the field of law and its enforcement. The Company
officers due to acquisition of Zamindari had the chance of filling this power vacuum
and they did so by asserting themselves and snatching more powers from the feeble
and corrupt administrators. Dr. Jain's 9l observations on this peculiar position are
eye openers. Within the precincts of their Zamindari, the English without seeking
confirmation of Nawab "sought confirmation of death sentences from the Governor
and Council without making any reference to the Nawab, and appeals from the
Collector's court in all cases wentto the Governoi and Council and not to the
Nawab's courts.... Thus from the very outset the Company sought to act as a
territorial sovereign vis-a-vis Calcutta and tried to exclude any semblance of the
Nawab's authority from the governance and administration of Calcutta even though
the Company at the time was merely a Zamindar and nothing more."
Such a concentration of power in a single person, the Collector, was "too great
a trust for one single individual". This state of affairs continued up to 1726 and
the 1726 Charter improved the Situation and laid down the foundation of an important
era in the history of the evolution of the judicial system in Calcutta.
(v) Effective Introduction of English laws—Charters of 1668 and 1726 made
it possible for the Company to introduce for the first time En g lish laws side by side
the personal laws of Hindus and Muslims and the subsequent Charters accelerated
this process. Mayor of Cit y of Lyons v, East India c0. 92 , and other cases explain
the above proposition.
(vi) Mayor of City of Lyons v. East India Co—In Mayor of Cit y of L yons').',
one Martin, a native of France, had left behind landed properties in Calcutta and
Oudh. A question arose as to (a will made by Martin) whether the En g lish law
which prohibited aliens holding land in England applied in India also. The Calcutta
Supreme Court applied the English law and declared that the property escheated to
the Crown. The Privy Council on appeal overruled the Supreme Court's judgment
and held that the principle of English law regarding the incapacity of an alien, to
90. H]welI, Jar/jun Tracts. p. 120: Witjjajii Boli's: Cgjnsjr/erujjoa.c itildee v., Vol. 1, 80.
p.
91. Jam: Indian IA't'al Hi.ttu, , 1972. p. 42.
92. Moores Indian Appeals, pp. 29.30.
93. Moores Indian Appeals. pp. 29-30.
21 ADMINISTRATION OF JUSTICE IN CALCUTTA 55
hold landed property in England had no application to a presidency town like

Calcutta which was acquired in a different country and had a different government
The Privy Council was of the view that application of such a law would cause great
hardship and Inconvenience to the settlers in Calcutta.
(vii) Other Cases.—Similarly . in A.G. of Bengal v. Ranee Surnornoyee' the
property of a person committing suicide could not be forfeited to the government
because the English law was held inapplicable to Calcutta. In Bhoonii Money Dassee
v. Natobar Biswas 2 . however, the English Common law was applied and right to
recover damages for slander was allowed. In Naoroji v. Rogers 3 the Bombay High
Court held that the English law of immovable property applied in Bombay. In regard
to Law of Limitation the Supreme Court once made it applicable' but later on the
view was reversed and it was made inapplicable 5 to Hindus and Muslims. In Param
Shookdoss v. Ras/teed it was held that the English law regarding prohibition of
arrest on Sunday was inapplicable to a Mohammedan, India not being a Christian
country. Statutes of Frauds requiring three witnesses to a will was held o have been
extended to India 7 while law relating to prohibited degrees for marriage was held
inapplicable to India. It was suggested that the matter he decided on the basis of
customary law. In matters of Contract. Law of Champerty and Maintenance was not
made applicable but the matter, it was held, should be decided either according to
the personal law or according to the law and usages of the defendant. Thus a contract
violating the principles of Champerty and Maintenance could not be declared void.8
The resultant position, as Jois puts it, was the application of English law through
the 1726 Charter which was a subject of controversy in each case until the court
decided one way or the other. But as far as statutes passed by British Parliament
after 1726 were concerned, they did not automatically extend to India unless
expressly done so.
I. 91 MIA 391
2. ILR 28 Cal 452.
3. 4BomHCR I.
4. KLssenchczrn Tagore V. Roinprtc1 Dthee - Ind. Dec. (O.S ) 1. 1100.
5. R. Sircarv. Nuady Ind. Dec. (OS.) I, 1102.
6. 7 Mad HCR 285.
7. Savage v. Banc/arani Mor. Dig. 1.70(1785).
S. Picha Kuiry chesty v. Kasnala Nayakkan, I Mad HCR 153.
9. Rania Jois: Legal and Gn.cfiIu,jana1Jjj.co,r, q nd,0. 1 984, Vol. II,
p. 30.
3
The Mayor's Courts & the Courts of
Requests in Presidency Towns
The Charter of 1726 liii 1/iC fjr,rt time created a subord,,utle l,'is!citite ISUIIIUPI IV In
of the three presidency towns of India.... I: made the beginning a) importing English ideas,
technical Janus and procedure id cruninOl justice into Indict.
'Justice gained little by establishment of the Mayor's Courts".
J.W. Kaye : The Administration of East India Co,. p. 321
._.it resulted in the distinct progress in the administration of juslue tu'cording to the
principle tuid practice of the English Courts of law.
Fawcett : First Century of British Justice in India. p. 223
thus was established a bridge between the English and the l,,ditin legal systems... a
new leaf in this evolotiouz of judicial i,Igtituttons''.
Jain Outlines of Indian Legal history. 1972. Ch. 6
SYNOPSIS
Early Mayor's Court at Madras (ii) Arab Merchant's case (Boitibay)
(i) Charter of 1687 (iii) At Madras
(ii) Admiralty Court at Madras (iv) Torrianos case
(iii) The Four Courts (v) Sunku Rama's case
(iv) Drawbacks (vi) Pagoda Oath case
2. Onginatior of new Char:er (vii) At Calcutta
3. Provisions of Chartet of 1726 (c) The Result
(i) Etablisktnent of Corporations 7. Political changes in Madras (Sept. 1746 to
(ii) Mayors Court Au. 1749)
(iii) Procedure 8. Chaitci of 1753: Reforms Introduced
(iv) Right of Appeal (e) Cuurr established by the Charter
(v) Justices of the Peace (ii) Conflict continues
(vi) Legislation 9. Criticism of the Charter
4. Consequences of the Charter of 1726 (I) Executive's upperhand
5. Distinction between Madras Charter of 1687 (it) Judges ignorant of law
and the Charter of 1726 (iii) Indefinite jurisdiction
(i) Scope of application (lv) Expensive appeals
(ii) Creation (v) Exclusion of Indians
(iii) Jurisdiction 10. Abolition of the Mayor's Court and Constitu-
tion of new Courts
(iv) Law and Procedure
(v) Recorder
(1) At Calcutta
(ill At Madras
(vi) Participation of Indians
(iii) Position of Executive (iii) At Bombay
II. Appraisal of the Mayor's Court under Char-
6. Critical cstiinase of working of the Mayors
ters of 1726 and 1753
Courts from 1726-175
12. The Courts of Requests (Small Cause Courts)
(a) Application of English law
(b) Conflict about jurisdiction
(i) Shitupys case (Bombay)
1. Early Mayor's Court at Madras

(1) Charter of 1687.—The Company issued a Charter in 1687 which provided
for the creation of a Mayor's Court at Fort St. George in Madras.' The Mayor's
- Charles 11 granted a Charter to the Company on August 9, 1683 It authorised the Company to establish
one or more courts at such place or places as it might direct. James lion April 12, 1686, repealed the
same provisions in the new Charter. The Company issued a Charter dated Ikcembcr 30. 1687. under
56 1
EARLY MAYOR'S COURT AT MADRAS 57
Court was a part of the Corporation of Madras established in 1688 by the Company's
Charter, the Company preferred to issue a Charter under its own authority rather
than that of the Crown. It did so as it was afraid that persons appointed under the
King's Charter may create trouble by violating the Company's orders due to their
appointment by higher authority. The Corporation of Madras consisted of a Mayor,
twelve Aldermen and sixty or more Burgesses. The Mayor and Aldermen were to
elect Burgesses who were not to exceed 120 in number. The Mayor was elected by
Aldermen annually. In the first instance, the Charter nominated the Mayor and
Aldermen of the Corporation. Any vacancy for the post of Alderman was to be
filled in by the remaining Aldermen and the Mayor from amongst the Burgesses.
One Mayor and two Aldermen formed the quorum of the Mayor's Court. it was a
Court of Record for the town of Madras. It exercised its jurisdiction in civil and
criminal cases. in civil eases where the value exceeded 3 Pagodas and in criminal
cases where the accused was given death sentence, appeals from the decision of the
Mayor's Court were allowed to go to the Admiralty Couft at Madras. A provision
was made for the appointment of a Recorder to the Mayor's Court as the judges of
the Mayor's Court were not fully equipped with legal knowledge. The Charter
appointed Sir John Biggs, the Jud g e-Advocate, as the first Recorder of the Mayor's
Court.
(ii) Admiralty Court at Madras.—Under the Charter of James II, granted on
April 12. 1686, the Company was authorised to establish one or more courts at such
place or places as it considered suitable. The Company established a Court of
Admiralty at Madras on July tO, 1686. John Grey was appointed its first judge to
preside with the help of his two assistants. He was succeeded by Sir John Biggs
the former Recorder of Plymouth 2 . He paved the way for introducing English Law
into India. After the death of Sir lohin Big.-s 3 . John Dolben was appointed to preside
over the Court. He was removed from office for corruption'. Thereafter William
Fraser and after him John Stylernan were appointed to serve. The Admiralty Court
continued to work up to 1704 at Madras.
(iii) The Four Courts.—In Madras, therefore, the machinery to administer
justice consisted of four courts. 5 First, the Court of Admiralty presided over by the
Judge-Advocate; second, the Mayor's Court presided over by the Mayor; third, for
small causes of less than two pagodas, two Aldermen presided over the Choultry
Court; and fourth. the Court of the President or Governor-in-Council to hear appeals
from the decisions of the Admiralty Court and the Mayor's Court. As regards the
working of the Mayor's Court at Madras, it is said that the cases were decided on
the basis of justice and good conscience and not oil any fixed legal rules of law. In
later times it was realised that the process was very slow and the result was very
uncertain. The presiding authority's notions of justice were hardly based on any
principles of law and equity. As the Mayor's Court and Cltoultry Courts were
presided over by non-professional persons, personal prejudices and whims were
its authority and not under the Crown.

2. Wheeler. Madrcr in the Olden 7irne.c. (1892), p. 31.
3. Indian Office Records: Or,,iini1 Correspondence Series No. 5666.
4. John Dolben fearlessly gave judgment against his employers when they sued es-Governor Elihu Yale.
See, Dal on. The f.iJe of 7'lwnna Pin. p. 142.
5. Love, Ve.iiRe.c of Old Madros, Vol. I, p 498: Vol.11, pp. 31, 173.
MAYOR'S COURTS & COURTS OF REQUESTS I CHAP.
bound to creep into the administration of justice. It resulted in the lack of uniformity
and consistency in the decisions.
(iv) Drawbacks.—The judicial system at Calcutta and Bombay differed greatly
and the state of the administration of justice was at its lowest ebb. Maintenance of
law and order even amongst Er.jlishmen. employed by the Compan y at these
presidency towns, became a serious problem. Decisions of the Courts in India were
not recognised by the Courts in England and its consequence was that in man)' cases
English people were again tried in England for causes which arose in India and
settled by the Indian Courts. The Directors of the Company realised the growing
discontent and weakness of the Company's state of affairs and efforts were made
to find out some suitable means to tackle this problem.
2. Origination of new Charter
Political and commercial activities of the Company were increasing day by day
and the Company wished to avoid litigation. However. there was no suitable
machinery for administering ju stice in three presidency towns which the Courts in
England could recognise. No such machinery was set up at Bomba y and Calcutta.
The Company at the same time was unwilling to submit to the jurisdiction of native
Indian Courts. The Directors of the Company, therefore, presented a petition to
George I stating, ''That there was a great want at Madras, Fort William and Bombay
of proper and competent power and authority for speedy and effectual administration
ot'justice in civil cases and for trying and punishing of capital and other offences."
While considering the reasons which encouraged the Company to have a new
Charter from the King in England. it is interesting to note that historians have stated
different reasons. Fawcett has stated. .....one of the main reasons for the Company's
change of attitude was to avoid civil litigation against it in England, due to executive
inte.nnccldling with private property." On the whole, it may be concluded that after
Ion(, experience the Compan y realised the necessity of properly constituted Courts
in all the three presidency towns having not only civil and testamentary jurisdiction
but also under such authority as was recognised by all the Courts in England. As
stated above, the Mayor's Court at Madras. which was established in 1687. had the
inherent defect of emanating not from the Crown but from the Company itself.
3. Provisions of Charter of 1726
(i) Establishment of Corporations—The Charter tf 1726 provided for the
establishment of it in each presidency town i.e. Bomba y. Calcutta,
Madras.' Each consisted of a Ma y or and nine Aldermen. It orovided 01.1i the Myor
would be elected every year by nine Aldermen and the retiring Mayor. from amongst
the -Aldermen. An Alderman was appointed either for life or for the teun of his
residence in the presidency town. ilie Governor-in-Council was empowered to
dismiss or remove any of the Aldermen on reasonable cause. The G o vernor-in-Coun-
cil of each presidency town was entwsted with the power to make by-laws, rules,
C. Fawccti has pointed out the ruse of Nlr.Wo.jla.ion who brought ,.everal suits again. Company aIIcr
the death of his son in lridi, mit the Courts in CnIand awarded him f 1Ctfl,is diia-.
'.vccn, Frv
Cereur', 01 F?rjOsh .1.vtu-i' in I, 'ilio. pp 2 I I C
7. The Cii.'nl,i:dve ilium-v oj India. Vol. V. CR. IV. p. 113. In Madras, the pro%,
isions of ihc Chaitci weje
implemented on Auuc t 17, 1727. Si WheeL, .Modra.c in the Ol,hn Tn,ui.
(1852), p. 466. Leitei.
Patent of September 24. 1726. the 13th year of the reign of George I.
31 CHARTER OF 1726 59
ordinances to regulate the, working of the Corporations and also for the better
administration of the inhabitants of the settlements. The Governor-in-Council was
required to obtain in writing prior approval and confirmation of such rules, by-laws.
etc. from the Court of Directors of the Company. It is, therefore, said that the
Charter of 1726 for the first time created a subordinate legislative authority in each
of the three presidency towns of India.
(ii) Mayor's Court—The Charter of 1726 also constituted a Mayor's Court
for each of the presidency towns consisting of a Mayor and nine Aldermen.' Three
of them i.e., the Mayor or senior Alderman together with two other Aldermen were
required to be present to form the quorum of the Court. The Mayor's Courts were
declared to be Courts of Record and were authorised to try, hear and determine all
civil actions and pleas between party and party. The Court was also granted
testamentary jurisdiction and power to issue letters of administration to the legal
heir of the deceased person. It was authorised to exercise its jurisdiction over all
persons. living in the presidency town and working in the Company's subordinate
factories.
(iii) Procedure—The procedure of the Mayor's Court was clearly laid down
by the Charter. The Sheriff, an officer of the Court, was appointed by the Governor-
in-Council every year to serve the processes of the Court. On the written complaint
of the aggrieved party the Court issued summons directing the Sheriff to order the
defendant to appear before the Court. in case the defendant failed to appear on the
fixed day. a warrant was issued by the Court asking the Sheriff to arrest the defendant
and present him before the Court to face the charges. 'The Court was empowered
to release the defendant on such bail or security as it considered suitable. The
judgment of the Court was followed by a warrant of execution issued to the Sheriff
to implement the decision. The Sheriff was authorised to arrest and imprison the
defendant. The whole procedure of the Court was based on the procedure as adopted
by Courts in England.
(iv) Right of Appeal.—By virtue of the same Charter for the first time an
appeal was allowed to the Governor-in-Council from the decision of the Mayor's
Court in each presidency town. A period of fourteen days, from the date of judgment.
was prescribed to file an appeal. The decision of the Governor-in-Council was final
in all cases involving a sum less than 100 Pagodas. In case the sum involved was
either 1000 Pagodas or more, a further appeal was allowed to be filed to the
King-in-Council (His Majesty's Privy Council) from the decision of the Governor-
in-Council. 9 Thus the Charter introduced a new system of first and second appeals,
making the King of England the ultimate fountain of justice for litigants in India.
(v) Justices of Peace—The Charter provided that in each presidency town, the
Governor and five senior members of the Council will have criminal jurisdiction
and would be Justices of the Peace. They were empowered to arrest and punish
persons for petty criminal cases. These Courts were entrusted with the same powers
as similar Courts in England. Regarding procedure, manner and form to be adopted
8. For Mayors Court at Madras. See V.C. Gopalaratnam. A Century Cornpteied: A History oJMadrus
High Couri. pp. 84 . 85 Secalso. The Curtbid.i,'e lIic10 ojintha. Vol. V. Cit. IV, p. 113; MC. Setalvad.
The Co,ninun law in Inthu. pp. 12.18.
9. The First Indian appeal to the Privy Council in pursuance of the Charter of 1726 appeais to have been
made as early as 1732 in a case from Madras.
60 MAYOR'S COURTS & COURTS OF REQUESTS [CHAP

by these Courts, the Chartei- clearly stated that the English pattern would be followed,
"...in the like manner and form as near as the circumstances and condition of tile
place and inhabitants will admit...." It may, therefore, be concluded that the Charter
of 1726 made the beçinning of importing English ideas, technical forms and
procedure of criminal Justice ink India.
(iv) Legislation.--lt shou.d also be noted that the Charter empowered the
Governor and the Council of each Presidency town to make by-laws, rules arid
ordinances and to prescribe punishments for its breach which should not he contrary
to English law but agreeable to reason.'0
4. Consequences of the Charter of 1726
King George 1 issued a Charter to the Company on the 24th September, 1726.
The Charter became an important landmark in the legal histor y of India due to i:s
various i'irol provisions l afar-t-cachii:g consequences. The y
ear 1726 saw the
abolition of the Court of Admiralty at Madras and the enlargement of the powers
of the Mayor's Court. By establishing the Mayor's Courts at the three presidency
towns of Bombay. Calcutta and Madras, the Charter introduced a uniforin judicial
machinery for justice in India. The civil and criminal courts established under the
Charter derived their authority directly from the King and not from the Company.
In this respect, these courts were superior to the Courts which were established in
1686 by the Company. The King in England, in whose name justice was administered
in England, also became the fountain of justice for Courts in India. It added prestige
and status to these Cowis not onl y in India but also in England. These courts may
therefore be said to be Royal Courts. The very fact that the Courts in India derived
their authorit y from the King, gave rise to the introduction of a new system of
appeals from Indian Courts to the Privy Council in England. The common alleciartee
to the King, in the field of judicial set-up, paved the wa y for importing English
ideas of law and justice, into India. It was through the Privy Council that the
principles of English law were gradually applied in deciding Indian cases wherever
Indian law was silent or defective according to English judges Aport form !h!c, the
deep-rooted English tradition of showing t- respect to the decisions of the highest
judiciary was also adopted in India. With adoption of the doctrine of precedent
in India, the principles of English law greatly infloe7mc'd Indian low and legal
Institutions. The Charter of 1726 itself played an important role in introducing
English Common and Statute law in India. An important stage in the evolution of
British Courts of Justice was reached with thig Charter. There appears to be great
truth and in Fawcett' ,, remark, ...it meant the authoritative introduc-
t'nn of Enghsh law nm the gresdenc towns and
foreiiuduwud 'he parliamentary
interference that first took shape in the Reulatine Act of l7 T . " which laid the
foundations of codificat i on of the Indian law. In the words at
Dr. Jia ''thus was
established a bridge between the English and the Lian legal systems ."turning "a
new Teal' in the evo1io fdjcial institutions. Due to its tremendous significance
Me Charter is usuall y characterised as the ''Judicial Charter."
o Auber. .zdvc, of the Co:,st:ti,tum of Las: /ncIj Co., 23, quoted in Jam: hut/an 1. a1 !lisiorv, I '172.
p 4 . 49 fn. 4.
II. Jain: /n,I,wi Le,a! /lLcm,n-v 1972. Ch .t,
31 WORKLNG0I MAYOR'S COURTS
5. Distinction between the Madras Charter of 1687 and the Charter of 1726
(1) Scope of Application.— The Charter of 1687 applied to Madras only
whereas the 1726 Charter applied to all presidency towns.
(ii) Creation.—The Mayor's Court established in 167 was a Company's Court.
Three Mayor's Courts established in 1726 were Royal Courts as they were created
by King's Charter of 1726. Naturally, the status of these Courts was recognised by
the Courts in England.
(iii) Jurisdiction.—The old Mayor's Court at Madras was empowered to
exercise its jurisdiction over all civil and criminal matters and an appeal was allowed
to go to the Admiralty Court. On the other hand, the Mayor's Courts established in
1726 were entrusted with civil jurisdiction only, and from their decision, first appeal
was allowed to the Governor-in-Council in the respective presidency town, and a
further appeal was allowed to go to the King-in-Council in all cases involving a
sum of 1000 pagodas or more.
(iv) Law and Procedure—No specific rules of law and procedure were laid
down for the old Mayor's Court at Madras. The Mayor's Courts, established by the
Charter of 1726, were required to follow a well-defined procedure based on English
law and practice. Thus the former can be said to be governed more by principles
of equity whereas the latter was governed by English Law.
(v) Recorder—A lawyer known as Recorder was attached to the old Mayor's
Cowl at Madras in order to advise the Court, while no such officer was attached
to the three new Mayors' Courts.
(vi) Participation of Indians.—In the old Mayor's Court at Madras some
Indians were authorised to sit as judges together with English Aldermen. The Charter
of 1726 specifically provided for this purpose but it may he stated that the
representation of Indians under the Charter of 1726 was practically negligible. In
fact no Indian was ever appointed.
(vii) Position of Executive—The Charter Act 1726 entrusted judicial powers
to the Governor-in-Council who had all the executive powers. This was not so under
the provisions of the Charter of 1687. The Charter of 1687 is considered to be
superior than the Charter of 1726 as the modern progressive ideas of separation of
judiciary from the executive were deeply rooted in it.
6. Critical estimate of the working of the Mayor's Courts from 1726 to 1753
(a) Application of English law—After the Charter of 1726 was actually
implemented and the Mayors' Courts began their functioning. gradually the defects
and lacunae in the provisions of the Charter came into limelight. It was realised that
the Charter was not quite clear in its language. The worf: ing of the Mayors' Courts
at Bombay, Calcutta and Madras created many difficulties for native Indians.
Referring to the working of the Mayor's Court at Bombay, Vachha states, The
cumbrous, costly and intricate law, bristling with technicalities, fictions and for-
malities of all sorts was wholly unsuited to speedy and simple disposal of disputes;
and the difference between English and Indian conditions, and the legal atmospheres
of Bombay and of Westminster,were apt to be overlooked.''' 2 For the first time.
12 P.B. Vachha, Famous Judges. L,w yer.c and Cases of Bombay. p. 12.
.Yrr' rn ,n'r . r- 2TT

the Mayor's Court administered English late in India. The Eng lish law contained
both coranion law and the statute law. Nearl y all the common law and statute law
as it existed in Eneland in 1726, was introduced in the three presidency towns of
India. it completely ignored the Indian customs and traditions, and was hardly
suitable to Indian conditions in those days. The Mayor and Aldermen, who presided
over the Mayor's Court. were either senior servants of the Company or dependent
on the Compan y 's pleasure For their stay in India. They had neither an
y regular
legal training nor any judicial experience to their credit. Evil consequences were
therefore hound to follow. As there was no specitk mention about jurisdiction, tue
Court decided that it was empowered to exercise its j urisdiction even in such case',
where both parties were native Indians. All these excesses and peculiarities in the
name of justice enforced by the English people created great dissatisfaction and
unrest amongst the native inhabitants of each presidency town.
The Charter of 1726 created a Corporation and a Mayor's Court in each
presidency town. The Mayor's Court was Constituted to \VOrk independently but its
relationship with the executive, Governor-in-Council, was not stated clearly. In actual
practice, the executive machiner y expressed its hatred and jealousy against the
independent attitude of the Mayor's Court. At times,(),-. the basis of major policy
matters, the executive tried to dictate its terms to the judiciary. On refusing to carry
out the wishes of the executive heads, the Mayor and Aldermen came into contlict
with the Governor-iii-Council in many cases at Bombay, Calcutta and Madras.
Instead of the smooth working of these two wings—executive and judiciary—their
relations became severely strained in each presidency town.
(b) Conflict about Jurisdiction.—_The following few cases, as pointed out by
Fawcett, D
will reveal the growing conflict and reflect on the extent to which the
relations between the Governor-in-Council and the Mayor's Courts at Bombay,
Madras and Calcutta became strained.
U) Shirnpvs ease (Bombay).--As early as 1730, Governor Cowan and the
Ma y ur's Court at Bombay came into conflict on the Court's Jurisdiction over natives
in matters concerninp their rwzip and relic ir.n,
'lids situation arosein a case where
a Hindu woman of Shimpy caste changed her religion and became Roman Catholic.
She had a son of twelve years of age. After the mother changed her religion, the
Sort )eft her and decided to stay with his Hindu relatives The mother tiled a suit in
the Mayor's Court against 4or 4'indu rekttives on the ground
of unlawfully detaining
Hne jewcls and the boy. As a cnnsequcnce of it. the Court ordered the
rclativcs
to hand over the boy to his mnutlici. The heads of the caste tiled a complaint to
Governor Cowan and the iiit
s duly considered by the Governor and Council
The held that die rc101'5 C'urt
WaN not authorised in exercise its iurisdjctiin over
Causes of religious nature or dispute concerning caste anion g
, the natives" and a
separate warning was issued to tk
Mayor's Court stathg (ham in future the Court
should not interfere in Such cases. The court strongly protested against the stand
taken by the (ioveinor-in .
Councih on the eround that the matter tit dispute was not
at all religious and the Court was empowered to decide such cases under the authority
of the Charter ol 1720. Hie Mayor retorted by declarin
g that so ks as lie Presided
over the Court. he wiii;!1k e v ery stc to :tfe g
uard the pre rr,igts, s of the
13. Fawcu, 1'iisi G0111111 1 r,j Bnti.ih Jusri&-i' I,!
!/ju, pp 215-20
31 WORKING OF MAYOR'S COURTS 63
and he would even go to England to file an appeal to the King-in-Council. The

Governor removed the Mayor from the post of "Secretary to the Council", a post
which the Mayor occupied together with his main work of the Mayor's Court.
Ultimately, the conflict was reported to the Court of Directors of the Company. The
Directors of the Company denounced the rash and extreme attitude of the Bombay
Council and issued general orders to prevent repetition of such a conflict.
(ii) Arab Merchant's case.—In the same year, in Arab Merchant's case, the
Council and the Mayor's Court again came into serious conflict. An Arab merchant
sued a person in the Mayor's Court for recovery of the value of his pearls. The
merchant stated that the defendant extorted the pearls from him white he was rescued
near the coast of Gujarat from a burning boat. The Governor-in-Council suggested
to the Mayor's Court that the claim suit filed by the Arab merchant was invalid as
the defendant was tried for piracy earlier and was acquitted. But the Mayor's Court
paid no attention in the Governor's suggestion and decreed the suit in favour of the
merchant. Oil before the Governor-in-Council, the decision was reversed by
the casting vote of Governor Cowan. Due to the casting vote of the Governor, the
Mayor's Court expressed great doubt and challenged the legality of the reversal
order. This added fuel to fire and the existing Tense relations between the Mayor's
Court and the Governor further became strained.
(iii) At Madras,—In Madras, a study of the working of the Mayor's Court during
this period reveals that the relations between the Mayor's Court and the Goveinor-
in-Council were not cordial.On many occasions they came into conflict with one
another. Whenever any decision was made either hy the Council or the Court
asserting independence and superiority of one over the other, conflict arose between
the two Whenever the Mayor and Aldermen while acting as grand jury at the quarter
sessions tailed to show clue consideration and respect to the authority of the
Governor-in-Council, there was a clash between them involving a question of
prestige. The Mayor's Court expressed its indignation when the Corporation tried
to utilise money, collected by the Court as fines for the purpose of public works.
The Court always insisted on its independent authority and original jurisdiction in
administering justice and made it clear that the Governor and the Council had no
power to dictate or interfere in its working. After a detailed study of the official
records from 1729 onwards Love in his book "Vesti ges of Old Madras", has pointed
out many instances when the Mayor's Court at Madras came into conflict with the
Governor-in-Council. It will be worthwhile to quote and discuss some el them.
(iv) Torriano's case—In a case where Torriano, Secretary to the Government.
filed a civil suit against Naish.' 4 the Mayor, the Mayor's Court held that the Mayor
was immune from legal action in the Court) 5 Sometime later it was also revealed
that the relations between Naish, the Mayor, and the Governor became tense due to
their personal rivalry, jealousy and personal hatred against each other. In 1734, when
Naish was re-elected as Mayor, the Governor of Madras refused to allow him to
take the oath of office on the plea that the re-election of the Mayor was not permitted
14. Tornano and Naish both attended a dinner. Hented by the wine.c they imbibed, they bet against each
other on a trivial matter. Tonriano, the Secretary, won and the Mayor, Naish. lost the bet. Torriano filed
a suit againsL Naich for the recovery of the bet ainourn.
15. Love, Vestiges (if Old Madroc. Vol. 11, p. 264.
64 MAYOR'S COURTS & COURTS OF REQUESTS [CoAt'.
by the provisions of the Charter. As a result of this a new Mayor was elected by
the Corporation. Though a new Mayor occupied the office, the relations with the
Governor did not improve. It shows that the causes of conflict between the two
were deep-rooted.
(v) Sunku Ratna's case.—In 1735, the executive filed it against a person,
Sunku Rama, for a breach of contract before the Mayor's Court. The Court of Appeal
i.e., the Council directed the Mayor's Court to issue a warrant of execution. The
Mayor's Court displayed a difference towards Sunku Rama. 15 At this. the Council
felt insulted and it issued orders to its solicitor to file it complaint to the Council
against the Mayor and each of the Aldermen for not obe y ing the directions of the
Court of Appeal. The Mayor's Court raised legal objection to the relevance of the
Council's step which was itself a part y to the suit. As the Court's records are i}cnt
on what happened later in this case, perhaps at that stage, the Directors of the
Company intervened and advised both the litigants not to proceed further in that
issue. It was surprising to note that both the parties, the Ma y or's Court and the
Governor-in-Council, , justificd their claims on the basis of the Charter of 1726.
(vi) Pagoda Oath case.—The Mayor's Court also came into conflict with the
local inhabitants of Madras. The Court insisted that the Hindu witnesses must take
"Pagoda" oath instead of "Geeta' oath. The Geeta" or "Gita" is a hol y book
of Hindus. A Gujarati merchant was lined by the Court for refusin g to take
Pagoda" oath. When the matter came bfbre the Governor-in-Council, they
remitted the fine. Sometime later in 1736 two Hindus were even imprisoned, at the
instance of the Mayors Court, oil refusal to take 'Pagoda" oath. This incident
excited the Hindus emotionally and their expression nt great dissatisfaction posed
a problem of law and order. The Governor, thereöre, intervened and released them
on parole under his orders. This incident and the role of the Governor further added
to the already tense reIions with the Ma y or's Court. Sometimes intricate questions
of law were also referred to EngIanc1.t
In financial matters also, the steps taken by the Mayor's Court at Madras were
not be y ond doubt. In January 1744, the Court represented to the Government through
its Registrar that as its income was not. sufflceit tu iiicei is cxpendiiure, it
appropriated the money belonging to the Estates which was deposited in the Court.'8
(vii) At Cilculta.—At Calcutta, the Mayor's Court was established in 1728
under the Charter of 1726. In its actual working and dealing with the Governor-in-
Council, the condition was in no way better at Calcutta than Bombay and Madras.
Similar conflicts arose between the Ma y or's Court and the Governor- in.Council.
(c) The Result.—In all these clashes and conflicts, even English people were
divided into two rampc and were working against each o t
her. The inhabitants of
lb. Fort St. George Records. Public 'onsuhzarionv. Vol. LXV.
17. A typical opimull forv. .srdcd by the Company to Fort Si. George is one dated December 31.1741 It
was given by the Attorncy-Genrmt and Solicitor-GcnciaJ of England. ...can the seitmor
n4 Cuuncil
preside and hear the appeal? .4,rwer In the cftcc of real incapacity
the nci senior Councillor cannot
preside.... Can the Court ofAppeal hcara case which cannot be heard before dic Mayor's Court because
the A!dcrmiicn are iiiterciitcJ flosicr Nu. itic Couti of Anneal has no orisinal JIlrmcttlien whir
should be done with the e.cmates of intestate persons? Arrsi,cr: The only inetliud
is For the Conipanyc
servanis not to intermeddle with such husmncsr" DodvetI. A Ccdendor e,, thc Mcithjv Reco rds.
(1740 044),p J5i8.
8. Love. Ve.aiçca ol Old Miuire.s, Sc!. 11. p 276
31 CHARTER OF 1753 65
Bombay, Madras and Calcutta were the greatest sufferers due to the constant
conflicts between judiciary and the executive. It created an atmosphere of great
unrest in all the three presidency towns. A petition was, therefore, sent to the Court
of Directors of the Company on behalf of the inhabitants of all the three presidency
towns. In their reply to the petition, the Directors of the Company made it quite
clear that regarding conflicts and litigation between the natives in which the King's
subjects were not involved, "this may and should be decided among themselves
according to their own customs or by justices or referees to be appointed by
themselves.., but if they request and choose them to be decided by English laws,
those and those only must be pursued. and pursued according to the directions of
the Charter; and this likewise must be the case when differences happen between
the natives and subjects of England where either party is obstinate and determined
to go to law."
According to Kaye" "Justice gained little by establishment of Mayor's Court"
while according to Fawcett. "It resulted in the distinct progress in the administration
of justice according to the principles and practice of the English Courts of law' '20
Whatever it may be, but in result, as Dr. lain expresses, "The Company soon lost
its patience as it could no longer brook strife between the judiciary and the executive.
In 1753 it took, steps to weaken the judiciary. This was unfortunate but easy
comparatively' '21
7. Political Changes in Madras (Sept. 1746 to Aug. 1749)

On September 14, 1746. the French captured the city of Madras. The victory
of the French brought Madras under the temporary rule of Pondicherry. 22 It gave a
death blow to the Mayor's Court at Madras. In 1749 the city of Madras was
recaptured by the English from the French. The English Company realised the
necessity of a suitable judicial machinery at Madras. it was considered reasonable
to revive the Mayor's Court under a new Charter.
The Mayor's Court was re-established at Madras by a Charter of George II in
1753 . 23 The existing defective state of judicial affairs was quite 'clear before the
Directors of the Company. A petition,' stating the difficulties and hardships faced
by the inhabitants of the presidency towns of Bombay and Calcutta, was already
lying with the Directors of' the Company for serious consideration, The Directors
considered it suitable to utilise this opportunity to remove the defects of the Charter
of 1726. The Charter of 1753, Royal, Charter, was therefore issued by King George 11.
8. Charter .of 1753 Reforms Introduced

The new Charter re-established the Mayor's Courts at Madras. Calcutta and
Bombay. It also introduced some reforms in the Charter of 1726 to tackle the
conflicting situation and also to gain favour of the local men residing iti the
presidency towns by removing their hardships. It excluded from the jurisdiction of
the Court all suits and actions between natives only, and directed that these suits
9. J. W. Kaye, The Administration of the East India Compan y, p. 321.

20. Fawcett, First Century of BritLcli Justice in India, p. 223.
21. Jam: Indian Legal History, 1972. Ch. (I.
22. French occupied Madras in 1746 and administered it until the Peace of Aix-la-Chappete in 1848.
23. Dodwell, The Nababs of Madras, p. 156.
re . .. ... ... ._..-......_..... rn..

tjU LTh !tjr. . LLJU',I t.AJLJS'.I.) '.Jf tC.UL.l.)
and actions should be determined amongst themselves unless both parties submitted
them to the determination of the Mayor's Court. It was an important restriction
imposed on the jurisdiction of the courts in the presidency towns.
It made the Mayor's Courts subordinate to the Government of the Company by
making certain important changes in its constitution which made the Mayor the
Government's nominee. Consequently the Mayor's Court lost its independence. It
appears that the underlying policy was to strengthen the hand of the executive
Government and its political power.
Regarding taking of oath", the Charter made it clear that the main purpose
was to oblige the witness to speak the truth before a court. It provided a particular
oath for Christians. For Hindus. it was stated that the oath must be taken in a manner
which is considered most binding on their conscience according to their own castes.
It was also provided that the Mayor's Court was empowered to hear suits against
the Mayor and Aldermen. But in such cases the interested person was not allowed
to preside over the Court. The Mayor's Court was authorised to hear and decide
cases against the Company. In such cases the Government was required to defend
its case with the aid of its legal experts.
The Charter also created a Court of Request' at each presidency town of
Bombay, Calcutta and Madras to decide civil cases involving a sum not exceeding
5 Pagodas i.e. Rs. 15. Its chief aim was to give cheap and quick justice to the poor.
It consisted of Commissioners numbering from 8 to 24. These Commissioners were
required to sit in a quorum of three in rotation once a week.
(I) Courts established by the Charter.—Thus the Courts established by the
Charter of 1753 may be briefly stated as follows:
(I) The Court of Requests, to hear civil suits up to 5 Pagodas, one for each
presidency town.
(ii) The Mayor's Court to hear civil suits for more than 5 Pagodas, one for
each presidency town.
(iii) The Courts of the President and Council. It was empowered to act as
Justiccs of the Pcacc and the Court of Quartcr Scssions to hcar and dccidc
criminal cases. It was also empowered to act as civil appellate Court and
in that capacity to hear civil appeals from the Mayor's Courts in the
respective presidency, towns.
(iv) The King-in-Council (the Privy Council), as the highest Court of Appeal,
heard appeals from the Court of the President and CnciJ in all civil
cases involving a sum of 1,000 Pagodas (Rs. 3000) or more.
(U) Conflict continues.—The new Mayor's Court at Madras found it difficit
to escape from its own tradition of conflicts. In 1754 one Ephraim Issac accused
one of the Aldermen of the Mayor's Court of giving dinners to two others in order
to make them support him.
24. Love, t'eu,'es of Old Madras, Vol. It. p. 440.

25. Dodwelt. A ('aInthn qf the Mudrox De.cpuch.c 1744-1755. Introduction, p. 13.
31 ABOLITION OFT}IE MAYOR'S COURT 67
9. Criticism of the Charter

(i) Executive's upperhand.—The Charter of 1753 made the judicial machinery
more or less a branch of the Company's executive government and it failed to
provide for the due administration of justice. The Mayor's Court was presided over
by persons who were selected from the junior servants of the Company. They were
inexperienced, ignorant of law and untrained in the art of administering justice.
There appears to be sufficient truth in V.K. Ferminger's observation "The weakness
of judicatures of 1726 and 1753 arose from the fact that they tended to be in fact
but various branches of the Company's executive Government and therefore afforded
imperfect means of resistance to the class intcrcsts of the Company's servants at a
time when the Company's servants were bidding fait to rnonopolise the trade of the
Country."26
(ii) Judges ignorant of law.—Similarly. the Governor-in-Council were quite
ignorant about the technicalities of the English criminal law, on the basis of which
they were expected to decide cases in India. This made them to misuse their position
for private interests.
(iii) Indefinite jurisdiction.—Only the presidency towns were under the juris-
diction of the Mayor's Courts, but the position was not made quite clear about the
cases arising beyond such area
(is') Expensive appeals—Provision was there for appeals to the King-in-Coun-
cil, but on the basis of the records it can be very well said that for a long period
of time hardly any appeal was taken to England as it was a highly expensive task
to go to London for an appeal.
(v) Exclusion of Indians—The Mayor's Courts practically excluded Indians
from having any share in the administration of justice in India. They were not
appointed to the Bench. Under the Charters of 1726 and 1753 the only capacity in
which Indians were allowed to participate in the administration of justice, was as
jurors in the Sessions Court. The privilege was restricted to those only who accepted
the Christian religion.
10. Abolition of the Mayor's Court and Constitution of new Courts

(i) At Calcutta,—At Calcutta the defective state of judicial affairs continued
for some time till the House of Commons appointed a Committee of Secrecy in
1772. Apart from certain inherent defects in the recruitment of persons to preside
over the Mayor's Court, the Court also came into conflict on the one hand with the
President and Council, and on the other, with the native Zamindar's Court. Persons
presiding the Mayor's Court were mostly ignorant and inexperienced in legal work .27
The Mayor's Court always considered the Zamindar's Court as an encroachment on
its jurisdiction. Though because of the provisions of the Charter of 1753. The
Mayor's Court was helpless in attracting native litigants, still it came into conflict
with the Zamindar's Court on the issue of jurisdiction .28 The Committee of Secrecy
26. V.K. Ferminger, Fifth Rep.,r' 'f Select Coinmiuee. p. 79.

27. WilJiani H. Morley, Atw/yiai1 Digest, 1850, Vol. 1, p. 12.
28. HoIwell. a Zamindar imprisoned Soodasibdas and refused to releise him though the Mayor's Court
asked the Zainindar to do so. The Court represented the matter to the Company after referring it to the
Governor-in-Council. Letter from the Mayor's Court at Calcutta to the Company. dated March 1, 1754:
68 MAYOR'S COURTS & COURTS OF REQUESTS ICHA
reported that many of His Majesty's subjects residing in Bengal, were "neither undi
the protection or control of the Laws of England, nor amenable to the crimiri
judicatures of the country. 29 In its Seventh report, the Committee of Secrecy severe
criticised the working executive and judicial system in Calcutta and submitted i
report to the British Parliament. It recommended that immediate steps should I
taken to introduce reforms in the judicial system. The British Parliament interveni
and passed a new Act, known as "The Regulating Act, 1773". The Act of IT
abolished the Mayor's Court at Calcutta and in its place a Supreme Court w
established in 1774. These changes were made at Calcutta only and not at oth
presidency towns. It appears that the British Parliament considered it suitable
introduce the reforms on an experimental basis at Calcutta and assess its workii
so that if it proved successful, the same may be introduced at Bombay and Math
also at a later stage.
(ifl At Madras—At Madras, the Ma y or' s Court continued to function somehi
or other until 1797. The Charter of 1753 provided that in matters between nati
the jurisdiction of the Mayor's Court depended on their submission. In practice
made very little change since the natives of Madras had no effective substitutes I
the Mayor's Court as was the case at Calcutta. Dealing with the working of i
Mayor's Court, a despatch was sent to the Company from Fort St. George on A
15, I791. 0 It stated one defect which required immediate rectification, Oz., that 1
judges of the Mayor's Court were not skilled in law and this disqualification rea
produced grave injustice in particular cases. It was also reported that due to incre
in jurisdiction of the Courts its work also increased. Professional judges wi
therefore required to be appointed. Consequently the Company decided to abol
the Mayor's Court at Madras and under the Charter of 1798 the Recorder's Co
was established in its place. The constitution of the Recorder's Court at Madras '
the same as at Bombay. The Recorder was an expert in English law. Apart ft
ilnorovin the judicial system, its object was to bring the administration of just
in Madras into line with the macii y of jc n cLca.
(iii) At !ombay.—At Bombay. the Mnyor'c (rui,1 wac aholisIwd in 1798
in the same year the Recorder's Court was established in its place. The May
Court functioned for nearly 70 years with its inherent defects of principle
personnel. The Recorder's Court at Bomba y consisted of a Mayor, three Alderri
and a Recorder appointed by the Crown. It was provided by the Charter that
Recorder must be a Barrister of not less than 5 years' standing. In fact the Reco:
was the real judicial authority to enlighten the court with legal provisions applicc
in each case. In 1798, Sir William Syer was appointed as the first Recordei
Bombay.
As oo ted 31 , with all their shortcomings the Mayor's Courts wer much
than the Courts existing prior to them and they .!d cciUtutc riportant links in
chain of the evolutionary process of the Indian judici. With their end, also c
Pan Wt(J ?rr'e'l!. VoI. V!tl. P . 34

29. Seventh Report of the Go,n,niriee f Secrec'. p. 333.
30. Cited in G. Gopalarainani. .4 Ccnoi' r,,n, j ileted . A History of the t1drc 110,h Court. p. 57.
31. Jam: Indian Le,e.il Ilisto,. Ch. (, p. 67.

tL.flt 'ii .flPS ( 'J1' ) %.'.JLSS .'

-'.1
to an end the system of entrusting administration 0! justice to non-lawyer .'servants

of the Company.
11. Appraisal of the Mayor's Court under the Charters of 1726 -mW 11753
It may be stated briefly that the Charter of 173 made the Mayor' Court more
or less a branch of the Company's executive Government. Persons esidingover
the Courts were selected from amongst the junior servants of the Company *hose
appointment and dismissal depended on the sweet will of the Governor-in4Council.
Judges became tools in the hands of the executive. Judges of the Mayor's Court
were primarily experts in trade and commerce. They were Jacking in professional
legal training and in legal knowledge. It appears that the Court of Directors, as a
matter of policy, never stated clearly that they were interested in maintaining
independence of judiciary. In fact the Company was more interested in safguarding
its trade and commerce and the machinery to administer justice was mainly to deal
with English Ltigants in India. The Judges of the Mayor's Court were always
interested in expanding their jurisdiction over natives on some pretext or the other.
But the persons administering the law did not have any judicial training nor did
they know what law was to be applied to tie litigants. Such a state of affairs was
bound to lead to confusion. Under sucl; conditions, therefore, a very important
question arises--How far had justice gared by the creation of the Mayor's Court?
Before answering the question, posed above, it will be worthwhile to consider
certain observations made by eminent historians which may assist in properly
assessing the entire situation.
Referring to the working of the Mayor's Court, William Bolt has observed,
"The Ma y or's Co has become rather a scourge in the hands of the Governor-in-
Council than an instr ,: of r 1 t0 thc inured, and justice in Bengal is made
so much a political farce that no one concerned in the administration of it does so
12
much t hrd the giving offence to any gentleman in power." According to
-. him the Governor-in-Council got the "unconstitutional" power of "making and
unmaking" the judges.
Alan Gledhill appreciated the working of the Court and the Judges. The
popularity of the Courts with Indian litigants was presumabi due in past to the
efficiency of their executive proceedings, 33
Alan Gledhill's observations have b.--en much criticised byDodwell, an eminent
historian, who said, 'A system that could hardly be mastered by the study of a
life-time had then to be put into force by persons scarcely acquainted with its
elements there was thus fine opening for those who could persuade others that they
had any legal knowledge - you had to put up with make shift justice...."
Regarding "popularity of the courts with Indian litigants" as stated by Gledhill,
there is enough material on record to prove that at Calcutta the native litigants
preferred Zamindar's Courts than to go to the Company's Court after 1753. On the
other hand, the Mayor's Court was making constant efforts and taking undue steps
Q. William Bolt. Cons,deroiion.c of jilL-han Ajwrs. Vol. 1. p. 87

33. Alan Giedhitl. The hepthücof(ndw; Tii Development o us Laws wza Consatu:ior', Edo. 2nd ttó4;.
P. 214.
34. Dodwell, Nabub.c qf Mad OLc. pp. 148-57.
70 MAYOR'S COURTS & COURTS OF REQUESTS ICHAP.
to bring natives before it. It can be supported by Cowell's observation that within
the bounds of the Company's factories natives also built houses and when "the
Nawab on that account was about to send a Kaji or Judge to administer justice to
the natives, the Company's servants bribed him to abstain from the proceeding.' '
Referring to the litigant at Bombay. Vachha has pointed out another reason. "... that
in the absence of any other regular law court, the Indian litigant had hardly any
alternative but to resort to the Mayor's Court. Its justice, rough and ready, was none
the worse for being tree from legal forms and technicalities.6
The Mayor's Court failed to exercise its control and administer justice according
to English law oil English people though the Charter of 1753 clearly provided
that the primary task of the Mayor's Court was to administer justice over His
Majesty's subjects. This fact can be supported by the observation of the Committee
of Secrecy in its Seventh Report, .....many of His Majesty's subjects residing in
Bengal, were neither tinder the protection or control of the Laws of England, nor
amenable to the criminal jurisdiction of the country."37
Long, a historian, has pointed out the state of the Mayor's Court in his
abbreviated remarks, ''Their system has much of Justiniati's justice, off-hand
according to dictates of equity more than law."38
Another eminent historian Archbold, has stated, "... neither Parliament nor the
Charters nor the Company in the early days ever took the trouble to make niatte,s
at all definite- We know that there was a good deal of diffetence between the position
as it was de jure and what it was in reality and this pretence, if so we may call it,
is reflected in the legal situation. Speaking generally, the Company's officers not
being lawyers but traders had no wish to pose as judges. They were gradually forced
to do sa and they formed some sort of system which was improved as time went
on by Qharlers, and Acts of Parliaments. They were always conscious of their own
imperfections in the matter and they were obviously anxious that En g lish law should
not be given too wide an application. '139
There is great truth in J.W. Kaye's assessment, "Justice gained little by the
establishment of the Ma yor's Courts ..... .40 It will also he in the fitness of things to
conclude that howsoever ignorant, incompetent, inefficient and influenced by the
executive were the judges of the Mayor's Courts, it is quite clear that by establishing
the Mayor's Courts under the Charters of 1726 and 1753, a good beginning was
made to set up a suitable uniform machinery for the administration of justice in
India on the basis of English ideas and pattern.
12. The Courts of Requests (Small Cause Courts)
The Court of Requests was established for the first time by the Charter of 1753
at Calcutta, Madras and Bombay. It was established to decide civil suits of small
pecuniary amounts. 4 ' The same Charter re-established the Mayor's Courts in all the
35. CoweD. History cuid Constitution of Courts and Legislative Authoritie.r oftadia, p. 16.
36. P . B. Vachha, Famous Judges, Lawyers and Cases of
Bombay : A judicial tiistr,r of Bombay, p. 14
37. Committee of Secrecy, Seventh Report, p.333.
38. Long: Selections from Unpubkched Records, Vol I, 31.
p.
39. W . A.I. Archbold. Outlines ('J inthan Conslirutio,ia! History, p. 30.
40. J.W. Kaye, Tue Administration of East India Company. 321
p.
41. "The Court of Requests is, in fact, the only court in Calcutta which is of real and essential service
WU(1uLEST
three presidency towns. The Court of Requests was authorised to hear all civil suits
involving a sum up to 5 Pagodas. Where the sum involved was more than 5 Pagodas,
the Mayor's Court exercised its jurisdiction. The President and Council were
empowered to appoint the first Commissioner to preside over the Court of Requests
in each presidency town. Subsequent appointments were made by the Commissioners
themselves.
The Charter of 1774 provided for the continuance of the Court of Requests and
made it subordinate to the Supreme Court at Calcutta. Referring to the effectiveness
of the Court of Requests, in his letter to the Earl of Rochford, Impey observed that
the jurisdiction of the Court of Requests should be extended to Rs. 100. "This is a
sum for which the Supreme Court cannot take bail and in this country is esteemed
very inconsiderable. Indeed small SUtLS take up a great part of that time which ought
to be employed on more important causes."42
The Act of 1797 enlarged the monetary jurisdiction of the Court of Requests
to Rs. 80 and in 1802 it was enlarged to Rs. 100 and by another Proclamation dated
October 29, 1 11 9 its jurisdiction was further extended and the maximum limit was
fixed at Rs. 400.
A. stated earlier, after the abolition of the Mayor's Courts and the Recorder's
Courts the Courts of Requests were made subordinate to the Supreme Courts in
each presidency town. The Supreme Court was authorised to supervise these Cowls
in the same manner as the inferior courts in England were made subject to the order
and control ot' the Court of Queen's Bench.
In 1850, the Courts of Requests were abolished in the three presidency towns
and in its place Small Cause Courts were established. The Governor-in-Council in
each presidency was authonsed to appoint judges in these Courts. These new Courts
were given the status of the Court of Record. Their jurisdiction was further extended
to Rs. 500. It was within the powers of the Small Cause Courts to reserve any
question of law or equity for the Supreme Court's opinion. The Supreme Court was
empowered to call for any cause involving a sum exceeding one hundred rupees
which was already lying before the Small Cause Court. Practically, the Supreme
Court always discharged litigants from coming to it for petty civil cases for which
the Small Cause Courts were authorised to administer justice. All suits brought
before the Small Cause Courts were heard and decided ir a summary way. The
creation of Courts with exclusive jurisdiction over petty causes with power to give
a final decision in respect of such causes saved a good deal of public time as well
as enabled the higher courts to devote more time for cases involving complicated
questions of law and fact.
In 1864. the Presidency Towns Small Cause Courts Act was passed. It extended
the jurisdiction of these courts to cases concerning the recovery of any debt, damage
or reward involving even more than Rs. MX) but not exceeding Rs. boil. provided
that the cause of action had arisen or the defendant at the time of bringing the action
was dwelling or carrvins on business or personally working for gain within the local
limits of the Court's jurisdiction. In cases exceeding Rs. 500 in value, the judges
to the poor inhabitants........ said Bolt in his book. Cuthder,uwnF on Indian AjIairs. ). 86.
42. Impey's Ictur to the Earl of Rochfotd, thied March 25, 1775, General Appendix No 82. Touchet
Report.
72 MAYORS COURTS & COURTS OF REQUESTS
were directed to reserve doubtful questions of law for the opinion of the High Court
and to deli'.çer judgment on the basis of that opinion.
In order to suitably adjust the working of the Small Causes Courts in the then
existing judicial system of India, and also to remove certain defects which came
into limelight in its actual working, a new Presidency Small Cause Courts Act was
passed in 1882. The Act of 1882 repealed all prior enactments and constituted the
Small Cause Courts at the presidency towns of Bombay, Calcutta and Madras,
subject to various exceptions as specified in the- Act. They were subordinate to the
respective High Courts and exercised jurisdiction over such areas as was under the
original civil jurisdiction of the High Court.
Mofussil Small Cause Courts or Provincial Small Cause Courts were established
in 1860. The law relating to them was amended in 1865. The Provincial Small Cause
Courts Act was passed in 1887. It reconstituted the Courts of Small Causes
established beyond the local limits of the ordinary original civil jurisdiction of High
Courts of judicature at Bengal, Madras and Bombay. The object of the Act of 1887
was to ensure the speedy administration of justice in small suits of pecuniary nature
and comparatively simple in character. These Courts were entrusted with the power
to try in a summary manner simple money suits not exceeding Rs. 500 in value.
The Small Cause Courts are courts of summary jurisdiction from which no appeal
is allowed except in certain case, as specified in the Act, to the High Court. Since
1887,-the Provincial Small Cause Courts Act has received attention of the legislature
both Povtncial and Central from time to time and has been amended or repealed
to meet theg rowing requirements ,43 The value of the contribution of a Court of
Small Causes lies in the fact that justice is administered without much delay arid
the przies get an early decision on the disputed matter with the result that a petty
litigation is saved from unduly and unnecessary procrastination.
- - - . -
- ...- :... . .
43. The Provincial Small Cause Courts Act of 1877 was amended by Central Acts VI of 1914, Xl of 1915,
II of 1922. I of 1926 and IX of 1935. This Act hac been amended in its application to the Bombay
Presidency by Bombay Act VI of 1930 and Bombay Act IX of 1932. The Act has been amended in its
application to U.P. by the U.P. Criminial Law (Reforms and Amendment) Act, 1954 and U.P. Act No.
XVII of 1957. -
Inauguration of the Adaiat System in Bengal

—
Clive could not afford In indulge in ounsels of peijecoon, he had to deal with
actualities. He admitted 1/eat the Nrns'ub had onl y The ,uvete and shadow of authority', yet
his najne ... this shadnu it is rndispensa/clv ne'cesntry , that we should venerate.
P.E. Roberts: History of BrirkIe India, p. 160
The .cv.cleaj of dual gor-criunen?, made con feesiiar flare eo!!fowi(Iecl and (orre4pfioj
more
corrupt.
3W. Kaye: 7/u' Adminisr,a(jon of East lied/u Co.
/1 was clumsy and it left the door wide opcn to ebee l's. There t ' ;s
coo much power
cc e th You IrriFe resonseb,l;tv.
l'ce'ccval Spear: India--A 14!odeni H/.ctr,rv, p. 204
"Hart/n Ks. in shot-i foresaw and laid the foundation of the policy in which Indian
legislation w as put under the direction of the Legal Member of
the Council, and by which
the superenictidence if the Mof/usil Court and appellate jurisdiction over (Item were vested
in the High Court'',
J.F.Stcphen. The Stoic- of ,'Vuncamar and i/C Impew-luneni of Sir L l e)ah inrpey
Vol. II, p. 242
SYNOPS
I, Cow-is in Bengal under the Mughals Reorganisation of Adalats in 1780: Charuc-
2. Origination of a legal vacuum enS1ccs
(a) Dcfcts of the Judicial System Ci) Separation of Revenue from Judiciary
3. Grant of [)icvani (ii) Jurisdiction of Provincial Dcwanj Ada-
4. Dual Govt in Bengal: Its Consequences fats extended
5. The Company as l)iwan (iii) Appeal
ö. Warren Hastings plan of 1772 (iv) Miscellaneous
(1) Collector for esch Unit 10. Defects of the Reorganisation Plan
(2) Moffasit Diwani Adalat 11. Appointment of Impey as Chief of the Sadar
(3) Sadztr Diwani Adajat Diweirji A(talat
12. Reforms of 1181 : Initiative of Impey and
(4) Small Cause Adlai
Wtirrrn hastings
(5) Moffusil Faujdari Adalar
(6) Sadar Nizarnat Adalat
14. Recall of Impey and Civil Justice
(7) Personal Laws safeguarded
15. Reforms in the administration of criminal
g j Other procedural safeguards
justice
7. Defects in the Plan (1) Plan of Mahomed Reza Khan
(a) Less number of Courts (ii) Reforms of Warren Hastings
(b) Concentration of power (en) Defects and its ;easofls
8. New Plant of 1774 (iv) Contribution of Warren Hastings
1. Courts in Bengal under the Mughals
In the later Mughal period from 1750 onwards the Mughal empire began to
ilisinteortue The pro vi nces assumed ndpeadence udcr Subcda N...... bs and the
executive officers began to try cases themselves. In Bengal the courts' which were
administering civil and criminal justice, in the Districts and at the Provincial Capital,
may he stated as follows:
At the Provincial headquarter four courts were established namely Nazint-e-
cuhali, flarog/ta-e-Adala, Diwani and Darogha c-/tdalat Aliali.
Tile Court of Na2im-
e-Subah was the highest Court of the Province. It dealt with all criminal appeals
st. 1-I. ,•\hrn,el • The tthnu,cciraijon of Justice in Medjoec-ac' India, pp. 173-74.
73 1
74 INAUGURATION OF ADALAT SYSTEM IN BENGAL [CHAP.
from district courts, murder cases, revision petitions and cases referred to it by the
district courts due to difference of opinion between Qazi and Mufti. The Court of
Darogha-e-Adaku Diwani heard the local civil suits and appeals, including
mauers relating to real property and land, from the District Civil Courts, The Court
of Diwcm had original and appellate jurisdiction in all revenue cases. The Court of
Darogha-e-Adalar Allah disposed of all revenue work on behalf of the Diwan.
In each District, courts were established io hear civil and criminal cases. To
dispose of civil litigation three courts were established, namely, Qazi, Zwn inc/ar and
Qanungo. The Court of Qazi was empowered to hear all claims of transfer of
property and matters rclatiig to inheritance. The Court of Zarnindar was authorised
to hear all other civil and common pleas. Revenue cases were decided by the Court
of Qanungo. Apart from this, in each district, there were four criminal courts,
namely. Faujdar, Zamindar, Qazi and Kotwal. The Court of Faujdar tried criminal
and common law cases. The Court of Zanintdar tried itmostly petty criminal cases
in a summary manner. The Court of Qazi was empowered to make full enquiries
in murder cases only and was required to submit a report to the Court of Nazim-e-
Subah. From all these Courts appeal was allowed to the Court of Nazinr-e-Subcth.
Kotwal was the ''peace officer' and was authorised to decide petty criminal cases.
2. Origination of a legal vacuum
As seen in previous chapters when the Britishers came to India, the Mughal
authority was fully weakened and entrenched over a vast portion of the country.
The territories not under the suzernity of the Mughal l.imperor had their own rulers
The British traders initiall y obtained a foothold wit!' ihe perrnissioii of the Jndian
rulers and set up their factories mainly in three regions, later known as the Bombay,
Madras and Benal Presidencies. "The Mughals", observes Kapoor"had an ela-
borate governmental machinery and had evolved civil and criminal laws 10 govern
their subjects. Rut unlike the modern limes, there was no specific law to govern
foreigners. In fact, the Mug/a-ti government had no interest in niaking foreigners
amenable to their laws, except for police and revenue mailers, or in respect of
disputes arising between the Indian subjects ((nc/foreigners. Thus in respect of inter
se affairs of foreigners in these settleme,zt, a legal vaccum was created, in which
grew the legal and political authority of the foreign governments; which increased
With the decline of the Mug ha! Empire and extended to other Indian territories as
they came under their influence and juristhction." This lacuna and weakness of the
Mughals in their adm i nistration proved fatal and they became an easy prey to the
foreigners.
a. Defects of the Judicial System

In many places influential landlords were authorised to maintain law and order
in local areas. Durin g the later Mughal period these landlords, commonly known as
Zarnindars, were empowered to try petty civil and criminal cases. Thus the Zwnin-
dars became very powerful and gained importance in all respects. James Mill
remarked, ''The Zanrindar who was formerly the great fiscal officer of a district,
commonly exercised both civil and criminal jurisdiction within the territory over
which he was appointed to preside. In his Faujdaree or Criminal Court he inflicted
2. A.C.Kapoor : Constitutional History of India. Edn. 2nd, 1976, Ch. I

'•1
all sorts of penalties. His discretion was guided or restrained hy no law, except the
Koran, its commentaries and the customs of the countr y , all in the hi o
hcsi degree
loose and indeterminate." Naturally, in lieu of liti g ation before the
ir's
Court. arbitration was often preferred by the parties, in the districts the peasants
were deprived from the justice even according to the local customar y
law. Corruption
amongst judges and the servants of the government further added to the defective
state of the local system. it became extremely difficult to file an appeal as no register
of j udicial proceedings was properly maintained. Not onl y
in the moftussil but even
at the scat of the Government the whole judicial system was degraded into a machine
of oppression and exploitation of the poor subjects.
The Courts became the instruments of power instead of justice. The Company's
servants who had claims against Indians, not residing under the British Flag but in
the vicinit y of the Company's settlement , . used to
SCi.de simply and hold them
pnsoners until they consented to pay the claims without seeking permission from
any officer of the Na\vab's Government. Keith h:s pointed out, "Tit course of
justice was further troubled by the revolution which placed Mir Kasini in power,
for inan' Englishmen with or without the conse;i of the Compan y
soon scattered
through the interior to seize the trade and exerlcd wide influence on the adittims-
tration of j ustice. and the overthrow of Mir K' .
iui led to further encroachments on
native
authorit the L'ciiyas (ban ja.$) or native igents of the English often controlling
the local courts and even acting as judges." i
To tackle all these problems and to remove corruption-5
front the administration
i1 j ustice, Warren Hastinc was transferred from Madras to the Governorship of
Bengal in I 772.' He first of all paid his auention to remove all those evils which
were the greatest obstacles in the proper nllection of the revenue of Bengal, Bihar
and Orissa. He replaced dic office of Nail; I)itwin by Britisli Agency for collection
of revenue, farms were let for a fixed term, revenue supervisors wcrc designated as
Collectors and appointed a Committee of Circuit to find out defects in the admin-
istialiun of justice and to prepare a proper plan on which the whole civil and criminal
iutice was in he hosed
3. Grant of Diwani
With the Battle of Plasse y in 1757 the real authorit y
of the Nawas of Bengal
passed to the English Companv. At the historic hauTe of
Jiuxar in 1764 it was no
3. Jwiics Mitt. The Ui.cs,rv of Bri11j India, vol. Iii, p. 47
4. A. Keith it Con iflfl j o,o ! Thco,rv of mdiii, pp b3-
5. Rania Jois: Lei'a! & Con,c::;u,iwuj/ History of India. Ch. 4. no 42.143
6. in February 1772 Warren Hastines reached Calcutta from Machas and t oo
l;- ('h:ir (x .1
fwiu Cartier on April 14. 1772 Lvafl rues, ''No tiiii' eat: dan) thaIV,
null I l:o.............. sC.! I,:
degree rare at that period, the taknts of political organ ration'' Lyali.
Barren !Irec'ini.r. p. 84.
7. JIasruiis to Jn.ciecc Dupren, 6th Jan, 1773: Gleig
.'iieint,irc of the die o Warren t/o.crair. Vol 1 j;.
26W
8. Cure defeated Nawab Sirai'ud . Daula's army and put an end to his
power in Bengal in the Battle of
Ptassey in 1 757. The
Bntisli appointed a new Subedarof Beacal, Nawab Miriafa, and obtained all
iiley needed, in lao the rcit of power had now gravii.ut'ti into mime hands
of Cliec aF'11
Bengal had become virtually a Hn'iiish protectorate a well as aba' .:
for the further extension of Hi mush
pe'acr !ty.'a.rda the :rm:erucjr af tr,dta. Atte.ars CL R.
ill The Soil ij India. at p 20, said, ''ii
the Fren Ii. rather than the Hrtr:slt who ;naimuu i-aced the
policy of mmcm fci'imrg in Indian polities, a new
deselopnmL'im! that hams tar .renehint Cot iw(lticric(," See al.o
Thornton /haiiiiri o flr jj aJa /,':tI,a %,01 . 1.
pp. 410-420: A Mervmi Davis. Ctve p 1 Iii
rr 220-24: Forrest. The / Id' of I i-ri! (7t% Vnj ii
76 INAUGURATION OF ADALAT SYSTEM IN BENGAL ICHAP.
merely the Nawab of Bengal. as at Plassey, but the Emperor of India who was
defeated. It had far-reaching political consequences in that it strengthened the British
power in India and gave a death blow to the sovereignty of the Mughal Emperor
in India. The Court of Proprietors of the Company in England sent Clive to India
to deal with the Situation and consequences. Thus Clive arrived in India as Governor
of Bengal and Commander-in-Chief of the Company's forces in India, for the third
time on May 3, 1765. 1 Clive's first achievement was that he entered into a treaty
and prevailed upon the Mughal Emperor Shah Alarn to confer momentous power
upon the East India Company. The Mughal Emperor in August 1765 granted the
Diwani of Bengal, Bihar and Orissa to the East India Company. In exchange the
Company agreed to pay the Emperor t0 a sum of 26 Iakhs of rupees and to the
Nawab' of Bengal a fixed sum of 53 lakhs of rupees annually. The Nawab in return
agreed not to keep any military force independently and left it in the hands of the
Company's authorities. The Company made the best use of this Opportunity to
strengthen its position and develop a strong army for itself in the name of the Nawab
of Bengal.12
4. Dual Government in Bengal: Its Consequences

The Nawab, who was Subedar of Bengal, represented the Mughal Emperor of
India. While exercising his authority under ''Diwani" the Nawab performed two
main functions—(i) Diwani i.e., collection of revenue and civil justice, and (ii) the
Nizwnal i.e., military power and criminal Justice. The Company obtained Diwini
rights from the Mughal Emperor and the Nawab gave it Nizaniar work. The Nawab
had lost all real power and was a mere shadow in the background. 13 However, the
administration of criminal justice was left with the Nawab who was also responsible
to maintain law and order. Though the transfer of Diww,i to the Company was
obtained by Clive, in the actual collection of revenue he utiiised the services of the
natives. Clive was not interested in taking direct responsibility for the collection of
revenue through English people as he realised that they will have to face more
difficulties at this stage) 4 The administration of civil justice and collection of
p. 120; Okig, The Life of Robert flr.c, Lord Clive. pp. 142,194-202.
9 For the first time Clive came to India in the Company'.,; service in 1743 and returned in 1753. After
two years, in 1755 Clive again returned to India and stayed up to early 1760. In 1765 Clive came to
India for the third time. On March 8, 1758, the Directors appointed Clive to be the sole President and
Governor of Fort William in Bengal See Malcolm, The Life of Robert Clive, pp. 126.27.
10, Aiihison, Treaties, Engagements and Sanads. Vol. II. pp. 241-44.
II. ibid. Vol. II, p. 245. See also D.N. Banerjee, Early Lund Revenue S y.crent in Dena! and Hi/tar, Vol.
I, pp. 5-6; Forrest, The I.iJe of Lord C/ire, Vol. II. p. 279.
12. Malleson has pointed out. "A few months later the Prince was relieved of his responsibility for the
maintenance of the public peace, for the administration of justice, and for the enforcing of obedience
to law." GB. Malleson, Lord Clive, pp. 17 i -72. According to Prof. Misra, "The acceptance of the
L)iwani, he (Clive) believed, wouldadd to the political influence of the English, which might be utilised
in the elimination 01 other European nations then engaged in the pursuit of commerce and trade in
Bengal.' BR. Misra, The Judicial Administration of the East India Compan y in Bengal. p. 23; Sir C
llberl. The Government of India (1916) quoted by Riots. Legal Canto, I/is,. of India, 1984, Ch. 4,
pp. 143, 144.
13 See P.E. Roberts. History of HritLch India, at p. 160: "But Clive could not afford to indulge in counsels
of perfection; he had to deal with actualities. He admitted that the f"lawab had only 'the name and
shadow of authority', yet this name... this shadow it is indispensably necessary that we should
venerate."
14. ''In the infancy of the acquisition (of the Diwan)." wrote Clive to Directors, "we were under the
necessity of confiding in the old officers of the Government. from whom we were to derive our
41 DUAL GOVERNMENT IN BENGAL 77

revenue were left in the native hands under the supervision of the Compan y officials.
Clive, therefore, appointed two prominent natives—Mohanieti Reza Khan and Raja
Shitab Roy. as Company's Diwan at Murshidabad and Paina respectivel y . At both
the places two separate English officers were also appointed to supervise the working
of these native officers. This typical division of power and responsibility----executive,
revenue and judicial, between the Nawab and the Company in Ben g al, Bihar and
Orissa. became famous as the 'Dual Government" introduced b y Clive. According
to Percival Spear, ...... a better name for it would perhaps have been the Divided
Government.'' 15 in fact, writes Jain," Bengal served as a laboratory where experi-
ments were made in the adalat system and when workable results were obtained,
they were transmitted to the provinces of Bombay and Madras.
With the introduction of the "dual government" the Company gradually usurped
all the powers of administration which reduced the authority of the Nawab and made
him completely devoid of any substantial power or function. ''This act of Coin-
pany,"said Cowell. ''was the acquisition of sovcreienty by the English. Lord Clive
by obtaining the grant of Diwani placed the Govecarnent of Bengal on a legal basis
and established its relations with the natives 'an a footing of definitely civil
responsibility.' 7 It was merely a fiction adopted to conceal the de facto position of
the Company which already had the real powct in Bengal at the time)8
The divorce of power from responsibi1iy under the ''dual government" in
Bengal further deteriorated the efficiency of the whole administrative machinery.
The English servants of the Company misused their power and position to meet
their selfish ends, which ultimately led to the exploitation of the people of Bengal.
Bihar and Orissa and encouraged corruption, bribery. misappropriation and their evil
consequences ruined a prosperous and flourishing Bengal making the inhabitants
very poor and niiseiabie) 9 As a result of such defective state of affairs the revenue
also decreased considerably. Thc system of "dual ue,n/nefl!" according to the
testimony of Kaye. "made confusion niore cottfnui;ded and corruption more cor-
rupt." Percival Spear says, "It was clumsy and it left the door wide open to abuses.
Thete was too much power with too little responsibtIitv.'"° As described b y Keith
the Courts were the instruments of power, rather than of justice, useless as means
of protection, but apt instruments for oppression. One ma y say that instead of being
the refuge of the oppressed, the Courts had been turned into a scandalously corrupt
knowledge and whom we therefore endeavoured to attract to our scticc by the tics ofititeiest. until
experience should render their assistance less neossarv. Polic y rcqutrcd we should pursue ever y step
ltkcly to conciliate the natives to out' (Jo. crnnicni" Clivc t.' i/u Cr,urz of Di, ,iurs. 281h September.
1 y 65. 1.0. Mcs. Eur. E, 12, pp. 76-77.
15. Percival Spear. India: A Modern History, p. 204.
16. Indian Legal History. 1972. Ch. 7.
17. H. Cowell. The Ht.crorv and Consmurio,i ol the Courts and Lei.',.clo;ive Authorities in hit/ia.
p. 32.
Forrest says. ''Thc acquisition of the Diwmni was an attempt to combine rcsponsihihtv with poker.''
Forrest, The Lije of 1.oI Cure, Vol. II. p. 285.
8. Aitchicon: Trat,es. Eniogeme,tts and Sanndc. Vol. II. 24!: quomcJ hi Jam: h,uiiciii Legal Fl,c,on.
I') In . cia and %Vec y 'rn I),u,,j,ro,u,' at p 76, K M Panikkar 'tales. '' sias a tubber slate that jail CoulC
inn, csrstcncc and Richard ecter. a scr,ant o! the Conipaoy wrote in his m:LsIei: in London on May
24. 1709 as follows: It tttut give pain toan Englishman to have reason to think that since the accession
the ('rsr.pany.... [.) on 1 e vi item ul the peop;c at t no countr y has been worse than it wa>
before., fhts fine cuuntty...ts verging Ls; :trds rum'.'
20. Percival Spear. Inthu. .t Moae,n lJi.stunv, p. 204. Ste also. A.B. Keith, A Co,i.ctjruiionaj History oj
linthL 2nd [tin.. pp. 55-58
78 INAUGURATION OF ADALAT SYSTEM IN BENGAL CFIAP.
body constituting an intolerable evil under which the country was groaning. And it
was in this context that Warren Hastings was called.
5. The Company as Diwan
Clive left India in January 1767. The working of Clive's policy of dyarchy in
Bengal created anarchy. No body was taking responsibility for the conduct of the
government and the deteriorating condition of the natives. Governor Vereist suc-
ceeded Clive in India. in 1769 he introduced some new measures for collection of
revenue and to investigate into the roots of corruption but his experiment failed and
work of supervisers was increased enormously.2'
The Directors of the Company suspected and blamed Indian officers for the
evils. In 1771, therefore, the Company changed its policy and the Directors declared
their resolution "to stand forth as 'Diwan' and by the agency of the Company's
servants to take upon themselves the entire care and management of revenue- 22 . In
order to implement this changed policy and achieve their aim, the Directors
transferred Warren Hastings from Madras to the Governorship of Bengal in 1772.
The Company's decision to stand forth as Diwan through an agency of their
own servants was publicly announced at both Calcutta and Murshidabad by a
proclamation issued on May 11, 1772.23 The charge of the revenue and civil justice
was taken over by the Controlling Councils of Revenue and they advised their
subordinate agents and officers to deal with them directly on all matters relating to
the Diwani.
The main object of the Company was to bring under the direct control of the
Company's servants the revenue collections and civil justice in order to save both
the ryots and the government from hardships caused due to the existence of the
intermediaries. The Nawab's authority over criminal justice was recognized by the
Company. The new policy of the Company, therefore, differed from Clive's system
of double government in the sense that the collections were wholly taken away from
the control of Nawab's government and were given to the European servants of the
Company.
rren Hastings' plan of 1772"
J
The Committee of Circuit, under Warren Hastings as its Chairman, prepared
the first judicial plan on August 15, 1772. it was the first step to regulate the
machinery of administration of justice and the plan being a landmark in the judicial
history became famous aS "Warren Hastings' Plan of 1772".24
(1) Collector for each Unit—Under this plan the whole of Bengal, Bihar and
Orissa were divided into districts. The "District" was selected as the unit for the
collection of revenue and for the administration of civil and criminal justice. In each
district an English Officer, called Collector of the district, was a ppointed. His
primary duty was to control the collection of revenue.
21. See Chatleiji, VereLct's Rule in India, pp. 238-78.
22. General Letter of the Court of Director to Bengal, dated August 28, 1771.
23. For Proclamation, see The Proceedings of the Controlling Council of Mur.rlatdabad, Vol. X. p.15.
24. See Committee of Secrec y. Report 7,h(1773), Appendix II, pp. 348-51: Colebrooke's Supplement to
the Digest of she Regulations and Laws of Bengal. Vol. Ill, pp. 1-8: Peter Auber, Rise and Progress of
Ijrjrsch Power in Intha. Vol. I, pp. 425-427: B B. Misra, Judicial Administration of the East India
Company in Bengal, pp. 168-73.
4j 'vA,'tN HAS I iU S Ai' UI I 7,
(2) Moffusil Diwani Adalat.—As regards the administration of civil justice in

each district a Moffusil Diwani Adaiat was established. District Collector presided
over it. The Moffusil Diwani Adalat was empowered to decide all civil cases dealing
with real and personal property, inheritance, caste, marriage, debts, disputed ac-
counts, contracts, partnerships and demands of rent. 25 Its decision was final in all
suits up to the valuation of five hundred rupees.
(3) Sadar Diwani Adalat.—At the seat of the Government i.e., Calcutta, one
Sadar Diwani Adalat, a court of superior jurisdiction, was also established. It was
the chief court of appeal and was empowered to hear appeals from all district
Moffussil Diwani Adalats in such cases where the valuation of the suit was more
than five hundred rupees.
(4) Small Cause Adalat.—Besides these courts, the Head Farmers of Parganas
were authorised to decide petty disputes relating to property up to the value of" ten
rupccs. -
(5) Moffusil Faujdari Adalat.—]n the sphere of criminal justice, the plan
provided for the establishment of a Moffussil Eat:dari Adalat in each district for
the trial of all crimes and misdemeanours under iie Collector of the district. One
court like the Moffussil Faujdari Adalat was est:.nlished at Calcutta to decide local
criminal cases and was placed under the charge of a Member of the Council who
served in rotation. In each district, a Qazi and a Mufti with the help of two Maulvies,
who were appointed to expound the law, were to hold trials for all criminal cases.
The Collector was authorised to supervise the working of the court.
(6) Sadar Nizamat AdalaL---A Sadar Nizamat Adalat was established at
Calcutta to hear appeals from the Mulfussil Faujdari Adalats of tile districts and to
control their working. It was presided over by a Daro g ha or Chief Officer appointed
by the Nawab. A Chief Qazi, a Chief Mufri and three Man/vies were to assist the
Darogha in performing his duties. The court revised important proceedings of the
Moffussil Faujdari Adalats. The Moffusil Faujdari Adalats had no power to pass
capital sentence without the approval of the Sadar Nizamat Adalat. in passing severe
sentences for grave offences, the Nawab's signature was a prior condition as the
Nawab was considered to be the head of the Nizarnat Adalat.
(7) Personal Laws Safeguarded—Article 27 of the Plan (1772) of Warren
Hastings directed the L')iwani Adalats "to decide all cases according to the laws of
the Koran with regard to the Mohammedans and the laws of the S/iw,tra with respect
to Hindus''. It was one of the most important provision of the plan, as it safeguarded
of u;.,,i.,. and Mohammedans g iS,$i •ittOS. ItLV.3 on S.9UUI
..i.,..
placin
footing. This was, in Macaulay's words, a "far-sighted policy". Rank-ins recognises
it as ''an act of enlightened policy".2"
Warren Hastings made constant efforts to convince the Directors that the people
of Indiawere not savages, that they had laws of their own, that their customs should
be respected. He was at pains to dispel the notion then prevalent in En gland that
the people of India had no regular laws of their own. Mohammedan law was
contamed a digest prepared h he order of Auran gzeh and acknowledged b y the
25. G.W. Foms1, Se lectwns from the Sui;e !'aperso(Guvenwr . General Warren fiasthigs, Vol. tI. pp 371-72.
2. G.0 Rankin, Background L, pp. 2-s.
80 INAUGURATION OF ADALAT SYSTEM IN BENGAL (CHAP.
Indian Courts. Hindu law, had not hitherto been systematically codified. Warren
Hastings, therefore, invited to Calcutta ten of the most learned pundits in the country
and commissioned them to prepare a digest 27 for the guidance and convenience of
the civil courts. Sample portions of the English translation of the digest were
transmitted to the Directors to convince them that 'the people of this country do
not require a standard for their property' '28 In Warren Hasting's view it was the
sacred right of Indians.to retain their own system of law and justice. Laying special
emphasis on respecting the local customs, Warren Hastings stated the reasons for
his opinion thus: "Even the most injudicious or most fanciful customs which
ignorance or superstition may have introduced among them are perhaps preferable
to any which could be substituted in their room. The y are interwoven with their
religion, and are therefore revered as of the highest authority. They are the conditions
on which they hold their place in society, they think them equitable, and it is
therefore no hardship to exact their obedience to them. I am persuaded they would
consider the attempt to free them from the effects of such a power as a severe
hardship.29
It is, therefore, clear that by safeguarding the personal laws of the natives of
India, Warren Hastings showed his far-sightedness and the legal historians con-
sidered it, ''one of the wisest steps ever taken by Warren Hastings''.
The Native Law Officers assisted the Courts but in course of time they used to
take evidence and pass orders which was defective. This were however 'unavoidable
defects" according to Rankin.
(8) Other Procedural Safeguards.—The plan prescribed the procedure for the
trial of civil suits by framing definite rules.30
If the defendant was found to evade or delay his reply the court passed judgment
against him. The hearing of a case was to be made in open court. To encourage
justice the Collector at all times received petitions of complaint, in certain cases
parties were to submit to arbitration and the award became the decree of Diwani
Adaiat. Measures were taken to remove oppression by rich-creditors and money-
lenders. Registers of decrees and proceeding were to be maintained and complaints
of over twelve years ceased to be actionable. Provisions were also made for payment
of salaries to Qazi.c and Muftis, for removal of payment of Commission, for uprooting
corruption and for moderate court fees in civil cases.3'
7. Defects in the Plan

Though the judicial plan of 1772 was the first of its kind for the administration
of justice within the framework of the country. 32 after , its working certain major
27. This Digest Warren Hastings got translated into Persian and English as by that time no Englislintan
knew Sanskrit
28. Penderel Moon. Warren hastings and Bnrixlj l,,tha. p.70.
29. ibid.p 71
30. M.E. Monckton Jones, Warren Hastings in Bengal. p. 312; Jam: Indian LegulHi.clory. 1 972, pp 75-78;
Misra: The Judicial Administration of. the East India Co. in Bengal, pp. 170-71; Rarna Jots: Legal &
Constitutional History of India. 1984, pp. 145. 146.
31. Hastings to Justas Dupre. 61h Jan. 1773. Gleig, Memoirs of the Life of Warren Hastings, Vol. I. pp.
268. 272.
32. Referring to the Judicial arrangements, Hastings staled that. "the only material changes which we have
madc in its.' ancient constitution of the country are in dividing the jurisdiction in civil and criminal
4] WARREN HASTING'S PLAN OF 1774

81
defects came to light. The plan provided for a civil and a criminal court in each
district,
(i) Less number of Courts.—The head farmers were given power to decide petty
cases up to Rs. 10. In tact it was necessary to have more subordinate courts keeping
in view the population and the area of each district.
(ii) Concentration of power.—Another
defect was the concentration of power—
administrative, tax collection and judicial, in the hands of the Collector. 33
The
Collector was the Civil Judge as well as supervisor of the criminal courts. It was
impossible for the Collector to devote time and energy to regulate all these affairs.34
Evils of the combination of executive and judicial powers in one Person-were bound
to follow.35 When the private trade done by Collectors and the misuse of powers
by them and their officials came to the notice of Warren Hastings, he gave a second
thought to the original plan and prepared a new judicial plan on November 23, 1773
which was implemented from 1774.
As expressed by Jois, the plan, however, brought great credit and honour to
Warren Hastings because it was the proof of his intense desire to ensure impartial
and less expensive justice to people in the Moffusil. Similarly it laid a sound
foundation for future development.36
8. New Plan of 1774

Certain organisational changes were made in the judicial plan of 1772 by the
President and Council of Bengal oil advice of the Directors of the Company.37
These changes were introduced in 1774 and became known as the "New Plan of
1774". It was planned 10
bring down all the revenue collections to the Presidency
"to be there administered by a committee of the most able and experienced of the
covenanted servants of the Company under the inunediate inspection and with the
opportunity of instant reference for instruction to the President and COuncil."38
In each such district Provincial Councils were established. They heard appeals
from the decisions of the Moffusil Diwani Adalats, This was a major
a dvantage of
the plan. 39 A Board established at Calcutta was authorised to issue instructions to
all the six Provincial Councils. A Diwan was appointed at the seat of each Provincial
Council to maintain accounts of the revenue collections of the districts. The English
Collectors were replaced4
° by native Superintendents of revenue known as Naibs,4'
cases by clearer terms.. and in removing the Supreme Courts of justice to Calcutta. There are other
trivial innovations..., but the spirit of the constitution we have preserved entire." See
Warren Hastings and British India, p.70. Pendend Moon,
33. M . E. Moncltton Jones, Warren HtLcIirJgS in Bengal, p. 316
34. 1. H. Harlington, An Analysr.t of the Bengal Laws and Regulations, Vol. I, p. 35.
3$. W. K. F'irminger, Select Committee of the House
36. Rama Jois: Legal & Constitutional History of India. of Commons. Fifth Report, p. ccxxx.
1984, 146.
37. Letter ofApril 7, 1773froi'n the Company to the President andp.Council of Bengal. Home
Series, Vol. 351, p. IS. M iscelIeous
38. Select Committee, Sixth Report (1782), 1.0. P aiiimentaj'y Branch
39. The Judicial nisiratiop, of the East India Co. in Bengal, pp. 174-82.No, l4,p.4.
40. Proceedings of the President and Council in the Rev. Dept. No.
Vol. 206, pp. 49-5Oand Vol. 584, pp. 120-21. R 23,1773. See also Home Misc. Series,
Vol. 351,p 18. egulation XX of 23rd Nov., 1773, Home Misc. Series,
41. Harrington. An Analysis of the Laws & Reg
ulations enacted by the Governor-General in Council at
Fort William in Bengal, Vol. 1, p. 20; C.D. Field, The Regulations of the Bengal Code, p. 137; Morely,
INAUGURATION OF ADALAT SYSTEM IN BENGAL [CHAP.

82
Besides revenue collection work Naibs worked as courts of Diwani Adalats and
decided civil cases. He sent reports of civil cases to Provincial Councils. Each
Provincial Council administered justice in civil cases 42 for all districts in the division.
The Provincial Council was also known as Provincial Sadar Adalat. It heard appeals
from districts.
In 1775 Sadar Nizamat Adalat was placed under the authority of the Nawab
Mohammed Reza Khan was its Naib Nazini. He worked in place of Nawab. Thus
the entire criminal judicature was transferred from G. G. in Council to the Nawab's
supervision.
Warren Hastings considered the plan of 1774 as only a temporary measure to
improve the existing state of judicial and revenue affairs. But in the meantime the
Regulating Act with its new provisions came to be passed and Warren Hastings had
to face a hostile majority in the Council.43 After gaining six years experiencc from
1774 to 1780, Warren Hastings got an opportunity in 1780 to reorganise the Adalats
and to introduce important changes in the judicial system of Bengal. Bihar and
Orissa.
9. Reorganisation of Adalats in 1780: Characteristics
(i) Separation of revenue from judiciary.—A new judicial plan was pepared
by Warren Hastings to reorganise the. existing Provincial Adalats. It was brought
into force with effect from April ii, 1780. One important feature of this plan was
the separation of the revenue from the administration of justice. Though the
Provincial Councils of revenue continued at six provincial divisions i.e., Calcutta,
Murshidahad, Burdwan, Dacca, Dinajpur and Patna, to look after the collection of
revenue, their judicial power to hold civil courts was taken away. At each of these
six provincial divisions a Provincial Court of Diwani Adalat was established to be
presided by a covenanted servant of the Company. They were appointed by the
Governor-General and Council and were designated as Superintendents of the
Diwani Adalats. They were appointed for life and were removed only on the proof
of misconduct. The earlier system of monthly rotation was abolished. They became
independent of the Provincial Councils of Revenue.
(U) Jurisdiction of Provincial Diwani Adai.ats extended—The Provincial Diwani
Adalats were empowered to decide all cases of property, including those relating to
inheritance and succession to Zamindaris and Talukdaries which were previously
under the responsibility of the Governor-General and Council. These Adalats were
authorised to refer small cases involving one hundred rupees or less to the Zamindar
or Public Officer who resided near the residence of the parties. In all suits where
The Administration of Justice in British India, p. 49; Cowell, History of the Constitution of Courts and
Legislative Authorities in India. p. 149. Monckton Jonesin his book, Warren Hastings in Bengal, p.
291 differs from this view and says that the Collectors however thus remained in their districts. This
has been contradicted by Professor Misra in The Judicial Administration of the East India Co. in
Bengal, p. 182. Thus what Monckton said was not a historical fact.
42. Select Committee. Sixth Report. (1783) p. 22.
43, See Ch, VB.N. Pandey, Introduction of English Law into India, Ch. II.
44. From 1774 to 1780 there were conflicts not only amongst the members of the Council but also between
the Governor-General in Council and the Supreme Court. The famous Porno case threw light on the
defective slate of the Provincial Councils and of Moffuscil Adalatas. The Englishmen who composed
the Provincial Councils, left the task of deciding cases to the native law officers due to their ignorance
about Indian law, language and customs.
41
APPOINTMENT OF IMPEY AS CI-LIEF
83
the v
aluation of the suit was up to one thousand rupees, the decision of the Provincial
Adalats was final.
(iii) Appeal.—Where
the bxnount involved exceeded this value, an appeal was
allowed to the Sadar Diwani AOr4at at Calcutta. The
Governor-General and his
Council constituted the Sadar Diwanj Adalat,
(iv) Miscellaneous.—The Court fee was
iIxe$ at 2% to 5% depending upon the
valuation. Native law officers were required to assist tu ft
Court. Before entering the
office the presiding officer of the court was to take an oath that
he 't1'u1d administer
justice without fear or favour.
Provisions regarding the process of court work, maintenance of

re rls
appointment of local law officers, taking of oath and evidence
co ntinued to be
the same as were laid down under the plan of 1772.
10. Defects of the R eorganisation Plan
The defects of the scheme of 1780 may succinctly be laid down as under
(1)
The number of Courts was less and the litigants had to travel far for getting
justice.
(2) Officers appointed for Adalats were not trained in law and legal work. The
scheme neglected this aspect.
(3) Apart from this, Zamindars and Public Officers were appointed to decide
petty civil cases up to one hundred rupees.
(4) However, they had to work honorary. And this made them corrupt.
11. Appointment of Impey as Chief of the Sadar Diwani Adalat

In Sadar Diwani Adalat Warren Hastings realised the difficulty in deciding civil
cases in appeal. To meet this difficulty Warren Hastings appointed Sir Elijah
as the Chief Justice of Sadar Diwani Adaiat. Impey
45 Sir Elijah Impey was learned in law
and was already Chief Justice of the Supreme Court of Calcutta. Now onwards
Impey became Chief Justice of both the superior courts, namely. rh€
Snpremc Court
and the Sadar Diwani Adalat. The Governor-General and Council were not experts
in law and were mostly busy in political mrs; as such the appointment of Impey
was a great relief to them als&,.
Sir Impey's appointment, was however objected to by the British Government

as improper because (i) it was considered as an attempt by
the Company to win
favour of the Chief Justice; (ii) it amounted to taking additional remuneration which
was prohibited by the Regulating Act; (iii) it was against the spirit and intention of
the Regulating Act; (iv)
it was not possible for the Chief Justice to devote all his
time for the Supreme Court; and (v) it amounted to compromising the independence
of the Supreme Court with the Company. Impey offered to refund the entire
46 salary
which shows his good sense. 47
His object was to establish the rule of Law to ensure
45. Warren Hastings moved the proposal in the Council on Sept. 27,1780 and it was accepted on October
18. 1780. Sir Elijah lmnpcy was formally appointed on October 26, 1780. B.N. Pandey,
of English Law uw India, Ch. VIII, 196-229. Introduction
46. Rama lois: Legal and Constitutionalpp.
History ofindia, 1984, pp. 149-50.
47. ibid.
[CHAP
84 INAUGURATION OF ADALAT SYSTEM IN BENGAL
justice to all without any class discrimination. He was however recalled to answer
the charge.
12. Reforms of 1781: Initiative of Impey and Warren Hastings

Soon after his appointment as Chief Justice of the Sadar Diwani Adalat, Chief
Justice Impey first of all devoted his time and energy to introduce reforms in the
Diwani Adalats. He was aware of the defective state of the Diwani Adalats and the
famous Patna case, in which he participated as the Chief Justice of the Supreme
Court, further pointed out the growing power of the native law officers to whose
L)iwafli Adalats. Chief
hands even questions of fact were left by the judges ef th
Justice Impcy, therefore, prcpared a series of regulations to improve the administra-
tion of justice in the Diwani Ada1a.
(I) To regulate the procedure of the Diwani Adalats a regulation was passed
on November 3, 1780. It was clearly laid down that only questions of personal law
will be referred to the native law officers i.e., Pandits and Maulvies, and the question
of fact will be decided by the Moffussil Diwani Adalats.
(2) In petty civil cases the jurisdiction of the Zaniindars was retained but they.
were required to submit the record of proceedings in each case to the respective
Moffussil Court.
(3) Old regulations were compiled and necessary alterations and modifications
were made to meet the requirements of the judiciary.
(4) One of the most remarkable contributions of Sir Elijah linpey was "the
preparation of the first Civil Code" for the administration of civil justice in India.
Subsequently, they were incorporated with amendments and additions in a revised
code which the Governor-Lieneral and Council adopted on July 5, 1781. Thus in the
legal history of India the first Civil Code was adopLed in 178I.
So far Warren Hastings had introduced piecemeal reforms either in civil or in
criminal justice from 1772, but after having nine years' experience, he realised the
necessity of overhauling the whole system of the administration of justice. In
performing this difficult task Chief Justice Elijah Jrnpey gave his full support to
Warren Hastings.
(5) In 1781, the number of Moffussil Diwani Adalats was increased from six
to eighteen 5° in order to remove the difficulties of the litigants. With the exception
of four Courts, 5 ' namely Bhagalpur, Chitra, Islamabad and Rangpur, each of these
Courts was presided over by a covenanted servant of the Company. He was now
called Judge instead of the previous designation of Superintendent and was entrusted
with judicial functions only. They were subject to the orders of the Judge of the
Sadar Diwani Adalat and the Governor-General in Council.
48. ]bid; Misra. p. 275 quoted by Rama lois.

pp. 55-56; A.C. Patra, The Admstralu,ii
49. See for details, B.K. Acharya, Codifiaurort in British India..
of Justice under the East Indio Company in Bengal, Ethur and Orissa. p. 56.
50. Eighteen couris were established at these places: Aztmriganj, Bakarganj, Bordwan, Bhagalpur
Calcutta. Chitra. Dacca, Darbhanga, Islainabad, Lauria. Midnapur, Murli, Murshidabad, Nalor, Patna
Ragunathpur. Rangpur and Tajpur (of place in Dinajpur).
51 These tour were hilly districts and due to their location on the frontiers of the provinces it Wa
considered necessary to concentrate both judicial and reenue authorities under the same person.
REFORMS OF 1781 85
(6) Moffussil Diwani Adalats were required to send copies of judicial proceed-
ings to the Sadar Diwani Adalat to which appeals were allowed from their decisions
where the valuation of the suit exceeded one thousand rupees.
(7) Elijah Impey favoured the important principle of the separation of judicial
and revenue functions and it was retained .52 It was expressly laid down that the
judges of the Diwani Adalats would have a jurisdiction completely distinct and
separate from the jurisdiction of the person in charge of revenue collection, revenue
cases and related matters.
(8) The Moftijssil Diwani Adalats were authorised to have all power and
authority to hear, try and determine all civil suits, arising within the limits of its
jurisdiction including those of inheritance or succession to zamindaries and taluk-
daries. The Judge of the Moffussil Diwani Adalat was now vested with powers to
summon any Zamindar or farmer to appear in person or by vakil to answer to an
action lying in that court.
(9) The provision regarding the application of the personal laws of Hindus and
Mohammedans which was first of all introduced by Warren-Hastings in 1772, was
also modified and certain additions were made to remove the difficulties. On the
recommendation of Sir Elijah Impey the word "succession" was added to the word
"inheritance" and it was further stated that "where no specific directions were
given the judges of the Sadar Diwani Adalat and the Moffussi! Adalats will act
according to justice, equity and good conscience". In order to promote speedy and
impartial justice the Code provided a specific procedure for Diwani Adalats.
(10) Under the new scheme the judges of the Diwani Adalats were directed that
they must do the judicial work themselves and under no circumstances it should be
delegated to the Native Law Officers. The function of the Native Law Officers was
also clearly laid down: "They were only to expound the law on the facts decided
by the judge." This important provision helped in up-rooting corruption as well as
avoided conflicting situations like that of the Patna case.
(11) The Civil Code specifically laid down the functions of the Sadar Diwani
Adalat. It was given appellate jurisdiction to hear appeals from the MoffussilDiwani
Adalats in cases where the valuation of the suit exceeded one thousand rupees. It
exercised original jurisdiction in matters of civil nature as were referred to by the
Governor-Genera] in Council.
(12) It was also empowered to exercise control and supervision over the working
of all the subordinate Diwani Adalats. The Court was authorised to receive original
complaints against the subordinate courts and then refer them to the respective
Moffussil Diwani Adalat to expedite its disposal. It was within its authority to
suspend any judge of the Moffussil Courts for misconduct and corruption and also
to forward the matter with its recommendations for final orders to the Governor-
General. The Sadar Diwani Adalat was given full powers to frame rules of practice,
make necessary alterations in the existing rules and issue standing orders for the
administration of justice.
13) Special importance was attached to the system of keeping records of all
the courts. Apart from every process or order issued by the court, the complaint,
52. W.H. Morely, The Adnunistrwion of Justice in British India, pp. 50-51.
86 INAUGURATION OF ADALAT SYSTEM IN BENGAL [Ci lAP.
reply or rejoinder and depositions given by the parties were required to be duly
entered in the registers of the Court. The Moffussil Diwant Adalats were directed
to keep a register containing a summary account of the daily proceedings in each
case. Every month a copy of it was sent to the Sadar Diwani Adalat at Calcutta.

The preparation of the first Civil Code, therefore, reflected the great contribution
made both by Governor-General Warren Hastings and Chief Justice Elijah Impey,
to iniprove the administration of civil justice. The Civil Code became a landmark
in the legal history of India due to its contribution in three directions of vital
importance as follows:
(a) In the first place, with the establishment of the Sadar Diwani Adalat at
Calcutta and entrusting it with full powers, the administration of civil justice was
centralised. It was only responsible to the Governor-General in Council. It controlled
and supervised the subordinate courts as well as maintained uniformity in the
(b) Second, though the application of the personal laws was recognized as early
as 1772, still Chief Justice Impey, through the provisions of the Civil Code, devised
a better mode of governing the Hindu and Mohammedan laws. By laying down a
proper process and rules of evidence Chief Justice Impey laid the foundation of a
separate institution of the legal profession to assist the judges and the litigants, in
India. which according to him played an important role in shaping the judicial
process of the country.
(c) Third, by recognising the principles of separation of judiciary and revenue
Elijah Impey as the Chief Justice of the Sadar Diwáni Adalat established the
independence and impartiality of the judiciary. It assisted in introducing the rule of
law in the country. In order to implement these ideals Chief Justice Impey incor-
porated certain provisions in the Civil Code which specifically provided that even
Zamirtdars, Talukdars and farmers, employed in the collection of revenue, were also
under the jurisdiction of the civil courts.
14. Recall of Impey and Civil Justice

While Chief Justice Impey and Governor-General Warren Hastings were making
every effort to improve the administration of civil justice, the criticism of Chief
Justice Impey for accepting two appointments gained strength in England .53 So great
was the criticism that, unfortunately, the Directors of the Company issued an order
from England to remove Sir Elijah Impey from the post of Sadar Diwani Ada1at.
As such, on November 15, 1782, the Governor-General and Council decided to
resume the duties of the Sadar Diwani Adalat in place of Chief Justice Impey. The
House of Commons" in England on May 3, 1781 resolved to recall Chief Justice
53. The criticism was on the ground that by accepting the new office, Sir Elijah Impey violated the spirit
of the Regulating Act. The chief object of the Regulating Act was to render the Supreme Court
independent of the Executive.
54. Letter of Directors to the Governor-General dated April 30, 1782. S, Home M&cceilanei.n&c Serie.c,
Vol. 353, pp. 241-42.
55. The British Parliament was not satisfied with the opinion of the Law Officers of the Crown, who staled
that there was nothing illegal in the appointment The Parliament passed an Actin 1781 exempting the
Governor-General and Council from (he jurisdiction of the Suprernecourt. See,P.E. Roberts, I1istw-
41 R.-FORMS IN ADMINISTRATION OF CRIMINAL JUSTICE 87

Impey to explain his conduct in accepting an office subordinate to the Governor-
Genera and Cüu,,cil whose irarisactioits the Supreme Coon was intended to control
Accordingly, Chief Justice Impey left Bengal and in June 1784 reached England.
Though Warren Hastings' step to appoint Sir Elijah Impey as Chief Justice of
the Supreme Court, and also as the Chief Justice of the Sadar Diwani Adalat was
severely criticised in India and England, in fact it was a far-sighted policy of Warren
Hastin gs. Appreciating the far-sightedness of Warren 14astings . Stephen remarked,
"Hastings, in short, foresaw and laid the foundation of the policy in which Indian
legislation was put under the direction of the Legal Member of the Council, and by
which the superintendence of the Moffussil court and appellate jurisdiction over
them were vested in the High Cowt"
On the whole it appears that during the period 1780 onwards, the Directors
were more concerned with the establishment of British sovereignty in India. In
carrying out this policy they go: full support and assLstance from the leaders of the
ruling party in the British Parliament. According to them it was the proper time to
strengthen the political control for further expansion in India rather than to
introduce vital reforms in the judiciary of the country. They were not willing to take
any step which might have weakened the hands of the executive in implementing
their political policy.
IS. Reforms in the administration of criminal justice

As early as 1772, Warren Hastings was fully aware of the glaring defects in
the existing administration of criminal justice, still he preferred to leave it in the
hands of the Nawab. Under the judicial plan of 1772 Warren Hastings established
a Sadar Nizamat Adalat at Calcutta" and Moffussil Faujdari Adalats in the districts.
But the criminal justice was administered in the name and under the seal of the
Nawab. The Company insisted on this policy in order to allow the independence of
the Nizamat Adalat as it was sure that any interference in these courts would
adversely affect its political policy. In 1774 with the withdrawal of Collectors from
the districts, the control of the Faujdari Adalats also passed to the native judicial
officers. The scope of the Sadar Nizamat Adalat to control the Provincial Faujdari
Adalats was thus reduced.
In 1775, the Sadar Nizainat Adalat was shifted in Mur5hidabad 58 in order to
avoid any interference and conflict with the Supreme Court. Mahomed Reza Khan
was declared innocent and restored to his office of Naib Nazim of the Sadar Nizamat
Adalat.59 He was empowered to superintend the administration of criminal justice
and police throughout the provinces.
(1) Plan of Mahomed Reza Khan.—After his reappointment Mahomed Reza
Khan prepared a plan to improve the administration of criminal justice. The plan
of British India, 3rd F.dn., p. 213.
56. J . F. Stephen. The Story of Nwtcomar and the Impeachment of Sir Elijah Impe y, Vol. II, p. 242.
57. Sadarul }laq Khan was appointed Daroga of the Court and was also authorised to use the seal of the
Nawab. Daroga worked under the guidance of the Governor-General and Council, Mabomed Reza
Khan Naib Subah was dismissed and arrested in April 1772 and the post of Naib Subah was also
abolished.
55 ('W
59. Sec. Despatches to Bengal. March 3, 1775. Vol. 7. pp. 4 13-26.
88 INAUGURATION OFADALAT SYSTEM IN BENGAL [CHAP.
was adopted in January 1776 and continued till April 178 1. According to the plan,
twenty-three Faujdari Adalats were established. 60 Monthly salary of the judicial
officers was fixed. There was no change in the constitution of the Sadar Nizamat
Adalat except that it now passed under the superintendence of the Naib Subah, who
could exercise his powers directly over his subordinates. Sadarul Haq Khan was
allowed to continue and preside over this court as Daroga. He was assisted by the
Chief Qazi, the Chief Mufti, three Mauh'ies, one Munshi and one Seristadar. Instead
of Daroga, the Naib Subah was authorised to use the seal of the Nawab. Under the
new scheme by fixing a salary for each judicial official, Mahomed Reza Khan
reduced the establishment charges of the Sadar Nizamat Adalat and MOffussil
Faujdari Adalats. In other matters relating to criminal justice, the plan made it clear
that the courts would be guided by the provisions of the judicial plan of 1772.61
According to Reza Khan's judicial plan the administration of criminal justice
continued from 1776 to 1781. During this period, Reza Khan's supervision over the
criminal judicature proved ineffective and the machinery inefficient due to various
factors. Though crimes continued to be punished according to strict interpretation
of Mohammedan law, justice depended on the mercy of individuals rather than the
strength of the judicial system. In the hands of the unscrupulous judicial officers,
the criminal courts became instruments of oppression and torture. Inadequacy of
police forces62, and the role of Zamindars 63 further deteriorated the existing miser-
able sate of affairs in these courts. Due to the protection of Europeans and
recommendations of the high officials, it was becoming very difficult for Reza Khan
even to punish the guilty and corrupt officers.M Professor B.B. Misra has pointed
out, "The transfer of political balance in favour of the Company had already shifted
loyalty, to the British. The decree of the Nizamat, therefore, could not be enforced
without the assistance of the Company's sepoys who, in their turn, were not enough
to be equitably distributed throughout the provinces. The Zamindars, therefore, took
undue advantage of the helpless state of the Nizamat, and being influenced by the
uncertainty of political conditions in the country acted independently of any superior
authority. They not only withheld their support to the Faujdars but secretly harboured
the chiefs of dacoits whom they screened from the punishment of law."65
(ii) Reforms of Warren Hastings--In 1781, Governor-General Warren Hastings
introduced certain changes to improve the administration of criminal justice. The
old policy of non-interference in criminal justice was thus changed.
(a) Warren Hastings first of all empowered the judges of the Moffussil Diwani
Adalats also to act as Magistrates in their respective jurisdiction. They were
authorised to arrest all those persons who were suspected to have committed crimes.
They exercised a sort of police powers. Their duty was to commit criminals
60. The plan provided for criminal courts one in each of these places. Burdwan, Bhagalpur, Bhitaria,
Bhushna. Bishnupur, Birbhum, Carrakpor, Chitpur, Chittagong, Dacca, Diraipur, Hijili, Hugh, Jessore,
Kalighat, Krishnagar. Midnapur, Murshidabad. Patna, Pumea. Rajmahal. Rangpur, Syihet.
61. See, Home Miscdflwjeou.s Serves, Vol. 353, pp. 186-92.
62. See, Calendar of Persian Correspondence, Vol. V. Nos. 238, 270 and 422.
63. Rangpur District Records. Vol. I. p. 38: Vol. IV, pp. 161-62.
64. T.K. Banerjee. Background to Indian Criminal Law. pp. 142-243.
65. B. B. Misra, Judicial Administration of the East India Company in Bengal. p.32'. See, From Mahomed
Reza Khan to the Governor-General, December Il, 1776 Calendar of Persian Correspondence, Vol.
V. No. 422.
41 REFORMS IN ADMINISTRATION OF CRIMINAL JUSTICE 89
immediately on their own apprehension to the nearest Moffussil Faujdari Adalat and
submit written charges on the basis of which they were arrested.
(b) A separate department was established at Calcutta to control and supervise
the working of the Faujdari Adalats. These Adalats were required to submit their
monthly reports, return of proceedings, details of charges, lists of persons arrested
and sent for trial by the Magistrates to the Adalats. Similarly, reports were also sent
to this department by the Saclar Nizamat Adalat. A covenanted servant of the
Company, who presided over the department, was designated as the Remembrancer
of the Criminal Courts. Hc was directly under the Governor-General. For all
information and necessary action the Remembrancer mainly depended on the infor-
mation supplied by the criminal courts. By this process, in the beginning, many
irregularities came to light which were committed in the criminal courts.
(c) The Faujdari Adalats were further reduced by Warren Hastings from
twenty-three to eighteen 66 in July 1782 with a view to reduce the administrative
ekpenses.67 In 1785, the Magistrates were authorised to try petty offences. This step
was taken specially to have speedy administration of criminal justice.
Though the appointment of the Remembrancer and creation of his office was
a remarkable step to introduce reforms and co-ordinate the machinery of criminal
justice, in actual practice the control exercised by the Remembrancer proved very
weak and ineffective. In order to conceal the real deteriorating state of affairs and
gain special favour from the Remernbrancer, the courts began to submit reports to
present a favourable picture of the affairs rather than the true position which in fact
misled the Remembrancer in taking the final decision. This system anyhow continued
to function until Lord Cornwallis in 1790 completely overhauled the old set-up of
Mohammedan Criminal Courts and introduced important changes in the Mohamme-
dan Criminal law and procedure.
(iii) Defects and its reasons.—The reforms of Governor-General Warren Hast-
ings only touched the fringe of the whole problem of improving the criminal justice.
Other important factors, namely, the constitution of criminal courts, the defects and
severity of Muslim criminal law, the mode of trial and proceedings in the criminal
courts, which mainly required vital reforms and special attention were left untouched
subsequently. It is not a fact that Warren Hastings never thought of introducing
reforms in these directions. Warren Hastings' judicial plan of 1772 proved that he
had his own constructive ideas and plans to improve the judicial system. But he
failed to implement his ideas and plans because of certain limitations which were
due to his conflict with hostile Members of the Council, 69 wavering support of the
Company's Directors in England, antagonistic interests of political parties in England
prejudicing his reputation. Referring to the lack of power and means equal to his
66- Whole area was redistributed in eighteen courts, namely, Azmergai-tj Bakarganj, Bhagalpur, Butdwan,
Chitpur, Chitra, Dacca, Islamabad, Midnapur, Murli, Murshidabad. Nator, Raj hat, Rangpur, Tajptir,
Darbhanga. Lauriya and Patna.
67. See Home Miscellaneous Series. Vol. 353. pp 295-323.
68. G . W. Forrest, Seleciion.fro,n the Stoic Papers of Governor- General Warren Hastings, Vol. II. pp.
337-42.
69. See Hastings' Letter to the Court of Directors, Dec. 1. 1774. Bengal Letters Received, Vol. XIII. pp.
247-50. See also S. Wejizman, Warren Has ongs and Philip Francis, Chapter 11 and Ill.
90 INAUGURATION OF ADALAT SYSTEM IN BENGAL [CHAP.
responsibilities, Warren Hastings wrote, 'The meanest drudge, who owes his sub-
stance to doily labour enjoys a condition of happiness compared to mine while /
am doomed to share the responsibility of measures which / disapprove, and to be
idle spectator of the ruin which I cannot avert."70
(iv) Contribution of Warren Hastings—Appreciating the contribution of Warren
Hastings, Lord Macaulay said, ''... internal administration, with all its blemishes,
gives him a title to be considered as one of the most remarkable men in our history.
He dissolved the double Government. He transferred the direction of affairs to
English hands. Out of a frightful anarchy, he deduced at least a rude and imperfect
order. The whole organization by which justice was dispensed, revenue collected,
peace maintained throughout a (vast) territory...., was formed and superintended by
him. He boasted that every public office. without exception which existed when he
left Bengal. was his creation. It is quite true that this system... was at first far more
defective than it now is. But whoever seriously considers what it is to construct from
the beginning the whole of a machine so vast and complex as a government, will
allow that what Hastings effected deserves high admiration.-71
In the light of these observations there appears sufficient justification when
Professor Penson states that, "Cornwallis built on foundations already laid or begun
to be laid by his predecessors and especially by Hastings. It was the emphasis rather
than the principle that was new, but the principles were not clearly stated and the
strength of the home government was used to enforce them.72
On the whole, Warren Hastings' various reforms are clear testimony to the fact
that he' was not only a capable administrator but a great inventive genius also. He
adopted the method of "trial and error" in uprooting the evils of the existing judicial
and executive systems and never hesitated even in taking bold steps to remove such
evils. In spite of the fact that his role is condemned in connection with certain
unfortunate cases,73 he proved that even in the most critical hours in his life he
never lost courage but tackled the situation to the best of his ability. As the first
Governor-General he proved himself one of the most faithful servants of the English
East India Company, who played a vital role in further strengthening the foundation,
which was earlier laid down by Clive, for the future expansion of the British Empire
in India.74
70. Letter of Hastings to Lord North, March 1775, quoted in Lyall, Warren Hastings. p. 72.
71. Macaulay, Essay on Warren Hastings, pp. 83.84.
72. The Cambridge History of India. Vot.V, pp. 436-37.
73. Trial of Raja Nand Kumar, the Patna case, the Cossijurtrn case, etc. See Chapter V.
74. For more details, see Chapter V of this Book.
5
The Regulating Act
English people monopolised trade in essential commodities and sold them after earning
huge profits."
Lecky History of England, Vol. III, p. 474
"Having acquired political power, the new Western rulers absorbed man y of the
autocratic tendencies of the Oriental despots whom they had displaced. A board of retainers
and ostentatious luxury became desirable... Englishmen lived like Nawabs they had dispos-
sessgd."
Beatrice Pitney Lamb: India—A World in Transition. p. 59
"the plan of controlling the Compan y 's Government by the King's Court entirely
foaled... The policy which shaped the Regulating Act was no doubt well-intentioned hut it was
rashly and ignorantly executed. The anarchy which ensued continued till the policy of the
Regulating Act was reversed:'
Cowell: History & Constitution of the Courts & Legislative Authorities iii India, p. 44
(The Supreme Court was a) ''(error heightened by iriydesy., for even that which was
endured was le.c.c horrible than that which was anticipated -
Macaulay: "Essays on Warren Hasrirlg3'', Edinburg Review, Oct., 1841, p. 109
SYNOPSES -.
1. Circumstances prior to Act of 1773 (iii) Undefined position of the Com-
(a) The British Parliament & the Company pany
(b) Causes for taking over the Company (iv) Conflict between Judiciary and
Executive
(c) Appointment of Parliamentary Corn
inittees (c') Vague tenits and wide interpreta-
tions
(d) Main Objects of the Bill
2 Salient Features of the Regulating Act, 1773 (vi) Uncertain law
(vii) Conflict between Co.'s Courts and
(a) Election for Directors
the S.C.
(Ii) Control over Correspondence
(viii) Conflict between Council and the
(c) Appointment of Governor-General and S.0
Council
(Ii) Achievements of the Act
(d) Decision by majority present
6. Some Landtnaik Cases
(e) Extent of GO's power
(a) Trial of Raja Nand Kumar (1775)
(f) Bombay and Madras under control of
G.G. (i) Events before the Trial
(ii) Facts of the case
(g) Establishment of the Supreme Court of
Judicature (iii) Two important questions raised in
the trial
(i) Constitution. Powers and Jurisdic-
tion (iv) Some peculiar features of the trial
(ii) Immunity of G.G. and Id s Council (i-) Opinions of Macaulay, Mill,
(iii) Justices of Peace Beveridge, Stephen etc.
(iv) Appeals (b) Case of Kamaluddin (1775)
3. Legislative Power under the Act of 1773 (i) Facts and decision
(ii) Conflict
(a) General Power
(b) Restrictions (c) The Patna case (1777-79).
4. Charter of 1774 and the Supreme Court at (i) Issues involved
Calcutta (ii) Facts
S. Critical estimate of the provisions of the (iii) Important points raised before the
Regulating Act, 1773 and the Charter of 1774 Supreme Court
(a) Defects of the Act (iv) Effect of the Patna case on Co.'s
(i) Conflict between 0.0. & Council- Government in India
[ors (6) The Cossijurah case (1779-80)
(ii) The "Imminent-Necessiiy" un- (i) Facts
defined (ii) Conflict
911

92 THE REGULATING ACT CHAP.
(ul) Observations on certain vital (to) Jurisdiction of the dual COur( an.
issues cellOit)
(e) Radha Charan Mitra's case 9. Supreme Court at Calcutta
(J) Saroop Chancl's case (a) Constitution & Jtinsdiction
(,g) Gora Chand Dutt v. Hosea
(b) Effect of Acts: 1781 to 1861
7. Act of Settlement, 1781
10. Supreme Courts at Madras and Bombay
Salient features
8. Major defects of the Act (i) Recorder's Courts
(a) Break to 'Rule of law' by favouring the (ii) Supreme Court at Madras
Executive (iii) Supicme Court at Bombay
(b) Other defects (iv) Conflicts between the S.C. and the
(i) Undefined relationship betweeen Govt. of Bombay
the "Indian Territories" and the (a) Cases of Moro Raghunath & Rap-
British Crowti P00 Gunness
(vi) "British subjects" : an unclear (b) Decision of P.C.
term It Laws Administered in the Supreme Courts
1. Circumstances prior to Act of 1773

(a) The British Parliament and the Company.—One of the major problems
before the British Parliament was to determine its relationship with the Company,'
Earlier, the Company was mainly concerned with trade and commerce in India but
its subsequent political involvements and territorial gains created a new situation.
An established principle of English Constitutional law was that no subject could
acquire territories except for the Sovereign, As early as 1759, Lord Clive, in his
letter to Pitt, suggested that the Crown should take over the territories which were
in the Possession of the Company. At this stage, Parliament took no step as there
were three points of view` before it for consideration; the first was that the
Company's privileges and powers must remain untouched. The second view was
that the Crown should take over full sovereignty of the Company's territorial
possessions in India. Both these proposals suggested extreme steps which the British
Government tried to avoid, Pitt considered that it was not only a constitutional matter
but it involved a major policy decision also. The third view was that the Crown
may take over the Company into partnership, assuming the position of a controlling
and dominant partner in all matters. It was acceptable to the British Parliament and
gradually the British Government made every effort to realise it.
The spirit of bargaining with the Company started by an Act of 1767 when the
British Government permitted the Company to retain its territorial acquisitions and
its powers for two years on condition that a sum of £400,000 per year be paid by
the Company in return to the Crown. Its total annual receipts from India were
estimated at not less than two million "so that the British nation took heavy
blackmail upon the Company's gains, however they may have been gotten" , 3 The
demand of Parliament continued increasing as it was supposed that the Company
was making fortunes in India, till it was discovemed that the Company instead had
fallen into debts. In spite of the Company's deteriorating financial condition Parlia-
I. There were increasing political demands in England that the Government should take over the
Company's possessions in India. Because of shifting alignments in British politics this was not done
The reports of the two Parliamentary Committees— .. Selec, Committee and Secret Committee—drove
home the conviction that the independence of the Company must yield to the supremacy of British
Parliament.
2. Holdsworth, A History of English Law, Vol. Xl, p. 162.
3. Alfred Lyall, The Rise and Expansion of the British Dominion in India,
pp. 172-73.
51 CIRCUMSTANCES PRIOR TO THE REGULATING ACT 93

ment derived advantage and asserted its right to the sovereignty of the Indian
territories.
(b) Causes for taking over the Company:
(I) Public opinion against the Company gathered momentum in England.'
(2) Corruption amongst the servants of the Company.5
(3) Complicated administrative problems of the dual government.6
(4) Lack of proper judicial administration.
(5) Lack of central authority to control and guide the affairs of the Company.
(6) Deteriorating financial condition of the Company and its heavy debts.7
(7) Company's defeat in 1769 at the hands of Haider Ali of Mysore.
(8) Terrible famine in Bengal which took a heavy toll of its population.'
(9) The Company applied for a loan of one million pounds in 1772.
(c) Appointment of Parliamentary Committees.—The British Parliament got
an opportunity to tighten its stronghold on the Company's affairs. The House of
Commons appointed two Parliamentary Committees, namely, a Select Committee
and a Secret Committee to study in detail the financial position of the Company
and related matters and to uproot corruption from the administrative and judicial
machinery of the Company. According to Harrington, the Committee of Secrecy
reported with reference to the Courts of justice, "...the despotic principles of the
Government rendered them the instruments of power rather than of justice, not only
unavailing to protect the people but often the means of the most grievous oppressions
under the cloak of the judicial character."9
In March 1773 the Company renewed an appeal for a loan and subsequently
in May the House passed a resolution, "That all acquisitions made under the
influence of a militar y force, or by treaty with foreign princes, do of right belong
to the State." ° Ultimately two Acts were passed by Parliament in 1773. The first
4. Lucy S. Sutherland, The East fndiaa Gimposiy in 18th Century Politics. p. 147. See also. Bolt's
Constderaru),, on Indian Affairs and Dow's History of Hindusian.
5. Due to their private trade they collected vast fortunes. They were not paying transit duty and tried to
displace Indian Officials whosoever resisted them. See. Mill. History of British India, Vol. III. pp.
326-27 English people monopolised trade in essential commodities and sold them after earning huge
profits. See, Lecky, history of England, Vol. Iii, p.474. Beatrice Pitney Lamb in India: A World in
Transu ion, at p.59 said, Having acquired political power, the new Western rulers absorbed ninny of
the autocratic tendcncies of the Oriental despots whom they had displaced. A horde of retainers and
ostentatious luxury became desirable. Despotic tempers seemed appropriate to their new status In this
sense. Englishmen lived like the Nawabs they had dispossessed." Adolphus, History of England, Vol.
1, pp. 345-48. See also. Malcolm, Life of Clive, Vol. III,
pp. 313-16; Adam Smith. Wealth of Notions,
Vol. II, Book IV, pp. 250-57. P.E. Roberts in History of British India, at p. 179, said, "During the
fifteen years that followed the battle of Plassey. immense wealth was brought hack front India by retired
servants of the East India Company, who bought estates and rotten borough.c, and expected to be
received on terms of special equality with the old landed ari.stqcracy. The 'Nabobs', with their
orientalized ways and ostentatious expenditure, figure largely in the caricature and satire of the age.'
6. A. Mervyn Davis, Warren Hastings pp. 76-77; See oLo at p.311. where in his letter in Macpherson,
Warren Hastings made complaints about the conditions in Oudh and staled.'Lucknow was a sink of
inequity ... what will you think of clerks in office clamouring for principalities.., in the confidence of
exhaustless resources they gambled away two lakhs of rupees at a sitting and still grumbled that their
wants are not attended to"
7. Annual Register, 1773, p. 65.
S. V.B. Kulkarni, Bririh Dominion in India and After, p SI.
9. Han'ington's Analysis. Vol. 1. p. 27.
10. Parlio,nentars,' Debates (U.K.), Vol. XVII, Cot. 903.
94 THE REGULATING ACT (CHAP.
Act granted to the Company a loan of £ 1,400,000 at 4% interest. The Company

was forbidden to declare dividends exceeding 6% and it was required to submit
accounts after every six months to the Treasury.
(d) Main Objects of the Bill.—The second and far more important was the
Regulating Act, 1773, which was introduced by Lord North on May 18, 1773 in
the House of Commons as Regulating Bill Its three main objects were to (i) reform
the constitution of the Company,(ii) to reform the Company's government in India,
and (iii) to provide remedies against illegalities and oppressions committed by the
servants of the Company in India. Accordingly, the Regulating Act changed the
constitution of the Company at home, altered the structure of the Government of
India and provided, though in a very inefficient manner, for the supervision of the
Company by a ministry. When the Bill was introduced in the House of Commons,
it was severely criticised. Edmund Burke denounced it as "an infringement of
national right, national faith and national justice." The Bill was ultimately passed
by an overwhelming majority of the House of Commons il on June 10, 1773 and
subsequently by the House of Lords 12 and received the Royal assent on June 21,
1773,
2. Salient Features of the Regulating Act, 1773

The Regulating Act, 1773 permitted the Company to retain its Indian pos-
sessions, but its management was brought under the definite, if only partial, control
of Crown and Parliament. The Act may be regarded as Parliament's first attempt
to construct a regular Government for India and to intervene in the control of the
Company's administration. It was mainly intended to impose control over the
Company and the servants of the Company in India as well as in England.
(a) Election for Directors.—The Regulating Act introduced vital changes in
the Constitution of the Company in England. The Directors of the Company were
elected for a period of four years, one-fourth of them were to retire every year and
the retiring Directors were not entitled to be elected again. As pointed out by Kaye:
"The effect of this provision was to secure stability and continuity in the policy of
Directors." The voting qualification for the Court of Proprietors was raised from
holding a stock of £ 500 to £ 1,000. An unfortunate feature of the new provision
was that those possessing a stock of £ 3,000 were given two votes, while those
possessing a stock of f 10,000 were given four votes each. As such, Keith observed,
"...the measure failed to improve the quality of the Court of Proprietors or to prevent
power being readily purchased by servants of the Company returning with the spoils
of the East."13
(b) Control over correspondence.—In order to assert Parliament's control over
the Company, the Directors were required to place regularly all their correspondence,
regarding civil and military affairs with the Indian authorities, before the Secretary
of State. All correspondence relating to revenues in India was required to be placed
before the Treasury in England.
(c) Appointment of Governor-General and Council—The Regulating Act
made certain important alterations in the structure of the Company's Government
U. In the House of Comnions it was passed by 131 voles to 21

12. In the House of Lords by 74 vole,,; to 17.
13. A.B. KeLth, A ConsmuiiQna! History of India, p.71.
5] SALIENT FEATURES OF THE REGULATING ACT 95
in India) 4 A Governor General and four Councillors were appointed by the

Presidency of Fort William in Bengal. The Governor of Bengal was designated as
the Governor-General of Bengal-
(d) Decision by majority present.—The Act stated the names of the first
Governor-General and four Councillors. 15 Warren Hastings. 16 who was Governor of
Bengal, was appointed the first Governor-General. Their term of office 'was for five
years and the King was empowered to remove them even earlier on the recommen-
dation of the Court of Directors.
(e) Extent of G.G.'s 'power—The Governor-Gcncral-in-Council was given all
the powers to govern the Company's territorial acquisitions in India, to administer
the revenues of Bengal, Bihar and Orissa and to supervise and control the general
civil and military government of the Presidency.
(f) Bombay and Madras under control of G.G.—The Presidencies of Bombay
and Madras were placed under the control and superintendence of the Governor-
General-in-Council while exercising their powers to make war and peace. The
Governor-General and the Council were to keep the Court of Directors fully
informed of all their activities affecting the interests of the Company and they were
also to work in entire obedience to the orders and instructions of the Court of
Directors.
(g) Establishment of the Supreme Court of Judic-stiire.—Section 13 of the
Regulating Act empowered the Crown to establish by Charter a Supreme Court of
Judicature at Fort William in Calcutta. This provision was specially made to remove
the defective state of the judiciary as it existed under the Charter of 1753.
(1) Constitution. Power and Jurisdiction.—The Su preme Court was to Consist
of a Chief Justice 17 and three Puisne Judges,' being barristers of not less than five
years' standing to be appointed by His Majesty. It was Further provided that the
Supreme Court would have full power and authority to exercise all civil, criminal,
admiralty and ecclesiastical jurisdiction. In criminal eases it would act as a Court
of Oyer and Terminer and Gaol Delivery for the town of Calcutta and the factories
subordinate thereto.
The Supreme Court was authorised to form and establish such rules of practice
for the subordinate courts as were necessary for the administration of Justice and
due execution of all the powers as stated in the Chapter. It was recognised as a
Court of Record
14. Sophia Weitzman, Warren Hast ings and Phillip Francis, p. IS

IS. They were: Richard Barwell, a man of high abilities (see Penderel Moon, Warren Hastings and British
India, p. 92.); General Ciavcnng, a professional soldier; Phillip Francis. a clerk in Wa' Office in
England and a bitter enemy of Hastings and Impey; and Colonel Monson, an aid-decaitip to George
III.
6. From April 13. 177210 October 19. 1774. Warren Hastings was Governor of Bengal and from October
20,1774 to February 8. 1785, he remained Governor-General of Bengal He was not Governor-General
of India as there was no such post at that time.
17 The Charter of 1774 appointed Sir Elijah Jmpey as Chief Justice of the Supreme Court at Calcutta. The
appointment was made by Lord Balhurst, the Chancellor, on the recommendation of Thurlow, who
was then Attorney-General. Stephen, Sto ry of Nunconiar, Vol. I,
p. 3
18. Letters Patent appointed three other judges, namely, Robert Chambers of the Middle Temple, first
called to Bar on May 22. 1761; John Hyde of Lincoln's Inn. called to the Bar on November, 6, 1758:
arid LeMaistre of the Inner Temple. called to the [tar on June 20, 1760. Home Miscellaneous Series.
vol. 108, pp. 311-29.
96
THE REGULATING ACT [CHAP.
As to jurisdiction of the Supreme Court it was restricted to certain categories

of persons which the Act defined. It
had jurisdiction over all. British subjects residing
in Bengal, Bihar and Orissa and had power to decide all complaints regarding crime,
misdemeanous Or oppressions. It had jurisdiction over servants
of the Company too.
(ii) immunity of G.G. and his Council .—The
Regulating Act specifically laid
down that the Supreme Court will be incompetent to exercise its criminal jurisdiction
over the G o v
ernor-General and any of his Councillors, The Court had no power to
arrest or imprison them in any action. Immunity of the Governor-General and his
Councillors was granted in order to safeguard them from unnecessary harassment
and also to maintain their prestige as they were the heads of the executive.
(iii) Justices of Peace .—Section
38 authorised the Governor-General, members
of the Council and the Judges of the Supreme Court to act as Justices of the Peace
and to hold Quarter Sessions.
(iv) Appeals.—The Act further empowered the Crown to issue a Charter
19 to
make provision for appeals from the judgments of the Supreme Court to the
King-in-Council and also to state the conditions and circumstances under which such
an appeal was to be allowed.
3. Legislative Power under the Act of 1773

The Regulating Act granted legislative power to the Company's executive
authority in India.
(a) General Power—The Governor-General and Council were authorised to
rnakc and issue rules, ordinances and regulations for the good order of civil
government of Company's settlements at Fort William and other subordinate fac-
tories and places.
(b) Restrictions.__ .'ç1s general power was granted subject to certain qualifica-
tions.20
(a) They were required to be just and reasonable and not repugnant to the
laws of England.
(b) They were not to be valid or of any force until they were duly registered
in the Supreme Court with its consent and approbation.2'
(c) The rules and ordinances were registered only after the expiration of
twenty days from their open publication.
(d) Even after their registration, in England any person (in India or England)
was legally entitled to file an appeal against such regulation to the
King-in-Council within sixty days after its publication there and the
King-in-Council had the power to set aside and repeal such laws if they
were considered defective (S. 36).
(e) Within a period of sixty days from its registration an appeal was allowed
to be made to the Supreme Court at Calcutta challenging the legality of
19. W .H. Morley, Adtnjj'sJratt r fJusijce in India, Charter of 1774,
pp. 549-87.
20. Section 36.
21. A parallel may be seen when in the past it was required that corporations should .,,' .......
ento on
record with Justices of the Peace and have them examined by the Chancellor or Judges (IS Hen. VI,
c.6: 19 Hen WI. c.7); Petty J.. in RWnachd Urwnj Y. Glass, (1844). Cr. Cas. 360.
5] LEGISLATIVE POWERS UNDER THE REGULATING ACT

97
the rules and regulations. Copies of such regulations were to be sent to
the Secretary of State in England.
(t) The King reserved the power to disapprove of them at any time within
two years from the date they were passed by the Governor-General and
Council 22
(g) The Company's officials were prohibited from engaging themselves in
private trade and also from accepting presents in various fornis.23
(h) The Courts in England were also empowered to punish English people
for their crimes or misdemeanours which were committed during their
service under the Company in India.24
These manifold qualifications were imposed (i) to safeguard the interest of the
British people, (ii) to safeguard the imperial policy in India; and
(iii) to check the
hasty actions of G.G. in Council in making rules, ordinances and regulations. This
Act contained also the provisions to prevent abuses and corruption in the adminis-
tration of the Company.
In other words it was to deprive the Company of its political power secured in
India and to vest the same in Parliament.
Under the guise of Directors' control over
the Company 's affairs the British Parliament e:vrablished its effective control over
the affairs of the company which paved the way for its complete takeover by enacting
the Government of India Act of 185825
4. Charter- of 1774 and the Supreme Court at Calcutta

The Regulating Act, 1773 superseded the provisions of the Charter of 1753 and
empowered the Crown to establish a Supreme Court. Under Section 13 of the Act,
George III issued a Charter on 26th March, 1774 which established the Supreme
Court 26 at Calcutta. Just like its predecessor, the Mayor's Court, the Supreme Court
was also a Crown's Court.
The Charter of 1774 constituted the Supreme Court and elaborately defined its
jurisdiction and powers. 27 Sir Elijah Impey 7s
while Stephen C.Le Maistre, 29 Robert Chambers was named as the first Chief Justice
3 ° and John Hyde 3
' were named as
22. Section 37.
23. Section 23.
24. Section 39,
25. Rama lois: Leg al & Cnns,j,u,j'.,,j History
of india, 1984, pp. 251-52.
26.
The establishment of the Supreme Court made Governor-General Warren Hastings a hit disturbed, He
commented if he was really trusted, why was he not granted P
owers commensurate with his
re.sponsibjJj,ii? He foresaw the likelihood of conflictand disliked the idea of importing into Bengal
all the paraphernalia of the English law. However, there was one consolation that his old school friend,
Elijah Impey, was to be the first Chief Justice See Penderel Moon,
p. 94. Wa rren H acring.s and B,-j,js,z India,
27.
The Charter was drawn by lmpcy and revised and settled by Thurlow, the
Wedderbum, the So l icitor-General, Gray, Chief Just Atlorney-General
i ce of the Common Pleas and Bathujt the
Lord Chancellor. Hence linpey knew the true intent and purpose of the Charter of 1774, Elijah Impey,
Speech, p 26, Stephen, Sky of Nwtco,,
Vol. I. p. 3.
28. He was having seventeen years' standing at the Bar. Home
MJSCCUaThSOUS Series, Vol. I IS.
29. linpe y Papers vol. 16259, impey:(?Dj,jng p. 17
30th August. 777, pp. 82-83(I3ritjsh Museum). /otpey
I" 30th August, 1777, pp. 8.4-8.5.
30. ...... itrce
distinguished puisne judges. Chambers, a Vjnerjan Profescr of Law at Oxford, was the most
Memoirs of Witha0 Hickey, Vol. 111, pp. 220-21.
31. /oipev Papers vol. 16259 (B.M.)
J;npev to TIwrlow 30th August. 1777, pp 84-85.
98 THE REGULATING AC [CHAP.
three Puisne Judges. 32 For the subsequent appointment of a judge the Charter stated
the qualifications as of at least five years' standing as a Barrister of England and
Ireland. The judges were to hold office at the pleasure of the King. Each judge of
the Supreme Court was to be a Justice of the Peace and was to have authority and
jurisdiction as the Judges of the King's Bench in England had under the Common
law. The Court was authorised to establish rules of practice and process. It had the
power to appoint the necessary subordinate staff and regulate the court fees with
the consent of the Governor-General.
The Charter granted civil jurisdiction to the Supreme Court. Where the cause
of action exceeded Rs. 500, the Supreme Court was authorised to hear in the first
instance. It could also hear the matter by way of appeal from the decision of it
Moffussil,Court, a Company's Court. Where the valuation of a Suit exceeded 1000
Pagodas an appeal could lie to the King-in-Council within six months from the
decision of the Supreme Court.
While exercising its criminal jurisdiction the Supreme Court was to be a Court
of Oyer and Terminer and Gaol Delivery in and for the town of Calcutta, the factory
and Fort William and the other factories subordinate thereto. All offences of which
the Supreme Court had cognizance were to be tried by a Jury of British subjects
resident in Calcutta.
The Supreme Court was empowered to superintend the Court of Collector, Quarter
Sessions, and the Court of Requests and was empowered to issue to these Courts the
writs of certiorari, mandamus, error or procedendo. The Court was also granted full
ecclesiastiiai, civil and criminal jurisdiction over all the British subjects in Bengal, Bihar
and Orissa and over all the persons employed directly or indirectly in the service of the
Company. The powers of a Court of Equity and those of a Court of Admiralty for
Bengal, Bihar and Orissa and the other adjacent territories and islands under the
jurisdiction of the Company, were also given to it, The judges of the Supreme Court
were authorised to admit attorneys and advocates and they nominated three persons for
the office of Sheriff when selection was made by the Governor-General and Council.
The Supreme Court was vested with four distinct jurisdictions, namely, civil, criminal,
ecclesiastical and admiralty 33 . Thus the Supreme Court at Calcutta was granted
the widest jurisdiction and many important powers. Keeping in view the juris-
diction of the Court, the population of the three provinces (Calcutta, Bombay
and Madras) may be classified into four distinct categories, namely. British
subjects, the servants of the Company, the inhabitants of Calcutta and the Indians
residing in the three provinces.
S. Critical estimate of the provisions of the Regulating Act, 1773 and the
Charter of 1774
Though the aims and objects34 of the framers of the Regulating Act were very
good, many defects came to light subsequently. They were either due to the
32. When Judges of the Supreme Court landed at Chandpal Ghat of Calcutta Hastings officially welcomed
them on 19th October, 1774. See H.E.A. Cotton, Cakuiga Old and New, p. 104; H.E. Busteed, Echoes
from Old Calcuua, p. 60.
33. Morley, Ad,ninistrat ion ('fiusrrce in India pp. 549-87.
34. Perhaps the main object of the Act was "to establish a self-acting balance of powers, and to prevent
abuses by a system of co-ordinate authorities." See Sir Alfred Lyall, Warren Hastings, p. 53.
bw
51 EVALUATION OF THE REGULATING ACT 99

inexperience of the policy-makers in Indian affairs or due to defective drafting of
the provisions of the Act. Over-ambition of the Government and lack of Co-ordi-
nation between Executive and Judiciary were also additional reasons. The Regulating
Act was a half measure and disastrously vague in many points. 35 Some very serious
omissions were made in the Act and various terms of the Act were left undefined
which ultimately resulted in conflict, confusion and criticism. On the one hand the
Governor-General came into conflict with the members of his Council, on the other
the Supreme Court came into conflict with the Governor-General and Council. A
brief account of the conflicting and defective provisions, which led to the failure of
the policy of the Regulating Act. may be stated as follows:
(a) Defects of the Act
(i) Conflict between G.G. & Councillors.—The
Regulating Act appointed a
Governor-General and four members of the Council. It was expected that this new
set-up would improve the old defective state of affairs. In the first instance, persons,
who were to occupy these posts, were also named in the Act. Only one Councillor
Richard Barwcll and the Governor-General Warren Hastings were appointed from
amongst the Company's servants working in India. They were well acquainted with
the Indian political development and the Company's role in India. The British
Parliament made the mistake of sending out to India three Councillors, namely
Clavering, Morison and Francis who were altogether new and were ignorant about
Indian affairs. They came to India at the instance of some politically influential
leaders in England and were thoroughly prejudiced against Warren Hastings and the
Company's officials in India, as was proved by their role in the subsequent
proceedings of the Council with the Go v ernor-General. Several times Governor-
General Warren Hastings found himself out-voted by the factious majority of the
Councj1. 6 It led to constant conflicts between (he Go v
ernor-General and Members
of his Council on various issues. 37 Such frictions were bound to react on the efficient
working of the Governor-General and Council, which was the highest authority in
India for policy-making and decision-taking regarding the Company.
(ii)
The "imminent Necessity" undefined.—By empowering the Governor-
General of the Presidency of Calcutta to have control over the other two Presidencies
of Bombay and Madras, the Regulating Act sowed seeds of constant conflict between
them. The Act made the mistake of giving power and at the same time laying down
an exception to it. As a result of it the latter nullified the former. The exception to
the main provision authorised the Presidencies of Bombay and Madras to take
35. P.E. Roberts, H:st)rs of Brjt,sJ, India.
p. 182. The Regulating Act in fact accommodated conflicting
interests and contradictory principles. It was a sort of compromise and a temporary settlement,
.B.N. Pandey, The In!rcxjucxwrt of En,çlish Law in India, See
53-54. p. 35; C. Ilbcri, The (iovernrne,z of Inth, pp.
36.
Sir John Strachey does not employ expressions too strong when he characteriscs the plan of governing
an empire by a constantly shifting majority at the Council Board as "impossible' and 'folly".
W. K. Firmingcr, See
SeIe(.7 Com,riij'jee of the Huuse oJCoinmris on the Affairs 10he East India Company,
Fifth Report. p. cclv.
37.
Three members of the Council tried to secure powers from Warren Hastings and Barwell, and were
eager to prove that clue to their arrival Bengal was saved from ruin. It was also their ambition to remove
Warren Hastings and to appoint any one from their group as Go v
ernor-General. Francis was the most
ambitious and bitterenemy of Warren Hastings. Sec.
1775, Rockinj,'/,wn Papers. R.I. 1583; Letter o[CoL Monson to Rocking/main, 3rd August.
George Vwi.civari to Jo/ui C'ailaud, 4th Jaunarv. 1775 European
Letter Boulc. pp. 51-53.
100
independent decisions in the case of "imminent necessity". it proved to be a very
vague phrase in actual working. Taking full advantage of such emergency powers,
Bombay and Madras Governments began to take decisions regarding their relations
with other Indian powers without even consulting the Governor-General on the plea
of emergency. They declared wars with the Marathas and Hyder Ali respectively
without making any reference to the Governor-General and Council at Calcutta.
Thus the ambitious Governors of Bombay and Madras came into conflict with the
Governor-General. It created new conflicting situations and problems regarding the
Company's relations with Indian and Foreign powers. It gradually widened the gul f
between Calcutta and other presidencies and the growing tendency of taking inde-
pendent decisions stimulated the trend towards secession from the central authority
of the Company's Government in India. Ultimately, it resulted in weakening the
British control over Indian territories till steps were taken by the British Parliament
to control the abuse of such power.
(iii) Undefined position of the Company—It was difficult to gather from the
provisions of the Act as to what was the legal position of the Company in India.
The Company was holding its powers in India from the British Crown and the
Mughal Emperor. The Company's legal position in India was as Diwan of the
Mughal Emperor. Due to this fact the British Parliament hesitated to assume
complete sovereignty over India. According to law the British Crown could assert
its sovereignty only on the rights the Company had secured from British Parliament.
Parliament also disliked the idea of recognising the sovereignty of the Mughal
Emperor in the Regulating Act specially when they knew that Mughal sovereignty
in ft was nominal and slowly waning. Parliament's effort to assert its sovereign
rights on the Company's Diwani lands was possible only after the complete
extinction of the Mughal sovereignty which it preferred to wait and see. Most
probably because of this fact the Regulating Act was immediately vague in its
terminology on vital issues. From the provisions of the Act, it was difficult to
maintain in practice the theoretical distinction between the two spheres of the
Company's authority, namely. as the agent of the British Crown and as an officer
of the Mughal Emperor. Neither the Company was asserting its right over the Diwani
land nor was it expressly keeping quiet on the related issues. There appears to be
great truth in the observation of J.F. Stephen that the drafters of the Regulating Act
did not wish, "to face the problem with which they had to deal and to grapple with
its real difficulties. They wished that the King of England should not act as the
sovereign of Bengal, but they did not wish to proclaim him so. They wished not to
interfere in express terms either with the Mughal Emperor or with the Company
which claimed under him."38
(iv) Conflict between Judiciary and Executive.—The Regulating Act provided
for the establishment of a Supreme Court. In pursuance of these provisions the
Crown by issuing the Charter of 1774 established the Supreme Court at Calcutta
and appointed eminent Judges to preside over the Court. The Governor-General and
Council were constituted under the same Act by the Crown. In actual functioning
both of them. i.e. judiciary and executive came into serious conflict39 , amongst
38. J.F. Stephen. The Story of Nuncomar and the Impeachment of Sir Elijah Impey, Vol. It. p. 129.
39. The Charter gave precedence to the Chief Justice after the Governor-General, over the Members of

themselves over certain issues. Each claimed their superiority over the other on the
basis of their appointment by his Majesty. 40 The Regulating Act failed to define
their mutual relationship and no procedure was laid down to avoid any future conflict
amongst them. The Governor-General and the Council were exempted from the
criminal jurisdiction of the Supreme Court except in cases of treason and felony
and they were not liable to be arrested or imprisoned but the provisions were
incomplete as many other matters were left untouched by the Act which were very
necessary to maintain the prestige of the high office of the Governor-Genera! and
Council.
(v) Vague terms and wide interpretations—The
jurisdiction of the Supreme
Court was confined to ''British subjects" in certain respects and the native inhabi-
tants were exempted. But nowhere, i.e. neither in the Act nor in the Charter of 1774,
was it defined as to who were the "British subjects". While defining the "British
subjects," Stephen expressed great doubt about its real meaning and pointing out
the confusion he stated: "That in one sense the whole population of Bengal, Bihar
and Orissa were British subjects and in another sense, no one was a British subject
who was not an English born and in a third sense, all the inhabitants of Calcutta
might be regarded as British subjects"." Thus the question arose, what did the
employment of the Company actually constitute? Whether the zamindars 42 and the
farrrers were servants of the Company? Due to the use of vague terms in the Act,
Judges interpreted it in the widest sense to extend their jurisdiction. Judges placed
all those directly or indirectly emplo y ed by the Company and those employed by
British subjects under the jurisdiction of the Court.43
(vi) Uncertain Law.—The Regulating Act was not clear regarding the law which
was to he administered by the Supreme Court. Whether it was to be the law of the
plaintiff or that of defendant? Whether the law of Hindus or that of Mohammedans?
The Judges knew nothing about Hindu or Muslim law; they knew only English law
and usages. Burke remarked "...that no rule was laid down either in the Act or the
Charter by which the Court was to judge. No description of offenders or species of
delinquency were properly ascertained according to the nature of the place or the
prevalent mode of the abuse.' '
James Mill condemns the English law and process, which was adopted by the
Supreme Court, as arbitrary and mechanical. Criticising the English law, as it existed
at that time, James Mill said: "The English law, which in general
has neither
the Council. The Councillors considered this precedence a matter of jealousy and reproach. Chief
Justice lrnpey was a school friend of Warren Hastings. See Francis to Ellis, 8th
Quote in Weitzman, Hastings and Francis. p. 296; Morley, November, 1774,
of 1774, p. 553, Administration of Justice in India, Charter
40. Referring to "The Provisions of the Act" Pumiah in
Cons:i,uiionil Hrsror'v of India, at pp. 16-21,
states. "That they obscured the intention of the authors and lent themselves to more than one
interpretation and so brought about serious conflicts between the Supreme Court and the Supreme
CøncI"
41. Stephen Story of Nuncomar, Vol. II,
p. 126.
42. Raja of Kas,jurah 's case,
see, para 6. where the Supreme Court claimedjurisdiction over the Zamindars. Fordetails
43. For imperfections of tbejurjsdjcjronal definition in the Act,
Conipuny, p. 329; Cowell, History and Constitution of See Kaye. Adiiir g isiratjo,r oft/re East India
53-5.4. Caurt and Legi.ciciiive A ut/lorig ies in India. pp.
44. Select Committee 91h Report, (1783),
p. 6.
THE REGULATING ACT [CHAP

102
definition nor words, to guide the discretion or circumscribe the Licence or the
Judge, presented neither rule nor analogy in cases, totally altered by diversity of
ideas, manners and pre-existing rights; and the violent efforts which were 'nude to
bend the rights of the natives to a conformity with the English laws, for the purpose
of extending jurisdiction .. . produced more injustice and excised more alarm, than
probably was experienced, through the whole of its duration, from the previous
imperfection of law and judicature."45
(vii) Conflict between Co. 's Courts and the Supreme Court—The framers of
the Regulating Act failed to lay down any provision dealing with the relationship
between the Company's Courts and the Supreme Court which was established by
the Crown. They derived their authority and jurisdiction from two different sources,
namely, the Company's Adalats were established under the authority of the Mughal
Emperor granting Diwani to the Company and were governed by the treaties with
the Nawabs of Bengal; the Supreme Court of Judicature at Calcutta was a Crown's
Court established by a Charter of 1774 under the authority of the Regulating Act
of 1773. The Regulating Act made the jurisdiction of the Supreme Court partially
concurrent with that of the Adalats without unifying the sources of sovereignty from
which each derived authority 47 The Adalats looked only to the Governor-General
and Council at Calcutta for support and guidance. They were two different entities
and fuetion amongst them was bound to arise. 48 A series of conflicts between the
two systems of judicature arose. Adalats were backed by the Council at Calcutta
and, therefore, the conflicts actually developed between the Council and the Supreme
Court. The majority of the Council stood firm in adopting its extreme views while
the Judges of the Supreme Court laid emphasis on their superiority to implement
their decisions.
(viii) Conflicts between Council and the Supreme Court.—The Regulating Act
failed to make it clear whether the management and government of territorial
acquisitions and revenues of the kingdoms of Bengal, Bihar and Orissa vested in
the Governor-General and Council, was or was not, to be exempt from the jurisdic-
tion of the Court. It was a matter of great public importance that the collection of
the revenues afforded the richest opportunities for oppressions by persons who were
employed by the Company. On this matter the Council and the Supreme Court came
into severe conflict. The former pleaded exemption for its officers from the Court's
jurisdiction for their acts in the collection of revenue. On the other hand, the Court
stated that it was their primary and most important duty to hear cases in which the
complaints were made against the revenue officers for their illegal acts.
_45. James Mill. 1Ii.ury of British Indio. Vol. 111. pp. 502-503
46. In the Story of IIuncwnar and the impeachment of Sir Elijah Impey. Vol. II, at p.
125, J.F. Stephen
said. "Like risiny later statutes the Regulating Pct used language involving problems, ft solution of
which was left to those who had to work it, because Parliament, either from Ignorance or timidity, did
not choose itself to solve or even to study them.'
Ch. IX, pp. 214-216.
47. B.B. Misra, The Judicial Administration of the East India Company in Bengal.
48, Philip Francis. in his letter to Lord North in February 1775, while admitting this defect advised him
that the King's sovereignty over the provinces may be declared. He stated "Without it there can
properly be no govertunent in this country. The people at present have either two sovereigns, or
none .... The jurisdiction of the Supreme Court of Judicature should be made to extend over all the
inhabitants, who will then know no other sovereign but the King of Great Britain. I eoncieve that this
may be done without touching the country courts. or departing front the laws and customs of the
people." Sec Parkes and Merivale. Memoirs of Sir Philip Francis Vol. H. p 27.
F
The post-Regulating Act period i.e. from 1774 to 1780, gave rise to a series of
conflicting problems and situations. Many leading cases, e.g. Raja Nand Kumar,
Patna case, Raja of Kasjurah, Kamal-ud-din, Rani of Rurdwan, Swamp Cizand,
etc., pointed out the lacunae and the defective provisions of the Regulating Act, The
conflicts, which were not only amongst the Governor-General and his Councillors
but also between the Council and the Supreme Court, proved the inefficiency of the
machinery created by the Regulating Act as well exposed the vague and defective
provisions of the Chaster of 1774. Macaulay described the role of the Supreme Court
during the period from 1774 to 1780 as a reign of terror, "of terror heightened by
mystery, for even that which was endured was less horrible than that which was
anticipated. '.49
In spite of the admirable objectives of the Regulating Act, one would like to
agree with the Report on Indian Constitutional Reforms 5° that the Act proved a
crude attempt at providing a satisfactory governmental machinery, violating the first
principles of administrative mechanics. The system of checks and balances set up
by the Act made the Governor-General powerless before his own Council and the
executive powerless before a Supreme Court. This broke down the working of the
Act.
James Mill 5 ' in this regard rightly observed that as usual the Parliament trod
blindfold and established two rival independent powers in India: the Supreme
Council and the Supreme Court. Conflict between them was therefore the natural
consequence.
(b) Achievements of the Act.—In this context, it will be proper to consider
the real achievement of the provisions of the Regulating Act. Two achievements of
the Act may be stated as follows:
(1) It made changes in the personnel of the- Governor's Council by which the
doings of the Company's servants would henceforth be controlled by men who have
no personal interest to serve by cloaking misgovemments in the districts, and who
presumably would be free from the class prejudices of the Company's servants.
(ii) It substituted a Court of King's Judges and professional men of the law for
a Court composed of Company's servants who were removable by the Company's
servants.
In the light of the two achievements, as stated above, and the various defective
provisions of the Act which created serious conflicts, there appears to be a great
truth in Cowell's assessment, "Thus the plan of controlling the Company's Govern-
ment by the King's Court entirely failed. ...The policy which shaped the Regulating
Act was no doubt well intentioned but it was rashly and ignorantl y executed. ...The
anarchy which ensued continued till the policy of the Regulating Act was
reversed."52
49. Macaulay, "Essays on Wan'en hastings", Edinburg Review. October, 1841. pp. 109-206.
50. (1918). p.17 quoted by A.C.kapoor Constitutional History of India, 2nd Edn., 1976. Ch. I.
5 L Jau-nc,s P,itIl. History of British !ndi, cited by W.K. Firminger, Historical Introduction to the Bengal
Portion oJ 'the Fifth Report", from Select Committee of House of Commons. p. cclx.
52. Cowell, History and Con.ciituthrn of rite Cinsrt.c and Legislative Authorities in India. p 44
104
6. Some landmark cases


I
The Regulating Act by establishing a Supreme Council worsened the situation
due to the defects mentioned before. Due to defective drafting a conflict arose
between Supreme Court and the Supreme Council. Ambiguity and uncertainty of
law and procedure gave rise to unrest and created an atmosphere of tension and
terror in the country.
Even two years after the opening of the Supreme Court, Phillip Francis, a
Member of the Council, pointed out that the great question of soverei gnty was even
then undetermined. "We have", he said, "a Supreme Court of Judicature resident
at Calcutta; whose writs run through every part of these provinces in His Majesty's
name, indiscriminately addressed to British subjects who are bound by their allegi-
aitce, or to the natives, over whom no right of sovereignty, on the part of the King
of Great Britain has yet been claimed or declared.53
The conflicts between the Executive Government of the Company and the
Supreme Court at Calcutta may be illustrated by presenting a critical analysis of
some of the important decisions of the Supreme Court which are considered
landmarks in the legal history of India due to their far-reaching effects on the future
course of the Government's action in India.
(a) Trial of Raja Nand Kumar (1775): The Judicial Murder.—The trial of
Raa Nand Kumar" was the first decisive event during the early stage of the growing
bittcrnessbetween the Supreme Court and the Council. Its special significance lies
in the fbt that the Judges of the Supreme Court introduced English principles of
law and procedure into India, laws which were unknown to Indians before. With
the insistence of the Judges on the independence of judiciary, in spite of interference
of the Council, began a new era in the administration of justice in India. The trial
gained great historical importance as it formed an integral part of the charge on
which Wt-ren Hastings and Impey were impeached by the House of Commons after
their return to England.
(i) Events before the Trial.—Raja Nand Kumar, who was once Governor of
Hugh under Nawab Siraj-ud-Daulah in 1756 and later due to his loyalty to the
English Company in 1757 was nick-named as "Black Colonel" during Clive's
period, brought several charges of bribery and corruption against Governor-General
Warren Hastings' s in 1775.
On March, 11, 1775, Raja Nand Kumar gave a letter containing complaints
against Warren Hastings to Francis, a member of the Council, Francis presented
53. S. 4 of the Charter of 1774 makes the Judges. "Justices and conservators of the peace and coroners
within and throughout the said provinces, districts, and countries of Bengal, Bihar and Orissa and every
part thereof, and to have ucli jurisdiction and authority as our justices of our Court of King's Bench
may law fully exercise within that part of Great Britain called Fngland by the Common law thereof."
J.F. Stephen commented, "This might have been so construed as to enable the Court to issue writs of
mandamus prohibition and certiorari to every court in Bengal and to issue a habeas corpis to any
native to bring up the Women in his Zenana" J.F. Stephen, The Story of Mincomar and the
Impeachment of Sir Elijah Ira pey, Vol. II, pp. 12526.
54. For details see. I.F. Stephen. The Story of Nunconiar and Impeachment of Sir Elijah impei';
H.Bcveridge. The Trial of Maharaja Nand Kumnar: H.E. Busteed, Echoes from old Calcutta, BN.
Pandey, Introduction of English Law into India: The Career of Elijah Impey in Bengal.
55 P.J. Marshall "The Personal Fortune of Warren Hastings." Economic History Review, 2nd Series, xvii
(1964-65). pp. 292-3.
56. See Minutes of the Council (Secret Dept.) dated 11th and 13th March, 1775. See also OW. Forrest
Selecnonsfrom Stare Papers of Governor-General Warren Hastings. Vol. 11. pp. 298-315 antI 337-342.
LANDMARK CASES 105

that letter before the Council, at its meeting, the same day. In his letter of complaint,
Raja Nand Kumar stated that in 1772 Warren Hastings, when he was Governor,
accepted from him as bribe a sum of Rs. 1,04,105 for appointing Gurudas as Diwan
and from Munni Begam Rs. 2,50,000 for appointing her guardian of the infant
Nawah Mubarak-ud-Daulah.
On March 13, 1775, the Council received another letter from Nand Kumar. On
the same day the Council discussed the subject-matter of the complaint. In his second
letter Raja Nand Kumar offered to produce vouchers supporting his charges of
bribery against Warren Hastings. In the Council meeting Monson moved a motion
to call Nand Kumar before it. Warren Hastings, who was presiding at the meeting
as Governor-General opposed this motion stating that neither would he preside over
the meeting of the Council as his character was being discussed, nor would he
recognise the authority of the members of the Council to sit as Judges to hear any
case against him. In spite of Hastings' opposition, Monson's motion was carried by
a majority of votes in the Council. Warren Hastings dissolved the meeting of the
Council and left his seat. The majority of the members in the Council expressed the
view that Governor-General Warren Hastings was not empowered to dissolve the
meeting of the Council and in place of Warren Hastings they elected Clavering to
occup y the presiding seat at the meeting. According to Monson's motion Raja Nand
Kumar was called before the Council to prove his allegations against Warren
Hastings. In order to prove his charges. Raja Nand Kumar produce.d a letter in
Persian, which was written . by Munni Begum to him. 57 While examining Raja Nand
Kumar, the members of the Council asked a leading question: Was he ever
approached by Warren Hastings or his men for the letter of Munni Begum? In his
reply, Raja Nand Kumar disclosed that Kanta Bahu, Warren Hastings' favourite
!3aitia came to him nearly four months ago to take this letter but the original letter
was not given to him. Though Kanta Babu was also called by the Council to appear
before it. he avoided appearing at the instance of Warren Hastings.
The Council by majority dismissed Raja Nand Kumar and found that the charges
levelled by him against Governor-Genera] Warren Hastings were true. They held
that Warren Hastings received a sum of Rs. 3,54,105 as bribe. 58 By a resolution
therefore, the Council directed Warren Hastings to pay the same amount into the
Company's Treasury.
(ii) Facts of the case.—A few months later, Raja Nand Kumar was arrested
with the Fawkes 59 and Radhacharan for conspiracy at the instance of the Governor-
General and Barwell. 60 Warren Hastings and Bar-well, his favourite member 01 the
57. O.W. Forrest. Selection from the Letters, De.cparches and other State Papers 1712-1785, Vol. If Letter
of Munni Begurn. pp. 53-54.
58. On his return to England Warren Hastings was impeached for bribery before the House of Commons
and [louse of Lords, See P.J. Marshall. The Impeachment of Warren Hastings. Ch.s. II, lIt and IV. pp.
22-87.
59. Joseph Fawke and Francis Fawke.
60. The trial of Nand Kumar lot forgery and that of Joseph Fawkc, Francis Fawke. Radhacharan and Nand
Kumar for conspiracy against Hastings and Barwell was first printed in London by Cadell in 1776
under the autlionty of the Supreme Court of Judicature at Calcutta. See Cadell. The Trial of Nand
Kumar (177(j)- The version of the trial as published by Cadelt was inserted in the Slate Trials (Stare
Trials. Vol. 20; Forgery case, pp. 923-1078; Conspiracy case,
pp. 078 . 1226). In 1906 a verbatim
report of the trial was published by P. Miner. Mackintosh differs on the point that the trial was first or
all published in England (Mackin(osh, Travel.c. Vol. II. p. 198). But is it clear that Elliot acted as an
106
THE REGULAT1NO ACT [CHAP
Council, declared their Intention before the Judges of the Supreme Court to prosecute
Nand Kumar, the Fawkes and Radhacharan for conspiracy. 61 This event led the
people to think that with a retaliatory motive this step was being taken against Nand
Kumar to ruin and disgrace him. The trial of Nand Kumar for conspiracy continued
together with another trial of his for forgery. In the conspiracy case, the Supreme
Court delivered its judgment in July, 1775. Fawke was fined but judgment was
reserved against Nand Kumar on account of the forgery case. Those who criticised
the rule of Impey and Warren Hastin g s stated that somehow Warren Hastings felt
that it would be difficult to involve Nand Kumar directly in the conspiracy case,
and therefore, they pooled their resources to prove another charge namely of forgery
against Nand Kuinar and thus got rid of him under the provisions of the English
Act of 1729.
The charge of forgery against Nand Kumar, which came before the Supreme
Court in May, 1775, was with respect to a bond or deed claimed as an acknow-
ledgment of debt from Bulaki Das 62 the Banker, which it is said, was executed by
him in 1765. Mohan Prasad brou g ht a charge of forgery on 6th May, 1775 before
the Justices of the Peace for the town of Calcutta. Le Maistre and Hyde acted as
Magistrates, they heard the case and examined the evidence for the prosecution till
late in the night. The Magistrates, in the capacity of the Justices of the Peace, being
satisfied with the evidence of the prosecution witnesses, ordered the Sheriff and.
Keeper of His Majest y 's prison at Calcutta to keep Nand Kumar in safe custody
until he would be discharged in due course of law.
On 7th May, 1775, Mohan Prasad gave a bond to prosecute Nand Kumar in
the Supreme Court. On the basis of it, the trial of Nand Kumar 63 began before the
Chief Justice and three puisne Judges of the Supreme Court on 8th May, 1775. Out
of the twelve members of the Jury, two were Eurasians and the remaining were
Europeans having resided since long in the town of Calcutta. On the advice of
Vansittart, Mohan Prasad engaged Durham as his counsel and Alexander Elliott
acted as interpreter of the Court. Thomas Farrer was appointed defence counsel of
Nand Kumar.
The trial of Nand Kumar began on 8th June, 1775 and continued for a period
of eight days without any adjournment. The defence counsel first of all advanced a
plea as to the jurisdiction of the Supreme Court. The Judges considered that the
plea was unsupportable and the defence counsel was allowed to withdraw it due to
interpreter during trial. He left India in 1775 with an authenticated account of the trials and the Judges
authorised him to get it printed in London (Letter of Judges to Elliot, August ID, 1775).
61. For details see, U.N. Pandey, liitrdewrton of Eneli.th Law i,jeo India: Career of Sir Elij,
Bengal. (1774-1783), pp. 57-69. 1t bripey in
62. In his lifetime Bulaki Ds regarded Nand Kumar as a great benefactor and patron of his family. Before
his death in 1769. Bulaki Das entrusted his wife and daughter to the care and protection of Nand Kumar.
It is said that after Bulaki Das's death Nand Kumar's attitude coinpieldy changed. See Beveridge.
Trial r ?fMaiwraja Nwid Ktunar, p. 131. The
63. J.D.M. Derrett, "Nand Kumafs Forgery" En,'li.vh Historical Review. lxxv
(1960), 223-38. For a
different interpretation, see N.K. Sinha, "The Trial of Maharaja Nand Kumar" pp.
Bengal, Past and
Present. lxxviii (1959). pp. 135-45. J.F. Stephen in the Sroy of Nuneomar and the Impeachment of Sir
Elijah Impey, claimed that the prosecution had no connection with political events. In the light of
evidence in Sutherland English historical Review, lxxii,
p. 461, this view is no longer tenable B.N.
Pandey, Introduction of Eaglish J.xov into India: Career of Sir Elijah !nipev in Bengal
. 1774-1783, pp.
77-98.
51 RAJA NAND KUMAR CASE 107

two reasons. According to the law as it existed at that time, if the plea as to the
jurisdiction was decided against, the defendant would be precluded from pleading
not guilty to the indictment. Farrer, the defence counsel, also thought that if the
judgment went against Nand Kumar, he might use this plea sometime later by a
motion to check the effect of the judgment. Nand Kumar, therefore, pleaded not
guilty and stated that his entire transactions with J3ulaki Das were correct and
genuine.
The Court sat every day from S a.m. and witnesses were examined till late at
night. Sometimes proceedings were delayed due to ignorance of i!ic Judges about
Indian habits and the nature of persons appearing as witnesses. Documents, state-
merits and accounts were in different languages which were gradually being traiis-
lated into English for the benefit of the Judges. Busteed stated, "How complicated
and perplexing these must have seemed as well as the strange documentary exhibits
which, like the accounts, were in diverse languages and which, with every word of
the evidence nad to be filtered to the understanding drop by drop through an
interpreter ''64 Another peculiar feature of the trial was that the Judges cross-exam-
ined the defence witnesses even in minute details and thus they carried out the work
of the prosecuurg counsel oil plea that the King's Counsel was incapable of
doing if efficiently. It was really very surpnsing and created serious doubts and
suspicions about the impartiality of the Judges. The trial continued till the midnight
of June 15, 1775. Oil June, in the mornin g . Chief Justice Impey summed up
the whole case. The Judges gave the unanimous verdict of ''guilty" and the jury
also declared their verdict of ''guilty''. Rejecting all defence pleas the Chief Justice
passed the sentence of death on Nand Kumar under an Act of British Parliament.
which was passed in 1729.
From 16;h June to 4th July, 1775 various efforts were made to save the life of
Nand Kumar. The defence counsel decided to take an appeal to the King-in-Council
and petitioned the Court to stay the execution of the sentence so long as the Council's
decision was not known. The Court rejected the petition. Efforts were also madeto
seek the assistance of the Members of the Council but all efforts proved in vain.
Earlier on 27th June the Council received a letter from the Nawab recommending
suspension of the sentence until the pleasure of His Majesty was known. 5 The
Council forwarded this letter to the Supreme Court. No action was taken oil Raja
Nand Kumar was thus hanged on August 5, 1775. at. 8 a. nt. at Cooly Bazar near
Fort William.
(iii) Two important questions raised in the Trial—First, whether Nand Kumar
was under the jurisdiction of the Court? Second, whether the English Act of 1729
which made forgery a capital offence and under which Roja Nand Kiunar was
executed, was extended to India?
Objection regarding the jurisdiction of the Supreme Court over Raja Nand
Kumar was based on the ground that before the advent of the Supreme Court, the
Indians in Bengal were tried by their own men in their own local criminal courts.
M HE. Bustced. Echicsfrmi Old Cihw;cj p 77.
Secret Cansuliurions 1775, Range A. Vol. 29. pp. 379-80 On 310 July, Nand Kuinar wroilo Francis,
reque.shing him io interpose with the J&isuces. and sccijrc his rcspilc See. CII. Parkes. Memoirs (?f Si:
Pluittiv F:unco (edited by H. Merivale). Vol t. Nzinii Kum,'u"s tciicrs to Francis. pp. 37-38.
108 THE REGULATING ACT (CHAP.
In this case as the offence was committed before the advent of the Supreme Court,
Nand Kumar could be tried only by Faujdari Adalats and not by the Supreme Court.
On the second question, regarding applicability of the Act of 1729 to India and
the execution of Raja Nand Kumar for forgery, there was a difference of opinion
even amongst the Judges.' Chambers, J. stated that the Act of 1729 was particularly
adopted to the local policy of England wherefor reasons political as well as
commercial, it had been found necessary to guard against the falsification of paper
currency and credit, by laws the most highly penal, and that he thought the same
reasons did not apply to the then State of Bengal. Impey, Hyde and La Maistre
regretted to agree with Chambers' view. Chief Justice Impey declared his firm belief,
first, that the Statute of 1729 did apply to India: second, that the English criminal
law in general and the Statute of 1729 in particular had been administered in India
by English Courts that functioned before the advent of the Supreme Court; 67 third,
the Judges had no option to try forgery under any different law. Regarding the
applicability of the Statute of 1729. 68 Chief Justice Impe y stated the principle that
when the King introduces his law in a conquered dominion, all such laws as are in
force in the realm of England at the time when the laws are so introduced, do
become the laws of the dominion. Laws made subsequently may not extend to the
new dominion except when expressly mentioned in those laws that they shall.69
lmpey, therefore, argued that in 1726 King George I granted a Charter of Justice
for the town of Calcutta and thereby introduced English law. On the surrender of
that Charter, a new Charter of Justice was granted by King George 11 in 1753. It
means that all criminal laws in force in England in 1753 became the laws of the
town of Calcutta. Thus the Statute of 1729 was extended to India by the Charter of
1753 as it was passed before this Charter.
(h') Some peculiar features of the Trial.—The decision of the Supreme Court
in the trial of Raja Nand Kumar became a subject of great controversy and doubts
were also expressed regarding certain peculiar features of the trial, which may be
given as follows:
(a) Charge preferred against Raja Nand Kumar was shortly after he had levelled
charges against Warren Hastings 70
(b) Chief Justice Impey was a close friend of Hastings.7'
(c) Every Judge of the Supreme Court cross-examined the defence witnesses
due to which the whole defence of Raja Nand Kumar collapsed. It was also not
6. B. Pandey. The fiuroduci con of English Law rrito India: The Career of
Sir Elijah hnpey in Bengal.
p.78.
67. Impey stated that before the Supreme Court, Courts of
Oyer, Terminer and Goal delivery had territorial
jurisdiction over Calcutta and they administered English Law. Impey cited Radha Charan £'littre's case
of 1765 to prove that the Statute of 1728 was at least once applied before. Radha Charan Mittre
indicted in 1765 for forging the codicil of a will of one Cojah Soloinans. He was sentenced was
The Court of Direetos granted him pardon. Bengal General Consultations, March to death
II, 1765 (India
Office Library).
68. 2 Geo. 2 c. 25 (1729): See. Stephen, Story of Nwcconwr and Impeachment of Elijah /nipey, Vol. 2. p.
48n, B.N. Pandey, The Introduction of English Law into India: The Career of
(I774), p. 107. Elijah Impey in Bengal
69. See Parliament Debates (E?rjtrh) 1788. Vol. 28, Col. 1360.
70. Rama Jois; Legal and Constitutional History of India. 1984, Vol. fl, p. 126
71. IhieL
51 RAJA NAND KUMARCASE 109
legal according to the rules of procedure prevailing at that time. Criticising the
attitude of the Judges. H.E. Busteed wrote, "The desire of the Judges was to break
down Nand Kumar's witnesses, in particular the Chief Justice's manner was bad
throughout and that the summing up was unfavou rabic. "72
(ci) After the trial, when Nand Kumar was held guilty by the Court he filed an
application before the Supreme Court for granting leave to appeal to the King-in-
Council but the court rejected this application without giving due consideration,
(e) Nand Kumar applied for mercy to His Majesty but his case was not
forwarded by the Supreme Court. The Supreme Court was empowered by the Charter
of 1774 to reprieve and suspend such capital punishment and forward the matter
for mercy to His Majesty. Earlier in 1765, a native, named Radha Charan Mjttre
was tried in Calcutta for forgery under the Statute made applicable to Nand Kumar
and death sentence was passed. A petition was sent to Governor Spencer from the
native community of Calcutta requesting "either a reversal of sentence or a respite
pending an application to the throne". T he prayer was granted and Radha Charan
Mittre got a free pardon from the King.
(J) Nand Kumar committed the offence of forgery nearly five years ago, ie.,
much before the establishment of the Supreme Court. Nand Kumar was sentenced
to death under the English Statute of 1729 on a char g e of forgery but this Act was
not applicable to India because English law was introduced in India in 1726 and
not in 1753•7
(g) Neither under Hindu Law nor under Mohammedan Law was forgery
regarded a capital crime.
In view of the peculiar features of the trial, as stated above, and the events
which took place before the trial, the Judgment of the Supreme Court in Raja Nand
Kumar's case became very controversial. The trial and execution of Raja Nand
Kumar shocked not only Indians but also foreigners residing in India. It was
considered most unfortunate and unjust. The role of Chief Justice Jmpey became a
target of great criticism. On their return to England, Impey and Warren Hastings
were impeached by the House of Commons" and the execution of Raja Nand Kumar
was an important charge levelled against them.
(v) Opinions of Macaulay, Mill, Beveridge, Stephen etc.—Many English histo-
rians expressed the view that Nand Kumar was tried and executed by Impey at time
instance of Warren Hastings. "Men will never agree," P. E. Roberts writes,
"as to
the meaning of this somewhat mysterious sequence of events, Jbr the key to them
lies in the ambiguous and doubtful region of secret motives and desires. The incident
created an extraordinary impression and it was naturally believed for a long time
that Nand Kumar had paid the penalty of death nominally for forgery but real!)
for
having dared to accuse the Governor-General." 7' Those who accuse Impey and
Warren Hastings allege that Hastings first tried to ruin Nand Kumar on a conspiracy
charge, but after realising that it did not implicate Nand Kumar directly, he got him
capitally indicted on a charge of forgery preferred ostensibly by Mohan Prasad.
72. H.E. Busteed, Echoes from Old Calcutta,
p. 90.
73. Macauay, "Essays on Warren Hastings". Edinbur8h Review, 1841-42, October,
p.43.
74. For ctails Tee, P5 Marshall. The Impeachment of Warren liasungs, Chs. II, Ill and IV, pp. 22-87.
75. P.E. Roberts, History of British India. p. 187.
110 ThERE(ULATIN4CiACT (CHAP.
J.F. Stephen had made a detailed study of Nand Kumar's case-and justifies the
conduct of both Impey and Warren Hastings in the trial of Raja Nand Kumar. He
states. 'Mohan Pra.sad was the real substantial prosecutor of Nand Kumar and that
Hastings had nothing to do with the prosecution and that there was not any sort of
conspiracy or understanding between Hastings and Impey in relation to Nand Kumar
or in relation to his trial or execution." 76 Criticising Stephen's findings, Macaulay
said, "The ostensible prosecutor was a native. But it was i/ten, and still is, the
opinion of everybody—idiots and biographers excepted—that l-las. r ings was the real
mover in the business." 77 Beveridge charged Impey and Hastings with conspiracy
on the supposition that no attempt had been made to prosecute Nand Kumar for
forgery before May 1775. He claimed that Hastings in order to defeat Nand Kumar's
charges, which were pending in the Council suborned Mohan Prasad to prosecute
him in the Supreme Cow1.75
For holding the opinion that no conspiracy existed between Impey and Warren
Hastings, Stephen states certain reasons. He points out that Nand Kumar was tried
by the whole Court of four Judges and not by linpey alone. Apart, from the Judges,
the jury of twelve men was also there. All these, the Judges and jurors found Raja
Nand Kumar guilty. But Beveridge alleges that t/iroughoui the trial hnpey manifested
an ardent wish and determined purpose to effect the prisoner's ruin and execution
and with this aim in view he summed up the evidence with ''gross and scandalous
partiality ". Beveridge believes, this prejudiced the incompetent juries who were all
foreigners, ignorant about Indian customs and conditions and they held Nand
Kumar guilty.
The legality of Nand Kuniar's trial was questioned in the impeachment
proceedings of Impey. 79 before the House of Commons o il scope of the
applicability of the Act of 1729 in India. During the debate on the impeachment
motion, Sir Gilbert Elliot argued in detail that the law rendering forgery a capital
offence did not extend to India. 80 Macaulay, Mill and Beveridege held the same
opinion. Even Stephen appears to have had doubts on the legality of the case
being tried under the Act of 1729. Keith states, "English law was introduced
by the Charter of 1726. The subsequent Charter of 1753 and the Act of 1773
could not possibly be regarded, as they were by Irnpcy, as substantive reintio-
ductions of English Law up to that date and in an y case, to apply literally an
English law as a mere miscarriage of justice. No Indian after him (Nand Kumar)
was executed for the crime and in 1802 the Chief Justice (not C.J. Impey)
expressly admitted that it was not capital. ''
76. J.F. Stephen i n The Story rf Nun conwr and Impeachment of Elijah Inipc'y. Vol. II at p. 37. wrote. "My
opinion is that the trial was scrupulously fair, that the summing up was perfectly impartial, and gave
every possible advantage to the prisoner."
77. Macaulay. ''Essays oil Hastings", Edinburgh Review. 1841-42, October,
p. 189.
78. Beveudgc. The 7riul of Ma/ia raja Nand Kurnar. p. 309.
79. The charges levelled against Elijah Impey covered forty-two printe4 pages. See. Home Misc. Vol.
372, pp. 143-86.
80. Parliament Debates (U K) 1788. Vol. 27, Cats. 416-22.
81- J . F Stephen. The Story of Nsrncnnar and the Impeachment of Sir Elijah !rn,nev, Vol. 2, p. 48n.
81 Keith. A Constitutional History of India. p. 77; Morley. Digest of Indian Cases; Introduction. p. xxiii.
Thompson and Garrati, British Rule in India, pp. 125, 357-9.
51 RAJA NAND KUMAR CASE Ill
The most grievous charge, that Impey had to answer before the House of
Commons was that when Nand Kumar had been convicted and sentenced to death,
he corruptly refused to give respite to him pending the submission of his case for
the consideration of the Sovereign. Stephen, while holding that Irnpey and other
judges acted in good faith states, "1 think that in omitting to respite Nand Kumar,
the Judges exercised their discretion in good faith and on reasonable grounds, which
was all that could be required of them."83
To Gilibert, Burke, Macaulay, Mill and Beveridge the failure to respite seemed
to be motivated by the vilest design to accomplish the death of Hastings' accuser.
Beveridge, in The trial of Nand Kurnar, claims to have shown (and given some
evidence for his contention) that a private secretary and dependent of Hastings
exerted himself to prevent a respite being granted to the condemned man. Criti-
cising the role of the Supreme Court Keith remarks, "No more odious crime has
ever been committed by a British Court whether or not on the instigation of a British
Governor-General". Beveridge expresses his resentment in vigorous words, "What
I and every honest man who knows the facts blame Impey for, is that he allowed
himself to be prejudiced by his partiality for Hastings, and his hatred of the majority
and that he hanged Nand Kumar in order that speculators in general, and his friend
and patron Warren Hastings in particular might be safe.'' Macaulay critically
observes, "Impey acted unjustly in refusing to respite Nand Kumar. No rational
man can doubt that he took this course in order to gratify the Governor-General.
Hastings, three or four y ears later, described Impcy as the man, 'to whose support
he was at one time indebted for the safety of his fortune, honour and reputation'.
These strong words can refer only to the case of Nand Kumar; and they must mean
that Impey hanged Nand Kumar in order to support Hastings. it is. therefore, our
deliberate opinion that Irnpey, silting as a Judge, put a man unjustly to death in
order to serve a political purpose.bS
Dr. B.N. Pandey in his book, 'introduction of English Law into India. The
Career of Elijah hnpey in Bengal, 1774-1783 ", has made a detailed study of the
trial of Raja Nand Kumar in England. This is the latest work on the subject based
on extensive study. 86 In his conclusions, Dr. Pandey has taken views similar to those
of Stephen's and has supported Impey's decision by which the English Act of 1729
was extended o India.87
His conclusions are, however, not free from serious doubts. It is on the records
that during the first four years of his administration of Bengal, Hastings remitted
£ 122,000 to Europe, a sum which exceeded his officially reco g nised emoluments by
83. Stephen, The Story of Nunconuir and Impeachment of Elijah Impey, Vol. it p. 85.
84. See, AR Keith, Constitutional History of India, p. 77.
85. Macauby's "Essays On Warren Hastings" (Edited by V.A. Smith), Edinburgh Review. 1841-42.
October, pp. 45-4.
86. Published in 1967 by Asia Publishing House, Bombay.
87. Dr. Pandey's conclusions may be suited as follows That there existed no conspiracy between Jmpey
and Hastings to ruin Nrind Kumar. The defence story was concocted and Nand Kumaf s witnesses were
peturcrs. Impey and the Judges found Nand Kumar guilty of forgery and legally executed him under
the English Act of 1729 which was rightly introduced in India. It was not in furtherance of any political
conspiracy that the Judges refused to respite Nand Kumar. See, Dr. B.N. Pandey. The introduction of
English Law into India: The Career of Elijah !nipey in Bengal. 1774-83, pp 43.109.
112 TFW.RF.GULTINGACF [ChAP.
8
over £ 25,000. From where did this extra income come? 89 Deriving full advantage
of his political superiority, Warren Hastings used Indians as his tools to meet his
political and personal ends. So long as they proved useful in his self-oriented
missions full advantage was derived through them. On their becoming hostile Warren
Hastings was ready to do the needful—either to condemn them or to get rid of them.
Raja Nand Kumar was one of those unfortunate Indians who were valued very highly
once upon a time by Warren Hastings. It appears that before the Judges of the
Supreme Court were appointed, Raja Nand Kumar was in serious conflict with
Hastings. Warren Hastings wrote, ''1 was never the personal enemy of any man but
Nand -Kurnar whom from my soul I detested, even when I was compelled to
countenance him.'' 9° With this background of events, Warren Hastings, while
congratulating Impey on his appointment as Chief Justice of the Supreme Court.
wrote, With respect to my situation I shall say nothing till we meet but that I s/wi/I
expect from your friendship such assistance as the peculiar circumstances of my
new office and connections will enable you effectually to afford inc for the .prevenhinn
and removal of the embarrassments which I feel / am unavoidably to meet with"
It is also necessary to remember that Warren Hastings and Impey studied in
Westminister and since then they were very close friends.
It is submitted that Dr. Pandey has not correlated and interpreted the
aforementioned facts and has not given full importance to them. With this
background, if Nand Kumar's charges of bribery and corruption against Warren
Hastings are considered, the existence of a serious conflict between Nand Kumar
and Hastinos becomes quite clear. In order to get rid of his enem y (Nand Kumar),
Hastings, in the first instance, filed a criminal case of conspiracy against Naftd
Kumar and simultaneously Nand Kumar was prosecuted for forgery. Strong
friendly ties between Impey and Hastings impaired the impartiality and inde-
pendence of judiciary. The peculiar features of trial proceedings were widely
condemned by Indians and enlightened critics in England. Nand Kumar was
found guilty by the Judges and Jury, and an English Act of 1729 Was conveni-
ently used for passing a death sentence. Even the mercy petition was not forwarded
to His Majesty and Nand Kumar was executed on 5th August 1775, leaving strong
doubts that judicial murder' 2 had been committed.
88 p J. Marshall. 'The Personal Foimne of Warren Hastings, Eco;iorn,c II istoty Review 2nd Series.
.vj i, 1964-65). pp. 292-93 Lt,ur:l,Iiu Maclease's letter so Stiliwin, I
8th January, 1774 (Manuscript in
the Bodleian Librar y ). Eng. His. c. 271 f. 2 See a/co P.J. Marshall, The liiipcaclunen, of Warren
Hastings. p. 2145.
89. As written by Lord Macaulay in Critical and Historical Essays, Vol. III, 244,
p. "The object of Mr.
Hastings' diplomacy was at this time simply to get money.... by some means, fair or lout." as was
quoted by Pandit Sunderlal : Bharat men Angrezi Raj, p. 166(1939) rendered into Gujarati in 1946 by
Jasanj Prakashan Trust
90. G.R. Gleig. Memoirs oft/me Life of Warren Hacthmg.c. Vol. III, pp. 337-38; See also Philip Woodruff.
The Men Who Ruled lmidw, Vol. I. p. 125.
91. G.R. Gleig, Memoirs of the Life of Warren Hastings Vol. I (Hastings to Impey, 24th August, 1774) p.
453. See also, Warren Flasting's knee to Sullivan where he stated. "Nuncoinar, whom
I
like a serpent till he has stung me is now in close connexion with my adversaries; and thehave cherished
prune mover
of all their intrigues''. Secret Consult, R.A., Vol. 27. p. 1478-9: Gteig. Supra, Vol I, 506
92. See also H l3everidgc, The Trial of Malta raja Nand Kunmr. p
pp 1-5.
51 KAMALUDDN CASE
113
P.E. Roberts said, 'But even if we hold it established that there was no judicial
murder, there was certainly something equivalent to miscarriage o
fjtst ice. For that,
however, the Supreme Court in the first instance, Hastings' opponents on the Council
subsequently, were mainl y responsible. I
(b) Case of Kamaluddin (1775)
This case is of historical Importance as it reflects on a vital question relating
to the jurisdiction of the Supreme Court over the acts of Company's servants working
in the capacit y of Collectors of Revenue. It is clear from subsequent developments
that the Council came into serious conflict with the Court.
(i) Facts and decision .—Kainaludd i n2 was an ostensible holder of a salt farm
at Hijili 3 on behalf of Kantu Babu, 4 who was the real farmer. In
1775 Kamaluddin,
as a farmer, was in arrear of revenue. On this basis the Revenue Council of Calcutta
issued a writ for Kamaluridin's coiiunittal without bail. Kamaluddin obtained a writ
of Habeas Corpus from the Supreme Court to set him free on bail. The Supreme
Court granted him bail. It was held by the Supreme Court that the return submitted
by the Council were defective in form as it omitted to "express a power in the
Council of Revenue to commit without bail or mainprize, althou g h words to the
same effect were inserted. Mr. Cottrell, the President of the Calcutta Revenue
Council, admitted that it was customary in such cases to grantbail and, therefore,
the Judges of the Supreme Court Field that in a case of disputed account, the
defendant should be granted bail till the inquiry regarding his obligation to pay was
complete The Judges further stated that Kamaluddin should not be imprisoned again
until his under-renter had been called upon to pay the arrears and had proved to be
insolvent.
(ii) Conflict –At this action of the Jud g es of the Supreme Court, the Members
of the Supreme Council expressed their resentment and stated that the Judges of the
Supreme Court were "not empowered to take cognisarice of any matter or cause
dependent on or belonging to the revenue". According to them the Company was
confirmed as Dewan of Bengal by the Regulating Act and the Supreme Council had
exclusive jurisdiction. The majority of the Supreme Council, therefore, decided to
order the Provincial Council to re-imprison Katnaftiddin and to pay "no attention
to any order of the Supreme Court or any of the Judges in matters which solely
concern revenue''. But Cos'einor-General Warren Hastings refused to support the
proposed steps of the majority of the Supreme Council.5
In his letter to the Court of Directors, Chief Justice Jrnpey explained that a
distinction should be drawn between claiming a jurisdiction over the original cause,
which the Judges had not done, and an intervention on the part of the Supreme
Court to prevent the Company's officers, "under the colour of legal proceedings
1. P. E. Roberts, History of British lndin p. 188.
2. See, W . K. Firminger, Select Committee of the He*se of Gn:wnon.c on
the Affairs of the Eec: India
Co mpan y . F:fi#: Report, Introduction. p. cclxiii.
3. Beveridge, The Trial of Nand Kumar, p. 235.
4. Kantu Babu was the famous Bania of Warren Hastings. He played an important role in the famous trial
of Nand Kumar, where he stated that Nand Kumar's signature on the deed was a forgery.
5. When Kamaluddm participated in the ma] of Raja Nand Kumar, the majority of the Supreme Council
got an opportunity to express its resentment by condemning the role of Kamaluddin.
THE REGULATING ACF [CHAP.

14
being guilty of most aggravated injustice". 6 He further stated, "This distinction, if

attended to, is sufficient to clear away everything that can give the least alarm on
account of the interests of Company, for the Court, allowing the custom and usage
of the Collections to be law of the country, has only compelled the officers of the
Government to act conformable to these usages, and not make use of the colour and
forms of law to the oppression of the people".7
The case of Kamaluddin, therefore, was an eye-opener disclosing defective
provisions of the Regulating Act due to which not on/v the Supreme Court and the
Supreme Couil m conic into conflict but also the gulf between Governor-General
Warren Hastings and the three Members of his Council, who constituted the majority,
gradually became wider and wider.
(c) The Patna Case (1777-79)
(I) Issues involved.—This case is important as a landmark in the legal history
of India. Vital issues involved in this case included the (1) 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. (2) Another
important issue was, whether the Provincial Diwani Adalats which consisted of the
Members of the Provincial Council were legally constituted Courts of Justice? The
judgment of the Supreme Court not only provoked the Members of the Council and
developed conflicts but also created panic in the local population of Calcutta.
(ii) Facts.—Shabaz Beg Khan, an Afghan military adventurer, came to India
from Kabul. He settled at Patna, married Nadcrah Begum and eanied a large amount
of money. 8 In December 1776 he died at Patna without leaving any male or female
issue. He left behind a large sum of money, valuables and property. It is alleged
that as Shabaz Beg Khan did not have any issue he called Bahadur Beg, his nephew,
to live with him. At the time of his death, Bahadur Beg was living with him.' After
the death of Shabaz Beg Khan in 1776 his widow and nephew came into open
conflict and litigation began between them, each claiming the whole property of the
deceased. Naderah Begum claimed as a widow of the deceased on the basis of a
dower deed and gift deed. Bahadur Beg, on the other hand, stated that as an adopted
son he was living with his deceased uncle and, therefore, being his legal heir received
a 'Khelaut" (present) from the Governor-General.
After the death of Shabz Beg Khan, Bahadur Beg ttook the first step and
presented an application before the Provincial Council at Patna, 10 praying that the
Mohammedan Law Officers of the Council i. e., Kazi and Muftis, may be directed
to ascertain the petitioner's right over the property of the deceased. He also pointed
out that the widow of the deceased had embezzled some valuables of the deceased
and that the same may be recovered from her for him. As Ewan Law, the Chief of
Patna, stated, the object of Bahadur Beg's petition was to obtain, "the charge of
6. 19th September. 1775.

7. ].F. Stephen, The Story of Nuncwr.ar and the Impeachment of Sir Elijah linpey. Vol. II. pp. 134-35.
Eleventh Report ofthe tiouse of Commons, 1781. General Appendix, III. No. 14.
8. Toucher Committee Report, pp. 10-13; See also B.N. Pandey, The Introduction of English Law ma
India: The Career of Elijah impey, Cli. V. pp. 131-47.
9. Home Miscellaneous Series, Vol. 422, pp. 720-30. See also. W. K. Firniinger, Fifth Report of the Sel&.
Committee on the Affair.c of the East India Company, p. cclxxi.
10. On 2nd January, 1774. Law Consultations (I ndin Office Library), Range 166, Vol. 82, pp. 679-80.
51 THE PATNA CASE 115

the widow and the possession of the estate and this is ever the case where the widow
has a claim to any considerable inheritance." The Provincial Council, instead of
deciding the case itself, passed the case to the Mohammedan Law Officers, i. e.,
Kazi and Muftis. The Parwana issued by the Council to the Kazi and Muftis
provided, "that an inventory of the property of the deceased in the presence of both
the parties was to be made by them and consequently to collect the money and
goods and seal them up and provide for their safe custody and to report to the
Council as to rights of the parties according to the ascertained facts and legal
justice".
The Mohammedan Law Officers carried out the directions of the Provincial
Council very harshly while dealing with the widow. MIII gives an account which
would lead the reader to suppose that the widow acted throughout with an insane
violence, while James Stephen's account gives us the view, which was subsequently
taken by the Chief Justice, that in this instance the widow was regarded by "the
black officers" as a "proper object of rapine and violence". However, the widow
Naderah l3egum. being afraid, fled from her house with some of the title deeds and
her female slaves and took shelter in a Dirgah (Muslim holy Shrine). The Law
Officers posted a guard even at the gates of the Dirgah where Naderah Beguni was
taking shelter.
The Kazi and Muftis submitted their report to the Provincial Council on 20th
January, 1777. From this report it appears that Bahadur Beg claimed his uncle's
property as the adopted son of the deceased, while the widow claimed on the basis
of "Me/tar Nama" (Dower Deed), '1-fiba Nama" (Gift Deed) and "lkrar Nania''
(Acknowledgment). The Mohammedan Law Officers reported that the will and deed
of the gift were not genuine and were forged documents. Therefore, they recom-
mended that the property excluding a/ranicigha. which would not form part of the
inheritance, may be divided into four parts. Out of which three parts were to be
given to Bahadur Beg on the basis of consanguinity to the deceased and also as the
heir of the deceased. The fourth part was left for the widow.''
The Provincial Council, accepting the recommendations of the Mohammedan
Law Officers, ordered the division of the whole property into four parts. It also
issued an order for the trial of the agents of the widow and Kojah Zacheriah on the
charge of forgery in We Fajdari Adalat. The widow, Naderah Begurn refused to
accept the fourth share and declined to hand over her title deeds. She also refused
to return to the family from Dir,gah. Under the orders of the Council a regular guard
was posted at the gates of Dirgah. This Situation continued for a few months.
After tolerating continuous harassment for few months the widow Naderah
Beguiri appealed to the Sadar Diwani Adalat against the decision of the Provincial
Council. The Sadar Diwani Adalat consisted of the Governor-General and the
Members of the Council- Due to their busy routine they found it difficult to consider
this matter. Governor-General Warren Hastings was also in conflict with the majority
of his Council Members. Warren Hastings taking the initiative wrote to Evan Law,
Chief of Patna Provincial Council, for explanation, which was submitted. The matter
II. Touches Committee Report, 1781, Report of the Kazi, Pat. App. 2, P. 230. See also, W.K. Firrninger,
Select Committee of the House of Commons. Affairs of the Ei.t.ct India Compwty, Fifth Report, Vol I,
Introduction, pp. cclxxi-cclxxiv.
116 THE REGULATING ACT ICHAP.
remained pending for a long time before the Sadar-Diwani Adalat without any action.
Being disappointed, the widow, Naderah Begum filed a suit before the Supreme
Court against Bahadur Beg, Kazi' 2 and Muftis' 3 for assault, battery, unlawful
imprisonment for a period of six months and depriving her of the possession of her
property. She also claimed damages amounting to six lac Rupees)4
The Supreme Court issued orders for the arrest of Bahadur Beg. Kazi and Muftis
against whom Nadcrah Begum filed the suit. A bailiff was sent from Calcutta to
arrest these persons and bring them from Patna for appearance before the Court.
None of them was granted bail except the Kazi for whom the Provincial Council
supplied the bail guarantee. The case was tried by the Supreme Court for ten days.'5
While delivering judgment, the Chief Justice declared that the assertions of the Kazi
and Muftis that the will and deed of gift were forgeries, were unproved. "The
documents on which the widow based her claim were not forgeries and that the
Kazi and Muftis were not acting in good faith." "The circumstances," Sir Elijah
Impey, C.J., said, "make us shrewdly suspect that this identical report (which was
prepared by Kazi and Muftis) never had existence till it was fabricated for the
purpose of this cause". The Supreme Court held the Law Officers of the Patna
Provincial Council of Revenue as amenable to a charge of assault and false
imprisonment in regard to actions taken by them as public officers. The Court
awarded the damages Rs. 3,00,0(X) for plaintiffs and Rs. 9,208 as costs. As the
defendants were not able to pay damages and cost, they were ordered to be
imprisoned. The defendants were despatched to Calcutta under a guard of sepoys.
The unfortunate old Kazi died on the way and the other three persons remained in
prison at Calcutta until 1781 when an Act of British Parliament directed that they
should he discharged.' 6 The Council resolved in its meeting of 20th August, 1779
to file an appeal to the Privy Council against the judgment of Supreme Court. The
Act of 1781 by its 27th clause authorised the defendants to appeal to the Privy
Council. Although an appeal was filed on 28th July, 1784, it was not allowed to be
dropped and was finally dismissed in 1789.
(iii) Important points raised before i/ic Supreme Court—
(I) Issue of Jurisdiction.—The first and most important point raised before the
Court was—in what sense Bahadur Beg and native law officers were subject to the
jurisdiction of the Supreme Court?
It was proved that Bahadur Beg farmed the revenues of certain villages in Bihar.
The Supreme Court, therefore, held that Bahadur Beg was in its jurisdiction as he
was found to be a farmer of the revenues of the Company. He being Ijardar was
also directly or indirectly in the service of the Company. Similarly, the other three
persons were also servants of the Company and, therefore, were within the jurisdic-
tion of the Court. This view of the Supreme Court was subsequently criticised on
the basis of three factors, which may be stated as follows:—No doubt the Charter
12. Ka7i Sadec.
13. Two Mufti.,;—Mufti Barackatoolah and Mufti Ghularn Makhdoom.
14. Touclwl Committee Report, p. 6.
IS. The judgment was delivered on 3rd February, 1779. During the trial forty witnesses appeared and
forty-six depositions were made by them. Sec. Law Cozi.su!zution.d (India Office Library), Range 166,
Vol. 82, pp. 119-30.
16 Thc Company execilled a bond for the h,,lanc-e of judgment debts in favour of Naderah Begurn.
51 TIIE PATNA CASE 117

of 1774 was not clear in laying down the jurisdiction of the Supreme Court but it
was also not provided that the Court shall have jurisdiction over Zarnindars and
over any person by virtue of his interest in or authority over lands or rent within
Bengal, Bihar and Orissa or by reason of his becoming surety for the payment of
such revenues. In this case another important fact was that both the parties were
Muslims to which the Mohammedan law of inheritance was to apply, and it was
purely a matter of personal law to Mohammedans. Lastly, there was no written
agreement between the parties to submit the case to the Supreme Court for a decision.
(2) Issue of working method and procedure—Second important point related
to the liability for the judicial officers of the Company who acted under the delegated
authority of the Provincial Council. On behalf of Kazi and Muftis, judicial officers
of the Patna Provincial Council, it was pleaded that they were judicial officers and
acted under the delegated authority of the Provincial Council. It was also stated that
the Provincial Councils of Revenue were acknowledged Courts of Judicature and
that it was the established custom of the Provincial Councils to refer cases in which
Mohammedans were parties and to which the Mohammedan law of inheritance
would apply, to the Kazi and Muftis, who would hear the evidence on both sides
and report to the Council. The Supreme Court, rejecting this plea, held that the
proceedings of the Kazi and Muftis in this case were illegal. "The Provincial
Council," the Judges said, "had but a delegated authority from the President and
Council and it is an avowed maxim of the law of England, delegatus !Ion porest
delegare. The Provincial Council had no right to delegate to its law officers the
hearing of the suit and to give a decision upon the basis of a mere report."
It was criticised subsequently, on the ground that the Kazi and Muftis discharged
their duties as the regular law officers of the Provincial Council for which procedure
was laid down by the Governor-General and Council at Calcutta. It was finally at
the discretion of the Judges of Provincial Council either to accept or refuse the
opinion of the native law officers while deciding the actual case. Thus the Judges
of the Provincial Council were in fact responsible and not the native law officers.
It appears that Judges of the Supreme Court rejected this important defence argu-
ment. Criticising the working of the native law officers. Warren Hastings, Governor-
General wrote, "I cannot but take notice of the irregularity in the proceedings of
the law officers, whose business was solely to have declared the laws. The
Diwani
Court was t4D judge the facts; thcii (ie.,
the law Offlce n) fnking on themselves to
examine witnesses was entirely foreign to their duty: they should have been
examined before the Adalat." ' In the light of this observation, the decision of the
Supreme Court appears to be right. James Mill's observations are not correct where
he states that it was a "thirst for jurisdiction," or ''lust for power'' that incited the
English Judges to interfere with the administration of justice in the Provinces. 18 In
fact it was the prevailing corruption in the Members of the Patna Council, and their
utter lack of interest in the administration of justice that induced the Judges of the
Supreme Court to interfere in this sphere. C.J., Impey, was opposed to the irregular
exercise of the powers by the Provincial Councils.
17. Toucher Committee Report. 1781. PI App. 7, 236; See also,

p. W.K. Firminger, Fifth Report of the
Select committee of the House of Commons on E&cs India Cwnpani, Introduction, p. cclxxiii.
18. James Mitt. History of British India, Vol. IV, 332.
p
118 THE REGULATING ACT [CHAP.
(iv) Effect of the Patna case on the Company's Government in India.—The fact
of the case and decision of the Supreme Court exposed the weakness of the
Company's administrative machinery in India. It also pointed out the deteriorating
state of the administration for justice in the country. In his decision Chief Justice
Impey pointed out, "Those gentlemen of Patna who sit in two capacities—in one
as a Council of Revenue and State, and the other as a Court of Justice—keep no
separate books for their separate departments, nor make any memorandums in their
books, in which all their proceedings are confounded when they sit as a Council of
Revenue and when as Court of Justice and their books are the only records of causes.
I believe we might almost say this is the only cause entered in the book." 19 It also
proved that the Moffussil Courts under the Company's control jailed to impart justice
to the Indians.
Another important reaction of the Patna case was that the local Zamindars
refused to accept the work of revenue collection for the Company. They were afraid
of the jurisdiction for the Supreme Court. It is stated that as many as 40 Zamindars
submitted their resignations to the Council after the judgment of the Supreme Court
in the Patna case. Zamiñdars and the native law officers of t he Company expressed
their inability to co-operate with the Company's Council in the provinces as well
as at Calcutta.
The Patna case also pointed out that the administration of justice under the
Charter of 1773 was wholly inadequate. This case was directly responsible for many
provisions of the Act of Settlement which was passed in 178120 to remove the evil
effects of the Regulating Act. Thc Preamble of the Act of 1781 provided, "That
the Act was passed for the relief of certain persons imprisoned at Calcutta under
the judgment of the Supreme Court and also for indemnifying the Governor-General
and Council and all officers who have acted under their orders or authority in the
undue resistance made to the process of the Supreme Court." Unfortunately, the
Patna case was made the subject of the second article of impeachment against Sir
Elijah Impey, the Chief Justice of the Supreme Court.
(d) The Cossijurab Case (1779-80).---The conflicts, between the Supreme
Council and the Supreme Court, which began after the Regulating Act, reached their
climax in this case. While the Supreme Court issued orders to the Sheriff to use
force in order to carry out its orders, the Supreme Council ordered its troops to
defend the implementation of its orders. The situation became very explosive. The
Supreme Court also claimed its jurisdiction over the whole native population which
was strongly opposed by the Supreme Council. Due to these peculiarties this case
is considered to be of great historical importance.
(i) Facts.—Raja Sundernarain, Zamindar of Cossijurah (Kasijora) was under a
heavy debt to Cossinaut Babu (Kashnath). Though Cossinaut Babu tried to recover
the money from the Raja through the Board of Revenue at Calcutta, his efforts
proved in vain. He, therefore, filed a civil suit against the Raja of Cossijurah 2 ' in
19. See. Stephen, op. cit., Vol. II, p. 181.
20. Adequate compensation was granted by Act or 1781 to all those who suffered in the Patna case.
Select
Carnrnwee, 1782. F.rj Re,r!. Minutes of the Court of Drct,,r.c. 27th June and 7th December. 1718.
pp. 380-81.
21. See W.K. Firininger. Se/eel Cant.rni:lee of the !Iauce fCo,nnn;n.c. Affairs ofthe East India Ccnnpanv.
Fifth Report. Vol. I, Introduction, p. cclxxv: B.N. Paiidey. !ntrrtdciuthm a/ Enlist, Law in
India: Career
51 THE cOSSIJLJRAH CASE 119
the Supreme Court at Calcutta. He also filed an affidavit on 13th August, 1777
stating that the Raja, being a Zamiridar, was employed in the collection of revenues
and was thus within the jurisdiction of the Supreme Court. The Supreme Court
issued a writ of capias for the Raja's arrest. Being afraid of this arrest the Raja
avoided service of the writ by hiding himself. The Collector of Midnapur, in whose
district the Raja resided. informed the Council about the s e developments. The
Council, after seeking legal advice from its Advocate-Genera' issued a notification
informing all the landholders that they need not pay attention to the process of the
Supreme Court unless they were either servants of the Company or had accepted
the Court's jurisdiction by their own consent. The Raja was also specially informed
by the Council and, therefore, his people drove away the Sheriff of the Supreme
Court when that official came with a writ to arrest the Raja of Cossijurah.
(ii) Conflict.—The Supreme Court issued another writ of sequestration on 12th
November, 1779 to seize the property of the Raja's house in order to compel hi
appearance in the Supreme Court. This time the Sheriff of Calcutta, with a force of
sixty or seventy armed force men, marched to Cossijurah in order to execute the
writ. They imprisoned the Raja and it is said that the Englishmen outraged the
sanctity of the family idol, and entered into the Zenona. In the meantime the
Governor-General and Council directed Colonel Ahmuty, Commander of the armed
forces near Midnapur, to detach a sufficient force to intercept and arrest the Sheriff
with his party and release the Raja from arrest Colonel Ahmuty sent Lieutenant
Bamford with two companies of Sepoys (0 arrest the Sheriff with his party. On 3rd
December, 1779 Bamford, with the help of William Swainston, arrested the Sherrif
and his party while they were returning and kept [born in confinement for three
days. Later on they were sent to Calcutta as prisoners. Council released the Sheriff's
party and directed Colonel Ahmuty to resist any further writ of the Supreme Court.
Cossinaut Babu brought an action for trespass against the Governor-General and
the members of the Council individually. At the first instance, they appeared in the
Court but when they found that they were being sued for their acts done by them
in their official capacity. they withdrew and refused to submit to any process of the
Supreme Court. The Council declared that persons in Berigaf, out of Calcutta, need
not submit to the Court and assured th the Council would safeguard their interests
even by the use of armed forces. The Supreme Court issued writs against all members
of the Council except Governor-General Warren Hastings and Barwell. Impey, C.J.,
said, "As to the Governor-General and Barwcll, we will not include them in the
Rule because we will not grant a Rule which we cannot enforce". Army officials
refused to allow the Supreme Court's officials to serve the writ to the Members of
the Council. The Judges of the Supreme Court g rew angry and felt insulted. As the
Members of the Council were not served the writ, the Supreme Court took an action
against North Naylor, Attorney-General of the Company. North Naylor was tried
by the Supreme Court on the charge of the Contempt of Court oil March, 1780.
He was committed to prison and no bail was accepted because in the words of C.J.,
Impey, the punishment was "exemplary".
Chief Justice Impey commented, 'it was not within the power of the Governor-
General and Council or their Attorney to advise anybody on the question whether
of Elijah Impey, Ch. VII, pp. 176-96.

120
he was or was not subject to the jurisdiction of the Supreme Court". Though no
of action was taken against the Members of dhto Council Impey maintained that while
JIIP the Members of the Council were exempt from the criminal process in the Supreme
Court they were not exempt front action Referring to the Councillors' plea
.that they were not subject to the Court's jurisdiction, Impey said, "That if they
S..
thought themselves not amenable to the Court, they ought to plead to the jurisdiction
.
L 'r k.rL or demur to the plaint and if they were discontent with our judgments the Char-ter
had given them a remedy by. appeal.""
•"" The Councillors further declared and conveyed to the Judges that if they were
irr }'1 '- held answerable to the Supreme Court on the suit of an Indian, the respect for the
' . ',.'' - Government in the minds of the - Indians would decrease and the administration
would be weakened. 23 The Supreme Court would not allow the Councillors to
l withdraw their appearance but it had no force or power to compel their appearance
The Councillors were strongly sticking to their own stand They refused to submit
to the authority of the Court and were ready to defy all the summons and orders
issued by the Court This sort of extraordinary situation created complete deadlock
....................- and any move for compromise was being considered imposihle. At this critical
stage however, on 12th March 1780 the platntiff, Cossunaut Babu withdrew his
suit against the Gov
ernor-General, the Members of the Council and the Raja of
Cossijurah.24
(iii) Observations on certain vital issues.—The Cossijurah case refers to two
important questions for due consideration, (1) First whether Zantindars were subject
to the jurisdiction of the Supreme Court? (2) Who was the competent authority to
decide this issue? As regards the first question, the Council's policy towards
Zamindars may be traced from its attitude in an earlier case, the case
Singh- 1 -5 The Council was successful in of Fuii
Futty Singh case as well as in the C'ossijura/i
case to evade the judicial inquiry into the rights and
status of the Zamindars. Having
once committed themselves to protect the Raja of
Cossijurah, the Councillors could
not withdraw their protection without damaging their power and prestige.
This
policy of the Council was devoid of any principle to protect and safeguard
the interests of the Zamindars. In fact in the political interest of the Company it
was also necessary to keep the Zamindars ignorant about their rights and status.
There are many instance s26
to prove that the Zamindars and hereditary Rajas and
Ranis were at times harassed and humiliated by the Revenue Councils of the
Company. The Judges of the Supreme Court could not get an opportunity to enquire
22, finpey to Wevmouth. March 12, 1780, p. 368.
23. Toucher Committee Report, 1781, App. 33. pp. 356-59.
24. linpey Papers, Vol. 16259, Jinpey to Sutton,
25. In this case, a 12th March. 1780, pp. 431-41.
person named Jagmohan, obtained a decree from the Supreme Court against Zrnni p
Futty Singh for the recovery of
his debts. The Sheriffs declared the sale of the Zarnindajj of Funy $
in the execution of the decree. The Gov
abstain ernor-General and the Councillors applied to the She'
from executing the Court's decree against the judgment debtor. In return the Cow
assured the Sheriff that he will be legally defended by
was given in order to prevent any inquiry into the statusthe Council against the Court. This y
of the Zansindars by(he Court.
26. Rani of Hurdwan was interned in her house in 1717
revenue by the Council of Revenue, Burdwan. Sroop and was insulted
insulted and humiliated for t
Chand, who was Khr:zanclrj
the Dacca Council was also harassed for arrears of or Ca'
revenue. Saroop Chand filed a writ of h
before the Supreme Court against the Council which imprisoned him. See. Stephen,
p. 15 et. seq. o
'S https://t.me/LawCollegeNotes_Stuffs
RADHACHARANMITRACASE 121
into the status of the Zamindars. Regarding the next question, the Judges of the
Supreme Court held that the Court was the competent authority to determine the
legal status of the Zamindars and the Council had no such power.
It appears to be a paradox that when Warren Hastings, Governor-General, and
Impey. Chief Justice, were personal friends, the Council used force against the Court
to implement its orders. It is on record that after the hostilities began and before
January 1780, Hastings and Impey met several times in private and discussed the
situation?7 In his letter to John Purling, Warren Hastings wrote, "I sincerely lament
our difference with the Judges: but it was unavoidable. / think you will support us;
if you do trot, be assured Bengal, and of course India, will be lost to the British
nation" 2S The contents of this letter point out that Warren Hastings considered the
interest of the British nation more important than his personal friendship with Impey
and took a strong action to safeguard the Council's superior position, though after
the death of Monson and Clavering the balance of power in the Council was in his
favour. When the Force was used by the Council, Impey appeared to have lost hope
of the Court's victory over the Council, still he declared, "I have no authority to
:ommand troops but I can put those who do command them in a situation to answer
LO his Majesty for the contempt of His Authority''.20
"At the time when the Cossijurah troubles were at their height", W.K. Firm-
inger remarked, 'Calcutta was thrown into a stare of wild excitement by other
matters connected with the Supreme Court and with which the European inhabitants
Were more immediately concerned" 30
When Warren Hastings ordered the Military to arrest the Sheriff of the Court,
he declared, We are upon the eve of an open war with the Court". Under these
circumstances in March 1779 a petition, signed by all the prominent British
inhabitants of Bengal, servants of the Company and Zamindars, was sent to the
British Parliament against the excesses of the Supreme Court in Bengal. The
Governor-General and the Council also submitted their petition to the British
Parliament against the Supreme Court's activities in Bengal. As it result of this
petition, a Parliamentary Committee 31 was appointed. The Committee presented a
detailed report on the conflict between the Supreme Court and the Council. Parlia-
ment, therefore, passed an Act of Settlement in 1781,
(e) Radha Charan Mitra's case: (1775).—After the Sadar Faudari Adalt
was shifted from Calcutta to Murshidabad in 1775 administration of criminal justice
was left with Nawab Muharikuddoaula who was a sovereign prince completely free
from interference of the Supreme Court. Hastings lodged a complaint of conspiracy
against several persons, one of whoni was Radha Charar, the Vakil of the Nawab.
The members of the Council however wrote to the Supreme Court complaining that
as a Vakil (a representative) of the Nawab, Radha Charan was entitled to the rights,
27. Tonclie, Conimiure Report. 1781. App 26. pp. 369-74 See also Irncy's letter to Thurlow dared I I rh
January, 1780. Letter Book of lmpev, Vol. 16259. p. 313.
28. Leiter dated 14th March, 1780. See G.R. Gleig, Memoirs of the Life of Warren Hastings, Vol. 11, pp.
292-93.
29, Touche: Committee Report. impey in Rex v. Nabr. p. 355.
30. W.K. Firmnirmgcr. Select Committee of the House of Commons on E.o.s't India Compan y. Fill/i Report,
Vol 1, Introduction, p. cclxxvi.
31. louchet Committee.
122 THE REGULATING ACT [CHAP.
privileges and immunities allowed by the Law of Nations. The case was heard on
28th June 1775 and arguments with proof were submitted that the Nawab was a
sovereign prince, administering criminal justice, possessing a royal mint coining
money and maintaining troops but the Court rejected the plei and accepted the
arguments put forward on behalf of Governor-General Warren Hastings and others
that the Nawab was fully under the control of the Company and performed no act
of sovereignty.32
This case according to Jam 33 is a precursor of the more famous Nand Kumar
case. Radhacharan was condemned to death iii 1765 for committing forgery. This
was too much and at the instance of the representations of the inhabitants of Calcutta
he was pardoned. This case shows that the result of introduction of if me English law
into India was deplorable. And :hi process soon claimed Nand Kumar as sac, ifice
at its altar.
(fl Saroop Chand's case.—Saroop Chand Was a surety (Maizarnin) responsible
for payment of revenue of the Company from Duckan (Dacca) Sevagepore Paragana.
Balance due was fixed at Rs. 10,000/- to which he disputed. In the capacity as a
treasurer of revenues of the Dacca Provincial Division he was found in default '0
the treasury to the extent of Rs. 66,745/-.
As regards first claim his contention was that he had advanced a sum of Rs.
40,000/- to one John Shakespeare, one of the members of the Council. John admitted
that lie had some financial transactions with Saroop Chand but denied this particular
transaction. However due to non-payment of both these dues the Provincial Council
coruniiued hint to prison till he paid the dues Saroop Chand therefore filed a writ
of Habeas Corpus before the Supreme Court which released him on his giving
security to answer an y suit that might be bni,ulit aainst him. The Court held that
(CO in so far as revenue dues are concerned, to imprison a mail
bail was an arbitrary abuse of power, and
(b) regarding liability as treasurer, it was a matter of contract and the
Council had to take appropriate Civil procecdins, as it cannot he a judge in
its own cause and decide its own demands.' '
(g) Gora Chand Dutt v. Hosea.—Gora Chand sued Mirza Jalleel for the
recovery of some amount. Hosea, the superintending member of the M'irshidahad
Council not only dismissed the action brou g ht by Gora Chand but also made a
decree against him accepting a counterclaim made by the defendant in a statement
made before him. He also seized the properties of the plaintiff even in the absence
of any suit filed by Jalleel. Thereafter Dun sued Hosea for the aforesaid irregularity
committed by him. The Advocate General of the Company opined that Hoseas
irregularity was serious and indefensible. The Council, however took the view that
it was for the first time that an action had been brought against the acts done in
judicial capacity i.e. as Diwani Adalat and therefore it wanted to know whether such
an action was maintainable. The Supreme Court was of the view that it would not
32. 13,5. Misra: The Judicial Adrnm,srraiian (lithe Las: India Co. in Bengal, p.144: Rama iois. Leg::! anti
Cons:!. His:. of India. 1984, Vol. Il. p. 127; Jain. Outlines of India,,Legal Hiiory. 1972, p. 62.
33. Ibid.
34. Misra: The Judtcwtfldnv,ust,i,'tn oof the Lax: Ititha Co. i n Ben!. pp.217-32- Jain: Out! iJJe.I (Jfllid/flfi
Legal History, t972, p. 110: R.iois; Legal 4 Consit. 111cC. of India, 1984. Vol. II, p. 128.
ACT OF SETTLEMENT, 1781 123

51
interfere in such cases, unless there were complaints of manifest corruption. The
Court further pointed out that the only remedy against such irregularities of Diwani
Adaktt was an appeal to Sadar Adalat. Though the decision was in favour of the
s erious irregularities which were being
Company's Court the case revealed the
committed by them-35
A survey of the history of seven years from 1774 to 1780 shows that the
provisions of the Regulating Act, 1 1773 and the Charter of 1774 created many
problems and conflicts. The chain of events and the trial of strength in the Cossijurah
case pointed out the serious growth of conflicts between the judiciary and the
executive. Not only the Governor-General and Council but the inhabitants of Bengal
also submitted their petitions to the King in England. As expressed by Jois. the
executive did not relish the interference of the Supreme Court in whatever it did
while collecting revenue, the officer disliked it because it entertained cases against
their oppressive actions the Europeans hated it because it came in the way of their
exploiting local people for their personal advantage and the natives also disliked it
on account of the oppressive procedures like "arrest on mesne process" and on
account of their actions taken against muslim law officers in Patna case and against
Zamindar of Cossijurah and the hanging of Raja Nand Kumar. The Cossijuralt case
affairs acted as a catalyst for undertaking
which indicated an explosive state of
36 A
further reformation of the Administrative structure by the Rritic/i Parliament.
Select Committee was, therefore, appointed under the Chairmanship of Burke to
inquire into the administration of justice in Bengal. On the basis of its report the
British Parliament again intervened and the Act of 1781 was passed.
7. Act of Settlement, 1781

Salient Feature.—The Preamble of the Act of 1781 stated, "Whereas it is
expedient the lawful Government of Bengal, Bihar and Orissa should be supported".
In the collection of revenue, ''the inhabitants should be maintained and protected
in the enjoyment of all their ancient laws, usages, rights and privileges". The Act
was passed in order to remedy 'the ruinous mistake" of the Regulating Act of
1773. it was aimed to grant relief to certain persons imprisoned at Calcutta under
a judgment of the Supreme Court arid also to indemnify the Governor-Gene ral and
Act of 1781
Council and all officers who acted under their orders or authority. The
amend the provisions of the Regulating Act.
was passed in order to cxp+aift and 38 may be briefly summarised
Some important provisions of the Act of Settlement
as follows:
(i) The Act declared that the Governor-General and Council from the jurisdiction
of the Supreme Court for all things done or ordered by them in their public capacity
and acting as G.G. and Council. (ii) However, the G.G. and Council and any person
acting under their orders had no immunity, before Etighsh Courts. (Ss. 4-7). (iii)
Revenue matters and matters arising out of its collection were excluded from the
the E.at India Co in Bengot. pp. 250-5: Jain Qio/ww.c

35. B.B. Misha: The Judicial Ad#nim.clrn/iv1i of
Legal & Constiiu?iunal History of India. 1994. Vol. II,
of inthua Legal Uistoiy. 1972, p lii; R. Jois:
pp. 128-29.
India. 1984, Vol. II, Part-3, (Ii 2. p. 132.
36. Ramaiois. Legal and Consl,iutio,ialHjSlorJ of
37. 21 Geo. III. c. 70.
38 See W.A.J. Archbold, Outlines of Indian Confitulional history. p.67.
124
ThEREGIJLATLNGAC.-I- [CHAP.
jurisdiction of the Supreme Court. (iv) Under S. 17 of the Act English law was not
applicable to the natives. Hindu and Mohammedan personal laws were preserved in
matters relating to succession and inheritance to lands, rents, goods and in matters
of contract and dealings between parties. (v) Where parties were of different religion
their cases should be decided according to the laws and usages of the defendants.3
(vi) The Supreme Court was empowered to have jurisdiction in actions for wrongs
to trespass, and in civil cases where parties had agreed in writing to submit their
case to the Supreme Court. (vii) It was also provided that the Supreme Court would
not entertain cases against any person holding judicial office in any county courts
for any wrong or injury done by his judicial decision. Persons working under the
authority of such judicial officers were also exempted (S. 24). (viii)
The Parliament
recognised, by the Act of 1781, Civil and Criminal Provincial Courts. These
Company's Courts were existing independently of the Supreme Court. It was one
of the most important provisions of the Act of 1781 as it completely reversed the
P ol icy of the Regulating Act (ix) The Act provided that the Sadar Diwani Adalat
will he the Court of Appeal' to hear appeals from the county courts in civil cases.
It was recognised as Court of Record. Its judgment was final and conclusive except
upon appeal to the K
ing-in-Council in civil cases involving Rs. 5.000 or more. Sadar
Diwani Adalat was presided over by the Governor-General and Council. It was also
empowered to hear and decide cases of revenue and undue force used in the
collection of revenue. 4 ' (
x) The Act of 1781 authorised the Governor-General and
Council to frame Regulations for the Provincial Councils and Courts. 42 This rule-
making power was independently exercised by the Go v ernor .
under the Act of Settlement Earlier, under the Re General and Council
g ulatini, Act, the power of the
Governor-General and Council was limited by the controlling power (approval) of
the Supreme Court. (xi)
The Act recognised the right of the family heads or the
manager of the family to inflict certain punishments on the members of the family.
(Xii) Indemnity.—The
Act of 1781 provided for the release of all the defendants
who were arrested in the Patna case. The G o ve
rnor-General and Council gave
security for payment of damages awarded to them. They were also allowed to file
an appeal to the King-in-Council against Supreme Court's Judgment. The Act also
provided that the Governor-General and Council, A d v
ocate-General and all persons
acting under their orders, so far as the same was related to the resistance of any
process of the Supreme Court from 1st January. 1770 to 1st January. 1780, were to
be indemnified and harmless from any action or prosecution due to the said
disobedience of the orders of the Supreme Court.
8. Major defect of the Act:
(a) 8,ck to "Rule of Liiw" by favouring the
British Pa rliament, by enacting the Ac: Exe cutive.—On the whole, she
of Settlement 1781 favoured the
General and Council as against the Supreme Court. Governor-
It was clearly a policy decision
for the British Parliament. The Britishers realised that in order to acquire territory
in India and to establish the British Empire in India it was important to support the
39. See G.C. Rankin. Background w Indict,, Lau.

p 9.
40. Section 21
41. Section 22..
42. Section 23.
51 SUPREME COURT ATCALCUT - iA 125

Governor-General and Council. They refused to allow the Supreme Court to intro-
duce English principles of independence of the judiciary and the rule of law in India.
ilbert criticised this policy as a legislative reversal, dilatory and expensive. 43 Cowell
views this as a break to impose upon Indians a policy to which they were opposed
and were determined to subvert.
(b) Other Defects:
(I) Undefined relations/tip between the Indian territories & the British Crown,
Though the Act of 1781 succeeded in removing many defects of the Regulating
Act, still some of them continued to exist. Even after the Act of Settlement, the
relationship between the Indian territories and the British Crown was not . 1uite clear.
There was neither any policy statement to this effect nor any proviiöfl made
in the Act. It appears that the British Parliament intentionally avoided to declare its
policy at this state of territorial acquisition by the English Company in India,
(2) ''British Subjects": An unclear term—In both the Acts, the term "British
Subjects" is used but nowhere is it made clear, whether any Indian natives were to
be comprehended under this term. It gives an impression that both Hindu and
Mohammedan inhabitants were excluded from the meaning of 'British Subjects".
(3) Jurisdiction of the dual Courts uncertain.—Referring to one more defect in
the Act of 1781, Grey stated, "There was no reply in the Act. on the question,
whether the Provincial Courts were to have a concurrent jurisdiction with the
Supreme Court or an exclusive one?"" The distinction between the Presidency
Towns and the Moffussil which originated clue to the Mughal Empire and the
Company's factories, continued to exist for a lone period of time. The settlement
of problems by the Act of 1781 was, according to Cowell, "crude and unsatisfac-
tory–.46
9. Supreme Court at Calcutta

The Supreme Court of Judicature was established at Fort William, Calcutta, in
1774. Earlier, it was on the recommendation of a Committee of the House of
Commons that the Regulating Act 17 was passed by the British Parliament in 1773.
It empowered the King to establish by Charter or Letters Patent, a Supreme Court
at Fort William. In pursuance of the provisions of the Act of 1773 the King issued
a Charter on 26th March, 1774 establishing the Supreme Court at Calcutta. The
Mayor's Court was abolished and its records and proceedings were delivered to the
Supreme Court. It was a Court of Record.
(a) constitution and Jurisdiction.—The Supreme Court consisted of one Chief
Justice and three Puisne Judges. All of them had to be Barristers and to be appointed
by the Crown. They were to have jurisdiction and authority as the Justices of the
Court of the King's Bench in Fngland. All the writs, summons and orders were
issued in the King's name and attested by the Chief Justice. The Charter of 1774
43. C Ilbert, The Government of India, pp. 60.61.

44. Cowell, History and Constitution of the Courtc and Legislative Authorities in India, pp. 61-62.
45. Sir C. Greys Minute. See, 51h Appendix to the Third Report of the Sete-i Committee of tire House of
Commons. p. 1145.
46. Cowell, History and Constitution of the Courts and Legislative Authorities in India. p. 63.
47. For details, see pam.', Ito 3 of this Chapter.
126 THEREGULATINGACT [CHAP.
appointed Elijah Impey as the first Chief Justice and Robert Chambers, Stephen,
Ceaser LeMaister and John Hyde as the first Puisne Judges.
The Supreme Court was authorised to try and determine all actions and suits
that might arise within Bengal, Bihar and Orissa against British subjects and against
the inhabitants of India, with British subjecis and when such Indian inhabitants
agreed in writing that the matters in dispute should be determined in.the Supreme
Court. 48 The Supreme Court was also a Court of Equity, Court of Oyer and Termirter
and Gaol Delivery for Calcutta, a Court of Ecclesiastical jurisdiction and a Court
of Admiralty.
(b) Effect of Acts: 1781 to 1861--The exercise of wide jurisdiction of the
Supreme Crt at Calcutta created many conflicts 49 between the Supreme Court and
the Council of East India Company. In order to avoid such conflicts between the
Supreme Court and the Council. the British Parliament passed the Act of Settlement
in 178 1. By this Act it was inter alia declared that the Supreme Court, thereafter,
should have no jurisdiction over the Governor-General and the Council for any act
or order made or done by them in their public capacity. The Supreme Court was
deprived of its jurisdiction in revenue matters. it was clearly laid down that no action
for wrong or injury should lie in the Supreme Court against any person exercising
a judicial office in the county courts for any judgment, decree or order of such
Courts.
The Act of Settlement, 1781 restricted the territorial limits of jurisdiction of the
Supreme Court to the town of Calcutta. The personal law of the Indians was also
directed to be administered in the Supreme Court. The powers and the jurisdiction
of the Company's Courts and the Supreme Court were thus separated and the
independence of each was specially preserved. The dual system of the Courts
continued. Since 1781 the Supreme Court at Calcutta enjoyed the confidence of the
litigants."
In 1784 the Statute of George 111 provided that all his Majesty's subjects and
servants of the Company were amenable to all the Courts of Justice in India and
England for all criminal offences committed in the territories or in the State of any
native Prince. In 1793, the Admiralty jurisdiction of the Supreme Court was extended
and the Court was authorised to try all offences committed on the High Seas by
means of juries of British subjects.
In 1858, the Act for better Government of India was passed by the British
Parliament. In September 1858, the Directors of the East India Compan y transferred
the whole of their possessions in India to the Crown. By a proclamation on 1st
November, 1858, the transfer of the Company's Goernment to the Queen was
announced, in August 1861 the British Parliament passed an Act for the estab-
lishment. of High Courts in India. In pursuance of the Act, Letters Patent was issued
on 14th May, 1862 which defined the jurisdiction and powers of the High Court of
Judicature at Fort William in Bengal.
48. Morley, Administration of Justice in India, pp. 5.22.

49. From 1774 to 1780 famous cases were: Trial of Rain Nand Ku,nar Co,nnvd-ud.Din 's case Cossijurali
case. For details see para 6 of this Chapter.
50. Cowell, Hictar and Constitution of Courts and Legislative fluiliontics in India, p 63.
5 1 SUPREME COURTS AT MADRAS AND BOMBAY 127
The Company's Courts were also taken over by the Crown. The District Courts
were made subordinate to the High Court. Thus, for the first time, all the Courts in
Bengal became the Crown's Courts and were brought under one unified system of
control by the High Court of Judicature at Calcutta.
10, Supreme Courts at Madras and Bombay

At Madras and Bombay, the conditions were not similar to those of Calcutta,
and therefore, for a long time it was not considered suitable to establish Supreme
Courts in these provinces. The establishment of the Supreme Court at Calcutta was
on an experimental basis and the authorities preferred to wait and see its fruitful
results before establishing such a court anywhere else. In the meantime, when it
became necessary to introduce changes in the existing Mayor's Courts, the Company
authorities advised Parliament to establish Recorder's Court at Madras and Bombay.
Thus the Supreme Courts were established only after the abolition of the Recorder's
Courts.
(i) Recorder's Courts.—The Mayor's Courts, which were re-established by the
Charter of 1753 at Madras and Bombay, were abolished by an Act 5l of the British
Parliament in 1797 and the same Act authorised the Crown to issue a Charter 12 to
establish the Recorder's Courts in their places. The Recorder's Court, which was
also declared as a Court of Record, consisted of a Mayor, three Aldermen and a
Recorder. The Recorder, who was the President of the Court, was appointed by His
Majesty from amongst the lawyers having at least five years' standing at the Bar.
Jurisdiction: The Recorder's Court exercised jurisdiction in civil, criminal,
ecclesiastical and admiralty cases over the British subjects residing within the British
territories, subject to the Madras and Bombay Governments respectively, and also
over those residing in the territories of native Princes who were in friendly alliance
with the Company. They were empowered to frame rules of practice and were
authorised to act as Courts of Oyer and Terminer and Gaol Delivery. The jurisdiction
of the Recorder's Courts was similar to that of the Supreme Court or Calcutta subject
to the restrictions imposed by the Act of 1781. The personal laws of Hindus and
Mohaminedans were safeguarded and the Governor and Council and officers work-
ing under their orders were declared immune from the jurisdiction of the Recorder's
Courts. From their decisions direct appeals were allowed to the King-in-CounciL
The Recorder's Courts enjoyed better reputation and were more effective than the
Mayor's Courts specially due to the presence of professional legal experts on the
Bench. Another important feature was that the Court was granted both civil and
criminal jurisdictions which were previously entrusted to the Mayor's Court and the
Court of Governor- in-Council respectively. Somehow, even the Recorder's Courts
could not survive for long due to the growing demand for more reforms in the
machinery of the administration of justice and, therefore, ultimately they gave way
to the Supreme Courts at Madras and Bombay.
51. George Ill. c. 141.

52. In 1798 the Crown issued the Charters by which Recorder's Courts were established at Madras and
Bombay. The first Recorders at Madras and Bombay were Sir Thomas Strange and Sir William Syer
respectively.
128 Tt-tE REGULATING ACT [CHAP.
(ii) Supreme Court at Madras.—In 1800 the British Parliament passed an Act"
empowering the Crown to establish a Supreme Court at Madras in place of
Recorder's Court. The Crown, by Letters Patent issued on 26th December, 1800,
abolished the Recorder's Court and established the Supreme Court at Madras" which
came into being on 4th September, 1801 - The powers of the Recorder's Court were
transferred to the Supreme Court and it was also directed to exercise similar
jurisdiction and to be subject to the same restrictions as the Supreme Court of
Judicature at Calcutta. Sir Thomas Strange, who was already working as the
Recorder, was appointed Chief Justice of the Supreme Court and the two other
Puisne Judges were Henry Gwilltm and Benjamin Sullivan. The Supreme Court
continued its functioning at Madras till the High Court of Judicature was established
in its place by the Indian High Courts Act, 186 t.
(iii) Supreme Court at Bombai'..—The Recorder's Court continued to function
in Bombay up W'1823 when by an Ac t16 of the British Parliament the Crown was
authorised to abolish the Recorder's Court and in its place to establish a Supreme
Court at ombay. 57 The Crown's Charter establishing the Supreme Court was issued
on 8th December, 1 823 and the Supreme Court was formally inaugurated on 8th
May 1 824. It consisted of a Chief Justice Sir E. West and two other puisne Judges
who were Sir Charles Chambers and Sir Ralph Rice.
Powers & Authorit y ,' The Supreme Court at Bombay was invested with full
powers and authority as was exercised by the Supreme Court of Judicature at
Calcutta, subject to one exception. By Section 30 of its Charter, the Supreme Court
at Bombay was prohibited from interfering in any matter concerning revenue even
within the town of Bombay. Natives were also exempted from appearing before the
Supreme Courts at Madras and Bombay unless the circumstances compelled their
appearance in the same manner as in a native Court. The jurisdiction of the Supreme
Court was strictly limited to the town and Island of Bombay. It had no appellate
jurisdiction over the Company Courts in the moffussil. Regarding maritime crimes,
the Charter restricted powers of the Supreme Court at Bombay to such persons as
would be subj ect to its ordinary jurisdiction. This was in conflict with the provisions
of the Charter Act of 1813 which authorised the Supreme Courts at Calcutta and
Madras to take cognizance of all such crimes committed by any person, if the
ordinary jurisdiction was limited to British subjects.
(iv) Conflicts between the Supreme Court and the Coeru,neuj
of Bombay—The
Crown by issuing the Charter of 1823 intended that the Supreme Court will act as
a check upon the Company's Government; but this object was not achieved due to
peculiar conflicting situations which arose during the period 1828 to 1858, between
the Chief Justice Sir E. West and Governor EIphinstone.5
53. 39 & 40 Geo. Ill. c. 79.

54. V.C. Gopalrainam,
A century Completed: A Hisiosy of the Madra.c High Court, p. 89.
55. By the Indian High Courts Act, 1861 the Queen was empowered to establish by 1_eneis Patent High
Courts at Calcutta. Madras and Bombay and on their establishment the old Chartered Supreme Courts
and the old Sadder Adawlat Courts were abolished. The jurisdiction and the powers of the abolished
courts were transferred to the new High Courts.
56. 4Cleo. IV, c.7l.
57. P . B. Vachha, Pwnou,c Jud'ec, Law yers and Cases ()flSJ)5.: A Judicial History of Bomba
British Period, pp. 27-30. y During
58.
Earlier the Recordef s Court at Bombay punished many highly placel Government officials, who were
5] SUPREME COURTS AT MADRAS AND BOMBAY 129
As early as 1826, the Supreme Court at Bombay came into conflict with the
Government when the Supreme Court rejected the draft law which was sent by the
Bombay Government to it, under the Charter of 1807, 11 for its approval. The
Government proposed a law prohibiting the publication of any newspaper except by
persons holding a licence, which was revocable at will, from the Governor. Sir B.
West, the Chief Justice of the Supreme Court, rejecting the draft law declared that
there was nothing in Bombay to justify such a restriction on the liberty of its subjects.
When the viewpoint of the Chief Justice was criticised by certain newspapers, the
Chief Justice condemned the papers as Government papers. But the Governor denied
that any newspaper was backed by the Government.60
(a) Gases of Moro Raghunath & Bappoo Gunness:—In 1828 another conflict
arose when Moro Raghunath, a boy of 14 years, .was detained by his grandfather
for over a year at Poona and a relative of the boy moved the Supreme Court for
the issue of writ of Habeas Corpus. The Advocate-General opposed the writ petition
on the ground that the boy and his father were not within the Court's jurisdiction
as they were natives residing at Poona. Ignoring this plea the Court issued the writ.
In September 1828 in another case of Bappoo Gunness, the Supreme Court issued
writ of habeas corpus to the jailor to produce before it the prisoner Bappoo Gunne.ss
who was arrested under the orders of the Company's Court. The Governor-in-Council
directed the jailor not to send the prisoners to the Supreme Court and stated that
the Supreme Court had no authority to discharee a person imprisoned under the
orders of the native court. At this attitude of the Government, iii April 1829 the
Chief Justice Sir John Grant, was embroiled in a violent conflict with the Bombay
Government and closed the Court suo mow. The Chief Justice sent a petition to His
Majesty against the Governments intervention in the Court's process and prayed
for the issue of direction to the Government ''for the due vindication and protection
of the dignity and lawful authority of His Majesty's Supreme Court at Bombay."
(b) Decision of Privy Council:—The petition was considered by the Privy
Council and its report was affirmed by His Majesty. The Privy Council reported6t
against the Supreme Court.
In was stated 62
(a) 'That the writ were improperly issued.
found guilty of torruption and other misd g inc.anour.s. Governor Elphinrtonc disliked firm steps taken
up by the Recorder's Court and expressed his indignation. In 1823 Sir E. West, when he was the
RecLjrder of the Recorder's Court at Bomba y , dismissed Erskine, a favourite of Governor Elphinstone.
(I om the Company's services on the charges ' of corruption. The Governor felt insulted and subsequently
whenever he got an opportunity showed discourtesy towards the Chief Justice, Jhus the conflicis
continued developing between them in future too. See Drewirt, Rontha p in 1/iC Days of George IV, pp.
56-214.
59. Charter of Geo. III issued in 1807 granted legislative powers to the Governors and Councils of Bombay
and Madras subject to the approval of Recorder'. ,; Court and the Supreme Courts respectively. In
Bombay, the SuprerneCourt replaced the Recorder's Court and, therefore, it began tocxcrcise its power
to approve or reject the draft law referred by the Government for its approval. Similar power was
granted to the Supreme Court at Calcutta by the Regulating Act.
60. Colebrooke. Life i.ifM. E!phiiisione. Vol.11, pp. 176-80
61. In re the Ju s tice-, of the Supreme Court of Judicature. 1 Knapp ('C I See also Pvoi of Garabn,,dho v.
Za,nrndor of Partakrrnedg, 701-A, 129, 161. For details regarding issue of writs, see Chapter on
Ilistors of Writs in India ' in this book
62 Rams Jois: Legal & Cni.vi,fitjionaj History rif hidg r, 1984, Vol Il. p. 141
130 THE REGULATING ACT [ChAp.
(b) that such writs should be directed against a person who is personally
subject to the civil and criminal jurisdiction of the Supreme Court,
(c) that the Court had no power to issue writs to the Gaoler or officer of a
native court as such officer, the Supreme Court having no power to
discharge persons imprisoned under the authority of a native court,
(d) that the Supreme Court is bound to notice the jurisdiction of the native
court, without having the same specifically set forth in the return to a
writ of Habeas Corpus.
Though the order was reversed there can be no doubt that unless the order was
stayed by the Privy Council the Government at Bombay was bound to obey its
order. Therefore, the action taken and the reaction expressed by Justice Grant, was
a shining example for judicial independence and fearlcssness.61
Referring to certain instances of conflict between the Supreme Court and the
Government of Bombay, the Bombay City Gazetteer stated: "... in 1830, after the
death of Sic-, J. Dewary the sole Judge on the Bench, the Court was closed for a
month; in 1841, a great contempt case occurred just prior to the arrival of Sir Erskine
Perry, and at a moment when Sir H. Roper was alone on the Bench; while in 1858
the Court was again embroiled with the Bombay Government on the question
whether the Police Commissioner had any legal right to remove a prisoner to Thana
Jail without the sanction of the Supreme Court. The friction which from time to
time occurred was to some extent engendered by the fact that the Supreme Court
had nothing whatever to do with the ordinary administration of justice in the
moffussil.'
In spite of all the above stated conflicts, the Supreme Court functioned at
Bombay up to 1862 when the High Court of Judicature was established at Bombay
under the Indian High Courts Act, 1861. Gradually the purity and the presti g e of
the judicial administration went on increasing in Bombay.
11. Laws administered in the Supreme Courts

The Supreme Courts of Calcutta, Madras and Bombay were empowered to
exercise civil, criminal, equity, ecclesiastical and Admiralty jurisdictions. The laws,
which were applied and administered by the Supreme Court may be classified under
the following eight headings.5
(i) The Common law as it prevailed in England in 1726 and which has not
subsequently been altered by Statutes specially extending to India or by
Acts of Governor-General-in-Council
(ii) The Statute law which prevailed in England in 1726 and which has not
been altered by the Legislature Council of India.
(iii) The Statute law expressly extending to India which had been enacted
since 1726; not repealed as yet and Statutes extended to India by Acts
of Governor-General-in-Council.
63. Rama Jois: Legci! & C'onstiruiional Hisun-y of Intha, 1984, Vol. II,
p. 141.
64. Quotation cited by P . B. Vachha in Fwnous Judges, Lawyers and cases of Bonibnv: A Judiii1 History
of Bombo) during the British Period at p. 29, for a detailed account of conflicts between executive and
judiciary in Bombay, see. p.191-2W
65. WJ'I. Morley. Adiriinjstrtion of Justice in British India. pp. 22-24.
• .,,
. ,...
'f
LAWS ADMINISTERED IN TFIESUPREME COURTS 131

5]
(iv) The civil law as applied in the Ecclesiastical and Admiralty courts in
England.
(v) Regulations made by Governor-General-in-Council and Governors-in-
Council and registered in Supreme Courts prior to the Chapter of 1833.
(vi) The Acts of Governor-General-in-Council passed under the Charter of
1833.
(vii) The Hindu Law and usages in actions regarding inheritance and suc-
cession to lands, rents, goods and all matters of contracts and dealing
between party and party in which a Hindu was a defendant.
(viii) The Mohammedan Law and usages in actions regarding inheritance and
succession to lands, rents, goods, and all nialters of contracts and dealing
between party and party in which a Mohammedan was a defendant.
-I....
.- . :..E .. .-., ,,...
. 4 ... .
V
6
Role of Cornwallis in Judicial Reforms
CornwaliLc was faced with two difficult tasks - to simplify the cornplicwed and
expensive machinery of administration of justice and to uproot corruption from the company's
servants in administration.
"Although much had been done by Warren Hastings to perform and organise branches
of the public ser-vice, the main foundations of the existing administration of
jirstke in India
were laid in the time of Lord Cornwallis."
—John Strachy, India
It was the emphasis rather than the principle that was new. and hence the solidity
of the work of Cornwallis."
—The Cambridge I!isror .f Inc/ia, p. 437
"(he) had set the Company's ship of state on a new course, and had bcmiclz g injustice
and integrity to redress corruption and power politics.
—VS. Smith: The Oxford History of India,
3rd Edn., p. 538
SYNOPSIS
1. Company's Government before Cornwallis (ii) Separation of Judicial and
(a) Pitt's India Act, 1784: Important Pro- Revenue Functions
visions (iii) Reorganisation of civil courts
(b) Lord Cornwallis (iv) Native Law Officers
(i) Conditions by Cornwallis (v) courts to control executive ma-
(if) Specific Mission of Cornwallis chinery
(ru) Advisors of (:ornv,nh p is (vi) Abolition of court fees
2. Judicial Reforms of Cornwallis (vii) Reforms in crinunal courts
(a) Judicial Plan of 1787 (viii) Legal profession
(b) Criminal Judicature: (mi) Uniform pattern of Regulations
(i) Reforms in 1787 (x) Permanent settlement of land
(ii) Reforms in 1790 revenue
(iii) Mohammedan Criminal Law 3. Estimation of Scheme of Cornwallis
(c) Judicial Plan of 1793 4. The Hierarchy of Courts
(I) Cornwallis Code
Lord Cornwallis, who succeeded Warren Hastings,' came to India in September
1786 and continued as Governor-General up to 1793. During this period he intro-
duced several important changes in the judicial system of India. His rule marks an
epoch in the history of British administration in India. Reforms were introduced in
the administration of civil and criminal justice, and great success was achieved in
combating corruption and he was associated with the Permanent Settlement of
Bengal, Bihar and Orissa, where the prevailing level of land revenue assessment
was made "perpetual" in 1793.
1. Company's Government before Cornwallis

The Regulating Act had succeeded neither in establishing a clear control of the
Directors over the Company's servants, nor in strengthening the powers of Parlia-
ment over the Company. Apart from this, the combined forces of Parliament and
I. Warren Hastings departure from India was followed by twenty months' rule by John Macpherson, a
senior member of the Council. After Macpherson in 1786 Lord Cornwallis was appointed
Governor-General. He was sent from England to India in September 1786.
[132
61 COMPANY'S GOVERNMENT BEFORE CORNWALLIS 133
that of the Directors failed to recall Warren Hastings in May 1782. It was cnsidered
a sad commentary on the existing Situation.2
Pitt the Younger, when he became Prime Minister of England, was called upon
to deal with the problems not only relating to the administrative machinery of India
but also the constitution of the Company and the necessary machinery of the Crown
to control it.
(a) Pitt's India Act, 1784: Important Provisions.—In order to strengthen the
power of the controlling machinery of the Company's Government in England, the
Act introduced vital changes by setting up a Board of Control and recogrtising the
Court of Directors. As expressed by Dr. Kapoor in Constitutional History of India
(2nd edn. p. 17) the Governor General had two masters to obey, the Court of
Directors and the Board of Control, and he could affi)rd to disobey neither. Out of
this conflict of authority emerged the thieor'i of the "man on the spot" and it became
Ihencefonvard the central theme of the British system of administration in India.
Some important provisions of the Pitt's 1 India Act, 1784, may be stated as
follows:—
U) Board of Control—A Board of six Commissioners was set up in England,
which was called Board of Control. It consisted of a Secretary of State, the
Chancellor of Exchequer and four other members from the Privy Council' to be
appointed by the Crown. The Secretary of State was to act as Chairman of the Board
having a casting vote.
(ii) Authority of the Board.—The Board was authorised to superintend and
control all the revenue and civil activities and the military forces held by the British
in the East Indies. The Directors of the Company were required to supply to the
Board, copies of all communications received from India and of all resolutions,
orders and minutes of their proceedings and their despatches to Indian authorities.
The orders and despatches had to he approved by the Board.
(iii) Court of Proprietors sacked of its power—The Court of Proprietors was
completely deprived of its power to counter the orders and resolutions of the
Directors, which had secured due approval of the Board of Control.
(iv) Power and Privileges of the Board of Directors.—The Court of Directors
was allowed to retain its full powers in the appointment, reduction and retrenchment
of all the civil and military servants of the Company. The Commercial privileges
2. Three constructive proposals emerged from this period. The first was Dunda's Hill, 1783, a centralising
measure, which was rejected by the British Parliament. The second was Fox's India Bill, 1783, which
provided to supersede both the proprietors and directors with seven Commissioners appointed by the
Crown. The Bill was reiected with the fall of the Fox-No, iii Coalition Ministry. King George Ill invited
Pitt the Younger to form a new Cabinet. Thus the third measure was Pitt's India Bill which actually
passed into law in August 1784.
3. Ifit is the distinction of Lord Cornwallis to have been the first Governor-General to purify successfully
the administration of India, it is no less the distinction of Pitt the Younger to have been the first minister
to provide for the same high principle such sanctions in an Act of Parliament that the evils ceased
altogether and became mere matters of history. See aLso, Sir V. Chirol, India Old and New, 73,
4. 24 Geo. II Se,c.s. 2. c. 25. For Pitt's Speech at the first reading, see P. Mukharji, Indian Con-stitution
India,, Conitiruiionul Docurne, its, 25-28.
5. Subsequently modified to any two Secretaries of State, the Chancellors of the Excbequerand two Privy
Councillors. By the Charter Act of 179 instead of two Privy Councillors any two persons could be
appointed upon the Board.
134 ROLE OFCQRNWALLIS IN JUDICIAL REFORMS ICHAP.
of the Court of Directors were left intact and it was empowered to appeal to the
King-in-Council in case of any encroachment on its rights by the Board.
(v) Company's Cenrral Government—As
regards the Central Government of
the Company in India, the Act provided that it will consist of three other members
besides the Governor-General 6 Out of the three members one was to be the
C ommander-in-Chief of the British Forces in India. More effective, a casting vote
was given to the Governor-General. In the appointment of the Governor-General,
the Directors were required to secure prior approval of the Crown. The Directors
were given full powers in the appointment of the members of the Council and
Governors. But the Crown was empowered to recall a Governor-General or any
Governor in case it so desired. Resi g nations of the high officials were required to
he in writing.' The Governor-General and Council were not authorised to declare
wat on another power without the express permission and authority of the Court of
Directors or at least of the Committee of Secrecy. In sudden emergency cases the
presidencies were allowed to enter into such treaties which were subject to the
ratification of the Governor-General and Council. In the case of specific direct orders
from the Directors, the presidencies were allowed not to obey the Governor-General
and Council. But in such cases the presidencies were required to send immediately
a copy of such direct orders to the Governor-General.
(vi) British Possessions—All the Company's possessions in India were, for the
first time, stated as the "British Possessions".
(vii) Government of Presidencies—The
Government of the presidencies was to
consist of a Governor and Council of three members. One o these was required to
be the Con linander-in . Clijef of the Company's forces in the presidency. The Gov-
ernor and Councillors were appointed by the Court of Directors. The Crown reserved
the right to recall or remove any of them. The presidencies were completely made
subordinate to the Governor-General and Council. In case of disobedience the
Governor of a presidency was liable to be suspended. They were required to send
copies of papers on all matters to the Governor-General.
(viii) Measures for checking corr uption—Apart
from these vital constitutional
changes. the Act also made provision to regulate the presents and to check corruption
amongst the servants of the Company holding high posts. It was provided that
receiving presents would be corrtdcre(1 to be an extortion and Company officers on
their retirement were to declare on oath the fortunes they possessed. A dismissed
servant would not be restored to his office. Acts of receiving or giving up office
were considered inisderneancjurs. A special court was set up to try these offences.
The Governor-General and Governors were given special powers to arrest a person
within the European SettlernetiLs in any Native State, who was suspected of having
unlawful correspondence with those authorities. By another important provision of
the Act, all the subiects of His Majesty whether in the service of the Company or
nor, were brought under the jurisdiction of the Courts in Great Britain and India,
for any crime committed in the territories of an Indian State.
6. The Regulating Act

provided for four other niernbers of the Council besides the
7. Governor-3eneru[
This provision was specially nsdc in order to obviate the possibility of the repetition of (he trouble
created at the time of Warren Hastings' resignation in 1777.
63 COMPANY'S GOVERNMENT BEFORE CORNWALLIS 135
(ix) Dual Government—The most important feature of the Pitt's India Act,
1784, was that it introduced a dual Government for the Company's affairs in
England. The control of the purely commercial Junctions was placed entirely into
the hands of the Director, while ]6r the control of the Company's political functions
s wa
the responsibility Riven to the Board of Control. The Board represented the
Crown, while the Directors represented the Compan y. Consequentl y the power of
the Court of Proprietors to influence political decisions in India caine to an end.
(b) Lord Cornwallis
(i) Conditions by Cornwallis.—Before accepting his appointment as Governor-
General, Cornwallis laid down two conditions, that the Governor-General will have
power to override his council and the office of the Goveinor-General and the
Commander-in-Chief will he united under one person. The conditions, as laid down
by Lord Cornwallis, 8 were accepted and the Governor-General became the effective
outer of British India under the authority of the Board of Control and the Court of
Directors. He was also successful in preventing any repetition of the embarrassments
from which Hastings suffered, 9 The Governor-General and Council now became the
Governor-General-in-Council and this position continued lip to 1947.
(ii) Specific Mission of Cornsval!is—Certain specific instructions were given to
Lord Cornwallis in three matters: First, to deal with the problem of land revenue;
secondly, improvement in the administrative machinery: third/v, to introduce reforms
in the judicial system. The instructions contemplated the reuniting of the functions
of Revenue Collector Civil Judge and Magistrate in one and the same pers on as it
would lead to simplicity, justice and economy. As a matter of policy, civil justice
was to be allowed to continue under the European jud g es. Regarding criminal
jurisdiction, it was stated that the powers of trial and punishment must, on no
account, be exercised by any other than the established officers of the Muslim
judiciary. European ideas of justice were to be introduced into the judicial system
of India. The Governor-General was specially required to keep a strict watch on the
methods by which the servants of the Company became rich- 10 In short (i) economy,
(ii) modification, and (iii) purification were the ann.c of the mission.
(iii) Advisors of Corn wollis.—Though Cornwallis had little knowledge regarding
Indian affairs, he was fully aware of the defects of the Regulation Act, and the Act
of Settlement and of the role of Warren Hastings in India. It was specially due to
this fact that Cornwallis accepted the Governor-Generalship only when the Military
Command was united with his office and the Governor-General was made inde-
pendent of his Council. Sound government in the interest of the inhabitants was
henceforth the touchstone of the policy rather than an enlargement of the Company's
investment or an increase in territorial revenues. The haphazard expansionism of the
8. Cornwallis came with such advantages as no predecessor ever had He was Coinniandcr-in -Chic f as
well as Governor-General and his rank Sn him above the necessity of trucking to anybody. ...13e was
indifferent to pecuniary gain and adulation, a man of s turdy courage. honesty. Sec. Thompson and
Garrafi. Rise and Fulfilment of 8nir.ih Rule in In,Iw, 171.
9. Puts India Act. 1784 gave Governor-General Cornwallis enlarged powers. which experience had
shown he so badly needed to overrule the inferior Presidencies.
10 Cornwallis main task throughout his term was to reinstate British reputation in India. He had much
perplexity from two main ccnu'cs of mischief left by Hastings. [he Augean stables of Benarcs and
Lucknow''. In "Benares.. a scene of the grossest ColTuplion and mismanagement' Sec Cornwallis
Correspondence Part H. 194 (Cornwallis August 8. 1789 ansI November 1786).
136 ROLE OF CORNWALLLS IN JUDICIAL REFORMS [CHAP,
preceding thirty years was stopped and the change proved to be a stopping-place
rather than a change of direction but it was nevertheless effective arid significant.
Due to his inexperience in Indian affairs, Cornwallis largely depended on his
advisers." Fortunately, he found the following persons as his advisors : (1) Sir John
Shore, 12 an expert on revenue matters. His help was "invaluable' to Cornwallis,
as heobserved.' 3 (2) Jonathan Duncan, who later became Governor of Bombay. (3)
Charles, who became Chairman of the Directors. (4) James Grant, who became
President of the Board of Control. (5) Charles Stuart, the Commercial expert, and
(6) Sir William Jones, an eminent Oriental Scholar and Judge of the Supreme Court.
2. Judicial Reforms of Cornwallis

When Lord Cornwallis came to India in 1786, he was greatly dissatisfied with
the existing system of the administration of justice. Warren Hastings before returning
to England separated the work of collecting revenue from administration of justice.
Civil justice was administered in local civil courts, namely Moffussil Diwani Adalat
and Sadar Diwani Adalat. For criminal cases there were separate courts. The final
authonty in civil cases directly and in criminal cases indirectly was with the Supreme
Council. Lord Cornwallis found that the whole system was complicated, illogical,
wasteful and suspected of being corrupt. He had already received instructions from
the Directors to remove all these abuses. Thus, Cornwallis was faced with two
difficult tasks—to simplify the cohaplicated and expensive machinery of administra-
tion of justice and to uproot corruption from the Company's servants in administra-
tion.
Cornwallis reformed the whole System of civil and criminal justice by a method
of trial and error. In the judicial system Cornwallis introduced reforms in three
instalments—in 1787. 1790 and 1793 respectively.
(a) Judicial Plan of 1787..—The Directors gave instructions to Lord Cornwallis
to bring simplicity, economy and purity into the judicial system. The existing
separation of the revenue and judicial functions was removed and both the functions
were united.' 4 Separation of revenue and judicial functions brought about by
Hastings in his plan was not to the liking of the Company and the Company
combined them in one person in the name of economy and efficiency through
Cornwallis who was in favour of the rnerer.' 5 This made the work of revenue
collection more Important than Justice. 16 The existing 36 districts were reorganized
and the number of districts was reduced to 23. Each district was in the charge of a
Collector, an Englishman. In each district the Collector was responsible for the
collection of revenue, to decide cases and matters relating to revenue. He was also
to act as the Judge in the Moffussil Diwani Adalat of the District and decide civil
cases. The Collector was also entrusted with magisterial powers in his district.
II. See A B. Keith. 4 Constitutional History of India 1600-1935 105.
12. Cornwall is held strongly that no man in the ordinary service should be promoted to the highest place.
But he swayed the gratitude to Sir John Shore. . and hi.c prai.ce of him helped to procure his appointment
as his successor.
13. See Philip Woodruff, The Men Who Ruled India, Vol. I, 146-4I.
14. W.H. Morley, The Administration oJJusnce in British India, 53.54.
15. Rama This: Legal & Constitutional History of IntIi, Vol. 2, 194, 152.
16. AspinaJi: Cornwallis in Bengal, Chapters 2 & 3: Jam, 1966, 196, quoted in Rama This:
Vol. 2, 1984, 153. Legal History
JUDICIAL REFORMS OFCORNWALLIS 137

61
Though the Collector was given all these powers, he was advised to keep his various
functions separate from each other, as far as possible. His revenue functions in the
From the Collector's revenue court, first
revenue court were known as Mal Adalat.
appeal was to go to the Board of Revenue at Calcutta and final appeal lay with the
Governor-General-in Council on the executive side.
The Collector, in the capacity of a Judge, was to hold the Moffussil Djwani
Adalat. Apart from civil cases, the Court was also required to decide cases and
claims concerning succession and boundary disputes of Zarnindars. The Collector
was instructed to have due consideration of the prevailing local customs or usages
while dealing with the succession to Zamindarics etc. Appeal from Moffussil Diwani
Adalat lay to the Sadar Diwani Adalat in matters involving more than Rs. 1.000.
Sadar Diwani A4alat consisted of the Governor-General and Members of his
Council. They were assisted by the Native Law Officers. Where the valuation of
the suit was £ 5,000 or more, a further appeal was allowed to the King-in-Council
in England.
In order to assist the Collector in deciding civil cases, an Indian Registrar was
also appointed in each district civil court to try petty cases up to Rs. 200. Decrees
passed by the Registrar were required to he countersigned by the Collector. This
system was introduced in order to avoid any injustice to litigants.
While discharging his duties as a Magistrate in each district the Collector was
empowered to arrest, try and punish the criminals in petty offences. In the case of
graver offences, where the punishment of imprisonment was expected to be of more
than 15 days, the arrested accused was sent to the nearest Moffussil Niiamat Adalat
for trial and punishment. All Europeans who were not British subjects were placed
on the same footing in criminal matters as the Indians and the Moffussil Fauldari
Adalats were authorised to try and punish them.
Though by the judicial reforms of 1787, Cornwallis united the judicial office
and administration in the hands of one Englishman i.e. Collector, it was considered
a better step to suit the then existing conditions than the earlier separation of
judiciary and executive.
(b) Criminal Judicature
(1) Reforms in 1787—In 1787 when Cornwallis introduced icforms in the civil
and revenue courts, he purposely avoided introduction of any major reforms in the
criminal courts. It appears that he wanted more time to study the functioning of the
criminal judicature and its role in suppressing crimes. After gaining sufficient
experience from 1786 to 1790, Cornwallis realised that the prevailing system of the
administration of criminal justice was very defective and futile. t7 Robberies, murders
and other crimes relating to life and property of the natives, were increasing, dacoits
and murderers were protected by Zamindars, conditions of prisons were highly
unsatisfactory, judges and law officers were paid low salaries, persons eager to amass
money joined these posts, there was no security of tenure of these posts, cases were
therefore delayed on account of collusion between judges and offenders and there
was no standard of imposing punishments) t He found that these evils were growing
17. See Aspinall. CornwV11k in Bengal, Chs. II and III.

iS. Rania Jois: Legal History, Vol. 2, 1984, Part III. Ch. 5, 153-154.
138 ROLE OF CORNWALLIS IN JUDICIAL REFORMS [CHAP.
due to two main causes. First, the defective state of the Mohammedan criminal law;
secondly defects in the Constitution of the trial Courts due to which they failed in
deal with criminals. Apart from this, he was also convinced that it was necessary
to check the prevailing corruption amongst the native courts and officers.
(è) Reforms in 179.'—In
order to improve the law and order situation and
punish the criminals severely, Cornwallis introduced vital reforms in 1790.
19 He
realised that it would be a blunder to leave the administration of justice in the hands
of the natives. He was very doubtful about the honesty of the Muslim officers, and,
t herefore, as a matter of principle he decided not to give any important judicial and
administrat i ve office of responsibility to any Indian.
Cornwallis resolved to abolish the authority of the Nawab

over criminal judi-
cature. This was the most important aspect of the plan as that power was assumed
by the Go v ernor-General and Council under the name of
Sadar Nizarncu Ada/cit.
Reza Khan, who was so far Naib Nazim,
was dismissed from his office and the
Sac/ar Niza,nc:t Ada/at
was again shifted from Murshidahad to Calcutta. The Gov-
er nor-General and Members of his Council presided over the
Sadar Nizarnat Ada/at.
They were assisted by the Chief Qazi of the Province and two
Muftis who expounded
the law and issued Fatwa. Sadar Nizamat Ada/at
decided cases in appeal on the
basis of the report of the trial Magistrate, proceedings of the Circuit Court and
written pleadings and defence of the parties. At this time the Chief
Qazi and two
Muftis assisted the Appellate Court in deciding the cases.
Moffussij Faujdari Adalats were abolished. The whole Diwan j
area wac divided
into four Divisions of Calcutta, Murshidahad Dacca and Patna. In each Division a
criminal Court was established which was called the Court of Circuit. The Court of
Circuit was not a stationary Court but was a moving or circulating Court going from
district to district in its respective Circuit division. An appeal from the Circuit Court
lay to the Sac/ar Nizamax Ada/at
at Calcutta.
Each circuit was divided into various districts. In each district, the Collector
was to act as Magistrate. The Magistrate's was the lowest criminal Court. It tried
punished criminals
cminals in Petty offences. In grave offences the Magistrate was to
send the criminal to the Court of Circuit for trial and punishment
(iii) Mohammedan Criminal Law. -.—
Cornwallis was convinced that the Moham-
medan Law was defective, punishments prescribed were cruel and corruption in
court ,
; was rampant. In 1790 Cornwallis introduced certain very important reforms
in the Mohammedan criminal law and all Nizarnar Ada/ats
were instructed to decide
cases according to the modified rules of Mohammedan law. Punishment for murder,
it was ordered, was now to be given on the basis of the intention of the party rather
than the manner and the instrument employed. Blood-money was abolish .20
Cruel
punishments were abolished. Evidence of non-Muslims was admitted as valid.
Salaries and allowances of the judges and native officers were increased in order to
check corruption.
19. In 1790 Lord Cornwallis sent a questionnaire

to all magistrates inviting their
crimes and ways and means to Cornrncn[s on the
suppress them and punish the criminals. In the light of these existing
and his experience, Cornwallis introduced reforms on 3rd Findings
the Courts. December. 1790 in the law of crimes
and
20 Judicial Regulation XXVI: T.K.
Banerjee. Background to Indian CrimjnatLw 7j
61 JUDICIAL REFORMS OFCORNWALLIS 139
On the whole in 1790 the judicial reforms of Cornwallis were aimed at

improving the criminal courts, criminal 13w and the persons who were entrusted
with the difficult task 01 administering criminal Justice. In fact these reforms not
onlygranted security to life and property of the people. but also improved the law
and order situation it) general.
(c) Judicial Plan of 1793
(i) Corni''alli.v Code—After gaining sufficient experience in Indian affairs from
1787 to 1793, Cornwallis realised that the changed conditions required major
ch.iiges in the civil and revenue set-up. No doubt. in his reforms of 1787 Lord
Cornwallis merged all the civil, criminal and revenue powers in the authority of the
Collector of the district. It was done so partly due to the instructions given by the
Court of Directors and partly due to his initiative to introduce economy, simplicity
and to uproot con-uption and for the stability and permanency of the Government
in the country. it was in 1793 that Cornwallis realised that the time was ripe enough
to introduce judicial reforms in Bengal, Bihar and Orissa. A set of reulofious,21
iv/itch were prepared by Lord Cornwallis, were known as the 'Corn wallis Code.
They dealt ii'iih the commercial s y stem, with civil and criminal justice, with the
police and with the land revenue. The regulations were intended to ensure discmpluied
administration and prevent any return to the chaos and abuses of the past.22
Cornwallis attempted to codify the existing law and procedure into the form of
Regulations, a work in which Sir William Jones, a remarkable Orientalist, took a
leading part. It was an honest attempt to establish the rule of law in India. 23 In the.
words of M.P.Jain 'This schernefornts the brgh water mark in the whole of Indian
Legal history, as it was based on certain postulates which are regarded as essential
and fundamental for the organisation of the judicature in any civilised country.' '24
A brief account of the Reuulations, classified under subi ec i -headings, may be given
as follows:
(ii) Separation of judicial and revenue functions—The Revenue Officers were
deprived of their judicial powers. By Regulation II of the Code oh' 1793, Mal Adalats
or revenue Courts were abolished. The trial of these suits was transferred to the
Moffussil Diwani Adalats. The Collector was entrusted only with the collection of
revenue- 25 All the judicial powers of the Collector were taken away and given to
the Diwani Adalats which were reorganized. The Collectors thus became merely
administrative officers to collect revenue of the districts Ordinary civil courts were
empowered to try civil as well as revenue cases. An appeal from the civil courts in
revenue cases lay to the Board of Revenue and from the Board of Revenue to the
Governor-General-in-Council.
(iii) Reorganisarion of Civil Courzs.—Cornwallis reorganised the civil courts
and appointed twenty-eight judges in the districts, and further strengthened the four
Courts of Circuit, which now also became civil courts of appeal. The four Courts
of Circuit were called Provincial Courts of Appeal having headquarters at Patna,
21. A set of 48 Regulations was pi'epaied with the assistance of Sir George Barlow.
22. V.A. Smith. The Oxford H/sOny of India. 629.
23. Thompson and Garrzii;. Rise a n d FiJIjiirJ?e,ii (if JJuush Rule in India. 1 96.
24 Op cit.. 20.
25, The Collectors were deprived of their vast powers which weregiven to them in 1787. See u/so Chai k'
Ross. The Corrcspondenc.e of Char/cc, the J,-cr Mo,qnic Co,,n'a!!j.c. Vol. I. 27$.
140 ROLE OF CORN WALLIS IN JUDICIAL REFORMS [CHAP
Dacca, Calcutta and Murshidabad. Each of them was to be presided over by three
covenanted servants of the Company. These Courts were empowered to hear appeals
from the District Diwani Adalats. In cases involving sums less than Rs. 1.000, hcii
decision was final. Where the amount exceeded Rs. 1,000, a second appeal was
allowed to the Sadar Diwani Adalat. If the valuation of the suit was £ 5,000 or
more, a further appeal was allowed to the King-in-Council.
Steps were also taken to establish subordinate civil courts to decide minor cases.
In each district Sadar Amins and Commissioners were appointed to decide cases up
to Rs. 50. Subsequently, they were known as Munsiffs. The Munsiffs were selected
out of the landholders or their agents who were expected to do the job honorarily
and were getting some commission on the sums involved in the litigation. Indians
were allowed to be Munsjffs but were not eligible to hold any judicial post. The
subordinate judiciary received orders from the Sadar Diwani Adalat. It was created
in order to save time and expenditure of the parties and also to impart speedy
Regulation XIII provided for the establishment of the Registrar's Court to try
suits up to Rs. 200 in each district, it was made compulsory that the Registrar's
decisions should be countersigned by a Jud g e of the District Diwani Adalat and
were also made subject to revision by the Judge.
Every judgment or order was to be pronounced in the open Court. Judges were
prohibited from corresponding with the parties whose cases were pending before
them (Regulation If!).
(iv) Native Law Officers—It was
provided that the personal laws of Hindus
and Mohammedans would be applied in cases relating to marriage, inheritance, caste,
religious usages and institutions The Native Law Officers were, therefore, authorised
to assist all the Courts by expounding the Hindu and Mohammedan laws as the
cases required. Regulation XII specially provided that all Native Law Officers
belonging to various Courts would be appointed by the Governor-General- in-Coun
cii.
(v) Courts to control executive machinery.—Section
10 of Regulation 111
provided that not only Collectors but all other executive officers of the Government
would be subject to the Court's jurisdiction for their official acts and it was also
stated that they would be personally liable for any violation of the Regulations, The
object of introducing this provision was to observe the rule of law. It was really a
very courageous and bold step taken by Lord Cornwallis. The injured party had a
remedy to approach the court against the corruption and excesses of the executive
officers. Lord Cornwallis expected that the change in the system "will effectually
prevent, in future, the tyranny and Oppression which has been so frequently exercised
throughout the country by native officers employed in the collections, and compel
the Collectors to adhere strictly to the Regulations and instructions prescribed for
their guidance".
(vi) Abolition of court fees.—In
order to make justice cheap, Lord Cornwallis
abolished the court fees which were imposed earlier in 1787. It was provided that
apart from the pleader's fee and the actual charge of summoning the witnesses, no
other fees would be charged from the litigants. Though this reform was based on
JUDICIAL REFORMS OF CORNWALLIS 141

61
good intention, its evil effects came to light after 1793 when there was a great
increase in the litigation.
(vii) Reforms in criminal courts—Though in 1790 vital changes were introduced
in the administration of criminal justice, in order to keep the whole administration
of justice integrated and co-ordinated, certain changes were again introduced in
1793. With this aim in view Regulation IX provided for some modifications in the
old set-up.
The Magisterial powers of the Collectors were taken away and the Judges of
the Diwani Adalats were empowered to exercise this jurisdiction. The Judges
exercised Magisterial powers together with their civil jurisdiction. The Collector was
left only to look after the collection of revenue in his district. The Courts of Circuit
which were created in 1790 and the Provincial Courts of Appeal which were
proposed in 1793 were united and thus four Provincial Courts of Appeal and Circuit
were established to deal with civil and criminal matters. The Provincial Courts of
Appeal and Circuit were established at Calcutt. Patna, Murshidabad and Dacca
respectively.
(viii) Legal profession.—Corn wall is realised the importance of well organised
and regulated professional lawyers. Earlier the parties were appearing before the
Courts either in person or through their agents. By Regulation VII of 1793, the
profession of law was created and organised in India. It was given due recognition
by the authorities. It was a necessity in order to assist the illiterate litigants who
were unaware of the technical procedure of the Courts and also the technicalities
of the law. Steps were suggested to assure the litigants about the integrity, legal
qualification and competence of the members of the legal profcssion. Those who
joined the legal profession were given certificates after they qualified in the
prescribed minimum requirements of education and honesty. It was expected that
the learned members of the legal profession would also assist the judges in
administering justice according to the laws as laid down by the Regulations from
time to time. Each pleader had to take an oath to this effect. Those who were found
guilty of misconduct including misbehaviour could be punished. Those charging
exorbitant fees could be dismissed. For fraud with their clients and malpractices
they could be proceeded against and dilatory tactics by them made them responsible
for damages.
(ix) Uniform paztern of Regulations—So far Regulations were issued without
any prescribed uniform system. Some of them were in manuscript form, others were
printed but no uniform pattern was adopted in drafting them. Regulation XLI of the
Code of 1793 removed the grave defects in the drafting of the Regulations. It
provided that henceforth Regulations would contain a prewnb(e which will state the
reasons for enacting the Regulation. Every Regulation was to have a title to express
in brief the subject-matter of the Regulation. Whenever any Regulation was modified
full reference to the original Regulation was required to be given. It was made
necessary to divide each Regulation into sections and sections wete divided into
sub-sections and clauses, which were duly numbered in serial order. It was made
compulsory to keep a complete and regular Code of all the Regulations passed
during each year. It facilitated their ready references while administering justice. It
Th. For dctails, T ee separate Chapter on Ugs1 Profession'' in this book.

142 ROLE OF CORN WALLIS IN JUDICIAL REFORMS [CHAP
enabled the members of the legal profession and the public to know what the law
was on a particular point. This process of the collection of Regulations, periodically
in a set-form, introduced certainty and uniformity of law.
(x) Permanent set(lernen(of land revenue.—'I'he whole rural life of the Bengal
Presidency was disturbed due to the prevailing uncertainty about the collection of
land revenue. Cornwallis took special interest in solving this difficult task. In 1789
as a result of Sir John Shore's efforts a settlement for ten years was made. In 1793
Cornwallis urged Pitt and Dundas to sanction the permanence of the settlement,27
Sir John Shore opposed it and insisted on ten years' settlement. The Directors
accepted Cornwallis' suggestion and on 22nd March, 1793 the Pennanent Settlement
was sanctioned .28 The Zaniindars were regarded as landowners. They were required
to pay nine-tenth of the mcvfiuc collection to Government thrciugli the Collectors
and the Talukdars and those holding less land were required to pay directly through
sub-Collectors Efforts were also made to protect the cultivators and ryots from
oppressions and corruption of Revenue Officers.
''The Permanent Settlement" said Smith, ''restored rural order in Bengal and
provided the conditions of agricultural development, but It replaced the organic ties
between the two classes of rural society by an impersonal cash-nexus. The two
classes henceforth became unrelated and hostile. Order and pro g ress were secured
but social justice was not done. 29
Thus the whole system under the Regulations of 1793 introduced many reforms.
48
Sir George Barlow assisted Cornwallis in drafting a single set of Regulations
which was printed and issued off May, 1793, was known as the ''Cornwallis
Code''. It gained such a great reputation amongst the Anglo-Indianidinirmistmaiors
that iii 1797-99 it was introduced into Bombay and Forced upon Madras in 1802.
3. Estimation of scheme of Cornwallis

John Strachy said, ''Although much had been done by Warren Hastings to
pen-form and organise branches of the public service, the main foundations of the
existinc administration of justice in India was laid in the time of Lord Cornwallis,"3U
Another view, expressed in the Cambridge History, states,"Although the policy
that Cornwallis came to enforce in 1786 was new, it was not wholly new. In every
direction Cornwa his built on the foundations alread y laid or begun to be laid b
his predecessors and specially by Hastings. It was the emphasis rather 1/ian the
principle that was new. Every aspect of reform was foreshadowed in the work or
in the projects of Hastings and hence the solidity of the work of Cornwalhis.' ''
It will he worthwhile to analyse these opinions
i
in the light of ihe reforms
introduced by Warren Hastings and Cornwall s from time to time. In 772 Warren
Hastings prepared a plan to remedy the detects of the Dyarchy which Was introduced
by Clive in 1765. Under the Plan of 1772, Warren hastings assumed whole
responsibility to administer civil justice in Bengal, Bihar and Orissa. But he left
criminal justice with the Nawab. The Collector in each district, was thus Adminis-
27. See C.H. Philips. The East India Company , 1784-1834. 69.
28. Ross. cornwnllrv. Vol. II. 182-212; Cambridge History uf j tha, Vol. V.450-SI.
29 V A Smrmiih, The O.rJordHLcwry of India, (3rd. Edn.), 536.
30. See John Sirachy, India.
31. The Cambridge HLvrory of India, 437.

6 HIERARChY OF COURTS '43
trator, Judge and Magistrate in 1772. In 1787 Cornwallis gave similar wide powers
to the Collector though at the instance of the instructions which he received from
the Directors. Cornwallis' reforms in 1787 were aimed at three things: (i) economy,
(ii) modification, and (iii) purification. Later on in 1790, CornwajJis introduced
reforms in the criminal justice, similar to what Warren Hastings did in the admin-
istration of civil justice. Two most important features of Cornallis' reforms of 1793
were the (I) separation of revenue from judiciary and (2) to subject the actions of
the executive authority to judicial review. This was foreseen and partially iiii-
plemented by Warren Hastings in 1780.
Even though it may be admitted that Cornwallis gave new emphasis to the
scheme of Warren Hastings. still Cornwallis deserves great credit as it was his
initiative and judgment which emphasised the need of such reforms at this particular
time. Cornwallis introduced reforms to meet the existing requirements and also due
to the instructions from En-land which he implemented as commands of superiors.
It can. therefore, be concluded that Cornwallis, to a great extent, built the Empire
on the foundations laid by his predecessors, especially by Warren Hastings. With
this background one can see great truth in Smith's observations, ''Taking it all in
all, Cornwallis had set the Company 'y ship of State on a new course, and had
brought in Justice and integrity to redress corruption and power politics. ''°
The scheme did not make it possible for any Indian to hold any judicial post
except that of a Munsiff. This was a major detect and i..ue to this not only the
self-respect of an Indian was hurt but it told upon the very efficiency of the
administration of justice also. Due to their lack of knowledge of local laws, customs
and traditions the English judges fumbled and could not appreciate the law and the
facts involved in a case. This was no small defect. The Compan y Directors noticed
this and tried to remove it progressively.
4. The Hierarchy of Courts:
The following courts came into existence due to the plan:
Courts
Civil Criminal
Sadar Diwani Adalat Sadar Nixarnat Adalat
Provincial durt of Appeal Circuit Court
(Divisiuiial level) (Touring)
Moffussil Diwani Adalat Moffussil Diwarii Adalat
(District level) (District level)
Munsiffs & Registrars Magistrates
(Collectors)
32. V.A. Smith, the Oxford Hisiurv of- India, (3rd. E4n,). 538.
Progress of Judicial Reforms (1793-1833)

"The early years of the 19th century Saw a radical change in the consUtunon of she
court. The long period during which the Governor-General and members of the !3cngcll Coicarsi
had been the judges of the court came to an end. They were replaced by covenanied servants
of the Company who were not mernber.r of the government. The transition began in 1801, find
although it was not completed for some years the foundation of the independence of the court
had been laid."
Orby Mootham The East India Co.'s .Sadar Courts, 1801-1834, Edn. 1983, p. 5
There is an utter want of connection between the Supreme Court and the Presidency
Courts, and the two sorts of legal process which are employed by them.., the exercise of the
powers of the one system is viewed with jealous)' by those who are connected with other...
Sir Charles a Grey in The Reports on the Afjdirs of the East Indies, (1832) Appendix,
P, 75
SYNOPSIS
1. Result of Reforms by Cornwallis (a) Status of Sadar Ameens raised
2. Reforms of Sit John Shore (1793) (b) Powers of Magistrates and Court of
Circuits expanded
(a) Changes Introduced in 1794
(1) Appeal provisions (c) Judicial powers to Collectors
S. Judicial Reforms of Lord Bentinck (1828)
(ii) Steps for adjustment of accounts
(iii) More powers to Collectors (0) Abolition of Circuit Courts
(6) Power of Sadar Aineens, District &
(b) Alterations introduced in 1795
City Judges
(i) Steps tc. combat iiceais
(i') Establis hment of Sadar Nizamat Adalat
(ii) Procedural reforms
and Sadar Diwani Adalat at Allahabad
(iii) Imposition of court fee
(d) Practice of Sati declared an offence
(C) Further changes made in 1791
(e) lndian appointed judicial officers
(I) Increase of court fee
(I) Abolition of Provincial Courts of
(ii) Number of Judges reduced Appeal
(iii) Preparation of Code () Civil and revenue jurisdiction given
3. Reforms of Lord Wellesley (1798) Collector
(a) Separation of Judicial function from
(I,) Charter of 1833
executive 9. The Independence of the Judges
( b) Appointment of Sadar (a) Oo'nwiAmeens
Ditti v. Kunina Singh
(c) Adalat System extended Government v Purtab
4. Reforms of Lord Corowallis (1805)
(C) M y lapilly Yerregu doo case
5. Reforms of Lord Minro (1807)
( Oa" case
(a) Number of Judges increased 10. Dual System of Courts (1834.1561)
(b) Judicial function mixed (a) with
Hierarchy executive
of Company Courts
(C) Magistrates' powers (,) increased
Courts in Calcutta
(d) Jurisdiction of courts (ii) Courts in Bombay
(e) G.O. to appoint Chief(iii) Judge
Courts in Madras
6. Lord Hastings and the Adminisiition of jus-
(b) The law applied
rice (1813) (c) Procedure
(a) Chaster Act of[I. 1813 Defects of the system
(6) Reform. in civil
(c) Reforms in criminal courts
7. Reforms of Lord Amherst (1823)
Before the High Courts were established at Calcutta, Bombay and Madras, two
sets of courts were existing there. The Presidency Towns had their own Courts and
the moffussil areas were having different courts. The Supreme Courts and Recorder's
Courts in the Presidency Towns were the Crown's Courts. In the moffussil areas
[144]
REFORMS OF SIR JOHN SHORE 145
the Courts were the Sadar Diwani Adalats and the Sadar Faujdari Adalats, which
represented the authority of the East India Company.
During the period 1793 to 1861 several Governor-Generals were appointed.
Though many of them were busy tackling the political problems and strengthening
the British Empire in India, some of them showed keen interest in improving the
existing Adalats system by introducing certain important reforms. A brief account
of these judicial reforms is given below.
1. Result of Reforms by Cornwallis (1793)

In 1793 Sir John Shore succeeded Lord Cornwallis as Governor-General. Earlier,
even Lord Cornwallis recognised his qualities and his valuable assistance in intro-
ducing reforms. Sir John Shore, being a member of the Indian service and having
experience under Cornwallis, was fully aware of the existing Indian conditions.
When the changed circumstances, alter Cornwallis left India, required reforms, he
made his own contribution by altering, modifying the old and by introducing new
reforms in the judicial system of India.
Sir John Shore realised that the permanent settlement of land revenue was not
working well. Defects of Cornwallis' plan were gradually becoming noticeable. The
recourse to the courts was wholly ineffective as a means of protection to the ryols
against the Zamindars. Litigation amongst the richer sections of the society also
increased. On the whole, litigation choked the courts and the sales of estates became
frequent.' In civil courts undecided cases accumulated and it affected the normal
routine of the collection of revenue. It was not merely a temporary phase. However,
in 1794. steps were taken to make certain alterations in the existing set-up.
2. Reforms of Sir John Shore (1793)

(a) Changes introduced in 1794.—In 1793 the Registrar's Court was em.
powered to decide civil suits up to Rs. 200. It was also provided that the Registrar's
decision would be valid only when it was countersigned by the judge of the Diwani
Adalat expressing his approval. Though the provision of counter-signature was based
on good intentions and for the better administration of justice, in actual working it
created many difficulties.
(i) Appeal provisions.—In 1794, Regulation VIII provided that the decrees of
the Registrars were to be final in all civil suits up to the valuation of Rs. 25.2 Where
the valuation of the suits was more than Rs. 20 an appeal was allowed to the
Provincial Courts of Appeal. It relieved the judges of the Diwani Adalats from the
time-consuming task of countersigning the Registrar's judgments.
(ii) Steps for adjustment of accounts.—The Regulation also authorised the
judges of the Diwani Adalats to refer to the Collectors for scrutiny and report of
cases involving adjustment of accounts. After receiving the Collector's report it
became easy for the Diwani Adalats to give a final decision in cases concerning
rent or revenue or other matters. The findings of the Collector's report were not
binding on Judges and they were free to decide the cases according to law.
I. A.B. Keith, A Constitusionol IIi.00rv offnlia, 43.

2. Regulation VIII of 1794. See W.H.Morky, The Adniirusirati,,n of Justice an British India, 61.
PROGRESS OF JUDICIAL REFORMS [CHAP.

146
(iii) More powers to Collectors.—In 1793 the collection of revenue and

administration of justice were separated, but in 1794 they were combined in order
to dispose of arrears of cases and to secure collection of revenue without difficulty.
(b) Alterations introduced in 1795
(0 Steps to combat arrears—In 1794 only minor mod) lcations were made by
Sir John Shore to deal with the large number of cases which were in arrears. In
spite of these reforms, there was no improvement in the number of arrears in courts.
In 1795 by Regulation XXXVI reforms were introduced with a view to readjust the
mutual relationship of the Civil Courts. By the reforms of 1794 the Diwani Adalats
were given some relief and the work was shifted to the Court of Appeal to deal
with petty cases up to Rs. 200. It increased the judicial work of the Courts of Appeal.
As there were only four Courts of Appeal, the litigant parties faced great inconveni-
ence in coming to the Court from very long distances.
(ii) Procedural refor.tns.—Regulation XXXVI of 1795 provided that in petty
cases appeals from the Registrars were to go to the District Diwani Aclalats whose
decision was final with no further appeal. The decisions of the Munsiffs were now
subject to one appeal only to the District Diwani Adalats. Munsiffs decided cases
Lip to Rs. 50. This reform reduced the number of appeals in petty civil cases up to
Rs. 50. The Registrars were empowered to decide civil suits up to the valuation of
s
Rs. 200. From their deci ion an appeal lay to the District Diwant Adalat which was
the final appellate authority in such petty cases. The District Diwani Adalats were
authorised to hear all civil cases in which valuation was more than Rs. 200. An
appeal in these cases was allowed to the Provincial Courts of Appeal. Where the
valuation was more than Rs. 1,000, a further appeal was allowed to the Sadar Diwani
Adalat.
To have better control over all lower courts and for speedy disposal of cases
Regulation XXXVI of 1975 provided for maintenance of a disposal-register of cases
in arrear. It was inspected by a higher court periodically.
(iii) Imposition of court fee—Another important reform which completely
changed the future course of litigation was the imposition of court fee. Earlier in
1793 Lord Cornwallis abolished court fee. But this resulted in filing a great number
of cases and accumulation of arrears. Court fee was therefore imposed not only on
new cases but even on pending cases. If not paid within a fixed date those cases
would be dismissed and it actually so happened. Apart from court fees certain other
levies were also imposed on calling and summoning of witnesses, on filing exhibits
and on interlocutory petitions. Though Macaulay 3 had strongly criticised the impo-
sition of court fees, considering the circumstances and the condition ol the Courts
in 1795, there appears to be sufficient justification for the levy. Contrary to
Macaulay's opinion it was a wise step taken by Sir John Shore to improve the
(c) Further changes made in 1797:
(i) Increase of court fee—In 1797, Sir John Shore further increased the court
fee and it was made compulsory to use special stamped papers for filing papers in
the court. This step was taken to check the litigation before Courts.
3. Dharka, j.ord MaaJulay's LeiskJIive Minutes. 220-24.

71 REFORMS OF LORD WELLESLEY

147
In order to avoid unnecessary delay in the disposal of cases. Regulation XII
provided that the decrees of the Provincial Courts of Appeal were final in cases of
money or personal property up to Rs. 5,000 in value. In all suits involving more
than this amount, the decisions of the Provincial Courts of Appeal were made
appealable to the Sadar Diwani Adalat. Rules were framed to govern the appeals to
be made to the King-in-Council from
the decisions of the Sadar Diwanj Adajat. It
was provided that the petition of such appeals should be filed within a period of
six months and the valuation of suit must be £ 5,000
or more.
(ii) NUmLiI oJ Jude, reduced—The
British Parliament introduced certain
reforms in the administration of justice in India by passing the Act of 1797. The
Act reduced the number of the Judges of the Supreme Court at Calcutta to three
i.e., a Chief Justice and two puisne Judges.
(iii) Preparai ion oj Code.—The
Act also recognised and confirmed the prep-
aration of a Code of Regulations' cnacted by the Gov
ernor-General in Council and
registered in the Supreme Court. The Courts were required to administer justice
according to those Regulations.
3. Reforms of Lord Wellesley (1798)
In May 1798, Lord Wellesley 5

arrived in India and succeeded Sir John Shore
as G o v ernor-General W
ellesley took keen interest in reinovitig the defects of the
existing judicial system. I-Ic introduced certain major reforms to improve the
administration of justice. Expressing his views regarding the separation of the Sadar
Adalats from the Go v ernment, W
ellcsley wrote, A Conscientious discharge of the
duties of the Sadar L)iwani Adalat, and the Nizaniat Adalat would of itself occupy
the whole time of the Go v
ernor-General in Council ... it will at once be evident that
it is physically impossible that the G o v
ernor-General in Council can ever dedicate
that time and attention to the duties of these courts which must necessarily be
requisite For their due discharge."6
(a) Separation of Judicial function from ex ecutive.—Lord Wellesley was
against the c
oncentration of judicial, legislative and executive powers in the Gov-
ernor General-in-Council It was not
possible for the Governor-General to devote
time to preside over the Sadar Diwani Adalat and Sadar Nizamat Adalat. It was,
therefore, that Regulation It of 1801 provided that the Sadar Diwani Adalat and the
Sadar Nizamat Adalat were to be presided over by three judges selected and
appointed by the Governor - Gene
ral-in-Council. It was laid down that the Chief Judge
would he a member of the Council but the Coin ma
and the Governor-
General were not allowed to occupy the judicial post. The other two judges were
to be convenant.ed civil servants of the Company having wide experience of judicial
work in the Provincial Courts of Appeal. It was also declared that the Sadar Adalats
will be open courts and two judges will form the quorum of the court to carry out
its function.
(b) Ap pointment of Sadar
Ameens.—In order to expedite the disposal of the
pending judicial work, in Zilas and Cities, Head Native
C ommissioners also known
4. Dharka, Lord Macoulay's /...egisloJ,ve
Minutes, 220-24.
5. See P.E Roberts , India under Wellesley.
6. Lord Wellesky's Letter 10 the Directors, dated 9th July, 1800, See A.B Keith
PoIs. Vol I. 179 Speeches on Indian
PROGRESS OF JUDICIAL REFORMS [CHAP.

148
as Sadar Ameens, were appointed. They were authorised to decide cases valuing up
to Rs. 100, which were referred by the Judges of Zila and City Courts. The Judges
were authorised to nominate Sadar Ameens with the prior approval of the Sadar
Adalat from amongst persons of ability and past experience. In Zilas and Cities,
Assistant Judges were also appointed to dispose of the arrears of the judicial work.
They were required to decide appeals from the Courts of Registrars or Native
Commissioners and original suits which the Judges of Zila and City Courts referred
to them.7
(c) AdaLat System extended.—During Lord Wellesley's period, the Adalat
system was extended to ceded and conquered territories. In 1801 the Nawab Vizier
ceded the Subedari of Oudh to the Company. The ceded Provinces were divided
into seven districts -- Gorakhpur, Allahabad, Cawnpore, Farrukhabad, Etawalt,
Bareilly and Moradabad. In each district a civil servant of the Company was
appointed judge and Magistrate and another civil servant as Collector. Registrars,
Sadar Arneens and Munsiffs were appointed to decide civil cases up to the valuation
of Rs. 20, Rs 100 and Rs. 50 respectively. At Bareilly a Court of Appeal and Circuit
was established just like in Bengal. The jurisdiction of the Sadar Adalats at Calcutta
was also extended to the ceded districts. In 1805 the conquered Provinces along
with the ceded territories wcre divided into five districts - Agra, Aligarh, Saha-
ranpur North, Saharanpur South and Bundelkhand. These districts were placed under
the control and administration of judicial and revenue officers just like the ceded
districts of Oudh.
4. Reforms of Lord Cornwallis (1805)

In July I 805 Lord Cornwallis came to India for the second time and succeeded
Lord Wellesley. In spite of his short term in India. Cornwallis 8 introduced a very
important reform in the constitution of the Adalats. It was specifically provided that
the Chief Judge will not be a member of the Council. From this time onwards a
covenanted civil servant of the Company was to be appointed Chief Judge. Welles-
ley, though he improved the constitution of the Adalats, retained the Chief Judge
as a member of the Council. Lord Cornwallis' step was a distinct improvement over
his predecessor's judicial reforms as his aim was to separate judicial functions frolik
the executive and legislative.
S. Reforms of Lord Minto (1807)

Lord Minto9 was appointed Governor-General of Bengal Government of the
Company in July 1807. He introduced certain changes in the judicial set-up to
improve the existing conditions of the administration of justice.
(a) Number of Judges increased—By Regulation XV of 1807 , 10 Lord Minto
increased the number of judges of Sadar AdaLats from three to four.
7. Regulation,-, XVI and XLIX. See also Morley, The Administration of Jusuce in British India, 62.
8. Lord Cornwaliis died at Ohazipur in India in October, 1805. He was regarded by Pitt "as an infalliable
cure for all ills" See Oxford History of India, 604; Marshman, History of India. 279.
9, Sir George Barlow succeeded Lord Cornwallis after his death in July, 1807, Lord Minto succeeded Sir
George Barlow. See Lord Minro in India and Life and Letters, 1751-1806 (three vols.). Edited by
Countess of Minto.
10. 23rd July, 1807. See W.A.J. Archbold. Outlines of Indian Constitutional history, 132.
71 LORD HASTINGS AND ADMN. OF JUSTICE 1 49
(b) Judicial function mixed with executive.—Out of these four judges, the Chief
Judge was appointed a member of the Governor-General's Council. In this way Lord
Minto, following Lord Wellesley's approach, mixed judicial function with legislative
and executive. In his defence Lord Minto stated that the Chief Judge was appointed
member of the Council in order to achieve economy. But in fact it was done so
with a view to save any friction between the executive and judiciary. The number
of the Judges of the Sadar Adalats was increased from three to four specially to
dispose of the arrears of the judicial work earlier.
(c) Magistrates' powers increased.—The Magistrates' powers and jurisdiction
were also increased. They were authorised to punish offenders with a fine up to Rs.
200 and punishment not exceeding six months.'
Regulation VIII of 1808 provided that the persons who committed the offence
of robbery with open violence were liable to the punishment of transportation for
life. U the charge or robbery was proved, on conviction such case was to be referred
to the Sadar Nizamat Adalat. In the same year, a Superintendent of Police for Bengal
and Orissa was appointed for the detection of the persons charged with or suspected
of dacoity and other offences.
(ci) Jurisdiction of courts.—The original jurisdiction of Zila and City Courts
was restricted to such cases where the valuation of the suit was not more than Rs.
500. The Provincial Courts were empowered to have original jurisdiction in cases
involving more than Rs. 500)2
(e) G.G. to appoint Chief Judge—Due to the great increase in cases before the
Sadar Adalats it was considered necessary to increase the number of j udges. To deal
with such a situation, Regulation XII of 1811 authorised the Governor-General to
appoint a Chief Judge and such numbers of judges as were considered necessary
from time to time to dispose of the cases. Now onwards the Chief Judge was not
required to be a member of the Council. Thus the judicial function was separated
from the executive and legislative.
6. Lord Hastings and the Administration of Justice (1813)

After Lord Minto, in 1813, Lord Hastings' 3 was appointed Governor-General.
During his period of ten years' stay in India from 1813 to 1823. Lord Hastings
introduced many reforms in the civil and criminal judicature of the country. Certain
definite steps were also taken to modify the basis of Cornwallis' system.
(a) Charter Act of 1813.—The special importance of the Charter of 1813 lies
in the fact that the sovereignty of the Crown over the Company's territorial
acquisitions of India was clearly proclaimed. The powers of the Board of Control
in England were considerably enlarged. The Charter Act 1813, says Dodwell H.H.
(in The Cambridge History of India, Vol. 5. p. 595, quoted by Dr. Kapur, op. cit.,
p. 21) allowed the territorial acquisitions of the Company to continue for another
twenty years under the Company's control "without prejudice to the undoubted
sovereignty of the Crown of the United Kingdom etc., in and over the same". But
It. See T. K. Banerjcc. Background to Indian Criminal Law, 154

12. Regulation XIII, see W.H Morely, TIieAd,ninistration of ju.iace in British India, 63.68.
13. See H.T. Prinsep. History of:he Political and Military Tran.raetio,u in India during the Administration
of Marquess of Hastings.
150 PROGRESS OF JUDICIAL REFORMS [CHAP.
"at what moment that sovereignty came into being still remained a riddle. This
claim was announced formally to the diplomatic world and was recognised by the
French, the Dutch (in treaty of Paris in 1814) and the convention with the Nether-
lands. The position of the British Government in India was, thus, placed 'beyond
question internationally". (ibid., p. 596).
The Provincial Governments in India were empowered by the Charter of 1813
to make laws, iegulations and articles of war for their native armed forces and
authorise the holding of Courts-Martial. The territories of India were considered the
property of England and persons entering without licence were to be treated as
interlopers. For a case of trespass or assault committed by these Europeans on the
People of India and for cases of small debts to them, they were placed under the
jurisdiction of the Justices of the Peace. Those trading, residing or holding movable
property at a distance of more than ten miles from a presidency town, were placed,
for civil cases, under the jurisdiction of Civil Courts, while for criminal matters,
special arrangements were to be made. It was also provided that those Englishmen
who had their residence at a distance of more than ten miles from a presidency
town, would necessarily register themselves with the District Court. Special penalties
were provided for theft, forgery, perjury and coinage offences, as the existing
provisions of a common statute law were considered inadequate to deal with them.
(b) Reforms in civil courts.—An order to discourage the parties from entering
into litigation, Lord Hastings increased the court-fees. Compulsory fee was pres-
cribed for every process and every paper that was filed in civil courts. 14 In the
opinion of the Court of Directors it was necessar y to increase the number of Indian
Judges, Munsjffs and Sadar Ameens, to deal with the increasing litigation and court
work. They considered that this increase in the number of native judges would not
involve any extra expenditure to the Government.' 5 They were not favourable to
the augmenting of the number of European Jud ges as it would not effect the economy
in the administration of Justice. In 1814 the jurisdiction of Munsiffs was increased
from Rs. 50 to Rs. 64 and they were authorised to try cases of money and personal
property against natives. The decisions given by the Munsiffs were not to be final.
An appeal from them lay to the District Diwani Adalats.
The Sadar Ameens were empowered to decide original suits, referred by the
Zila and City Judges, up to the valuation of Rs. 150. Before 1814 their power was
limited up to Rs. 100 only. From decisions of the Sadar Ameens an appeal lay to
the Zila and City Judges whose decision was considered final. It was specifically
provided that neither Sadar Ameens nor Munsiffs were authorised to hear any suit
in which a British subject or some European or American was a party.
The Registrars were authorised to hear and decide original suits up to the
valuation of Rs. 500 which were referred to them by the Zila and City Judges. An
appeal from the Registrar's Court was allowed to the Zila and City Judge's Court
Sometimes, the Registrars were also given powers to hear appeals from the Munsiffs
and Sadar Ameens and their decisions in such appeals were considered final. This
14. Regulation XIII 011814.

IS. Munsifrs were nu yet made salaried oflicets
basis for their judicial work. of the Goverwnct They were paid on a commiscioii
LORD HASTINGS AND ADMN OF JUSTICE 151

71
step was taken in order to quicken the administration of justice and dispose of the
arrears of work.
In 1814 the Zila and City Courts were empowered to decide civil cases up to
the valuation of Rs. 5,000. The post of the Assistant Judge was abolished. An appeal
lay to the provincial Courts and from the decision of the provincial Court to the
Sadar Diwani Adalat. In each provincial Court the number of Judges was also
increased from three to tour who were given the powers to exercise civil and criminal
jurisdiction. From their decisions in all cases an appeal was allowed to the Sadar
Diwani Adalat. The Sadar Diwani Adalat exercised original civil jurisdiction only
in cases involving valuation of Rs. 50,000 or more.
(c) Reforms in criminal courts.—Certain reforms, which were introduced by
Lord Hastings with a view to improve the working of criminal courts, may he stated
as follows:
It was realised in 1821 that the reforms of 1814 were not sufficient to improve
the machinery of justice, and it was n'ecessary to raise the Status of the Indian Judges.
Therefore, Regulation 111 of 1821 introduced certain changes. The Magistrates were
given powers to refer to Native Law Officers and Sadar Ameens, cases of petty
offences for trial, and they were authorised to punish offenders by imprisonment for
a term not exceeding fifteen days and a fine up to Rs. 50. According to the proposals
of the Court of Directors, the Company's Government authorised the Collectors of
Revenue to exercise magisterial powers also wherever it was considered necessary.
In 1818 the jut isdicrion of the Magistrates and the joint Magistrates was enlarged
and they were aiithorised to try persons who were charged with the offences of theft
and burglary and attempt to commit such crimes. In criminal cases where the criminal
was punished with imprisonment for more than six months, the Circuit Court was-
empowered to revise such cases. Where the theft was of property worth more than
Rs. 300, the thief was prosecuted before the Court of Circuit.
Efforts were also made to deal with the unnecessary delay in the administration
of justice and to dispose of the arrears of work. By Regulation III of 1821 the
Governor-General-in-Council was authorised to give special powers to the Assistant
Magistrates to punish criminals in cases which were referred to them for disposal
by the Magistrates.
In 1823 the Court of Circuit and the Sadar Nizarnat Adalat were given more
powers. In the same year the qualification regarding the appointment of a Judge of
the Sadar Adalat was rescinded. In 1814 it was laid down that for the post of a
Judge of Sadar Adahats, it was necessary for a person to have three years' experience
as a Judge of a Provincial Court or in all nine years' judicial experience.
Apart from these, Lord Hastings introduced many other reforms. He took special
interest in reorganising the police force to deal with criminals and to maintain law
and order in the country. He realised the necessity of removing the defects in the
existing Mohammedan Law of Crimes in order to check and control criminal acts
and the criminal tendency of people in India. In 1820 new penalties were laid down
to prevent and punish begari and dharna. It was also provided for the arrest of
persons on security grounds.
7. Reforms of Lord Amherst (1823)

In August 1823 Lord Amherst" was appointed Governor-General. He continued
in office up to 1828. Certain important reforms, which he introduced in the judicial
sphere, may be briefly stated as below:
(a) Status of Sadar ,4meens raised--In order to carry out the directives of the
company's Directors to improve the administration of justice in India, Lord Amherst
in 1824, by Regulation XIII, provided that Sadar Ameens would be paid regular
salaries instead of commission so far paid. This raised their status attracting honest
persons. Jurisdiction of the Sadar Ameens was increased in civil cases, in 1827.
They were also authorised to try civil cases in which European British subjects were
parties. Gradually the court of Sadar Ameens gained importance and status in the
judicial machinery.
(b) Powers of Magistrates and Court of Circuits expandrd.—ln criminal cases
where it was necessary to obtain more information from certain accused persons
regarding the main crime, Regulation X of 1824 authorised the Magistrates and
Superintendents of Police to pardon such persons. It assisted the police in investi-
gating the crimes and punishing the persons who were really responsible for
committing the crimes.
The Court,; of Circuit were given more powers to punish criminals in cases ot
culpable homicide not amounting to wilful murder. In 1825 the Circuit Courts were
authorised to pass final sentences. Earlier, the Circuit Courts were required to refer
such eases to the Sadar Nizamat Adalat but after 1825 the Circuit Courts enjoyed
full powers. The punishment of flogging of women was stopped.
(c) Judicial powers to Collectors.—The Collectors were given powers to
investigate and summarily decide cases relating to rent disputes which the judges
referred to them. Certain rules were fiamed to guide the Collectors in deciding rent
cases. In this respect they were also given powers like the Civil Court to call and
examine witnesses. Lord Antherst'.s initiative to give judicial power to Collectors
became a matter of controversy and criticism subsequently.
8. Judicial Reforms of Lord Bentinck (1828)

In July 1828, Lord William Bentinck t7 succeeded Lord Amherst as Governor-
General. During his seven years' stay in India i.e., from 1828 to 1835 he introduced
several reforms of great importance in various fields. 18 He showed keen interest in
improving the machinery of the administration of Justice. With this aim in view he
reorganised and consolidated the whole system of civil and criminal courts. His
contribution is, therefore, considered very important in the legal history of India.
A short account of his judicial reforms is given below:
16. See Anne Thackerey Ritchie and Richardson Evans, Lard Amherst. When Lord Hastings retired in
January 1823, John Adam was appointed ofliciaiingOovemor-General. He vacated the post when Lord.
Amherst was appointed Governor-General in AUgUSL 1823.
17. Lord William Bentinek was a younger son of the 3rd Duke of Portland, Prime Minister of England
from 1807 to 1809.
18. See Thompson and Gaff ati, Rise and Fulfilnienz of Bruisli Rule in India. 280. 86. See airy T GP. Spear.
'Ellenborough and Bentinck'. ProceedinRs of Indian History Congress. 1939.
REFORMS OFLORDBENTINCK 153

71
(a) Abolition of Circuit Courts.—Lord Bcntinck realised that the existing system
of Circuit Courts with very wide territorial jurisdiction was responsible for many
defects in the administration of justice in civil and criminal cases. Long delays in
deciding the cases increased the arrears of cases. It became very difficult for the
Court to complete the circuit within six months. As the Provincial Courts of Appeal.
the Circuit Courts were also required to discharge appellate functions in civil cases.
As criminal courts these courts created more difficulties for the prosecution as well
as the witnesses, as it was not possible for them to hold their sessions in each district
regularly. As a consequence of delay in criminal justice, prisoners suffered in jails
without trial for a long time. The Circuit Courts, said Lord Bentinck, became 'the
resting place for those members of service who were deemed unfit for higher
responsibilities".
Lord Bentinek, therefore, decided to abolish the system of Circuit Courts. in
place of the Circuit Courts Regulation I of 1829 he appointed Commissioners of
Revenue and Circuit to control the working of the Magistracy, Police, Collectors
and other revenue officers. Each Commissioner was put in charge of a small territory
in order to enable him to visit frequently different places which were under his
jurisdiction. They were given powers of the Court of Circuit and the Board of
Revenue with some modification to suit the requirements. The Provinces of Bengal,
Bihar and Orissa were divided into twenty divisions. In each division a Commis-
sioner was appointed. They were required to hold session; of gaol delivery in Zilas
and Cities at least twice a year. The Regulation pio'idcd that the employment of
the Mohammedan Law Officers was optional.
Regulation II of 1829 provided that the appeals from the Magistrates or JuinL
Magistrates were to lie to the Commissioner of division. The decision of the
Commissioner was final and conclusive. By Regulation VT of 1829 the powers of
the Magistrates were increased and they were authorised to pass a sentence of
imprisonment up to two years with labour, together with corporal punishment.
(l) Power of Sadar Ameen.r, District and Cit y Judges increased.. –Thc Magis-
trates were authorised to refer criminal cases to Sadar Ameens or Principal Sadar
Ameens for investigation. Their power was only limited to work as investigating
officers and to report to the Magistrates. They were not authorised to make any
decision.
It was realised after the reforms of 1829 that the expected results of speedy
trial of criminal cases was not forthcoming. It was found that the Commissioners
of Revenue and Circuit were given too much work. Therefore, the Governor-General-
in-Council was authorised by Regulation VII of 1931 to empower any Zila and City
Judge not being a Magistrate to hold criminal sessions, whenever it was felt that
the pressure of work on the Commissioners was too much. Zila and City Judges
were empowered to try all commitments made by Magistrates in their respective
jurisdictions and to hold goal deliveries at least once a month. Gradually, due to
unexpected increase in the judicial and revenue work it became difficult for the
Commissioners to dispose of the whole work in their district adalats. It gave rise to
the creation of District and Sessions Courts in each district which decided civil and
criminal cases.
154 PROGRESS OFJUI)ICIALREFORMS ICHAP.
(c) Establishment of Sadar Nizarnat Adalat and Sadar Diwani Adalar at AIFa.
habad.—In order to avoid unnecessary delay and improve the administration of
justice it was considered necessary to reduce the territorial jurisdiction of the Calcutta
Sadar Court. In 1831, therefore, a Sadar Nizaniat Adalat was established at Allahabad
for the North-Western Provinces with the same powers as were given to the Calcutta
Sadar Court.19
In 1831, a Sadar Diwani Adalat was also established at Allahabad for the
North-Western Provinces to decide civil cases. It was given the same powers as
were vested in the Calcutta Sadar Diwani Adalat.
(d) Practice of Sari declared an offence—In 1829 Lord Bentinck took a very
bold step to abolish the prevailing inhuman rite of the practice of Sail. 20 According
to the practice of Saji a Hindu widow was forced to burn herself with the dad body
of her husband. it was declared an offence and was punished like culpable homicide.
Abetment of the offence was also made punishable. Due to the introduction of this
important reform Lord Bentinck became very popular amongst the educated elite of
Hindus in India.
(e) Indians appointed judicial officers—Lord Cornwallis declared his policy to
exclude Indians from judicial officers. It was severely criticised by Indians and in
due course the Directors of the Company also suggested that Indians must be
employed as judicial officers. Lord Bentinck disliked the old policy of Lord
Cornwallis and favouring the suggestion of the Directors appointed Indians in the
civil 'arid criminal courts of the country. 21 This policy resulted in economy as the
English Judges were highly paid while Indians were available at a small salary.
Apart from this he gained confidence and loyalty of Indians. Indians were gradually
appointed to hold judicial offices. In 1832 the Commissioners of Circuit and Sessions
Judges were authorised to take the assistance of respectable natives in criminal trials
either by referring some matter to them as Panchayat for investigation or by calling
them to the Court as assessors or as Jury. The powers of the Principal Sadar Ameens,
Sadar Ameens and the Indian Law Officers were extended regarding the passing of
sentence in certain cases.
In the sphere of civil justice also, respectable Indians were appointed as judicial
officers. After 1831 the powers of the Indian Judges were gradually increased. As
such the pecuniary jurisdiction of the Munsiffs was extended to Rs. 300; the Sadar
Ameens were authorised to decide original suits up to a valuation of R.s. 1,fXX)
referred to them by the Zila and City Judges appeals from Munsiffs and Sadar
Ameens lay to the Zila and City Courts whose decisions were final. The Governor-
General was given power to appoint in any district or city, one or more Principal
Sadar Ameens to decide original suits up to Rs. 5,000 in value. The Courts of
Registrars were abolished and their cases were transferred to the Principal Sadar
Arrieens and Sadar Ameens.
19. Regulation ii, see W.H. Morley. The Adinini.cirarion of Justice in British India, 73.
20. It meant the burning of widows on the funeral pyres of their husbands. This evil Custom frowned on
by the Mughais. had increased in Bengal under British Administration and as prohibition had been
considered by every Governor-General since Wellesley. In fact. Bentiack acted where others had
merely talked. See Vincent A. Smith, The Oxford History of lnd:o, Third Edilioii, 588, 647-8.
21. Regulation XVII.
71 INDEPENDENCE OF THE JUDGES 155
(f) Abolition of Provincial Courts of Appeal.—In order to improve the civil

judicature. Lord Bentinck introduced a new Scheme in 1831. By Regulation V of
1831 all functions of the Provincial Courts of Appeal 22 were transferred to the
District Diwani Adalats. Thus the Provincial Courts of Appeal were abolished 23 and
the original jurisdiction of the District Diwani Adalats became unlimited. By
Regulation VIII of 1833 the Governor-General was empowered to appoint any
number of additional judges in a district on the recommendation of the Sadar Diwani
Adalat. it is, therefore, clear that by introducing the new scheme, Lord Bentinck
intended to simplify the judicial process and reduce the cost and time of the
administration of civil justice. The appointment of Indian judges further assisted
Lord Bentinck in carrying out his scheme.
(g) Civil and revenue jurisdiction given to Collector.—Su its relating to rent
were transferred to the exclusive congnizarice of the Collectors of revenue who were
empowered to decide summarily. Their decision was final, subject to a regular suit
to be instituted in the civil courts. The cases relating to rent and revenue were
transferred to the Collector in order to make the Collector's task easier in the
collection of revenue.
(h) Charter Act of 1833.24_Il was one of the most important charters which
played an important role in shaping the future course of the legislative and judicial
development of India. The charter allowed the company to retain its territorial
possessions in India for the next twenty years. The Act of 1833 established an All
India Legislature with general and wide powers to legislate. The Governor-General
at Calcutta was made the Governor-General of India. By adding a Law Member to
the Governor-General's Council and the abolition of the right to legislate by
regulation in the Provinces, the opportunity for centralisation of Jaw was provided
by the Act. The Act established the First Law Commission for India. The Law
Member was to preside over the Law Commission, which was empowered to inquire
into existing laws and courts. The Act of 1833 stated, "it is expedient that such
laws as may be applicable to all classes should be enacted". Necessity of a general
system of judicial establishments and police was also referred to the Law Corn-
mission. Priority was given by the Law Member to the needs of the common man
who was going to moffussil Courts to get justice.
9. The Independence of the Judges

During this period also, as in the past, conflicts continued between the judiciary
and the executive. This was so because as can be seen from the preceding chapters,
regulations passed in Bengal, Madras and Bombay 25 alike emphasised the need for
the judicial functions of the Government to he administered by courts of justice
distinct from the legislative and executive authority of the State. But the duties of
the Sadar Courts were not exclusively judicial and in the exercise of their admin-
istrative functions, the Sadar Courts of Bengal and Madras appear to have been
22. Thompson and Garrati, R&re and Fuif il,nent of British Rule in India. 266-70.
23. They became "proverbial for their dilatoriness and uncertainty of decision. See
Demetrius C. Boulger,
Lord William Bentinck, 61
24. For details, see Chapter on the Law Commission in this book.
1.
25. Beng. Regn. 2o1 1801, S. Mad. Regn. 4 of 1806. Si, l3om. Regn I of 1820, S I, quoted in Orby
Mootham's The Eei.ct huljr, compan y 's Stidar Courts, 1801-1834, (1983). Ch. XVIII,
161.
PROGRESS OF JUDICIAL REFORMS [CIIAP

156
regarded as branches of the executive. The Presidency Governments and the Direc-
tors in London were issuing directions to the Courts and being under close scrutiny
the judges were being asked explanations regarding their disposals. 26 In Bombay
the Sadar Court came into conflict with the Supreme Court over the problem of
Criminal jurisdiction in case of R. V. Pandurang Hirajee 27 . The office of judge
seems not to have been held in the same high regard in Madras 28 as in the other
Presidencies. In cases pertaining to misconduct by servants of the Company and of
offences against the State the opinion of the court was treated with little respect.
MvlapiUy case and Oakes case are its apt examples. In Bengal also the conflict was
apparent as can be seen from the cases of Oonwn Dull and Purlab. The facts and
decision in these cases are given below. It should be noted that in view of the
Government, if the courts were left uncontrolled it would amount to abandoning the
most sacred duty of the Supreme power.29
(a) Oonsan Duit v. Kunhia Sin.gh 30 , ( 1822) 3 S.D.A. 144.---The question at issue
in this case was whether the plaintiff Ooman Dutt under the Hindu Law, was an
adopted son and entitled to a half share in certain property.
A suit had been filed in December 1809 and was dismissed by the Zillah judge
in May 1813. The appeal to the Provincial Court of Appeal was dismissed in January
1816. A special Appeal to the Sadar Diwani Adalat was admitted in the same year
and came up for hearing before the third judge in July, 1820. He referred certain
questions with regard to the validity of the form of adoption to the Court's pundits.
As a result of their answers the Judge In the following month put a supplementary
question to the Law Officers and he later directed the trial court to take further
evidence of local Custom with regard to the adoption of a boy in the Krit(r)nma
form. In September 1821 • the third Judge, now silting with the fourth Judge. called
upon the pundits for a further exposition of the law, and this was furnished in the
following November.
At this stage of the proceedings the third and fourth Judges considered it
desirable to seek the assistanceof the second Judge "with reference to the nice
point of Mithila law under consideration". The latter gave a judgment in December
1821 upholding the legality of the plaintiffs adoption. The respondent's pleader,
however, appearing before the fourth Jud g e, disputed the correctness of the pundit's
opinion on which the second Judge had based his decision; and the opinion of the
Law Officers was again sought. On 22nd January, 1822 the appeal again came before
the third Judge and the pundit's answers were read to him. He differed from the
view taken by the second Judge and "recommended" that the appeal he dismissed.
On the next day the appeal came before the fourth Judge who once again referred
a further question to the pundits. They filed their answers in February, and they
were of the opinion that the alleged adoption was invalid. On the 15th of April,
1822, six years after the appeal had been admitted, the fourth Judge declared his
26. Beng. ReZn. 2 of 1801, SI: Mad. Rep. 4 of 1806, S. Born. Regn. I of 1820. Si. quoted in Oiby
Mootharn's The East India Cornpony s Sadar Cowr.s. 1901-104.(1983), Ch. Xviii, 161, 162, 150.
27. Ibid., Bombay Courier, 141h & 21st March. I 829. For facts of the case see Co. 5-10 (iv).
28. Ibid, 163.
29. Ibid. 166.
30. Mootharn, The &s.ct India Co '.c Sadar Courts. 1 80 1 . i 834, Edn. 1983, Ch, 3,
71 INDEPENDENCE OF THE JUDGES 157
full concurrence with the third Judge as to the propriety of rejecting the claim, and
the appeal was finally dismissed.
(b) Government v. Purzab3 ' 1823, 2 N.A.R. 248,—In 1816, in the course of a
robbery with violence four villagers were murdered. The suspects absconded and a
proclamation was issued by Nizamat Acialat under Regulation 9 of 1808 calling
upon them to surrender within a named period. After this period expired, in 1821
the defendants were apprehended, tried in the Circuit Court for murder and sentenced
to death.
Regulation 9 provided that a proclaimed person who failed to give himself up
within the prescribed period could be tried only for contumacy and that it was only
if he were acquitted on that charge that he could be brought to trial for the offence
for which he had been proclaimed. When therefore the proceedings of the murder
trial came before the Niiamat Adalat for confirmation that the Chief Judge [Ley-
cester] directed that the defendants be put on trial for contumacy in not having
complied with the terms of the proclamation. This was done, they were found guilty
and sentenced to transportation for life, subject to confirmation by Nizamat Adalat.
Out of the five Judges Smith Justice and the third Judge agreed that the original
offence was outside the ambit of Regulation 9 of 1908. The proclamation was illegal
and the defendant should therefore be acquitted. The Chief Judge held the conviction
legal while the fifth Judge held the charge as proved but gave no opinion on legality
o the proclamation. The fourth Judge held the proclamation legal and the conviction
proper. It was pointed out by Smith Judge that the validity of proclamation was not
considered by the Chief Judge and the fifth Judge, and unless they agreed with the
fourth Judge in holding the proclamation as legal the conviction on the contumacy
charge could not be upheld.
Courtney Smith managed to show the recorded minutes to the Chief Judge
before the charge was prepared for signature. However, the Chief Judge declared
the proclamation to be legal but the fifth Judge thought it to be illegal and to this
the second Judge rejoined. He could now point out that three out of five Judges
were of the opinion that the proclamation was illegal and that the contumacy trial
must be quashed. The Chief and the fourth Judges however adhered to their opinions
and Courtney Smith recordedyet a further minute remarking that as all the judges
had now expressed their opinions on the legality of the proclamation "there can be no
reason for further delay in issuing a sentence which three Judges out of five approve."
It appears that the prisoners were accordingly acquitted in the contumacy charge
because the court proceeded to consider the conviction on the murder charge before
it. Smith Judge opined that a trial de trovo on that charge was unnecessary and the
other judges agreed with him. Conviction was therefore affirmed but in the circum-
stances the death sentence was replaced by one of imprisonment for life.
(c) Mylapilly Yerregndoo case32 .—M. Yerregndoo was tried in 1824 on a charge
of murder. The trial court declared him to be not guilty. The presiding Judge agreeing
with the court acquitted the prisoner and discharged him (under Madras Regulation
7 of 1802). During routine examination of Calendar of persons for trial the court
31. Mootham, The Fast India Co.'s Sadar Courts, 1801-1834, Edn. 1983, Ch. 4.
32. M.J.C., IstJuly, 1825, Fol. 1475. p1323193, Mootham: The East India Co.'s Sadar Courts, Edn. 1983,
96.97,

called for the records asked the Judge for reasons for concurring in the acquittal
and ordered for Yerregndoo's arrest. He was tried and held guilty of murder and
robbery and was sentenced to 39 lashes with life imprisonment Criminal judge W.G.
Monk at Chicacole where the warrant was sent for execution questioned the legality
of the sentence and brought his doubts to the notice of the Foujdari Adaiat. But the
judges did not doubt their authority to interfere 'whenever it may appear to them
that such interference was required for the ends of public justice". A request by
Monk to refer the matter to the Govern or-jo-Council was refused as such a course,
'would involve abandonment of the functions vested in them by law and in fact
amount to participation in an irregularity which it is the proper duty of the court to
correct". Monk, who appears to have been a man of courage and determination,
then addressed a letter to the Government in which he submitted that not only the
sentence was illegal but that where the lawfulness of an act of Foujdari Adalat was
in question, an appeal must be open to the Government, otherwise the Court would
virtually legislate for itself.
The Go v ernor-in-Council did not consider that Mouk had acted irregularly or
that the Court by forwarding his letter would have abandoned any functions vested
in it by law, and he called upon the court for a full explanation.
The Court's reply was discursive. In essence it was that as the law imposed a
duty on a circuit judge to satisfy himself that the Futwa of his Law Officer was in
accordance with Mohammedan law, and as the Judge was frequently ignorant of
that law, it was effectual for the effective administration of justice that the Court
should be able, in a fit case, to set aside an acquittal. This the Court could do under
its general supervisory authority and specifically in the exercise of its revisionary
powers under Section 25 of Regulation 10 of 1816; and as the proceedin gs in the
Foujdari Adalat were a continuation of the trial, no question of double jeopardy
arose. The Court's view was clearly ill-founded and the Governor in Council said
so. The Court's powers were entirely derived from the Regulations. As the trial
Judge had seen no cause to disapprove of his Law Officer's declaration that
Mylapilly was not guilty he had no alternative but to pass an immediate sentence
of acquittal arid order the discharge of the prisoner. That sentence was final; the
case was closed, and Section 25 of Regulation 10 could not be so construed as to
give the Foujdari Adalat power to reopen it. As to the Court's view that it had all
inherent power to intervene the Governor in Councii was "unable to perceive, how
an authority so great, and of so extraordinary a nature as that in question, could
with any colour of reason be regarded as inherent in the constitution of the Court,
while there was nothing in the Regulations that could be referred to as giving it".
He had already remitted the sentence or so much of it as remained unexecuied, and
he now informed the Court that unless it changed its opinion on the construction of
Section 25 of Regulation 10 he proposed that it be made clear by an amending
Regulation that the law was in conformity with the views of the Government. The
judges appear to have accepted the Government's interpretation of the section for
it remained unaltered.
(d) Oake case 33 .— Robert Oakes was the Collector of Rajahmundry. There were
many complaints against him for misconduct and corruption. In 1817, the Governor
33 Mootham, The East India Co.'s Sa&r Courts,
1801-1834, Edn 1983, Ch. Ii. 107 and 113.115.
7] tNDEPENDENCEOF THE JUDGES 159

in Council appointed a special Commissioner under Regulation 3 of 1809 to hold
an enquiry. The basis of the charges, of which there were eight, was that Oakes had
grossly neglected his duties, engaged in private trade and, in particular, had permitted
his former private servant, to the latter's distinct pecuniary advantage, to interfere
in the management of the district. Oakes did not attend the enquiry. The Commis-
sioner forwarded his report, which was favourable to the accused officer to the Sadar
Adalat, the judges of which were required to submit the proceedings to the Governor
in Council with their opinion "whether any and what facts against the party accused
appear to have been established" The judges, Scott and Greenway were of the
opinion that none of the charges, except that of being engaged in private trade, had
been established. This opinion was not accepted by the Governor in Council with
whom lay the responsibility of passing such a final order as appeared to him just
and proper. He considered that the Court had erred in applying to the proceedings
the strict technical rules appropriate to a criminal trial, and that the evidence was
amply sufficient to justify a finding of guilt on six of the charges.
The Directors took a more serious view of the matter. The judges, they
concluded, had viewed the proceedings from a narrow legalistic view point, and had
failed to appreciate that they were not concerned with a trial but with an investigation
into the conduct of a public officer for the purpose of enabling the Government to
decide whether there were grounds for his prosecution or the taking of any other
action against him.
The Judges had taken the view that precision in framing of the charges against
Oakes was of paramount importance. They held the charges to be, in law, badly
framed, and by failing to be sufficiently specific hadin more than one instance
disclosed nothing which called for an answer. Much of the evidence adduced at the
hearing was accordingly irrelevant.
The difference of approach of Court and Government to the evidence at the
enquiry is well illustrated by a reference to the first charge. It was in these terms:
For dereliction of public duty and violation of the provisions of Section 36,
Regulation 2, 1803, in permitting a certain native, Raniaswamy Naidu, not in the
employ of the Government and formerly a private servant of the said Collector to
interfere in the public business of his office and in the management of the district
under his charge.
That charge, in the judges view, "does not contain an allegation of a single act
on the part of the Collector, from which his permission of, or connivance at, the
interference of Ramaswamy in the public business of the office, and in the man-
agement of the district under his charge, could be inferred. The Collector, therefore,
had no specific charge to deny or explain." The Directors regarded the matter very
differently from the view point of a breach of duty to which serious consequences
were attached. As to the lack of precision of the charges, the Directs took a
practical view. If Oakes had any doubt as to the case he had to meet, his doubts
would have been resolved had he attended the enquiry and heard the evidence.
But the Directors were not only critical of the judges' approach to the proceed-
ings; they had also failed to be impartial and had displayed a bias in favour of the
accused officer. Summing up their views they said that the proceedings had been
the occasion of a display of "laxity in the discharge of public duty and a most
I
160 PROGRESS OF JUDICIAL REFORMS 1CHM.
dangerous leaning towards a delinquent", which had convinced them that an

interposition of their authority was "required for upholding that high sense of duty
and that spirit of inflexible impartiality which are so peculiarly necessary in persons
filling the important offices under our Government." They had, they said, "too
complete an experience of the unfitness of Mr. Scott and Mr. Greenway for the due
discharge of the duties with which they had been entrusted", any they directed that
they be removed.
10. Dual System of Courts (1834-1861)

After Lord William Bentinck minor reforms were introduced in the Company's
Courts by Lord Auckland, 34 Lord Ellcnborough 3t , Sir Henry Hardinge36 and Lord
Dathousic37 as Governor-Generals. During the period 1834 to 1861 i.e., before the
High Courts were established two sets of courts were administering justice in India.
The King's Courts and the Company's Courts formed the dual system of courts
having their separate jurisdictions.
In each Province i.e., Bombay, Calcutta and Madras, a Supreme Court was
established which derived its authority from the King in England. Their jurisdiction
was mainly limited to the Presidency towns respectively. The original jurisdiction
of the Supreme Courts was extended to five classes of persons, namely, (i) British
subjects throughout India in all civil and criminal cases; (ii) inhabitants of Calcutta,
Madras and Bombay within fixed limits, whether natives or others in all civil and
criminal cases; (iii) native subjects, servants of the company or any British subject
for acts committed with limitations in certain civil matters; (iv) native subjects in
civil matters for transactions by which they had bound themselves by bonds to be
amenable to the Supreme Courts; and (v) all persons for maritime crimes.
(a) Hierarchy of Company's Courts.—Apart from the King's Courts, in each
Province the company also established a hierarchy of civil and criminal courts. These
courts were known as Company Courts. They exercised their jurisdiction outside
the Presidency towns and the Sadar Diwani Adalat and Sadar Nizamat Adalat were
the highest Company's Courts in each Province. They were given appellate juris-
diction in civil and criminal cases respectively and had no original jurisdiction. They
were also empowered to supervise the working of the subordinate courts of the
company. Appeals from Sadar Diwani Adalats lay to the Privy Council. The
Company's Courts were established in order to meet the requirements of Indians
who were residing beyond the Presidency towns. In many respects the Company's-
Courts differed from the King's Courts. The hierarchy of Company's Courts in each
Province, i.e., Calcutta, Bombay and Madras, was as follows:
(i) Courts frI Calcutta.—Before the enactment of the High Courts Act, 1861
there were six types of civil and eleven types of criminal courts of the company to
administer justice in the Province of Calcutta. in order of hierarchy the civil courts
were: Sadar Djwani Adalat, City Courts, Zila Courts, Courts of Principal Sadar
34. He was Governor-General of India from 136 to 1842.

35. He remained Governor-General of India from 1842-1844.
36. He was appointed Governor-Genera! of India in 1844, and remained in his office up to 1848.
37. He was Governor-General of India from 1848 10 1856.
38. See £nc3dopaedia of use General Ads and Codes of India. Vol. 9, Edited by T.B. Sapru, 2-3 (1942);
Mootharn: The Fi.cl India (o. '.c Sadar Cowls, 1801-1834, Edn. 1983, Ci. 1, 5.
lip
71
DUAL SYSTEM 0PCOURTS 161
Ameens Courts of Sadar Ameens and Courts of Munsiffs. Eleven types of criminal
courts in order of hierarchy were: Sadar Nizarnat Adalat, Courts of Sessions Judges,
Courts of Joint Ma g
istrates, Courts of City Magistrates, Courts of Zila Magistrates,
Courts of Assistant M
agistrates, Courts of Deputy Magistrates Courts of
Principal
Sadas Arneens, Courts of Sadar Arneens, Courts of Law Officers of City Courts and
Courts of Law Officers of Zila Courts.
(ii) Courts in Bomba
y.—There were six types of civil and five types of criminal
courts of the Company in Bombay before the establishment of the High Court. In
order of hierarchy the civil courts were: Sadar
Diwanj Adalat, Zila courts, Courts
of Assistant Judges. Courts of Principal Sadar Ameens (Native Judges), Courts of
Sadar Ameens (Native Co
mmissioners) and Courts of Munjffs The five sets of
criminal courts were: Sadar Niarriat Adalat, Courts of Judicial
Com missioners of
Circuit, Courts of Sessions Judges, Courts of Joint Judges in certain Zilas and Courts
of Assistant Sessions Judges. Apart from these, offences of a Petty nature were
decided by the Heads of Villages and District Police Officers.
(iii) Courts in Madras.—The
Company's judicial machinery in Madras consisted
of eight sets of civil courts and nine sets of criminal courts before the High Court
of Madras was e
stablished. In order of hierarchy the civil c
ourtswere: Sadar Diwanj
Adajat, Zila Courts, Courts of Assistant Judges, Courts of Subordinate Judges. Courts
of Principal Sadar Ameens, Courts of Sadar Ameens, Courts of
iffs
and Courts of Village Munsiffs. Nine sets of criminal courts, in order of hierarchy,
District Mulls
consisted of: Sadar Nizamat (Faujdarj)
Of S ubordinate Judges, Courts ofAdalat, Courts of Sessions Jud
Mao' ges, Courts
istrates Courts of Joint Magistrates, Courts
of Assistant Magistrates, Courts of Principal Sadar Ameens, Courts of Sadar Ameens
and Courts of District Munsitf. Apart from these, Petty offences were also tried by
the heads of Villages and the District Police Officers.
(b) The law applied.— The
King's Courts and the Company's Courts
applied
different laws. The Supreme Courts mostly applied English law, both civil and
criminal, with certain exceptions relating to Hindus and
of Hindus and Mo M ohammedans in the case
hammedans whenever they were parties to a suit, the law of the
defendant was always applied. English law of procedure governed the procedure of
the Supreme Courts. They also applied such rules and regultions of the Company's
Government which were registered in the Supreme Courts.
The Company's Courts in the M
otfussil area applied only the Regulations of
the Government which were passed before 1834. After 834 uniform Acts of the
Gover
nor-General In Council were applied in all tile three Provinces. English law
was not applied by the Company's Courts. in matters relating to succession,
inheritance and marria g
e with respect to Hindus and Muslims, the personal laws of
Hindus and Muslims were applied respectively.
I n other cases also customary law
was ascertained and applied. In cases for which there was no
asc ertainable law or
custom, the Judges were required to exercise their discretion
equity and good consci a ccording to justice,
ence.-19
English Judges, while applying their discretion
applied En g mostly
lish law asfar as it suited Indian conditions 40
In criminal cases
Mohammedan
-_-_------- Law of Crimes, as modified by the Regulation, was applied by the
39. Dr. J Duncan M. Derrett
Justice, Equity and Good Conscience in India, 64
40. Cowell, H&ctor1, and C'on.ctj,u1ion Born LR 129, 145.
of the Courts and
Legislative Authorities in India, 224.
162 PROGRESS OF JUDICIAL REFORMS (CHAP.
Moffussil Courts in Bengal and Madras Provinces. In Bombay a regular code

superseded the Muslim law of crime.
(c) Procedure.—As regards the procedure, the Supreme Courts adopted the
procedure of the English Courts. On the other hand, there was no uniform procedure
laid down for the Company's Courts. Whatever was prescribed by the Provincial
Regulations was being followed from time to time. In certain respects the procedure
not only differed from Province to Province but also from Court to Court. lii spite
of this diversity the Company's Courts mostly followed English law of evidence as
far a.s it wa accessible to them. But there was no law binding to adopt the English
law of evidence: Customary law, as derived from Hedava and Muslim Law Officers,
was also followed subject to the provisions of the Regulations.
11. Defects of the System
The existence of the dual system of Court i.e., King's Courts and Company's
Courts created many difficulties and conflicts. The jurisdiction of the Supreme Court
was never clearly defined and frequently it came in conflict with the jurisdiction of
the Moffussil Courts. New problems arose regarding concurrent jurisdictions of the
two sets of Courts. Laws applied by the King's Courts and the Company's Courts
were different and created conflict embroidered with confusion. The Supreme Court
claimed superiority and declared that any interference with the execution of its
process in the moffirssil was contempt of Court. 4 ' In certain cases the Moffussi!
Courts complained that the decrees of the Supreme Court were interfering with their
prior decrees. It was, therefore, realised that there was a necessity to co-ordinate
and correlate the functions of the two sets of the Courts.. As early as 1829 the Chief
Justice of the Supreme Court at Calcutta, Sit Charles E. Grey stated, "There is an
utter want of connection between the Supreme Court and the Presidency Courts.
and the two sorts of legal process which are employed by them ... tile exercise of the
powers of the one system is viewed with jealousy by those who are connected with
the other...' 42
Criticising the role of the Supreme Courts, the Court of Directors stated in their
despatch thus: "A judicature utterly uncontrollable by the Government and on the
contrary controlling the Government recognizing the highest authorities of the State
only as private individuals, and the tribunals which administer justice in all its forms
to the great body of the people only as foreign tribunals, is surely an anomaly in
the Strictest sense of the word .41
As expressed by Orby Mootham 44 the early years of the 19th century saw a
radical change in the Constitution of the Court. The long period during which the
Governor-General and members of the Bengal Council had been the judges of the
Court came to an end. They were replaced by the convenanted servant', of the
Company who were not members of the Government. The transition began in 1801,
41. Aga Molw,wned Jaffer v Mlio,n,ned Saduck ID(O.S.)IV. 363, sec also Urnesl p Chajidlwr, v. Preni
Cl,wuiliar,. Par!. Papers, 1831. Vol. 6, App. V, 20-28, quoted in Jam: Indian Legal His,., 1972, Ch.
19. 338-339.
42. Report on the Affairs "fl/ic &L51 Indies, Appendix. 75 (1832).
43 Despatch No. 44 of 1834. Paras 55 and 56.
44 The Fn.i India('o 'c Si,dor Crn,ric 1801-1834 Fdn 1983, 5
71 DEFECTS OFTHE DUAL SYSTEM 163

and although it was not completed for some years, the foundation of the inde-
pendence of the court had been laid.
Growing conflicts between the King's Courts and the Company's Courts grad-
ually strengthened the case for amal g amation of the Supreme Courts and Sadar
Courts. In order to achieve uniformity, certainty and efficiency it was considered
necessary to bridge the gap by legislative measures.
8
Establishment of the High Courts
The purpose of eitb!ishing the high Courts wa.x to effect a fusion of the Company 5
Courts and the Supreme (>jujL5 rind not in fuse the laws as well. That was a much mole
complicated work which could be effected only gradually and in course of tune.'
he High Courts were expected (0 improve the tone of the administration of justice in
India. strengthen the highest court of judicature and elevate the character of the lower courts
by placing theta under its supervision. .lain: indium, Legal History, 1972, pp. 349-350
SYNO PS I S
I. Early efforts to unite (e) High Court for Travancorc-Cochin
2 The Indian High Couils Act. 1861 (Kerala)
3. Letters Patent establishing High Courts (J) High Court for Mysore
(a) High Court of Judicature at Calcutta
(g) High Court for Jammu & Kashmir
on
(i) Jurisdiction and powers High Courts after the Constitu ti of India
(ii) Procedure (a) Constitution of High Courts
(b) High Court of Judicature at Bombay
(b) Jurisdiction
(c) High Court of Judicature at Madras (c) Powers
(d) High Court of Judicature at Altahabad (d) Appeals
4. Advantages of Unification (e) Changes made by tIme 42nd Amend-
mnent Act. 1976 and thereafter
5 Indian High Courts Acts of 1865 and 1911 Arc. 226
a) High Courts Act, 1865 Art. 227
(b High Courts Act. 19)1 Art. 225
6. The Government of India Act, 1915 If) Creation of New High Courts
(a) High Court at Patna (I) Table
(b) High Court at Lahore (ii) Permanent Bench of High Court
7. The Government of India Act, 1935 of Pat" at Ranchi
(a) Number of Judges (iii) Revival of Bench of Rajasihan
(h) Removal of Judges High Court ai Jaipur
(c) Qualifications (it') Extension of Jurisdiction of High
(d) Jurisdiction Courts
(c) Salaries (g) improvement of Conditions of Service
(f) Administrative control of High Court Judges
Ce) Appeals (h) Increase in salaries of Supreme Court
(h) High Court at Nagpur
and High Court Judges
8. High Courts established during 1947 to 1950
(i) Decreasing workloads of the High
Courts
(a) High Court for Punjab
(b) High Court for Assam (j) Conclusion
(c) High Court for Orissa
(d) High Court for Rajasthan
Early efforts to unite
Efforts to unite the two sets of Courts began much earlier than 1861. In fact
as a matter of policy it was considered better first of all to introduce basic uniformity
in the laws according to which justice was administered. When it was achieved,
separate sets of the judicial institutions were united in one system in 1861. As early
as 1833. the Charter Act of 1833 empowered the Governor-General-in-Council with
the help of the Law Member, to legislate for all provinces. It is an important
landmark in the legal history of India. The ceniralisation of legislative machinery
164
INDIAN HIGH COURTS ACT, 1861 165

introduced unification in laws and removed conflicts and confusion which were
created by the enactment of Regulation Laws by legislature of the different prov-
inces. The Charter Act of 1833 declared that the Acts passed by the Governor-
General-in-Council will be binding on all Courts of the country including all the
Supreme Courts. It also laid special emphasis on the enactment of uniform law in
certain important fields to govern
religion. In order to carry out thisall persons without any distinctionof caste and
policy the Charter Act of 1833 appointed the
First and Second Law Commission' The Indian Penal Code, the Civil Procedure
Code and the Criminal Procedure Code were the achievements of the Commission.
In 1858 the East India Company was abolished and the assumption of direct
responsibility of the Government of India by the Crown made the problem of uniting
the two sets of Courts much easier. Uniform Codes were passed and the next step
to amalgamate the Supreme Courts and Sadar Adalats was to implement uniformity
in the administration of justice. The object was achieved by the Indian High Courts
Act of 18612.
2. The Indian High Courts Act, 1861

About 1852, it was urged upon the P
arliamentary Committee for East Indian
affairs, that it was desirable that the Supreme Court and the Sadar Adalats in each
Presidency should be c
onsolidated, so as to combine the legal learning and the
judicial expetience of the Eng1ish barristers. Moreover, with Lord Dalhousie's
conquests and annexations, the Company's territories and
re sponsibilities increased.
However the Company could not match the r
esponsibilities There was maladm i n-
istration on wide scale and this led to repugnance of the people of India to foreign
rule. And the first War of Independence in 1857 by the Indian people made the
Political change inevitable which resulted in the Crown's assumption of the entire
sovereignty of British India and Parliament's direct
re sponsibility for its government.
This required the complete overhauling of the judicial system too. As a result, the
Indian High Courts Act, 1861 was passed on 6th August, I861.
Earlier while introducing the Bill of 1861, Sir Charles Wood said, "We shall
have one Supreme Court, one Sole Court of Appeal instead of two; and .. the
Superior Court thus constituted, will, I hope, improve the
ad ministration of justice
generally throughout India.' ,4
The Act of 1861 empowered the Crown to establish, by Letters Patent, High
Courts of Judicature at Caicutta (for the Bengal division of the Presidency of Fort
W
illiam), Madras and Bombay abolishing the Supreme Courts and the Courts of
Sadar Diwani Adalat and Sadar Nizarnat (Faujdari)
Adalat. The jurisdiction and
powers of the High Courts were to be fixed by Letters Patent. The Crown was also
empowered to establish a High Court in the
N orth-Western Provinces.
Sections 2 and 3 of the Act made provisions for member of Judges, their
qualifications and their tenure.
1. Foi derails, see Chapter XI V.
2. Orby Moothj The
Fall India Co 's Sodas Courts, 1983, 6
3. 24 & 25 Vict., c. 104 Act c
ontained in all 19 sections, for gist of pr o'.'islons
Constijgonai Thstoryofln,j 1984, Vol. Il, Ch. 9, 200-201 P B Vachha, see Rama Jois Legal &
& Casesf8ony 1962, Ch. 5,42-53. Famous Judges. Lawyers
4. Harksard's Parliamentary Debates ()
Vol 163, 647
','
166 ESTABLISHMENT OF THE HIGH COURTS [CHAP.
Each High Court was empowered to have supervision over all Courts subject
to its appellate jurisdiction The High Court was also given the power to call for
returns, to transfer any suit or appeal from one Court to another and to make general
rules. Her Majesty could by grant of Letters Patent s enlarge their jurisdictions.
3. Letters Patent establishing High Courts

On the authority of the 1861 Act Letters Patents 6 were issued establishing High
Courts at Calcutta, Bombay and Madras.
(a) High Court of Judicature at Calcutta.—The Letters Patent empowered
the High Court to enrol and remove Advocates, Vakeels and Attorneys-at-Law. It
was constituted to be a Court of Record.'
(1) Jurisdiction and powers—The jurisdiction of this Court was ordinary original
civil jurisdiction. The Act XV of 1919 defined its lirpits. The jurisdiction of the
Small Cause Court was distrinct and separate In addition it was empowered to try
and determine as a Court of Extraordinary original jurisdiction, any suit falling
within the jurisdiction of any Court within or without Bengal but subject to its
superintendence.
The Letters Patent also conferred appellate jurisdiction besides jurisdiction in
regard to persons and estates of infants and lunatics and relief of insolvent debtors
at Calcutta. In addition to this original criminal jurisdiction and Admiralty, Probate
and Matrimonial jurisdictions were also conferred on it so as to make it a High
Court having all the jurisdictions possessed by the Supreme Court. Consequently on
its appellate side, the High Court, therefore, replaced the then Company's Appeal
Courts at Calcutta viz., the Sadar Diwani Adalat and Sadar Nizamat Adatat.
(ii) Procedure—As regards procedure, the High Court was given the power to
make rules and orders in order to regulate all proceedings Civil and Criminal which
were brought before it. An attempt was made to bring uniformity to the rules of
procedure of all High Courts and Subordinate Courts.
An appeal in any matter, not being of criminal jurisdiction, from the decision
of the High Court was allowed to the Privy Council, provided that the sum or matter
in issue was of the value of not less than Rs. 10,000. The High Court was also
empowered to certify that the case was a fit one for appeal to the Privy Council.
(b) High Court of Judicature at Bombay.—By Letters Patent on 26th June.
1862 the Queen established the High Court of Judicature at Bombay. 8 It abolished
the existing Supreme Court, Sadar Diwani Adalat and Sadar Nizamat (Faujdari)
Adalat.
The Letters Patent establishing the High Court at Bombay was similar to that which
was issued for the High Court of Judicature at Calcutta. The Bombay High Court 9 was,
therefore, given all those powers which were given to the Calcutta High Court.
S. Seciion9.
6. Dated 14-5-1862 and 26-6-1862.
7. For gist of the provisions see Rama Jois: L.egai & Consiiiutiorwil History of India. 1984 Edn., Vol. II,
Ch. 9,201-203.
8. The High Court was installed at Bombay on 14th August, 1862. See P.B. Vachha, Famous Judges,
Lawyers and Cases of Bombay A Judicrot History of Bombay, 54.. 56 High Cant, of Bombay",
64 Born U 33, 49.
9. In 1999 the High Court of Bombay was removed from Hornby or Admiralty House to the new High
81 LETTERS PATENT ESTABLISHING HIGH COURTS 1 67

The establishment of the Bombay HIQII Court was a landmark in the history of
the judicial system in Bombay. It led to the introduction of a uniform system of
law and procedure throughout the Presidency of Bombay and thereby contributed
to the growth of judicial system and rule of law in Bombay. It now has a Bench at
Nagpur. Independence and legalism is the most valuable legacy left to us by the
English lawyers and judges of the Bonibay High Court.10
(c) High Court of Judicature at Madras—By Letters Parent issued on 26th
June, 1862 the Queen established the High Court of Judicature at Madras' and on
its establishment the chartered Supreme Court and the Sadar Diwani Adalat and
Sada.r Nizamat (Faujdari) Adalat were abolished at Madras. Their jurisdiction and
powers were transferred to the High Court at Madras.' ? The Letters Patent stated
the jurisdiction and powers of the Madras High Court to be similar to the jurisdiction
and powers of the Calcutta and Bombay High Courts.
(d) High Court of Judicature at Allahabad.—_Under the power given by the
Indian High Courts Act, lg6l,13 the Crown issued Letters Patent on 17th March,
1 866 establishing a High Court of Judicature at Agra for the North-Western
Provinces. The Sadar Diwani Adalat and Sadar Nizamat Adalar, were both abolished
after the establishment of the High Court at Aflahabad. The provisions of the Letters
Patent of 1866 were similar to those of the Letters Patent of 1865 except in certain
respects. The Allahabad High Court, as is well known, was not given any ordinary
original civil Jurisdiction, jurisdiction in insolvency matters as given to the
Presidency High Courts, nor admiralty and vice-adintiralty jurisdiction.' This was
so because the three High Courts inherited the jurisdictions of both, the Supreme
Court and the Sadar Adalats and the Allahabad Fl.C. was only the upgradarion of
Sadar Adalat which was functioning for the North West provinces. 15 In 1875the
High Court was shifted from Agra to Allahabad and was known as the High Court
of Judicature at AllahahatJ.
The constitution, jurisdiction, powers and privileges of the Allahabad High Court
were similar to those of the Presidency High Courts with the exceptions as stated
above.
In Oudh a Judicial Commissioner's Court was established in 1865. It was
declared the highest Court of Appeal for the territory of Oudh by the Oudh Civil
Courts Act, 1877. The Oudh Courts Act of 1925 raised the status of the Judicial
Commissioner's Court to the status of the Chief Court of Oudh. Thus, in the State
of United Provinces 16 two separate Courts of Appeal were working, one at Lucknow
and the other at Allahabad. After the Independence it was considered necessary to
amalgamate the two Courts. On 261h July, 1948 the United Provinces High Courts
(Amalgamation) Order, 1948 was issued which amalgamated the Courts of Lucknow
and Allahahatj and constituted one High Court in the name of the High Court of
Court building.
tO. Supra note 9.
H. See V.C. Gopalaratnarn, A Centuty Completed: A History qJthe Aladras thyli Cuur. 1862-962, 102
12. The High Court at Madras was opened on 16th August, 1862.
13, Secuon 16 of the Indian High Courts Act, 1861
14. E.J. Trevelyan, The Cortsiuu,jon and Jurisdiction of Courts of Civil Justice in British India, 71-76.
IS. Raffia Jois: Legal and Consii,u,jo,iaf Hisiory of India. 1984. Vol 2, 204.
16. The name "United Provinces' • was changed to "Uttar Pradesh"
168 ESTABLISHMENT OFTHE HIGH COURTS [CHAP.
Judicature at Allahabad. Since then a Bench of the Allahabad High Court is working
at Lucknow.
4. Advantages of Unification
It should be remembered that for over a period of eighty years two separate
and parallel systems of Courts continued to work in Presidencies and the moffussil
areas; they were (I) the Royal Courts or Crown's Court. and (2) the Adalats of the
Company. The sources of power and authority of these courts were different. Their
jurisdictions were vague and ill-defined and this confusion brought about several
conflicts which may be compared with the conflicts of the Common Law Courts
and the Chancery Courts in England during the 17th century. There, the Judicature
Acts of 1 873 and 1875 brought about the fusion of the two systems of administration
Of justice without affecting the nature of the substantive rights at law and in equity.
In India. (lie fusion of the two systems of adnnistrat-ion of justice, the Supreme
Courts amid the Saclar fliwani
Adalats, brought about by the Indian High Courts Act,
1861 was a major and significant step towards the process of the evolution of High
Courts. This significant measure had the following apparent advantages:
(1) The number of courts was decreased, (2) The dual control came to an end,
(3) High Court supervised the lower Courts, (4) The quality of work of the lower
courts improved. (5) Efficiency of the Judges improved, (6) Procedures were
simplified, (7) The appellate procedure also became uniform. D.R. Jain"has rightly
observed therefore, that 'the High Courts thus improved the tone of the adrninis-
tration of justice in India, strengthened the highest court of judicature and elevated
the character of the lower courts by placing (lieni under its supervision'', (8)
However one more advantage that oozed from unification was the acceleration of
the process of codification because removal of disparities in different laws was a
precondition for efficient governance. (9) Lastl y
, the clash and conflicts between
the two systems gradually decreased and there emerged simplicity, harmony and
efficiency.
5. Indian High Courts Act of 1865 and 1911

(a) High Courts Act, 1865.—.-Th Gover
nor-General inCounciJwas authorised
by the High Courts Act, 1865 to make necessary alterations in the territorial
jurisdiction of the chartered High Courts which were established under the High
Courts Act of 1861. The power of the Gov
ernor-General was made subject to the
approval of the Crown.
(b) High Courts Act, 1911.—Th
Indian High Courts Act, 1911 empowered
to establish High Courts in any territory within the Indian dominions. Under the Act
of 1911 a High Court could be established for any territory whether or not included
within the limits of another High Court It was considered that the power to establish
new High Courts under the Act of 186 1 was exhausted after the Allahabad High
Court was established and, therefore, the Act of 1911 was passed. The Act of 1911
raised the maximum number of Judges in each High Court from Sixteen to twenty.
which included the Chief Justice also.
17. Ouil:n of /rsdJwi Legal Hts:or: 1972. 350.

8) GOVERNMENT OF INDIA AC'i', 1915 169
& The Government of India Act, 1915

The Government of India Act, 1915 was passed by the British Parliament in
order to consolidate and re-enact the existing statutes concerning the Government
of India and the High Courts. The provisions of the High Courts Acts of 1861 and
1911 were re-enacted.
The Act of 1915 provided for the constitution, jurisdiction and powers of the
High Courts. Each High Court was to consist of a Chief Justice and as many other
Judges as were appointed by His Majesty. It stated qualifications for the appointment
Of a Judge of the High Court. The High Courts were given original appellate,
including admw'alty jurisdiction in respect of offences committed on the high seas.
They were declared Courts of Record and were given power to make rules for
regulating the Court's practice. They were not authorised to exercise any original
jurisdiction in revenue matters or to set aside any act ordered or done in collecting
revenue according to the local usage and custom. They had powers of supervision
over all subordinate Courts under their respective jurisdictions.
While exercising their original jurisdiction in suits against the inhabitants
regarding inheritance and succession to land, rents arid goods, and contracts between
party and party the three Presidency High Courts of Calcutta, Madras and Bombay
were empowered to apply the personal law or custom having the force of law when
both parties were subject to the same custom of law. The law or custom of the
defendant was to be applied only where the parties were subject to a different
personal law or custom.
The Act of 1915 also empowered His Majesty to establish new High Courts in
any territory.
(a) High Court at Patna.—In exercise of the powers given by the Act of 1915
His Majesty, by Letters Patent dated 9th February, 1961 established a separate High
Court at Patna. Its necessity was realised due to the proclamation of the Governor-
General of India to form a separate Province of Bihar and Orissa. Earlier, they were
under the territorial jurisdiction of the Calcutta High Court. The Patna High Court
was given the same status as that of the Allahabad High Court and therefore was
given the same privileges and powers.
Orissa was separated from Bihar as a province in 1936. A separate Orissa High
Court was established only after Independence by the Orissa High Court Order,
1948.
(b) High Court at Lahore.—As early as 1865 the Indian Legislature established
a Chief Court at Punjab.' 8 The status of the Chief Court was raised to the High
Court in 1919. George V, by a Charter. under the authority of the Government of
India Act. 1915, established a High Court at Punjab on 21st March, 1919. It exercised
jurisdiction over Punjab and Delhi territories with powers similar to the Allahabad
High Court.
After Independence, India was partitioned in 1947 and Lahore formed a part of
Pakistan. Therefore a separate High Court for Punjab was created which had
jurrsdiciion over Delhi and present Himachal Pradesh. It has now been succeeded
8. Act No. XXIILof 1865,
170 ESTABLJSFfME OF THE HIGH COURTS [CHAP.
by the High Court of Punjab & Haryana at Chandigarh, the High Court of Dcliii at
New Delhi and the Himachal Pradesh High Court at Simla.
The British Parliament by enacting the Government of India Act, 1935, gave a
new Constitution to regulate functions of the Legislature, Executive and Judiciary
of India. The Act contained many provisions regulating the establishment, conStitu-
tion, jurisdiction and powers of the High Courts. Some important provisions of the
Act relating to High Courts are briefly stated as follows:
(a) Number of Judges.—The Act of 1935 provided that every High Court
would be a Court of Record consisting of a Chief Justice and other Judges as
appointed by His Majesty from time to time. The provision of the Act of 1911,
fixing the maximum number of Judges as twenty, was dropped and the Act of 1935
empowered the King-in-Council to fix number of Judges from time to time for each
High Court,
(b) Removal of Judges.—Another important provision of the Act of 1935 was
regarding the appointment and removal of High Court Judges. The Act provided
that the Judge of a High Court will be appointed by His Majesty under the Royal
Sign Manual. The Gover nor-General-in-Council was empowered to appoint addi-
tional Judges. The Judge of
the High Court was to hold his office up to sixty years
of age and he could be renioved earlier b y his Majesty only on the ground of
misbehaviour or on infirmit y of mind or body. The Judge was likely to be removed
if the Piivy Council, on a reference made to it by His Majesty, recommended the
removal. This provision introduced and recognised the principle of independence of
the judiciary from the executive. Before 1935, the Judges of the High Courts were
to hold office during His Majesty's pleasure.
(c) Qualific ations.—As
regards the minimum qualifications of a person to be
appointed a Judge, the Act provided that barristth and advocates of ten years'
standing were qualified for High Court Jud g eship. It was also laid down that a
member of the Indian Civil Service of ten years' standing was also qualified to be
appointed a Judge of any High Court in India. If he remained as High Court Judge
for three years he was declared qualified for holding the office of the Chief Justice
of a High Court.
(d) Jurisdi ction.—The jurisdiction of
the existing High Courts, the law admin-
istered in it and the powers of the Judges continued the same under the Act of' 1935
as they were before it. The prohibition which was imposed on the three Presidency
High Courts in 1915 on their original jurisdiction to take cognizance of any matter
concerning revenue was allowed to continue
(e) Salaries.—The Act of 1935 made specific provision for the salaries, allow-
ances and pensions of the Judges of the High Courts, that it would be fixed by His
Majesty on their appointment. It- was also provided that none of these would be
changed to the disadvantage of a Judge after his appo
intment. This important
Provision ensured the independence of the judiciary from any executive interference,
19. For a Comparative stud y of the Acts of 1911 and 1915 see
of India, 1984, Vol. 2. 207-208. Rama Jois: Legal & Consti gu,jnai History
81 NEW HIGH COURTS ESTABLISHED (1947-1950) 171

(f) Administrative control.—The administrative control of the High Courts was
placed in the Provincial Government by the Act of 1935,20 Though it was a very
controversial issue as the Statutory Commission recommended for the administrative
control of the Central Government. In order to meet the basic plea of the Statutory
Commission, the Act of 1935 took adequate care to safeguard the judicial inde-
pendence of the Judges and to save them from any political pressures. It can,
therefore, be concluded that the Government of India Act, 1935 established a strong
judiciary and by safeguarding the service matters of the Judges of the High Courts,
strengthened the independence of judiciary.
(g) Appeals.—Provision was also made for an appeal to the Federal Court from
any judgment, decree or final order of a High Court.2'
The Government of India Act, 1935 empowered His Majesty to issue Letters
Patent constituting a High Court or reconstituting an existing High Court for that
Province or part of it. 22 The Nagpur High Court was established wider the Actof
1935, a brief account of which is as follows:
(h) High Court at Nagpur.—The Judicial Commissioner's Court for Central
Provinces was replaced by the High Court at Nagpur. His Majesty established it by
Letters Patent dated 2nd January, 1936 under the Government of India Act, 1935.
Its jurisdiction, and powers were similar to those of the Aliahabad High Court. After
reorganisation of States in India, Nagpur was merged with Maharashtra. The Madhya
Pradesh High Court which was at Nagpur was shifted to Jabalpur with a Bench at
Gwal,or and now at Indorc also.
8. High Courts established during 1947 to 1950

During the period from 15th August, 1947 to 26th January, 1950, i.e., after the
Independence to the date when the Constitution of India came into force, seven
High Courts were established at different places.
(a) High Court for Punjab.—India was partitioned at the time of Independence.
Lahore High Court remained in the Pakistan territory. A High Court for Punjab was,
therefore, established at Simla by the Governor . 0eneral 23 under the Indian Inde-
pendence Act, 1947. In 1966 upon reorganisation of the State of Pun jab, the High
Court was designated as the High Court of Punjab and Haryana.
(b) High Court for Assam.—En exercise of the powers conferred by the
Government of India Act, 1935 as adopted by the Indian Provisional Constitution
(Amendment) Order, 1948, on the motion of the Assam Legislature, the Governor-
General established a High Court at Gauhati for Assam. 24 Accordingly the jurisdic-
tion of the Calcutta 1-ugh Court was restricted to the territorial limits of West Bengal,
as Calcutta was known after the partition of India in 1947, In between it became
the High Court for Assam and Nagaland. After the N.E. Areas Reorganisation Act,
1971 it is designated as Gauhati High Court (the High Court for Assam. Nagaland,
Meghalaya, Manipur and Tripura).
20. The Government of India Act carried out the suggestion of the Joint Selcet Committee
21. For Appeals from High Courts, see Chaps Viii, X and XI of this Book.
22. See N. Rajagopala Alyangar, Coromenjary on fire Government of India Ad, 1935. 230
.
33. 243-51.
23 The Governor-General issued the High Courts (Punjab) Order, dated I Rh August. 1947
24. The Governor-General issued the Assam High Court Order, dated 1st March, 1948
172 ESTABLISHMENT UP THE HIGH COURTS [CHAP
(c) High Court for Orissa.—Just
like the High Court for Assam, the Gov-
ernor-General established a High Court at Cuttack, for Orissa, by the Orissa High
Court Order dated the 3rd April, 1943. Accordingly the jurisdiction of the Patna
High Court was reduced to the State of Bihar only. The High Court for Orissa was
given the same powers as were given to the Patna High Court and it follows its
practice and procedure.
(d) High Court for Rajasthan.—The
High Court of Rajasthan was established
at Jodhpur by the Raj Pramukh of Rajasthan under the Rajasthan High Court
Ordinance, dated 21st June, 1949. It was given all powers and jurisdiction just like
that of the Allahabad High Court. A Bench also functions at Jaipur.
(e) High Court for Trav ancore-Cochin ( Ke
rala).—For Travancore-Cochin a
High Court was established at Ernakulain by an Ordinance in 1948 which was
repealed by the Travancore-Coch i n High Court Act, 1949. Later on, this State was
known as Kerala. The Kerala Hi g h Courts Act, 1958 laid down the jurisdiction.
powers and authority of the Kerala High Court.
(f) High Court for Myso re.—Evenbefore Independence, the Mysore High
Court existed in Mysore under the Mysore High Court Act, 1884. It was a princely
State at that time. After the Independence of Indian States and reorganisation of
States the Mysore High Court Act, 1961 was passed to regulate jurisdiction and
powers of the High Court. With the change in the name of the State, it iS now the
Karnataka High Court.
(g) High Court for Jammu and Kashmir—Even
before 1947 there existed
the Jammu and Kashmir Fligh Court. It was established by the Maharaja of the State
by Letters Patent dated 28th August, 1943. It was given civil, criminal, ori g inal and
extraordinary jurisdiction. After the Constitution of
Jammu and Kashmir came into
force, the Jammu and Kashmir High Court continued to (10
the judicial work. The
High Court meets at Jammu and Kashmir.
9. High Courts after the Constitution of India
The Constitution of India, contains many specific provisions regulating the
independent working of the High Courts. Some important provisions are as follows:
(a) Constitution of High
Courts.—The Constitution of India recognised all the
existing High Cour t s . It provided a High Court for each Province. Parliament was
empowered to establish a common High Court for two or more provinces or Union
territories. The President of India appoints the Judges of the High Court after
consulting the Chief' Justice of India, the Governor of the Province and the Chief'
Justice of the Hi g
h Court for which appointment is to be made. The President of
India also appoints the Chief Justice of the High Courts. There has been departure
from the old tradition of appointing the senior-most puisne Judge as the
The Chief Justice call be a Jud g Chief Justice.
e from another State. In fact the Government
of India has a policy of having the Chief Justice from another State. The alleged
justification for this are national integration and the combating of ''narrow parochial
tendencies bred by caste, kinship and other local links and affiliations" 25
The Judge of a High Court retires at the age of 62 years. He can retire earlier
also by submitting a written resignation. The President of India can remove a Judge
25. S.P. Gupta v. Union oj'india. 1981 Supp SC 87.
81 HIGH COURTS AFTER THE CONSTITUTION OF INDIA 173
by an order passed after an address by each House of Parliament supported by a

majority of the total membership of that House and by a majority of not less than
two-thirds of the members of that House present and voting has been presented to
the President, on the ground of proved misbehaviour or incapacity. 26 Regarding
provisions about appointment, salaries, transfer27 , jurisdiction and powers they have
been made in Chapter V of the Constitution (Articles 217 to 228). Jurisdiction of
High Courts can be extended to Union Territories and a common High Court for
two or more states may be established.
Each High Court is a Court of Record and it can punish persons for contempt
of court In the contempt of court proceedings the High Court is empowered to
decide the matter summarily according to its own procedure and is not bound by
the provisions of the Criminal Procedure Code. 28 The conduct of a High Court Judge
in the discharge of his duties cannot be discussed in any Central or Provincial
Legislature except on a motion to remove a Judge as stated above.
(b) Jurisdiction.—The jurisdiction of the High Courts, the law administered by
them and the power to make rules of the Court are allowed by the Constitution of
India to continue the same as were immediately before the commencement of the
Constitution. This jurisdiction and power of the High Courts is subject to the
provisions of the Constitution of India and provisions of any law of the appropriate
legislature. 29 The status quo is maintained by the Constitution in order to maintain
the historical continuity. The law administered at the commencement of the Con-
stitution includes 'case law''. It is, therefore, specifically provided that the law
declared by the Supreme Court shall be binding on all Courts within the territory
of India. 30 A decision of the Privy Council or the Federal Court, therefore, is binding
upon the High Courts until the Supreme Court holds to the contrary. The Constitution
removes the bar to the original jurisdiction of the High Courts in revenue matters.31
This restriction was imposed in 1935 by the Government of India Act.
(c) Powers.—Every High Court is given the power of superintendence over all
Courts and tribunals throughout the territories in relation to which it exercises
jurisdiction. Without prejudice to the generality of the foregoing provision the High
court may— (a) call for returns from such Courts; (h) make and issue general rules
and prescribe forms for regulating the practice and proceedings of such Courts; and
(c) prescribe forms in which books, entries and accounts shall he kept by the officers
of any such Courts. 32 The High Courts may also settle tables of fees to be allowed
to the sheriff and all clerks and officers of such courts and to attorneys, advocates
and pleaders practisin g therein. The High Court has, therefore, both powers of
administrative as well as judicial superintendence over the subordinate Courts within
its jurisdiction.33
26. See case of Rarna.cwajny Justmce of S.C. wherein this provision was defeated by the ruling party itself.
27. Union of India v. SankolclwndH. Sheik. (1971) 4 SCC 193.
28. Sukhdeo Sin'Jt v Teja Singh, AIR 1954 SC 186.
29. Art. 225, Con'aiitnion of India. 1950.
30. Art. 141 ee ij.isn S. 212 of the Government of India Ad 1935
31. Art. 225, proviso.
32. An. 227.
33. Hari ViIaiu Kamoth v. Ahinad Isiwigue, AIR 1955 SC 233 Warm Singh v. Arna,nnth, 1954 SCR
565; Nvlxawi Chondra Bag v.Mahndra Nath GJwgIw, AIR 1963 SC 1895.
174 ESTABLISHMENT OF TIlE HIGI I COURTS [CHAP

Article 226 of the Constitution empowers the High Courts to issue to any person
or authority within their respective jurisdictions, directions, orders or writs including
writs in the nature of habeas corpus, mandamus; prohibition,
quo warrarito and
certiorari or any of them for the enforcement of any of the fundamental rights
conferred by Part Ill of the Constitution for any other purpose. The Constitution
(Fifteenth Amendment) Act, 1963 has provided an additional basis ofjurisdiction,
in relation to territories within which the cause of action wholly or in part arises,
notwithstand i ng that the set of such Government or authority or the residence of
such person is not within the territory of the High Court. It shall not be in derogation
of the power conferred on the Supreme Court by clause (2) of Article 32 of the
Constitution.
Article 228 gives the High Court power to withdraw to itself any cases pending
in a Court subordinate to it on being satisfied that the case involves a substantial
question of law as to the interpretation of the Constitution, and to dispose of the
case itself or oil the question of law to return it to the Court from which
the case had been withdrawn, to be disposed of in conformity with the judgment of
the High Court.
Article 229 provides for the appointment of officers and servants of the High
Courts. The Chief Justice of the High Court is given wide powers in such appoint-
ments but in the exercise of such power the executive and legislature had retained
sufficient control.
Article 230 provides that the Parliament may by law extend the jurisdiction of
a Hi g h Court or
exclude the jurisdiction of a High Couit from any Union territory.
Parliament is empowered by Article 231 to establish by law a common High Court
for two or more States or for two or more States and a Union territory.
(d) APPeaJS,—A II appeal from any judgment, decree or final order of a High
Court in a civil, criminal or other proceeding, lies to the Supreme Court . 3
The High
Court may certify that the case involves a substantial question of law as to the
Interpretation of the Constitution. Where a High Court refuses to give such a
certificate, the Supreme Court, ml it is satisfied that the case involves a substantial
question of law, may grant special leave to appeal. Where such a certificate is given
by the High Court or the Supreme Court grants leave, any party may appeal to the
Supreme Court against such a decision. In civil cases an appeal will lie to the
Supreme Court if the 1-ugh Court certifies that the case involves a substantial question
of law of genemal importance and that in the opinion of the High Court the said
question needs to be decided by the Supreme Court.35 In criminal matters
to the Su preme Court lies if the Nigh Court— . 36 an appeal
(a) has on appeal reversed an order
of acquittal of an accused person and sentenced him to death; or
(b) has withdrawn
for trial before itself any case from any subordinate Court and has convicted the
accused person and sentenced him to death; or (c)
certifies that the case is a fit one
for appeal to the Supreme Court.
(e) Changes made by Forty-Second Amendment Act, 1976 and thereafter.—
Drastic changes in the jurisdiction and powers of the High Courts were made by
34. An. 132.
35. An. 133(1) as amended by the Constitution (Thirtieth
Amcndment) Act, 1972.
36 An. 134. For details see
chapter on "The Supreme Court of India" in this book.
8] HIGH COURTS UNDER THE CONSTITUTION OF INDIA 175
the Constitution Forty-second Amendment Act. 1976 with effect from Feb. I, 1977.
Most of these changes were reversed by the Constitution Forty-third Amendment
Act, 1977 and the Constitution Forty-fourth Amendment Act, 1978.
The relevant articles after the Forty-fourth Amendment read:
31 [226, Power of High Courts to issue certain u'rits.—(l) Notwithstanding
anything in Article 32 , 38 * * *] every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to Issue to any person
or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including 1 writs iii the nature of habeas
corpus, ,na,ulainus, prohibition, qtw warranro and certiorari. or any of thein,1
for the enforcement of any of the rights confcrred by Part 111 and for any other
purpose.)
(2) The power conferred by clause (I) to issue directions, orders or writs
to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstand-
ing that the seat of such Government or authority or the residence of such person
is not within those territories.
4O(3) Where any party against whom an interim order, whether by way of
injunction or stay or in any other maimer, is made oil, or in any proceedings

relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents
in support of the plea for SILCh interim order: and
(b) giving such party an opportunity of' being heard,
makes an application to the High Court for the vacation 01 such order and
furnishes a copy of such application to the party in whose favour such order
has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is
received or from the date on which the copy of such application is so furnished,
whichever is later, or where the High Court is closed on the last clay of that
period, before the expiry of the next day afterwards on which the High Court
is open: and if the application is not so disposed of, the interim order shall, on
the expiry of that period, or, as the case may be, the expiry of the said next
day, stand vacated.]
((4) The power confen'ed on a High Court by this article shall not be in derogation
of the power conferred on the Supreme Court by clause (2) of Article 32.)
(Section 58 of the Constitution (Forty-second Amendment) Act. 1976 providing for 'Specwl
provisions as :0 pending peliiion.s wider Ar11c6' 226'' (w.c,f. 1-2-19771 was repeated by the
Constitution (Forty-fourth Amendment) Aci, 1871, S. 45.1
37. Subs by the Constitution (Forty-second Amendment) Act, 1976, S 38 (wc.f 1-2-1977).
38. Omitted by the Constitution(Forty-third Amendment) Act, 1977. S.7 (a.ssermfd to on 13-4-1978) the
words "but subject to the provisions of Art I ' I-A and Act 226''.
39. Subs. b y the Constitution (Forty-fourth Amendment) Act. 1978, S 30
40. Subs, by the Constitution (Forty-fourth Amendment) Act, 1978, S. 30 for cm. (3) to (6)
41. CI. (7) renunthered by ibid.

176 ESTABLISHMENT OF THE HIGH COURTS

ICHAP
42 [ 2 26-A, Constitutional validity of Central laws not to be considered in
proceedings under Article 226.] 31O,nirted.]
227. Power of superintendence over all Courts by the High Court ._[45[(
Every High Court shall have superintendence over all courts and tribunals,
throughout the territories in relation to which it exercises jurisdiction]]
(2) Without prejudice to the generality of the foregoing provision, the High
Court may—
(a) call for returns from such courts;
(b) make
and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept
by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the
sheriff and all clerks and officers of such courts and to attorne y
s, advocates and
pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause
(2) or clause (3) shall not be inconsistent with the provision of any law for the
time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers
of superintendence over any court or tribunal constituted by or under any law
relating to the Aimed Forces.
15 47 1* ri]
48228. Transfer of
certain cases to High Court.—If the Hi g
h Court is
satisfied that a case pending in a court subordinate to it involves a substantiaj
question of law as to the interpretation of
this Constitution the determination
of which is necessary for the disposal of the case.
49 1it shall withdraw the case
and [* * .J may—]
(a) either dispose of the case itself, or
(b) determine the said question of raw and return the case to the court
front the case has been so withdrawn
t ogetherwith a copy
of its judgment on such question, and the said Court shall on receipt
thereof, proceed to dispose of the case it1 conformity with such
judgment.
42. Ins by the Constitution (Forty-second Amendment) Act,

1976, S 39 (we.f. 1-2-1977)
43 Omitted by the Consti t u llOfl(Forty .
(hjd Arnenthuer
8(2) provide (2) Any proceedings pending before i t) Act, 1977, S.8(1)(wf 13-4-1978) Section
immediately before the C ommencement of tbr Act may a 1-11gb Court under An
be dual( 226 of the Constitution
Art. 226-A had been cmi ned with effect on and- froui the 1st day with by the High Court X& if the said
44. Subs, by the Constitu tion ( Fo of February, 1977
rty-second Amendment) Act.
45.Sutrt. by the C onstitution (Forty-fourth Amendment; Act, 1976, S 40(w e 1 1-2-1977)
46. ins, by the Constitution (Forty-second Amendment) Act, 1978, S 31
47 Omitted by the Consti 1976, S. 40 (w.e f. 1-2-1977)
tution(Forty-fourth Amendment) Act, 1978, S 31
48. Arts. 228 and 229
shall not apply to the State of Jammu and Kashmir.
49 Subs, by the Constitution (Forty-second Amendment) Act, 1976,
50. Omitted by the Constitution (Forty-third S 41 (w cf. 1-2-1977),
A mendment) Art, 1977, S. 9 (we.f. 13
''subject to the provisions of Art. 131-A''. . 4-1978) the words
HIGH COURTS UNDER THE CONSTITUTION OF INDIA 177

81
5I (228.4 Special provisions as to disposal of questions relating to constitu-
ti onal validity of State laws.! 52 [0mi!ted. I
(1) Creation of New High Courts.—After the Constitution of India came into
force the following new High Courts were established and the jurisdiction of certain
High Courts was extended to include new territories.
(I) This can be presented in a tabular form as under:
Name of State Name of High Court Date of Establishment & the-

High Court Seat at Act under which established

Andhra Pradesh H. C of Hyderabad 5-7-1954, The Andhra State
Andhra Act, 1953
Pradesh

Madhya Bharat Madhya Jabalpur
Pradesh H.C. States' Reorganisation Act,
1956 Benches at Gwalior and
Indore
Gujarat Gujarat H.C. Ahmedabad Bombay Reorganisation Act,
1960 1-5-1960
Maharashtra Bombay H.C. Bombay 1-5-1960, Bombay
Reorganisation Act, 1960.
Extended for Goa, Daman &
Din 67 Act No. 18 of 1987

Nagaland Assam H.C. Gauhati State of Nagaland Act, 1962,
N.E. Reorganisation Act, 1971
Delhi 31-10-1962
Union Terri- Delhi H.C.
tory of Delhi

Himachal Himachal State of H.P Act, 1970

Pradesh Pradesh H.C.
Assam, Naga- H.C. of Gauhati N.E. Areas Reorganisation
Act. 1971, Act 34 of 1986,
land, Mcgla- (Assam &
laya, Manipur, Nagaland) Act 69 of 1986
Tripura, Gauhati
Mizorain, Aru-
nachal Pradesh

Sikkim Sikkim H.C. Gangtok 1975
(ii) Permanent Bench of High Court of Patna at Ranchi.—By Act 57 of 1976

the circuit bench of the Patna High Court functioning at Ranchi since March 6,
1972 was made permanent by Act of Parliament. This Bench is to hear cases arising
SI l,tc by he Constitution (Forty-cecond Amendment) Act, 1970, S. 42 (w.e.f. 1-2-1977).

52. Omitted by the Constitution (Forty-third Amendment) Act, 1977. S 00) (assen(ed to on 13-4-1978).
Section 10(2) provides.
(2) Any case pending before a High Court immediately before the commencement of this Act may
be dealt with by the High Court as if the said Art. 228-A has been omitted with effect on and from the
1st day of February, 1977.
178 ESTABLISHMENT OF THE HIGH COURTS ICUAP.
out of the districts of Hazaribagh, Giridih, Dhanbad, Ranchj, Palamau and Singhb-
hum.
(iii) Revival of Bench of Rajasthan High Court at Jaipur.—.The Bench at Jaipur
which was abolished was revived by the High Court of Rajasthan (Establishment
of a Permanent Bench at Jaipur) Order, 1976 in January 1977.
(iv) Extension of Jurisdiction of High Courts.—The Calcutta High Court (Ex-
tension of Jurisdiction) Act, 1953 extended the jurisdiction of the Calcutta High
Court to the Andaman and Nicobar Islands. The States Reorganisation Act. 1956
extended the jurisdiction of the Kerala High Court to Lakshadweep Islands. The
Dadra and Nagar Haveli Act, 1961 extended the jurisdiction of the Bombay High
Court over the Dadra and Nagar Haveli. The jurisdiction of Madras High Court was
extended to cover Pondicherry. By the N.E. Areas Reorganisation Act, 1971 the
jurisdiction of the Gauhati High Court was extended to the Union Territories of
Mizoram and Arunachal Pradesh.
(g) Improvement of Conditions of Service of High Court Judges.—By
passing the High Court Judges (Conditions of Service) Act, 1976 (Act 35 of 1976),
a long overdue measure was undertaken in improving their conditions of service.
The statemen t of Objects and Reasons succinctly sums up the situation:
"Since the passing of the High Court Judges (Conditions of Service) Act,
1954, there has been no material modification of the conditions of service of
the High Court Judges. There is now a widespread feeling that in the present-day
context, the conditions of service are not attractive enough, especially with
reference to the Members of the Bar. There has also been a persistent demand
for improvement of the salary and other conditions of service of Judges. Having
considered all aspects of the matter, it is proposed to allow the Judges of the
High Courts certain ancillary benefits with effect from tsr October, 1974.
2. At present there is no provision for g rant of family pension and
death- cu m-retirementgratuity in the case of
Judges who are governed by Part
I of the First Schedule to the Act. His proposed to extend the facility of family
pension oil same lines as is applicable to Class I officers of the Central
Government. It is also proposed to give them the facility of death-cum-retire-
merit gratuity admissible to Class I officers of the Central Government, subject
to the modifications that the minimum qualifying service for the purpose of
entitlement shall he two years and six months and that gratuity will he calculated
at the rate of twenty days' salary for each completed year of service as a Judge.
3, It is further proposed to give to the Judges of the Hi g h Courts the facility
of rent-free accommodation. Where a Judge does not avail of the official
residence, he will be paid an allowance at the rate of twelve and a half per cent
of his salary. A conveyance allowance at the rate of Rs. 300 per mensem to
every Judge is also proposed to be given. In addition, the Chief Justice of a
High Court is also proposed to be g iven a sumptuary allowance of Rs. 300 per
mcnsem.53
4. While the maximum pension of Government servants on retirement has
been increased on the recommendation of the Third Pay Commission, there has
53. See the recent SOlUte passed by 1he Government: The High Court Judges Travelling Allowance
(Amendment) Rules. 1986.
81 HIGH COURTS UNDER THE CONSTITUTION OF INDIA 179

been no increase in the pension of Judges since the commencement of the
Constitution. It is proposed to increase the pension of the Judges by about 40
per cent and fix the minimum as Rs. 28,000 per annum in the case of the Chief
Justice and Rs. 22,400 per annum in the case of other Judges. The minimum
will be reached on completion of 14 years of service. The maximum pension
is also proposed to be increased by 40 per cent from Rs. 6,000 per annum to
Rs. 8,400 per annum. 54
5. It is further considered necessary to give post-retirement medical facilities
to the same extent as are admissible to retired Central Government servants of
Class I and to enable the retired Judges to avail of such medical facilities as
the State Government may decide to extend to them."
(h) Increase in salaries of Supreme Court and High Court Judges.—Rea-
using that the salaries fixed in 1950 in the Second Schedule were no longer realistic,
Parliament by the Constitution (Fifty-fourth) Amendment Act, 1986 raised the salary
of Chief Justice of India from Rs. 5000 to Rs. 10,0(X), of puisne Judges of the
Supreme Court from Rs. 4000 to Rs. 9000 and of Chief Justices of High Courts
from Rs. 4000 to Rs. 9000 and of puisnc Judges of High Courts from Rs. 3500 to
Rs. 8000. Also by amending Articles 125 and 221 such raise can be made by an
ordinary law passed by Parliament and a constitutional amendment would not be
necessary.
(i) Decreasing workloads of the High CourLs.—In view of the piling up of
cases and inordinate delay in the disposal of suits, writs and appeals by them, Part
XIV-A containing Article 323-A and 323-B was ntroduccd in the Constitution of
India by the Forty-second Amendment Act, 1976. Pursuant thereof the Administra-
tive Tribunals Act. 1985 was passed for establishment of Central Administrative
Tribunals in most of the Stales to adjudicate and try disputes relating to service
matters of Government servants. Such tribunals exclude the jurisdiction of High
Courts under Articles 226 and 227 and the Supreme Court directed certain amend-
ments to raise its status equal to the High Courts and to provide equally efficacious
and alternative remedy. 55 Similar Tribunals for matters relating to Income Tax,
Excise, Customs etc. and Educational Institutions are in the offing.
(j) Conclusion.—The roots of the present lie deep in the past. This is also true
in the case of the High Courts in India. Tracing back its history, first of all only
three High Courts in Calcutta. Madras and Bombay. were established under the
Indian High Courts Act. 1561. Since then with the gradual expansion of the British
rule in India, the number of High Courts also increased gradually. Under the
Government of India Acts of 1915 and 1935, their powers and jurisdiction were
also regulated with a view to achieve impartiality and independence of the judiciary.
The High Courts earned a goodwill and gained the confidence of the people.
After Independence, the Constitution of India came into force on the 26th
January, 1950. Its provisions, relating to High Courts, began a new and very
remarkable chapter in the histor y of the Indian High Court. The High Court presently
(1987) in existence are Allahabad. Andhra Pradesh, Bombay, Calcutta, Delhi,
Gauhati, Gujarat. Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya
54 The high Court & SC. Judgin, (Condiiions of Service) Amendment Act J986.
55. S-P Swnpaih Kumar v Unw,j aflirdea. (1987) 1 SC 124.

180 ESTABLISHMENT OF THE HIGH COURTS
Pradesh, Madras, Orissa, Patna, Punjab and Haryana (one common High Court),
Rajasthan and Sikkim. They are now assigned a very important rote under the
Constitution. Apart from their civil, criminal, appellate jurisdiction, they are the
interpreters and the guardians of the Constitution protecting the fundamental rights.
The High Courts are also given other important functions under various Acts. In the
changing social, economic and political conditions of India, the High Courts have
played a very important role in the administration of justice as well as maintained
the impartiality and independence of the judiciary in India. It is expected that the
same high standard of the judiciary will be maintained by the Indian High Courts
in future also and the Government of India will give them all necessary facilities
and constant encouragement for the same.
I ..
4,.
. •... .
- ., ., . . ..
• .- .5
.5,,, . , .- ,.
,•• JL•i"; ..
S. • S . :. •.. .-• .-,... .
,i .
.5 . ....; --.' , . •,•:. • . -
-
9
The Privy Council
'The 'Curia Regis' was so fertile a mother of law courts that under the more modern
description of the King's Council, she was responsible for yet another brood.., the Conciliar
Courts. All the Ro'yal Courts have the same origin but the date of their birth affected their
growth and characteristics '' H;u'olct Potter. An Historical Introduction to
English Law and Its Thsti:utions. p. 99
"The British Parliament and the Privy Council are the two great institutions which the
Anglo-Saxon race has given to mankind. The Privy Council during die lust few centuries has
not any laid down law but co-ordinated the concept of right and obligations throughout all
the Dominions and Colonies in the British Commonwealth. So far as India is concerned, the
rote of the Privy Council has been... a great unifying force and.., the instrument and
embodiment of the rule of law, a concept on which alone wc have based the democratic
s
in titution-, which we have set up in our Constitution".
K.M. Munshi: A Member of the Constituent Assembly and a Statesman, on the
occasion of the P. C's jurisdiction over India
'King- irt-Council or later called the Privy Council or the Judicial Cominittcc of the
Privy Council became the court of last resort against the decision of Courts in British
possession oersca."
Rama loin: Legal & Constitutional History of India.
[984 Edn., Vol. 11, Pt. 3, Ch. 8, p. 190
SYNOPSIS
I. Origin (h) The Regulating Act and subsequent
(a) The curia rcgis Charters
(b) Three divisions (i) Case of Andiews Hunter
(c) Act establishing the Judicial Commit- (ii) Reorganisation of the Privy Coun-
tee of the Privy Council cil
(d) Compocition (c) Appeals to the Privy Council from
(e) Procedure High Courts
(f) Jurisdiction (d) The Federal Court under lite Govern-
ment of India Act. 1935
(g) Right of appeal
(It) Peculiar nature (i) Abolition of the Privy Council.
jurisdiction in respect of Indian
(i) Three rules guiding appeals to the
cases
Privy Council
(ii) The Federal Court (Enlargement
of Jurisdiction) Act, 1948
(a) Charters of 1726 and 1753
(iii) Abolition of the Privy Council
(i) Appeals before 1773
Jurisdiction Act, 1949
1. Origin
The Norman Conquest in 1066 played a very important role in shaping the
English law and the constitution of Courts of Justice in England.' It introduced a
powerful Central Government in England controlling executive, legislative and
judicial departments.
(a) The curia regis.—The Normans ruled over England through Curia Regis",
which was a sort of Supreme Feudal Council of Normans to control the adminis-
I. George W. Keeton, The Norrno,i Conquest and the Common Low. 81-113, 201.22
2. In England, after the Nonnan Conquest, William continued to summon Witan it gradually transformed
its character and it became Curia Regis, the feudal counterpart of the Curia Ducis of Normandy See
William Hnidsworth, A History of English Low, Fourth Edition, Vol. II. Ch. II; V.D. Kulshret,htha, A
textbook of English Legal Jjis!ori, Second Edo., Cit. II.
[181
182 THE PRIVY COUNCIL [CHAP.
tration of England. Out of the Curia, gradually two distinct bodies, namely, the
Magnum Concilium, the larger Council and the Curia Regis, the smaller Council
emerged. The smaller council consisted of some high officials of the State, members
of the Royal Household and certain important clerks chosen by the Crown.
The process of division of work amongst the members of the King's advisory
body began and it led to the growth of specialised institutions. Potter said, "The
Curia Regis was so fertile a mother of law courts that, under the more modern
description of the King's Council, she was responsible for yet another brood
conveniently termed the Conciliar Courts. All the Royal Courts have the same origin
but the date of their birth affected their growth and characteristics."'
(b) Three divisions.—In the reign of Henry II, as a result of reforms introduced
by the King, the judicial work of the Curia greatly increased. Its result was that the
justices became a separate professional body. The Curia Regis in its judicial
manifestation became a distinct body from the Curia Regis as a general Adminis-
trative Council and eventually evolved into two great Common Law courts, the
Court of King's Bench and the Court of Common Pleas. Sometime later the Court
of Exchequer became distinct from the Exchequer on its fiscal side. The separation
of these three courts, entrusted with different functions became distinct in the reign
of Edward L4 In course of time the Privy Council originated from the smaller council
of the King.
In the sixteenth century, during the Tudors, the Council had the exclusive power
to adjudicate upon appeals from colonies. An Order in Council was issued to regulate
appeals ftuiii the Chattitel Islands. The sovereign, as the fountain of justice had the
inherent prerogative right and duty to ensure the due administration of Justice over
all British subjects. It was the main basis of the jurisdiction of the Privy Council.
In 1667 a Committee of the Privy Council was appointed known as "The Committee
for the Business of Trade", The Privy Council delegated its authority to this
Committee to hear appeals which came before it from the colonies of the Crown.
It is still not quite clear as to how far the Indians at that time derived advantage of
the right to appeal to this committee.'
In the eighteenth century with the growth of the British Empire the work of the
Committee of tile Privy Council greatly increased. But it was realised that the
Councillors, who presided over it, were mostly laymen and it sat on an average of
about nine days a year. This was severely criticised by Lord Brougham in his famous
speech of Law Reforms in the House of Commons in 1828.
(c) Acts establishing Judicial Committee of the Privy Council.—Lord Broug-
ham's strong protest against laymen hearing appeals led to the passing of the Judicial
Committee Act, 1833 8 by the British Parliament. The statute of 1833 established a
3. Harold Pouor, An Historical Introduction to English Law and Its Institutions. 99.
4. George W. Keeton, The Norman Conquest and the Comnwn Law, 102-13.
S. Appeals from the Channel islands, the Islands of Man and overseas possessions of the Crown which
were outside the jurisdiction of the Courts of Westminster. were formerly sent to the Privy Council.
6. According to the records of the Privy Council the earliest Indian Appeal to the Privy Council was in
1791.
7. Lord Brougham's speech quoted by J.P. Eddy in his article "India and the Privy Council: The Last
Appeal", 66 LQR 206, 208.
8. Statute 3 & 4 Willi nni IV.
9] ORIGIN OF PRIVY COUNCIL

183
statutory permanent comrninee 9 of legal experts to hear appeals from the British
Colonies and to dispose of other matters as referred to them by His Majesty
according to the provisions of the Act. This statutory committee was known as
Judicial C'omm,uee of the Privy Council''.
"The
There is a great truth in J.P. Eddy's
remark, ''...the Privy Council was lran,sformed b
y i/ic Act of 1833 into a great
Imperial Court of uni mpeachable authority.
Since 1833, the seven Lords of Appeal in Ordinary are members of the Judicial
Committee, The first sittin g
of the newly appointed Judicial Committee of the Privy
Council took place on 27th November, 1833. It was the ''Last Court of Appeal
under the Throne'',
(d) Corn Posi tion.—The Judicial Committee of the Privy Council whose con-
stitution has been modified by the Acts of 1844, 1908, 1929 and other Acts is now
composed of the Lord Chancellor, the existing and former Lords President of the
Council (sho do not attend). Privy Councillors who hod or have held high judicial
office (including retired En g
lish and Scottish Judges), the Lords of Appeal in
ordinary and such judges or former judges of the superior courts of the Dominions
and colonies as the Crown may appoint. Oridinarily the quorum of the Judicial
Committee is of three members but in important cases generally five members
preside over the committee meeting to hear appeals.1'
(e)
Procedure.—The Judicial Committee is not a court of law but it is onl y
an
advisory Board whose duty is to report to His Majesty their opinion, as a body, and
humbly advise him as to the action he should take on appeals submitted to him)2
Eery appeal is addressed to ''The King's Most Excellent Majesty in Counci]" and
is sent to the Judicial Comniittee for their advice under a general order passed in
1909. The advice so submitted is ill the form of a judgment which ends with the
words "and we humbly advise etc."
There is only one judgment of the Privy
Council 15
and there is no dissenting judgment as in the case of appeals heard by
the High Courts. Such a judgment of the Privy Council may be the unanimous
judgment of the members of the Board hearing the appeal or of the majority. But
the judgment speaks with one voice for the reason that it would be most embarrassing
to His Majesty to decide for himself what course to adopt in an appeal if his learned
and trusted advisers differed in their advice. It is the duty of every Privy Councillor
not to disclose the advice he has given to His Majesty. On the advice tendered, a
draft Order in Council is prepared, and at a meeting of the Privy Council itself,
usually in Buckingham Palace, it receives His Majesty's approval-
9- The Privy Council was established on the 14th August, 1833

tO. J.P. Eddy,
"India and she Privy Council: The LasiAppeal", 66 LQR 206, 210.
ii. () Hood Phillips, .4 First Bo'ik
of English Law, 69-7G.
12. British Coal Cmpor,i 0 ii v King (1935) AC 500.
Judicial Conini g ,jee of the Pro'3' Council'' See also S.G. Vet hiker, "The First Cen1eary of she
The Bombay Chronicle, August 1932.
13 Eddy has pointed out, " .. ,
The Judicial Committee sits in IWO rooms at the Downing Street and of ihe
Treasury Building which lies on the west sidc of Whiielttill..,l should piefer to describe it as a spacious
oa k-panelled room, a room which has been a suitable setting for many
.1 historic scene.. .3 lOom in
which Justice imlanhfestly seems to be done. Formerly die judges sat at the sides of a
not facing the Bar b n oblong table --
but lacing each other At the top there was a 53c3nt place which was (heoretiealiy
for the King. Now a days ilie.Judge .
; sit at a table in shape like a horce . shoc and face the Bar No place
is now rescred for the King: J P. Eddy, "India and the
206.211. Pn m ), Council The Last Appeal " 66 LQR
184 THE PRIVY COUNCIL [CHAP,
(f) Jurisdiction.—The jurisdiction of the Judicial Committee was pointed out

by Lord Brougham in his speech before the House of Commons on law reform in
1828, thus: "They determine not only upon questions of colonial law in plantation
cases but also sit as Judges, in the last resort of all prize causes. They hear and
decide upon all our plantation appeals. They are thus made the Supreme Judges in
the last resort over every one of our foreign settlements.. All this immense jurisdic-
tion over the rights of property and person, over rights political and legal and over
all questions growing out of so vast an area is exercised by the Privy Council unaided
and alone...Jri our Eastern possessions these variations (of law) are, if possible,
greater.-.the English jurisdiction being confined to the handful of British settlers and
the inhabitants of the three Presidencies in India.)" 4 In other words the jurisdiction
is based on the royal prerogative of the sovereign as defined in Reg. v.
The King was considered to be the fountain of justice and it was his inherent right
to do justice.
(g) Right of appeal.—In 1926 Lord Cave, then Chancellor, in the case of Nadan
v. King' described the right of appeal to the Privy Council, as follows:
"The practice of invoking the exercise of the Royal prerogative by way of
appeal from any court in His Majesty's Dominions has long obtained throughout
the British Empire. In its origin such an application may have been no more
than a petitory appeal to the sovereign, as the fountain of justice for protection
against an unjust administration of law; but if so, the practice has long since
ripened into a privilege belonging to every subject to the King."
(h) Peculiar nature—In a leading cast, Hull v. McKenna", Lord Haldane
stated the nature of the jurisdiction and constitution of the Privy Council.
"We are really judges, but in form and in name we are the Committee of
the Privy Council. The Sovereign gives the judgment himself and always acts
upon the report which we make.... It is a report as to what is proper to be done
on the principles of justice .... The Committee does not represent any single
nation; it represents an Empire. It has no fixed location.... The Sovereign as the
Sovereign of the Empire has retained the prerogative of justice .... lt is obviously
proper that the Dominions should more and more dispose of their own cases
and in criminal cases it has been laid down so strictly that it is only in most
exceptional cases that the Sovereign is advised to intervene. In other cases the
practice which has grown up is that the Judicial Committee...is not as a rule
advised to intervene... unless the case is one involving some great principle or
is of some very wide public interest."
Putting it briefly one may say that (1) the Privy Council's report was in the
form of an advice, (ii) only one opinion (without dissent) was pronounced, and
(iii) it was not bound by precedents.18
14. Lord Brougham's Speeches, Vol. II, 356. See also H.Cowell: Tagore Law Lectures. 1872, 206-215;
Setalvad: The Common Law in India, 1970,33-34,
15. L.R. I P.C. 520, 529. See al s o Fryer v. Bernard, (1724)2 P. Wirns. 261 in Jam: Indian Legal Hstorv,
1972, 368.
16. 1926 AC 482.
17. Alexander E. Hull & Co. V. A.E. McKenna, 1926 IR 402.
18. Compensation to Civil Servants, Re, AIR 1929 PC 84,87; Phanindra Chandra Y. King, Al R 1940 PC
Ill; A.G. Ontario v. C.T. Fed., AIR 1946 PC 88. 91.
93 APPEALS TO PRIVY COUNCIL 185
(i) Three rules guiding appeals to the Privy Council—There are three rules
of practice which guided the Privy Council's appellate jurisdiction. Succinctly they
may be presented as under
(1) His Majesty's prerogative extends to criminal as well as to civil cases. (2)
Interference in criminal cases would not be done unless it satisfies the rule in Dillets
case", that is, unless the forms of legal process are disregarded or there is violation
of the principles of natural justice, or (3) unless there is miscarriage of justice or
violation of some legal principle or procedure.20

(a) Charters of 1726 and 1753—For the first time in the legal history of India
George I by the Charter of 1726 provided for appeals to the Privy Council from
India. The Charter of 1726 established three Mayor's Courts at Calcutta, Madras
and Bombay respectively. It provided that from the decisions of the Mayor's Courts
first appeal will lie to the Governor-in-Council in the respective provinces. The
second appeal from order of the Governor-in-Council would now lie to the Privy
Council in England.
The Charter of 1753 re-established the Mayor's Courts at the three Presidency
towns of Calcutta, Madras and Bombay. As regards the provision relating to appeals,
the Charter of 1753 followed the Charter of 1726. These provisions continued up
to the passing of the Regulating Act, 1773.
Appeals before 1773.—Though the Charters of 1726 and 1753 provided for
appeals to the Privy Council, there was not a siogle case involving an Indian up to
1790 in which an appeal was filed before the Privy Council. 2 ' However the old
records of the Privy Council point out that before the Regulating Act, 1773 came
into force, there were four appeals22 filed by Englishmen before the Privy Council
from India. These disputes were amongst English people and, therefore, cannot be
considered as Indian cases, in appeal to the Privy Council.
(b) The Regulating Act and subsequent Charters.—The Regulating Act, 1773
empowered the Crown to issue a Charter establishing a Supreme Court at Calcutta.
The Charter of 1774 was accordingly issued by the Crown which established the
19. DiFlet.t's case. (1887) 12 App Cas 459.

20. J.P. Eddy. "India and the Privy council: The Last Appeal". 66 LQR 206.
21. Id., at 296. Eddy's observation, "the earliest record which the Privy Council has of an Indian appeal
shows that the petition was presented in the yeai 1791." There is great truth tii this statement. Here
Eddy refers to an appeal filed by an Indian against an Indian En the Privy Council lie is not saying
about Englishmen who came to India and filed appeals to the Privy Council against the Governor. See
also 1)r. A.T. Markose, "The Firs! Indian Appeal to the Privy Council", 1965 Indian Year book of
International Affairs, Vol. XIV. 242-56.
22. The first appeal in BarrinIoti v. President and Cuwwilof Fort Si. George (P.C. 2. Vol. 91, 340), was
filed by Barrington before the Privy Council in 1730 against the order of the Governor and Council
removing hiin from the office of Alderman and directing him to return to England. This appeal was
withdrawn by Barrington before it was decided by the Council. in 1731, William Mitchell v. Nathanial
Turner (P.C. 2, Vol 91, 619). was the second case in appeal from Fort William regarding a money
dispute between them On appeal the Privy Council approving the decision of the Governor-in-Council
dismissed the petition of Mitchell. Third case of appeal was on 25th July 1731 when Robert Adams
filed an appeal against Mathew Wasici (P.C. 2. Vol. 92.482, 504), regarding a money dispute involving
a sum of more than Rs. 8,(XX). In the fourth case Moses Frwmcin filed an appeal to the Privy Council
in March 1739 against Jwne.r Hope (P.C. 1 Vol. 95. 664) The dispute was regarding a money
transaction between ihern.
86
THE PRIVY COUNCIL
[CHAP
Supreme Court at Fort William, Calcutta and the Mayor's Court was abolished.
Section 30 of the Charter granted the right to appeal from the jud
g ment of the
Supreme Court to the King-in-Counc i
l in civil cases where the amount involved
exceeded 1,000 Pagodas. Such an appeal was allowed within six months' period
after the date of the Supreme Court's decision. Thus appeals were directly filed
before the Judicial Committee from the Calcutta Supreme Court.
By the Crown's Charter under an Act of 1797 the Recorder's Courts replaced
the Mayor's Courts at Madras and Bombay r
espectively. The Charter provided for
direct appeals from the Recorder's Court to the King-in-Council These appeals were
allowed on the same basis as from the Calcutta Supreme COurt to the
cil- Kin g-in-Coun-
In Madras, the Recorder's Court was replaced by the Supreme Court in 1801
under the Act of 1800 passed by the Parliament. Similarly the Recorder's Court at
Bombay was replaced by the Supreme Court in 1823 by the Crown's Charter under
an Act of 1823 passed by the British Parliament. The right of appeal at Bombay
and Madras was given Just like that of Calcutta with one difference regarding the
valuation of the Suit. A period of six months was provided for filing an appeal to
the King-in-Council.
Apart from the Supreme Courts, which were considered as King's Courts, there
were also Company's courts in Moffussjl areas under the English Company. The
Act of Settlement, 1781 provided that an appeal will lie from Sadar Diwani Adalut
at Calcutta to His Malesty, in Civil suits
of , more. valuing £ 5.000 (equivalent to Rs. 50,0()0)
In 1818 it was provided that an appeal from the Sadar Diwani Adalat at Madras
will directly lie to His Majesty. The monetary condition regarding minimum valu-
ation of a suit, was also removed and appeals were allowed in all cases.
The right of appeal to His Majesty from the Sadar Diwan i
was allowed in 1812. Adalat at Bombay
In 1818 it was found that during the last sixty years Only fifty appeals were
filed to the Privy Council, It was considered that the appeals were not filed due to
the fixed limit on the v
aluation of the suit. In order to encourage appeals to the
Privy Council, it was decided in 1818 to remove the condition regarding the
valuation of the suit in appeal. Appeals in all cases were,
therefore, allowed to the
Privy Council from the decisions of the Sadar Diwani Adalats of Bombay and
Madras. Its reaction was very favotirable and the later records of the Privy Council
showed a great increase in the number of appeals. No doubt it was also realised in
such appeals that there was a lot of inconvenience to the parties as well as invoking
huge expenditures.
(i) Case of Andrews Hunter—It
is a matter of interest to note that before 1833
only 14 appeals were tiled to the Ki
ng-in-Council,
and 2 from Bombay. Andrews Hunter v. Rajah of Burdwanii from Calcutta, I from Madras
23 was the earliest case
that went before the Privy Council. Facts of the case in brief are as follows. On
4-8-1790 Hunter filed a suit against the Rajah for recovery of money advanced to
23. P.C. 2, Vol 150, 130-136; Rarna Jois:
191. LegI and ConstitutionalHjs/o,.ofIndia, Edn 194, Vol. II,
91 APPEALS1O PRIVY COUNCIL 187
his grandmother. Moffussil Diwani Adalat at Burdwan dismissed it on 6-5-1791

holding that the Rajah was not answerable to the debts incurred by his grandmother.
Sadar Diwani Adalat on 23-2-1792 reversed the above finding and remanded the
case for trial on facts. It was again dismissed on 26-11-1793. The judgment was
confirmed in appeal by Sadar Diwani Adalat on 22-11-1795. The Privy Council
affirmed it on 6-2-1798. It took about eight years to finalise the case.
(ii) Reorganisation of the Privy Council.—In order to regulate the system of
appeals to the Privy Council and to define the constitution, composition and
jurisdiction of the Privy Council, William the Fourth passed the Judicial Committee
Act of 1833.24 Under it a permanent body of the Judicial Committee was appointed
to dispose of appeals and other matters of the Colonies. The Act provided for the
appointment of two retired Indian judges as assessors to the Judicial Committee.
They were to attend the sittings of the Privy Council but they were not authorised
to give any vote. This provision helped the Privy Council judges in having full
knowledge about Indian peculiarities and legal position in detail from the Indian
assessors. Under this provision appointments were made from the retired judges of
the Supreme Courts. No retired judge of the Sadar Diwani Adalat was ever appointed
on this post. Thus the condition of valuation of the suit was again imposed. It also
reduced the number of appeals from the courts in India to the Privy Colthl.
(c) Appeals to the Privy Council from High Courts—The Indian High Courts
Act, 1861, empowered the Crown to establish High Courts by Charters. It also
amalgamated the Supreme Court and Sadar Diwani Adalat and Sadar Nizaniat Adalat
at Calcutta, Madras and Bombay. Thus the King's Courts and the Company's Courts
were woven into one chair and they were replaced in each Presidency town by a
High Court in 1862. The High Court at Allahabad was established in 1866.
The Charters establishing the High Courts provided for the cricumstances under
which an appeal will lie from the High Courts to the Privy Council. The Charter
recognised the right of parties to file an appeal to the Privy Council in all matters,
except criminal cases from the final judgment of the High Courts. An appeal was
also allowed from any other judgment of the High Court when the Court certified
the case to be a fit case for appeal to the Privy Council.
The Civil Procedure Code also provided for appeals from the High Courts to
the Privy Council under Sections 109 to 112. An appeal was also allowed where
the High Court certified that the case involved an important question of law and
that it was a fit case for appeal.
Early Charters of the High Courts granted a right of appeal to the Privy Council
from any judgment, order or sentence of a High Court made in the exercise of
original criminal jurisdiction, if the High Court declared that it was a fit case for
appeal. But this power was not of general use. It is said: "The Judicial Committee
is not a revising Court of Criminal appeal, i.e., it is not prepared to re-try a criminal
case. The Judicial Committee shall only interfere where there has been an infringe-
ment of the essential principles of justice. 25 The Criminal Procedure Amendment
24. For details see undcr the heading, ''The Privy Council in England" it) the earlier portion of this Chapter.
25. For appeals in criminal cases, the rule was laid down by Lord Watson in Dil/e '5 case. ()887) 12 App
case 459.
188 TIlE PRIVY COUNCIL
Act, 1943 by Section 411-A laid down certain conditions regulating appeals to the
Privy Council.
(d) The Federal Court under the Government of India Act, 1935.---The
Government of India Act, 1935 introduced a federal constitution' in India in which
the powers were distributed between the Centre and the constituent units. It also
provided for the establishment of a Federal Court. The Federal Court of India was
inaugurated on 1st October, 1937.26
The Federal Court was given exclusive original jurisdiction to decide cases
between the Centre and the constituent units. Its advisory jurisdiction was limited
only to those cases which were referred to it by the Governor-General for its advise
on any legal question of public importance. It also exercised appellate jurisdiction
from the decisions of the High Courts but it was a very limited one. An appeal was
allowed to the Federal Court from any judgment, decree or final order of a High
Court, if the High Court certified that the case involved a substantial question of
law as to the interpretation of the Constitution. The Federal Court had jurisdiction
to grant special leave to appeal, and for such an appeal a certificate of the High
Court was essential.
Section 208 of The Act of 1935 made provision for an appeal to ihe Privy
Council from the Federal Court
It is, therefore, clear that in constitutional matters the Federal Court shared with
the Privy Council in deciding cases. After 1937 it was only in civil cases exceeding
Rs. 10,000 that the appeals were allowed to the Privy Council.
(i) Abolition of the Priv y Council jurisdiction in respect of Indian cases—The
question of abolition of appeals from Indian High Courts to the Judicial Committee
of the Privy Council was under consideration since long. As early as 1933 a White
Paper was issued by the British Government for introducing a constitutional reform
in India. There was a proposal in the White Paper regarding the establishment of a
Supreme Court apart from the Federal Court, to hear final appeals from the Indian
High Courts. The Government of India Act, 1935 established a Federal Court and
instead of creating any other higher appellate court it provided for the enlargement
of the jurisdiction of the Federal Court in future.2
(ii) The Federal Court (Enlargement of Jurisdiction) Act, 1948.—The British
Parliament declared India as an Independent Dominion on the 15th of August, 1947.
It was considered essential to make necessary changes in the old system of appeals
to the Privy Council. The Central Legislature of India passed the Federal Court
(Enlargement of Jurisdiction) Act, 1948. The Act enlarged the Appellate jurisdiction
of the Federal Court in all civil cases as was permissible under Section 206 of the
Government of India Act, 1935. It abolished the old system of filing direct appeals
from the High Courts to the Privy Council either with or without special leave. But
the provisions of this Act were not applicable to the appeals which were either
already pending before the Privy Council or in which special leave was already
granted by the Privy Council.
26. The first meeting of the Federal Coon was held on 70 December, 1937; See Ch. 10 entitled The
Federal Court of india".
27. Section 206. The Government of India Act, 1935. See also Sir H ari Singh Gour, 'Plea for Abolition
of the Privy Council ' S, 1946 AWR 5; Editorial Note: 'Indian Branch of Priv y Council 50 CWN 91.
91 EVALUATION OF THE PRIVY COUNCIL 189
(iii) Abolition of the Privy Council Jurisdiction Act, 1 949.—It was passed by
the Constituent Assembly on 24th September, 1949. According to the provisions of
Sections 2 and 3, the jurisdiction of the Privy Council to entertain any new appeals
and petitions and to dispose , of any pending appeals and petitions except those set
down for hearing during the next sitting of the Council, ceased to exist from 10th
October, 1949. Thus six appeals which. were then pending before the Privy Council
were transferred to the Federal Court of India.
Under Section 5, the Federal Court was given all the powers and jurisdictions
which were given to the Privy Council in connection with the hearing of appeals
from Indian High Courts. It was recognised as an interim measure as the new
Constitution28 of India was then in the making.
The case of N.S. Krishnaswami Ayyangar v. Peruinal Goundan 29 , from Madras,
was the last appeal from an Indian High Court which was disposed of by the Privy
Council on 15th December, 1949. It was a claim by ryots to a permanent tenancy
of their holdings under the Madras Estate Land Act and the appeal was dismissed
by the Privy Council.

During the period 1726 to 1949 and especially from 1833 onwards, the Privy
Council played a very important role in making a unique contribution to the Indian
law and the judicial system as a whole. It has pronounced over 2500 judgments
during its career. It laid down fundamental principles of law in a lucid manner for
the guidance of Indian Courts. It was a great unifying force in the judicial admin-
istration of India.
The law declared by the Privy Council in the pre-Constitution period is still
binding on the High Courts except in those cases where the Supreme Court of India
has declared law in its judgments. 3° It shows the amount of respect which the Indian
High Courts still have for the Privy Council judgments. In the fields of Hindu law
and Mohammedan law, though at times defective law was laid down, the contribution
of the Privy Council is remarkable.
No doubt there were certain defects in the constitution of the Privy Council
e.g., (1) for long it was staffed by English Judges only, (ii) its location was England,
its appellate jurisdiction was considered a symbol of slavery, (iii) absence of local
knowledge of the Court and the counsel engaged in England was a great hinderance
and disadvantage to the litigant, (iv) consequently the Indian points of view could
not be appreciated, (v) it put the poor at a great disadvantage, (vi) and in certain
cases its view was not impartial. 31 Still, the Privy Council commanded great respect
amongst lawyers, Judges and the Indian public as the highest judicial institution. Its
contribution to statute law, personal law, commercial law and criminal law, was of
28. The new Constitution of India came into force on 26th January, 1950 and India was declared a
Sovereign Democratic Republic. The Constitution under Au. 124 established a Supreme Court of India.
29. AIR 1950 PC 105:64MLW 1.
30. The view taken by Nagpur and Bombay High Courts that the pre-Constitution judgments of the Privy
Council are binding on all courts in India except the Supreme Court, till the Supreme Court takes a
different view, is considered io be the correct view. See Punja&ai Y. Sha,nrao, AIR 1955 Nag 293;
Store of Bombay v. chag.ganeal, 56 Born LR 1034 (FB). See also Stare of Gajomt Y. Vera Fiddalli,
(1964)6 SCR 461, 590 (Mudholknr. J.j.
31. M.C. Secalvad: War and Civil Ltheriies, 66-67.
190 THE PRIVY COUNCIL
great importance. Even in Independent India up to 1949, the Privy Council decided
many important cases. 32 The principles of integrity, impartiality, independence and
the rule of law, which were laid down by the Privy Council are still followed by
the Supreme Court of India. Till the Supreme Court of India takes a different view,
the view taken by the Privy Council is binding.
The Privy Council served the cause of justice for more than two hundred years.
Shri K.M. Munshi, an eminent member of the legal profession. the Constituent
Assembly and statesman of India, speaking on the occasion of the abolition of the
Privy Council's jurisdiction over India said:
"The British Parliament and the Privy Council are the two great institutions
which the Anglo-Saxon race has given to mankind. The Privy Council during
the last few centuries has not only laid down law, but co-ordinated the concept
of nght a.nd obligations throughout all the Dominions and the Colonies in the
British Coin monweaith. So far as India is concerned the role of the Privy
Council has been one of the most important one. It has been a great unifying
force and for us Indians it became the instrument and embodiment of the rule
of law, a concept on which alone we have based the democratic iflStitutjon
which we have set up in our Constitution."33
As noted by Rama Jois M , its contribution and mode] is of eternal value, and a
source of inspiration to all those concerned with the administration of India.
. .."
.j •p • , -. .,.
t.'.
• •. . .... .,. .. .:_ ..
• - .••,.
r
...............
• .. ...
32. A remarkable appeal which came before the Privy Council was in 1946 in Srinuu, Bibhabati Devi v.
Kumar Ramendra Norayan Roy.
AIR 1947 PC 19. Indian appeals heard by the Privy Council in the
last four years were: 1946 . 47; 1947-48; 1948-49, 1949-50. See J.P. Eddy. 'India and the Privy
Council. The Last Appeaj'6lJR2cy7l4
33 Rama Jois: Legal and ConsziiujjanaJ His;or' of India,
34. Ibid. 1984 Edn., Vol. II, 198
10
The Federal Court Of India

'A federal constitution involves a distribution of powers between the Centre and the
Constituent units. Report of the ft. Committee on Indian Constitutional
Reform. p. 193 (1934)
it is at once the interpreter and guardian of the Constitution as well as a tribunal
ftn' the determination of
disputes which often arise between the constituent units and the
Federati on, or amongst the Constituent units inter se.'
I Fed. Law ii., 27-36(1938); Pylee: The Federal
Court of India, (1966); Jam: Outlines
Indian Legal History (1972), Ch. 20, p. 399of
The Federal Court was a product of constitutional curiosity.., built up great traditions of
independence, impartiality and integrity which' were inherited by its -successor, i/ic Supreme
Court of India,
- The Author, infra
SYNOPSIS
1. Public Opinion and early efforts up to 1935
(i) In constitutional cases
2. Foundation of ihc Federal Court
(ii) lit civil cases
(a) Inauguration
(so) In crirnjnaj matters
(b) Appointment of Judges
(c) Advisory jurisdiction
(c) Qualifications
4. Form of Judgment
(d) Salaries
5 Aulhority of Law laid down by Federal Court
Jurisdiction of the Federal Court
6. EApanton of Jurisdiction
T Abolition of Federal Court
R The Federal Court: An Assessment
Public Opinion and early efforts up to 1935

Before the Federal Court of India was established under the Government of
India Act, 1935, the British Parliament was seriously
considerin g to tackle the
problem of creating a central court of final appeal in India. It was partly due to the
growing trend of the Indian public opinion in favour of stopping appeals to the Privy
Council from Indian High Courts and also partly due-to the emerging federal-struc-
ture of the British Empire in India.
As early as 1921,
Sir Hari Singh Gour' was the first person in the legal history
of India, who realised the necessity of establishing
i an all-India court of final appeal
in India in place of the Privy Counc
l. With this aim in view, he introduced a
resolution on 26th March, 1921 in the Central Legislative Asscmh!y, which stated'
"This Assembly recommends to the Governor -General-in-Council to be cc
pleased as to take early steps to establish a Court Of Ultimate Appeal in India for
the trial of Civil Appeals now determined by the Privy Council in England and as
the Court of final appeal against convictions for serious
offences occasionin g the
failure of justice.'
While introducing the resolution, Sir Harm Singh (iour laid special emphasis on
six important points which were as follows: (i) the Judicial Committee of the Privy
I. Sir Hari Singh Gout was the famous Advocate and founder of the Sagar University in
Madhya Pradesh
For details regarding his constant efforts in the Central Legislative Assembly for the creation of a
Central Court in India, see George H. Gadbois, Jr.,
Footnote, it) (1963) 5 JILl, 19-45. See also Evolution oft/ic Federal Court of India - Historical
2. Legislative Assembly (India) Debates Legislative Assembly (India) Debates, 1921-27.
(1921), Vol. 1, 1606.
11911
192 THE FEDERAL COURT OFINDIA [CHAP.
Council was not a tribunal or a court but merely an advisory body constituted and
intended to advise the King in his capacity as the highest tribunal for his Dominions;
(ii) since Canada, Australia and South Africa had such a tribunal there was no reason
whatever why we should not have a Supreme Court of our own in this country; (iii)
the expense of an appeal to the Privy Council was prohibitive; (iv) the distance from
India of the Privy Council resulted in unnecessary delay (four to five years in many
cases) in the final disposition of cases; (v) the Judicial Committee was not equipped
to decide cases involving the intricacies of Hindu and Mohammedan laws; and (vi)
the Privy Council refused to hear any criminal appeal unless there had been a gross
failure of justice in the Indian Court.3
Somehow the debate on Sir Hari Singh Gour's resolution was postponed. Alien
eighteen months he again tried to introduce 'a Bill to establish a Supreme Court
for British India". Though consideration of such a Bill was not allowed but
discussion on the resolution was allowed.' Unfortunately the Gout Resolution was
defeated. Again in 1924 and 19256 he moved the resolution but without success.
In the Council of States a similar resolution was moved but the opinion was
divided. The Indian Central Committee was convinced of the necessity for estab-
lishment of a Supreme Court. In the first and second session of the Indian Round
Table Conference in 1930 and 1931 the importance of this issue was recognised
while the Third Report expressed "a strong opinion" in favour of creating a Supreme
Court.7
During the period 1931-32 i.e. between the Second and Third Sessions of the
Round Table Conference, the Legislative Assembly of India also considered a
resolution for the "establishment of the Supreme Court in India" which was
introduced by B.R. Puri and it was fortunately passed in the Legislative Assembly.
The Joint Select Committee of both Houses of Parliament in its report in
November 1934 recommended only for the establishment of one Federal Court in
India. 8 Accordingly the British Parliament passed the Government of India Act in
1935. It also provided for the establishment of a Federal Court of India.
2. Foundation of the Federal Court

The Government of India Act, 1935 changed the structure of the Indian
Government from "Unitary" to that of the "Federal" type.9 It established the
foundation for a Federal framework in India. A Federal Constitution, it must be
noted, involves a distribution of powers between the centre and the constituent units.
As expressed by Pylee, it is at once the interpreter and guardian of the Constitution
3. at,veAs3embly (India) Debates (1921), Vol. I, 1606.

4. Dr. Tcj B.hadur Sapru raised the question—whether the Legislative Assembly had the power to
establish a court which would be superiur in jurisdiction to the High Courts ar,J be concluded that it
e
did not. See L gislative Acsesnb!y(hidEa) Debates (1922), III, September 20, 1922. 712.
5. Legislative Assembly (India) Debates (1924), IV, Fsniary 15, 1924, 191.
6. Ibid (1925), V, February 17, 1925, 1160.
7. See Legislative Assembly (India) Debases (1924) 1 IV, Feb. IS, 191. (1925), V Feb. 17. 1160; Council
of Stales Debates, 1927, II Aug. 31 1927. 885, 967; Indian Round Table Conference (1st Session)
Proceedings, Cind. 3778(1931), XII, 417; Cmd. 3997 (1932), para 52, 27, par 63,31
8. For details, see article by George H. Gadbois, "Evolution of the Federal Court of India! An Historical
Footnote ",(1963)31ILl 19-44
9. See M. Ramaswarny, The Law of the Indian Constitution (1938), 85-98.
10] FOUNDATION OF THE FEDERAL COURT 193
as well as a tribunal for the determination of disputes which arise between the
constituent units and the Federation, or amongst the constituent units inter se'0.
Under such circumstances the establishment of a Federal Court was essential and
for which the Government of India Act, 1935 made specific provisions. Section 200
of the Act provided for the establishment of a Federal Court in India."
(a) Inauguration.—On 1st October, 1937, the Federal Court was inaugurated
at Delhi and the Viceroy administered the oath of allegiance to three Judges of the
Court, namely, Chief Justice Sir Maurice Gwyer 12 , and two puisne Judges, Sir Shah
Muhammad Sulaiman 13 and Mukund Ramrao Jayakar' 4 . At the time of the inaugur-
ation of the Federal Court, the Chief Justice remarked, "...there are in India today
no longer a number of provinces under the tutelage of a Central Government but
eleven autonomous states, for so indeed I may call them, pulsing with a vigorous
life of their own and dividing with the Government of India the legislature and
executive powers of Government."5
The Government of India no doubt established a Federal Court but its jurisdic-
tion was very limited and even in those cases appeals were allowed to the Privy
Council. In words of Dr. lain, the system of appeals from the High Courts to the
Privy Council, which had been in operation hitherto, was left intact and unaffected.
What was therefore done at the time was to interpose the Federal Court between
the High Courts and the Privy Council for only that restricted category of cases in
which a question of constitutional law was involved.16
The Federal Court was a Court of Record. It sat at Delhi and at such other
places as the Chief Justice of India may declare, with the approval of the Governor-
General of India, from time to time.
(b) Appointment of .Judges.—The Federal Court was to consist of a Chief
Justice and not more than six puisne judges, who were to be appointed by the King.
The King could increase the number of judges. Every Judge of the Federal Court
of India was appointed by His Majesty and was to hold office till the age of sixty-five
years. A judge could be removed from his office on the grounds of misbehaviour
or infirmity of mind or body, on the recommendation of the Judicial Committee of
the Privy Council.
(c) Qualifications—For appointment of a Judge in the Federal Court, the
qualifications were: (i) five years' experience as Judge of a High Court, or (ii) a
barrister or an advocate of ten years' standing, or (iii) a pleader in a High Court of
ten years' standing.' 7 As regards the appointment of the Chief Justice, it was
provided that a person should have either fifteen years' experience of standing in a
10. I Fed. law ii., 27-36 (1938) Pyke. The Federal Court of India (1966): Jam. Outlines of Indian Legal
History, 1972, Ch. 20, 399
11. For details, see George H. Gadbois, Jr., The Federal Court of India: 1937-1950, (19(>4)6 JILl 253-315.
See also MV. Pylee, The Federal Court of India (1966),33-100.
12. He was an Englishman who had no Indian experience but was associated with the preparation of the
Act of 1935. He retired in 1943.
13. He was Chief Justice of the Allahabad High Court
made
14. He was a leading Advocate of Bombay. After a year he was promoted and Privy Councillor due
to his unique qualities.
15. F.L.J. Vol. 1,31-32.
16. Jam: Outlines 6f Indian Legal Hrsrory, JWZ, Ch. XX, 400.
17. The Government of India Act, 1935, Section 200(3) (a). (b), (c).
194 THE FEDERAL COURT OINDIA

ICHAP
High Court as a barrister, advocate or pleader or have been one when first appointed
as a Judge. Thus preference was given to the professional persons in the appointment
of Judges.
(d) Sal aries.—The
Judges of the Federal Court were entitled to such salaries
and allowances and to such rights in respect of leave and pensions., as were laid
down by His Majesty from lime to time) 8
The Federal Court Order-in .çnu of
1937 fixed the salary of the Chief Justice at Rs. 7,000 a month and of other Jude"
at Rs. 5,000 a mouth. They were specially paid high salaries so that they would
keep a high standard of living, befitting their high positions.
3. Jurisdiction of the Federal Court
Under the Government of India Act, the Federal Court was given three kinds
of jurisdictions, namely: (i) Original, (ii)
Appellate, and (iii)
empowered the Federal Legislature to pass an Act enlarging theAdvisory.
appellate Section 206
of the Federal Court in civil cases to its full extent. jurisdiction
From 15th August, 1947, two independent Dominions -- India and Pakistan -
came Into existence and they were given full sovereignty by the British
Parliament.
As regards the constitutional Jaw to govern the Dominions, it was laid down that
the Act of 1935 should be used with certain necessary changes in it. Under tile
powers gi v
en by Section 206 of the Act, the Federal Court (
Jur E nlargement of
isdiction) Act, 1947 and the Abolition of the Privy Council Jurisdiction Act. 1949
were passed in the Indian Dominion to meet the new situation after independence
Both these Acts enlarged the jurisdiction of the Federal Court of India
which
continued its existence up to the establishment of the Supreme Court of India on
26th January, 1950 under the
flew Constitution of India.
(a) Original jurisdico nSectjon
204 of the Act of 1935 (as subsequently
amended) provided that the original jurisdiction of the Federal Court was confined
to disputes between Units of the Dominion or between the Dominion and any of
the Units. In the exercise of the original j u
risdiction, the Federal Court had no power
to entertain suits brought by private individuals against the Doniinion.
The original jurisdiction was however cir
cumscribed by the provisions contained
in Section 204. The Court was not authorised to enforce its own decisions
directly
but with the aid of civil and judicial authorities throughout the
F ederation. It was
not to pronounce any judgment in its original jurisdict
i on 19, other than a declaratory
judgment.
The decisions of the Federal Court under its original jurisdiction were not
necessarily final pron
ouncements in the disputed matter. Section 208 provided for
a right of appeal to the Privy Council from the judgments of the Federal Court in
the exercise of its original jurisdiction, i f
Of the Constitution Act or of any such decisions involved an interpretation
O rder-in-Council made thereunder.
IS. Section 201

19. The Federal Court exercised its orIg1 naIjurisdtcoi
v i in three important cases, namely,
1939 FC 124; G ermr.Geru!j,jrou,,i, United IfOV/J?C('
Mathjc 1943 FCR I and Rwnparh Stn,e v. v Pr(tvj,(C
Provj,,, of IJiJuir, 1948 FCR 79 f
10) JURISDICTION OF THE FEDERAL COURT 195
(b) Appellate jurisdiction.—The; Federal Court exercised appellate jurisdiction

in constitutional cases under the Act of 1935, its appellate jurisdiction was extended
to civil and criminal cases from 1948,
(i) in constitutional cases.—Section 205 of the Government of India Act, 193520
made provision for an appeal to the Federal Court "from any judgment, decree or.
final order of a High Court if the High Court certifies to the effect laid down in
the section."
No appeal was allowed to the Federal Court in the absence of a certificate from
British Indian High Courts or State High Courts. The certificate was a condition
precedent to every appeal. The Federal Court was not given power to question the
refusal of a High Court to grant a certificate or Investigate reasons which prompted
the refusal. 21 In the later years, the Federal Court criticised certain Hi gh Courts for
granting certificates in instances in which the Federal Court believed none should
have been issued. In J.K. Gas Plant Manufacturing Co. (Rarnpur) Ltd. v. King
Emperoi22 , it was emphasized by the Federal Court that a certificate should not be
issued unless the appeal was in fact from a "judgment, decree or final order" i.e.
unless the decision of the High Court was a final determination of the rights of the
parties.23
Section 207 of the Act of 1935 empowered the Federal Court to hear appeals
from the High Cc'rt in Acceding States on questions relating to constitutional
matters.
Under Section 205 of the Federal Court iEriiargemenr of Jurisdiction) Act, 1947,
the Federal Court was empowered to consider appeals which were competent.
(ii) in civil cases.—Since 1948 civil appeals, which formerly went to the Privy
Council, were heard by the Federal Court of India under the FederI Court (En-
largement of Jurisdiction) Act, 1947. Section 3 of the said Act of 1947 provided
that from 1st February, 1948 an appeal shall lie to the Federal Court, in civil cases,
with or without the sepcial leave of the Federal Court as provided. No direct appeal
shall lie to His Majesty-in-Council from such judgment. The Court was competent
to consider the nature of question as mentioned in Section 205.
(iii) In criminal matters.—The Federal Court (Enlargement of Jurisdiction) Act,
1947, enlarged the jurisdiction of the Federal Court in India and in 1949 the system
of appeals from India to the Privy Council was totally abolished. The Federal Court
of India as such followed the same principles (after 148) as were followed by the
Privy Council in the exercise of its appellate jurisdiction in criminal matters.
There was no provision to appeals to the Privy Council in criminal proceedings
as of right, without special leave from the judgments of a High Court. From 1943
appeals could be made under a certificate granted by three Presidency High Courts
(Section 411-A of the amended Cr. P.C.) No other High Courts had such power.
The Privy Council could grant special leave for appeal following the principle laid
20. M amended hi 1947-

21. 1'zchuçxin Bharn v. Sec relary of State for India-in-Council, 1939 FCR 13, Luk/wi kani v. Be/tarilal
Misir, 1939 FCR 121.
22. 1947 FCR 141; S. KuppuswanziRao v. King. 1 947 FCR 180; Re.tv. AMuIMajid. 1949 FCR 29
23. See also George H. Gadbois, Jr.. 'The Federal ('ourt of india', 1937-50, ()964) 6 IlL! 262.
THE FEDERAL COURT OF INDIA [CHAP.

196
down in Dillette case. Violation of the principles of natural justice and grave
injustice were also the reasons for granting leave to appeal.
In Mohinder Singh v. Emperor25 , their Lordships of the Privy Council said:
"Their Lordships have frequently stated that they do not sit as a court of Criminal
Appeal." For them to interfere with a criminal sentence, "there must be something
26
so irregular or so outrageous as to shock he very basis of justice-
The Federal Court while exercising its criminal jurisdiction was guided by the
principles already laid down by the Privy Council.
(c) Advisory jurisdiction.—Section 213 of the Act of 1935 (as amended)
empowered the Federal Court to give advisory opinion to the Governor-General.
The Governor-General was not bound to accept the opinion of the Federal Court
which was given under Section 213. Moreover the court was not bound to give its
opinion in every reference made to it. The real intention of this provision appears
27
to be that the Federal Court would not refuse "except for good reasons"
The Federal Court of India was called upon to give its advisory opinion in four
cases 28 and in each case it gave its opinion but not without expressing, on occasion,
some misgivings about both the expediency and utility of this consultive role.29
4. Form of Judgment
The Federal Court of India, as provided by Section 209 of the Act of 1935,
had no machinery of its own to execute its judgments. It was sending back the case
with its decision to the respective High Court so that its order could be substituted
for the order of the High Court.
The provisions of Section 209 were amended by "The Privy Council (Abolition
of Jurisdiction) Act, 1949". Its effect was that the Federal Court's orders were made
enforceable in the manner as provided by the Civil Procedure Code or by any law
which was made by the Dominion Legislature.
Section 215 empowered the Federal Legislature to make provision for conferring
upon the Federal Court such supplementary powers not inconsistent with any of the
Acts as may appear to be necessary or desirable for the purpose of enabling the
court more effectively to exercise the jurisdiction conferred upon it by or under the
Act of 1935.
S. Authority of Law laid down by Federal Court

Section 212 of the Government of India Act, 1935 provided that the law declared
by the Federal Court and any judgment of the Privy Council will be binding on all
the courts in British India. It introduced the English Doctrine of Precedent in India.
24. (1887) 12 App Cas 450.

25. (1932) 59 IA 233.
26. Sec also Muhammad Nawaz v. Emperor, AIR 1941 PC 132. In ibis case the Privy Council speciFically
laid down grounds on which it will interfere in a criminal case
27. Levy of Estate Duty, Re, AIR 1944 FC43.
28. Four cases were—Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,
1938, Re, 1939 FCR 18; Hindu Women's Right to Properly Act, 1937. Re, and !lfridu Women's Right
to Property (Amendment) Act, 1938, 1941 FCR 12; Allocation of Lands and Buildings in a Chief
Commissioner's Province, Re, 1943 FCR 20 and Levy of Estate Duly, Re, 1944 FCR 317.
29. See George H. Gadbois, Jr., The Federal Court of India, (194) () JILl 253, 281).
10) ABOLITION OI THE FEDERAL COURT

197
Thus the High Courts and subordinate coons in British India were absolutely bound
by the decisions of the Privy Council and the Federal Court.
Even before the Government of India Act, 1935 the Privy Council laid down
in Maza Prasad v. Nageshwar Sahai° ......
that it was not open to the courts in India
to question any principle enunciated by this Board, although they have a right of
examining the facts of any case before them to see whether and how far the principle
on which stress is laid applies to the facts of the particular case."
6. Expansion of Jurisdiction
The Federal Court of India, which was established under the Government of
India Act, 1935, was initially given limited jurisdiction. With the passing of the
Indian Independence Act of 1947 a new chapter began, not Only in the political
history of India but also in the judicial history of India. There was a geographical
reduction in the jurisdiction of the Federal Court to the extent of those areas of the
sub-continent which became Pakistan.
Indian leaders declared to follow the Act of 1935 as the framework of govern-
ment until a new constitution was drafted. This policy declaration and the Federal
Court Order, 1947 made a remarkable contribution to the smooth transition in the
judicial sphere. The Federal Court and the High Courts continued as subordinate
courts to the Judicial Committee of the Privy Council for the time being.
The first significant step in the judicial sphere to bring autonomy was taken in
December 1947 when the Federal Court (Enlargement of Jurisdiction) Act, 194732
was passed. Its aim was to meet the growing national demand and satisfy public
opinion in India. It enlarged the appellate jurisdiction of the Federal Court so as to
have civil appeals from the Indian High Courts. It stopped the old system of direct
appeals from the Indian High Courts to the Privy Council. It was still possible to
take a civil appeal from the Federal Court to the Privy Council. Though this Act
enlarged the jurisdiction of the Federal Court but in no way did it severe India's
ties with the Privy Council. In civil, cases the Privy Council was still allowed to
grant special leave after the judgment of the Federal Court. The rein.airiing jurisdic-
tion of the Privy Council continued as it was before 1947
7. Abolition of Federal Court
In 1949 the Constituent Assembly decided to give full judicial autonomy to the
Indian judiciary. The draft of the new Constitution of India was at its final stage
and the leaders wanted to give it a smooth transition. The Assembly, therefore,
passed the Abolition of the Privy Council Jurisdiction Act in 1949,33 The Act came
into force from 10th October, 1949 and it severed all connections of the Indian
Courts with the Privy Council. The Act repealed Section 208 of the Government of
India Act, 1935 which was the basis of the Privy Council's appellate jurisdiction
over the Federal Court. It transferred all the pending appeals, except those which
were at an advanced stage, to the Federal Court of India for final disposal. The last
30. AIR 1925 PC 272. 279.
31. Notification No. 0.0.0. 3,
published in the G.izene of India, Extraordinary, August II, 1947,
32. It is aLso kciowm as Act I of 1948. See Consiitwe,j lAr.ce:nbl
y oJ'Indin (Legiskan'e) Debates, III. (1947),
December 11. 1947, 1708-27.
33. Act No. V of 1949, published in the Gazette of India, Extraordinary, September 28, 1949
198 THE FEDERAL COURT OF INDIA
appeal disposed of by the Privy Council was on 15th December, 1949 in the case
of N.S. Krishnrjswami Ayyangar v. PerinioJ Goundan 4 . With the enactment of the
Act of 1949 began the "Period of Federal Court's Golden age" which lasted till
the establishment of the Supreme Court of India on the 26th of January, 1950. Under
the Constitution of India, India became a "Sovereign Democratic Republic".
8. The Federal Court: An AsSessmexlt

The Federal Court of India was established in October, 1937 and was superseded
by the Supreme Court in 1950. F)ui-ing this short period of a little more than twelve
years, it left a permanent mark on the legal history of India. It was not only the
first Constitutional Court but also the first all-India Court of extensive jurisdiction.
The Court was liberally conceived by the British Authorities as an indispensable
adjunct to the Federation envisaged by the Government of India Act of 1935. During
the transitional period in the Indian history, when there was no written Constitution,
in a sense it was the product of a constitutional curiosity. It functioned successfully
and effectively in the absence of essential federal agencies such as a Federal
Executive and Federal Legislature. The Federation itself was incomplete. Neverthe-
less the Federation of as many as eleven Indian Provinces into an organic whole
was by no means negligible; and the situation enhances the importance of the role
which the court played in somewhat difficult and depressing circumstances. In spite
of its limitations and short life it made a noteworthy contribution to the functioning
an all-India court such as the Supreme Court.
During the period 1937-50, two English Chief Justices 35 and six Indian Justices
36
sat on the Federal Bench. Sir Shah Sulaiman, Dr. M.R. Jayakar, S. Varadachariai,3'?
Sir Mohammad Zafrullah Khan, Sir Harilal J. Kania 3 and Sir Fazal Ali were the
six Indians who got the rare distinction of being Judges of the Federal Court of
India. They maintained the noble traditions of the great Judges of Britain. They
contributed a great -deal to the establishment of a sound federal judiciary in India.
The Federal Court built up great traditions of independence, impartiality and integrity
which were inherited by its successor, the Supreme Court of India.
M. AIR 1950 PC 105. See also Eddy. India and the Privy Council: The Last Appeal. (1950)66 LQR
214.
35. Sir Maurice Gwyer was the first Chief Justice of the Federal Court of India. He retired in 3943 and Sir
Patrick Spens was appointed Chief Justice of the Federal Court-
36. Dr. M.R. Jayakar was made Privy Councillor within a year after his appointment as Judge of the Federal
Court.
37. He was in the Federal Court for the longest term of office LC., seven years.
38. 1 Ic was made the first Chief Justice of the Supreme Court of India in 1930.

11
The Supreme Court of India

"Law declared by the Supreme Court shall be binding on all courts
Article 141, Constut ion of India
Special Courts Bill, 1978, Re, (1979)1 SCC 380
'The better wisdom of the Court below must yield to the higher wisdom
above," of the Court
—0. Chinnnppa Reddy in Assit. Collector v.
Dunlop India Ltd., (1985) I SCC 260, 268
"The doctrine of binding precedni has the merit of promoting certainty and consistency
in judicial decisions, and enables an organic development of the law, besides providing
assurance to the individual as to she consequences of transactions forming part
affairs." of his daily
Pathak Cl., (1989) 2 SCC 754, 766
"A decision is available tsr a precedent only if
it decides a question of law"
L.M. Sharma, J., (1992)1 SCC 489, 491
a judgement should be understood in the light of (acts of that case and no more
should ha read into it than what it actually says."
B.P. Jeevan Reddy, J., (1993)2 SCC 368, 393
"Laws made by the Supreme Court are not merely matters of individual opinion, they
are products of
Judicial functioning having binding force. In India, the Judges of the Supreme
Court make law on the basis of objective test and nothing is left to chances Faith, devotion
and respect to the Supreme Court resulted in installing Article 141 in
141 is the heart and soul of the Constrtu.i'ion Aricle
t
and i mpregnated arid colouredthe Constitution. Why should pure light of truth be broken up
with any element, when the light has Come from the Supr',rje
Court"
---K.N. L'ihiri, Acting CJ in
Collector of Kamrup v. Anwidi Dcvi, AIR 1987 Gau 13, 16
"Precedents keep the law predictable and so more or less oscertui,,k
—Lord Devlin
"Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and
respectful, though outspoken comments of ordinary men."
--Privy Council in Amixird v. A.G. for
Trinidad & Tobago, 1946 AC 335
"Judiciary is watching tower above all the big structures of the other limb.r
from which it keeps a watch like a sentinel. .....— Per of the State
Sankalchand H. Shah, (1977) 4 SCC 193 Justice Untwalia in Union of India v.
The judicial system only works if some one is allowed to have the last
that last word once spoken is loyally accepted". Word and if
-. -Lord Diptock. (1972) I All ER 801, 874
SYNOPSIS
1. Origin
2. constitution (I) Article 143
(a) Number of Judges (ii) Exptanatin
(iii) C,w&s
(1') Appoiazsnem of Judges
(iv) Scope
ft) Qualifications
(d) Power to review judgments
(ml) Removal
(e) Enlargement of jurisdiction
(C) Salaries and allowances
(f) Power to punish foi COiitciitpt
If) Acting Chief Justice and ad hoc Judges
3. Jurisdiction and Powers (g) Enforcement of clecj'ccs, orders, etc
(h) Ancillary powers
(t) Power to issue writs
(j) Other powers
(0 In constitutional matters
(k) Conclusion
(ii) In civil matters 12. Doctrine of Precedents and the Supreme
(iii) In criminal matters Court
(iv) Special jurisdiction 13. Recomencjatjons of the Law Commission
(c) Advisory jurisdiction 14. Recent Changes
199]
THE SUPREME COURT OF INDIA [CHAP.

200
Every country in the world has a supreme judicial authority to administer justice
In England it is the House of Lords; in U.S.A. the Judiciary Act of 1789 established
the Federal Supreme Court. The Supreme Court of Canada was established by an
Act of the Imperial Parliament in 175. In Burma, the highest court of appeal is
known as the Supreme Court of Burma. In Australia, the"highest court is known as
the High Court of Australia while the State Courts are known as the Supreme Courts.
Its constitutional provisions are based on the analogous provisions contained in
the Government of India Act, 1935 regarding the Federal Court. Compared to the
Federal Court the Supreme Court exercises much wider powers, it is quite mdc-
pendent and it combines in itself the functions and powers both of the Federal Court
and the Privy Council.
As compared to the Supreme Courts of other countries, the Supreme Court of
India is a unique judicial institution, entrusted with large powers enjoying original,
appellate, revisional and advisory jurisdictions and has the power to issue writs to
the Union and State Governments and other authorities. It can also interfere with
decisions of courts and tribunals in appeal by special leave. Thus it is at the apex
of the entire judicial system of the country:
1. Origin
Even before the new Constitution of India came into force the question regarding
the establishment of a Supreme Court engaged the attention of some Indian jurists)
In previous chapters a brief account of the constant efforts which were made from
1921 onwards, to establish a Supreme Court, is given.t
With the transfer of political power from the British Parliament to the people
of India," under the Indian Independence Act, 1947, it was considered necessary to
establish a separate judicial organ in India. supreme in authority and in jurisdiction.
Steps were taken to enlarge the jurisdiction of the Federal Court of India and the
Federal Court (Enlargement of Jurisdiction) Act, 1947 was passed. It stopped all
direct appeals, in civil matters, to the Judicial Committee of the Privy Council from
1st February, 1948. It was provided that the appeals from the Indian High Courts
would lie first to the Federal Court' and thereafter a further appeal to the Privy
Council was allowed. The Constituent Assembly of India, therefore, passed in
October, 1949 the Abolition of the Privy Council Jurisdiction Act, 1949 which
abolished the system of appeals in civil and criminal matters to the Privy Council.
The Federal Court of India was thus made the highest judicial authority as the
jurisdiction of the Privy Council was transferred to it.
A new in the legal history of India began on 26th January, 1950 when the
Constitution of India came into force. Under Article 124 it provided for the
1. Sir Han .Singh Gout, Sir Tej Bahadur Sapru, Pandit Moti Lal Nehru, M.A. Jinnah. etc See also Sir
Hari Singh Gout, Future Constitution of India; Sir Tej Bahadur Sap' u. The Indian. Cansututrr;n
2. chapters IX and X.
3. See l.zgislative Assembly Debates, (1921). I. 1606-10; (1922) III. 712-840. (1924) IV, 191; V.
1160-80; Council of State Debates, (1927), II. 885-907: Proceeding of The Indian Round Table
Conference (First to Third Sessions), K.N.Kaksar and K M. Pannikar. Federal India, 20-129, George
H. Gadbos, "Evolution of the Federo! Court of India: A Footnote". (1963)S JILl 19.
4. See V.P. Menon, The Transfer of Power in India: E W.R. Lumby, The Transfer of Power in India
1945-47; Dwarkadas Kanji, Ten Years to Freedom.
5. M.P. Pylec. The Federal Court of india, 64-100 ES Sunda, Federal Court of India' A Ca,, cot utional
Study.
IIJ SUPREME COURT UNDER THE CONSTITUTION 201
establishment of a Supreme Court of India. The seat of the Supreme Court as per
Article 130 was to be in Delhi. It further empowers the Chief Justice of India to
hold the sitting of the Supreme Court at any other place or places subject to the
prior approval of the President of India. The Supreme Court of India was inaugurated
an 28th January, 1950 in the Court House, New Delhi. It was presided over by
Hon'ble Sri Harilal 5. Kania, Chief Justice of India.6
Sri M.C. Setalvad 6 delivered the welcome address and Chief Justice Kania 7 , in
his inaugural address, highlighted the status and independence of the Supreme Court
as follows:
"The Supreme Court, an all-India Court, will stand firm and aloof from
party politics and political theories. It is unconcerned with the changes in the
government. The Court stands to administer the law for the time being in force,
has goodwill and sympathy for all, but is allied to none."
2. Constitution
(a) Number of Judges.---Article 124 of the Constitution of India provides for a
Chief Justice of India and not more than seven other Judges until Parliament by law
prescribes a larger number. The prescribed limit of seven judges was raised to
thirteen by the Supreme Court (Number of Judges) Act, 1960, and to seventeen by
Act 48 of 1977 and to twenty five by Act 22 of 1986 and up to March, 1995 this
number has remained constant.
(b) Appointment of Judges.—The President of India appoints every Judge of
the Supreme Court by warrant under his hand and seal after consultation with such
of the Judges of the Supreme Court and of the High Courts in the States as the
President considers necessary for such purpose. While appointing a Judge other than
the Chief Justice, the Chief Justice of India will always be consulted 5 by the President
of India. It is customary in India to raise the seniormost Judge to the office of the
Chief Justice of India whenever a vacancy occurs in that office. However a break
in this practice was made on April 26, 1973 when Mr. Justice A.N. Ray was
appointed the Chief Justice in supersession of three senior Judges 9 and again on his
retirement Mr. Justice M.H. Beg superseded Mr. Justice H.R. Khanna. This shows
that the promise 10 projected by the first Chief Justice of India, that the appointment
would be on merits and without political considerations has not been honoured by
the Government. A non-political judiciary is desirable.
(c) Qualifications—As regards the qualifications for appointment of a Judge of
the Supreme Court, the Constitution provides that only a citizen of India will be
eligible for such an appointment. In addition, he should have been a 1-11 g b Court
6. The Chief Justices of the Suite High Courts; Sir M.C. Setalvad, the A.G.for India; the
Advocates-General of the States, P.M. Jawaharlal Nehru; Dy. P.M. Sardar Patel and other distinguished
persons were present at that time. Welcome Address of Sri M.C. Setalvad at the inauguration of the
Supreme Court of India. (1950) I SCR (1)3
7. Inaugural Speech of Chief Justice Kania, (1950) 1 SCR (J) 10-I 3.
S . In this connection sec S.C.Adoate . on-Record Associ; ion Y. Union of India, (1993)4 SCC 441
wherein this aspect has been reiterated by the Court.
9. For details about the controversy see Kuldip Nayni-: Suppression of Judges. (1973); Kumar Mangatam:
JuthclalAppfnnunents (1973); Pa!khivala: Our Constitution Defaced and Defiled, (1974).93-105 and
A Judiciary Made to Measure.
JO. Inaugural Speech of Chief Justice Kanto, (1950) 1 SCR (I) JO.
202
THE SUPREME COURT OF INDIA tCJ-IAP
judge for five years or an advocate at a High Court for ten years or he is, in the
Opin i on of the President "a distinguished jurist."" This means that like America
non-practising academic lawyers can have a place in the Supreme Court.
A Judge of the Supreme Court holds office up to the age of sixty-five years,
but he may resign his office by writing under his hand addressed to the President
or may he removed from office in the manner as provided under Articic 124(4).
The age of a Judge of the Supreme Court shall be determined by such an authority
and in such a manner as Parliament may by law provide.'2
(d) Removal.—The
President can remove a Judge of the Supreme Court on the
ground of proved misbehaviour or incapacity. For the removal of a Judge the
Constitution specifically provides that a Supreme Court Judge cannot be removed
from his office except by an order of the president of India passed after an address
by each House of Parliament supported by a majority of not less than two-thirds of
the members of that House present and voting, has been presented to the President
in the same session for such removal on the ground of proved misbehaviour or
incapacity.'3
No person who has held office as a Judge of the Supreme Court is permitted
to plead or act in any court or before any authority within the territory of India
– ,"
But a judge of the Supreme Court after retirement can do chamber practice as a
lawyer as it Is not prohibited by the Constiiutj(Jfl provision. Chamber practice
involves advisory work. This concession is a lacuna in the system which impairs
the guarantee of judicial independence of the Supreme Court Judges. Deploring this
concession and pointing out its repercussions the Law Commission has remarked
"The possibility of their being able to advise rich clients after their retirement may
tend to effect their independence on the Bench. In any event.., the public would be
apt to to think thai in dealing with the cases of such litigants whom they may hope.
after retirements to be asked to advise, the judges do not act impartially." 5
A retired
Judge of the Supreme Court may be invited by the Chief Justice of India, with the
prior consent of the President. to act as a Judge of the Supreme Court for some
particular business or for a fixed period.16
(e) Salaries and all
owances.—The salaries of the Judges and the Chief Justice
of the Supreme Court can after the Fifty-fourth Amendment (1986) be determined
by Parliament by law. Earlier an amendment of the Constitution was necessar The
said amendment has raised the salary of the Chief Justice of India fro y.
m Rs 5000 to
Rs 10,000 and of the Judges of the Supreme Court from Rs 4000 to Rs 9000.'
II. Mt 1243).
12.
Sub-Art. (2-A) in Art. 124 inserted by the Constitution (Fifteenth Amendment) Act, 1963 Art 217(3)
Provides
the age of a Judge of the High Court will be dciermjned by the President after consultation
the Chief Justice and the Pre,
Con decision will be final. This provision was inserted b y
tConsiu(FfehAmndt)c,1963aferhontvsyid
Bose, CJ., AIR 1 963 Cal 483, ./von Praka.rh v H. K
13. Art. 124(4). In this regard see Sub-Coni
eefor JudicialAceos,,nithj !s,y v Union of
SCC 699. The case of Justice Ramaswanj Ais see (199!) 4
14. Art. 1247). Sarojtnj Ramacs,c,mi cu.se, (1992) 4 SCC .506.
15. A. C.Kapoor, quoting from the Law
Commission Report, in Ch. 26,560,
Edit. 2. 1976. Cofwituli (mal HLTIory of Indo,
16. Art. 128.
IT Art. 125(1).
11] JURISDICTION AND POWERS OF THE SUPREME COURT 203

Some improvements in the conditions of service has been made by the Supreme
Court Judges (Conditions of Service) Amendment Act, 1976 (36 of 1976). The
privileges and allowances and such rights in respect of leave of absence and pension
are fixed by Parliament by law and they cannot be varied to his Jisadvantage.'
Special emphasis is given to this provision as it will assist the Judges to maintain
impartiality, independence and integrity. There is only one exception to this general
rule. During the period of financial emergency the President of India is empowered
under Article 360(4)(b) to reduce the salaries and allowances • of the Judges of the
Supreme Court. The expenses of the Supreme Court are charged upon the Consoli-
dated Fund of India (a non-votabic item).
(fi Acting Chief Justice and ad hoc Judges—Under Article 126 the Acting
Chief Justice is appointed when the office of Chief Justice of India is vacant or
when the Chief Justice is, by reason of absence or otherwise, unable to perform the
duties of his office. This healthy custom was departed from in 1974 and repeated
in 1977 which became a matter of strong public criticism. It has been maintained
since then.' 9 Ad hoc Judges can be appointed by the Chief Justice of India with the
previous consent of the President in order to make the quorum of the Judges of the
Supreme Court 20 and to enable them to hold or continue any session of the Court.
Here also the Chief Justice of the State High Court will always be consulted.
3. Jurisdiction and Powers

The Constitution of India has granted three types of jurisdiction to the Supreme
Court. namely. Original, Appellate and Advisory. It is also given special powers,
e.g., to review its judgments, to punish the guilty for contempt of court, to issue
writs, judicial review of legislation, etc.
(a) Original jurisdiction—Under Article 131 the original jurisdiction of the
Supreme Court extends to any dispute between the Centre and the constituent states
or between the States inter Se. The original jurisdiction is excluded in cases of a
dispute arising out of any treaty, agreement, covenant, engagement, sanad or other
similar instruments which having been executed before the Constitution continue in
force or which provide for such exclusion. 2 ' The Supreme Court, therefore, is not
a Court of ordinary original jurisdiction in all matters and between all the parties.
In order to invoke its jurisdiction two conditions which are necessary relate (a) to
parties, and (h) to the nature of dispute. A suit cannot be filed before the Supreme
Court simply on the basis that there is no other court in the land which can try the
question raised in the suit.22
32.23 The Constitution also empowers the Supreme Court to issue writs under Article
(b) Appellate jurisdiction.—Articles 132 to 136 of the Constitution deal with

the appellate jurisdiction of the Supreme Court in constitutional, civil and criminal
cases.
18. An. 125(2) and proviso, Sch. U of the Constitution.

19. See Supra footnote 9.
20. Art. 127.
21 This proviso was substituted by Sec. 5 of the Constitution (Seventh Amendment) Act, 1956.
22. Ramgarh State v. Province of Bihar, AIR 1949 FC5S.
23. For deiajls see under separate heading in this Chapter.
204 THE SUPREME COURT OF INDIA [CHAP.
(i) In constitutional matters.—Article 132 deals with appeals involving inter-

pretation of the Constitution, arising out of any proceedings in a High Court
civil, criminal or otherwise. 24 It provides that an appeal shall lie to the Supreme
Court from any judgment, decree or final order of any High Court, in the territory
of India in any civil, criminal or other proceedings—But the High Court most certify
to that effect. It is ensured by the provisions of this article that the decision of the High
Court in constitutional matters will not be final and the final authority to interpret the
Constitution rests with the Supreme Court whatever may be the nature of the suit or
the proceedings where the question arises. In this respect a right of the widest amplitude
is allowed in cases involving interpretation of the constitutional questions-15
Article 132 is not controlled by Article 133(3)26 and the words "any judgment,
decree or final order of a High Court" as used in Article 132, are wide enough in
their meaning. Hence appeals to the Supreme Court from constitutional decisions
of Single Judges cannot be barred on the ground that an appeal lies to a Division
Bench from such a decision. An appeal will lie to the Supreme Court upon the
certificate of the Single Judge of the High Court in constitutional matters, 27 certifying
that there is some substantial question of law as to the interpretation of some
provision of the Constitution involved in the case. 28 A question which has been
settled by the previous decisions of the Supreme Court is not a substantial question
and in such cases, therefore, an appeal will not lie to the Supreme Court.29
(ii) In civil mauers.—Aiticle 133 confers a constitutional right to appeal to the
Supreme Court in civil matters. It provides that apart from appeals by special leave
under Article 136 and appeals on constitutional ground under Article 132, an appeal
shall lie to the Supreme Court from a civil proceeding before any High Court in
the territory of India, if (a) the subject of the appeal is a "judgment, decree or final
order"; (b) the High Court grants a certificate for such an appeal (1) that the case
involves a substantial question of law of general importance; and (ii) that in the opinion
of the High Court the said question needs to be decided by the Supreme Court.
As the right to appeal is a constitutional right, it cannot be taken away by
ordinary law. 30 Revenue proceedings are considered civil proceedings under Article
133. In C.I.T. v. Jshwarlat' t , the Supreme Court held that an appeal under Article
133 was competent because such proceedings were civil proceedings, that is,
"proceedings in which a party asserts the existence of a civil right conferred by the
civil law or by statute, and claims relief for breach thereof".
(iii) In criminal matters. —The Constitution for the first time sets up a court of
criminal appeal over the High Courts and creates a right of second appeal. Article
134 empowers the Supreme Court to hear appeals from any judgment, final order
or sentence in the criminal proceedings of a High Court in three cases enumerated
therein.
24. Election Commission v. Venkaia, AIR 1953 SC 210.

25. Election Commission v. Venkata, AIR 1953 SC 210. 212.
26. Art. 133(3) provides that merely in civil appeals, an appeal will not lie to the Supreme Court from the
decision of a Single Judge of the High Court unless Parliament provides by legislation.
27. Dl) Basu, Commentary on the Constitution of India, 5th Edn., Vol. 3, 110; see also Hindustan
Commercial Bank v. Bhagwan Das, AIR 1965 SC 1142, 1143.
28. Sudhir v. King. (1948) 58 CWNI (FR) 44.
29. Slate of J. & K. v. Ganga Singh. AIR 1960 SC 356, 359.
30. Mo/zant Mali Dos v S. P_ Sahi, 1959 Supp 2 .SCR 568, 581.
31. (1966) 1 SCR 190(196).
III JURISDICTION AND POWERS OF THE SUPREME COURT 205
Under sub-clauses (a) and (b) of Article 134 the appeal ties as of right both on
questions of fact and of law while under sub-clause (C) the appeal lies only if the
High Court certifies that the case is ''a fit one for appeal''
In an appeal under Article 134, the Supreme Court will not reassess evidence
and argument on a point of fact which did not prevail with the courts below. The
Supreme Court will not act as a third court of facts to set aside a concurrent finding
of fact, in the absence of any compelling reason 33 or exceptional circumstances.34
The Supreme Court is not necessarily bound to hear an appeal on the merits
merely because a certificate has been granted by the High Court under Article
143(i)(c). If the Supreme Court is satisfied that the High Court has not properly
exercised its discretion under this provision, the Supreme Court may either remit
the case or exercise the discretion 35 itselt, and treat the appeal as under Article 136
(Special Leave). 36 The Court may also dismiss 37 the appeal in limine 38 if it finds
no sufficient reasons to interfere under Article 136.
By Article 134(2) this jurisdiction can be enlarged and Parliament has enlarged
the jurisdiction of the Supreme Court to entertain and hear appeals in criminal
matters by the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970. Now a right of appeal is provided if the High Court on appeal reverses the
order of acquittal and awards a punishment of life imprisonment or imprisonment
for a period of not less than ten years or gives such punishment in deciding cases
withdrawn from the lower courts for its decisions.39
(ñ' Special jurisdiction—Article 136(1) confers on the Supreme Court over-
riding and extensive powers of granting special leave to appeal. It provides that the
Supreme Court shall have the power to grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India. 40 This provision is not
applicable to any court or tribunal constituted under any law relating to the Armed
Forces .41
To deal with special cases separate provision is made under Article 136. The
power of the Supreme Court to grant special leave to appeal from the decision of
any court or tribunal, except Military tribunals, is not subject to any corislitutional
limitation and is left entirely to the discretion of the Supreme Court. 42 This provision
was introduced in order to empower the Supreme Court to give relief to any
aggrieved party in cases where the principles of natural justice have been violated,
even though the party may not have a right to appeal otherwise.43
32. State r# UP V. Jairiy, Alit 1961 All 630: y.ee also Tara Chand v. Ave o(Mthiirachrrti, AIR 1962 S('430
37. Damodw-an v. Slate sfT.C.. AIR 1953 SC 462.
34. garsay v. State of Maharohtra, AIR 1961 SC 1762,
5. War Singh V. State off/P., AIR 1954 SC 457.
36. Guvindkd v. State oJ West Bengal, 1957 SC Cr App 62, 55i
37. Harpada v. State of W,B., 1957 SCR 639: Sunder Singit v. State of UP., AIR 1956 SC 411
38. Khushal v. State of Bombay, AIR 1958 SC 22
39. Art, 134(2).
40. See Bharat Bank v, F.mpluyees of Rharal Bank, AIR 1950 SC 188; P.S.R. Sad/janani/tara v
Arunachalwn, (1980) 3SCC 141.
41 fiurgashankar v. Raghuraj. AIR 1954 SC 520.
42. Ibid.
43. Sec Kwthaiyukd v. ITO. AIR 1962 SC 1323; Ba/dora Bros. v. Libra ttht0ng Workc', AIR 1961 SC 100.
206 THE SUPREME COURT OF INDIA [CHAP,
In Pruam Singh v. State Fazal Ali, J. observed: ".the wide discretionary

power with which this Court is invested under it (Article 136), is to be exercised
sparingly and in exceptional cases only,... The Court will not grant special leave
unless it is shown that exceptional and special circumstances exist, that substantial
and grave injustice 45 has been done and that the case in question presents features
of sufficient gravity to warrant a review of the decision appealed against.' '
The Supreme Court has declined to fetter its discretionary power by laying
down "principles" or "rules" 47 In Dhakeswari Cotton Mills Ltd. v. C.l.T, W.B.48
Mahajan, C.J. said: ''It is not possible to define., the limitation on the exercise of
the discretionary jurisdiction vested in this Court by—Article 136. The limitations
whatever they be, are implicit in the nature and character of the power itself. It
being an exceptional and overriding power naturally it has to be exercised sparingly
and with caution and only in special and extraordinary situations."
(C) Advisory
jurisdiction.—(j) Article 143.—This is provided by Article 143(l),
Article 143(2) provides for refering a dispute to the Supreme Court for its opinion.49
Article 143 of the Constitution practically reproduces Section 213 of the
Government of India Act, 1935. It is, therefore, natural that the principles laid down
by the Federal Court regarding the advisor y power will also be a good guide for
the Supreme Court of India.50
(ii) Explanation—Under clause (I) it is at the discretion of the Supreme Court
to entertain a reference and to report to the President its opinion and the Court may
in a proper case decline to express any opinion on the q1iecticn submitted to ii, e.g.,
where the question referred to is a political one. 5 ' While under clause (2) it is
obligatory on the Supreme Court to entertain a reference and to report to the
President its opinion.
The advisory opinion of the Supreme Court will not he binding on the President
as it constitutes merely consultation between the Executive and Judiciary. 52 It is also
true that the opinion of the Supreme Court on a particular issue will not prevent
the Supreme Court from giving a contrary judgment if in a proper case Filed before
it, the validity of the proposed enactment is challenged. On these matters Article
143 provides no direction. It is judicially acknowledged that the chief utility of an
advisory judicial opinion is to enable the Government to secure an authoritative
opinion as to the validity of a measure before initiating it in the Legislature. 53 The
advisory opinion is not a judicial pronouncement. It is, therefore, not equivalent to
44. AIR 1050 SC 169.

45. Show Wallace v. Workmen, (1978)2 SCC 45.
46. AIR 1950 SC 169(172).
47. H. M. Seervai, Constuu g
u,n0j Law of India: A Critical Commentary, 10 17
48. AIR 1955 SC 65; see also Gujarat Steel Tubes Ltd. v. Madoor Union, (1980)2 SCC 593
49. Pr o v iso 10
Art. 131, "the jurisdiction will not extend to a dispute arising out of any treat y,
agreement ... executed before the commencement of the Constitution continues in operation after such
commencement..."
50 D.D. Elasu, Commentary on the Consjijuon of India, Fifth
Edn., Vol. 3, 218-19 Se also Das, C I in
Kerala Education Bill ca.e, AIR 1965 SC 745
SI. Refrrcnce under 4,i 143,AIR 1965 SC 745
52. Estate Duty, Re, AIR 19A4 PC 73.
53. A.G. olConada v. A. of Ontario, AIR 1932 PC 36.

11]
JURISDLCFION AND POWERS OFT1-jE SUPREME COURT
207
the judgment of the Supreme Court and is not binding on either party.
54 It is not
binding upon the courts in India under Article 141 though
persuasive forcc55 may it a
ma great
h
In the Kerala Education 81/1 case,
Court would deal with a P Das, C.J.observed that the
resident's Reference bearing the principles laid down by
the Judicial Committee and the Federal Court as valuable guides to the Cow,.
(iii)
Cases—The President of India has used this power under Article 143 in
many cases.56
(iv) Scope—The
scope of the advisory jurisdiction was considered in depth in
Special Courts Bill, 1978, Re,
wherein the Supreme Court held that it would not
consider a purely political question nor would it entertain hypothetical or
questions. That the Bill under reference could be speculative
su bsequently amended does not
make it hypothetical or speculative. The question should be specific and not general
or vague. Questions of policy and wisdom of a particular action fall outside the
P urview
of Article 143. The Court would proceed strictly by law. The law declared
by the Supreme Court in giving its Opinion under Article 143 would be binding
under Article 141 on all courts in India.
In the Federal Constitution of America there is no provision for seeking
advisory
Opinion from the Supreme Court and the Supreme Court has steadily refused to
P ronounce any opinion except as to the
rights of litigants in actual Controversies
(d) Power to review judgments —Article 137 57
e mpowers the Supreme Court
to review its own judgments, subject to the provisions of any iaw made by Parliament
anyany
or rules
rules .
made by the Supreme Court under Article 145. Parliament has not made
Part VII, Order XI of the Supreme Court Rules, 1966, provides for Review.
Rule I provides that in civil cases no application will be entertained except on the
grounds m entioned in Order 47, Rul
the g e I of C.P.C. and in criminal cases except on
rounds of error apparent on the fnce of the record. Order XL, Rule 3 as amended
in 1978
provides that the review petition may be disposed of
Only
amongst the judges Without oral arguments. This provision has beenby circulation
and upheld.58 colnnierideçj
54. Reference under Art. 143, AIR 1965 Sc 745.

55 Umav,jl V. Lak.chmj AIR 1945 FC 25.
56. (I)
Delhi LawsA ct, 1912 case, Re,'1951 SCR 747 :AIR 1951 SC 332
of the provisions of the Delhi Laws Act. 1912); (As to the Constitu ti onal ity
(2)
Kerala Educ,atin Bill Reference, Re, 1959 SCR 995 AIR 1958 SC 956
violated Art 14 of the (As to whether the Bill
(3) Sea Cu.cio,rLtAC, 1878, Re, AIR 1963 SC 1760
Act); (Question of ConstitutjonIj of the thafi of the
(4) Beruhari Union, R, (1960)3 5CR 250: AIR 1960 SC 845 (As to
agreement) ifnp leincntarjijn of an international
(5) Powers. Privileges and Immunities of State Legtcla:ure
COntroversy)- ,c, Re. AIR 1965 SC 945 (UP. Assembly
(6) Preside,j,,ci / Po/( Re, 974)2 SCC 33 (As
(7) Special Courts Bill, 1978, Re. (1979) I SCC to filling the vacazy of the President):
Provisions)- 380 AIR 1979 SC 478 (As to the validity of the Bill's
(8) Ref. No. 1 of 1983 di. 17-8-1983 underA,j
reference ever made); 3 /7(1) of Constitution (1983)4 SCC 258 (A
unique
(9) Cauvery Water L)
ctputec Tribunal, Re, 1993 Supp (I) SCC 96 (II) : AIR 1992 SC 522 (As to
Cauvery Waters sharing)
(I ;
Ref No. / of 1993, Ram Jatunri Bhwflj . &bri
57. U.S. V. Mczsjfd faa! let (1993) I SC'C 642.
Ferresr,
India Fifth Edn., (1852) 13 How 40(52) See also D.D. Bnsu, Ceenia,y on the Constitutfr, of
Vol. 3, 215.
58. RN. Eswaralyery Registrar, (1980)4 ScC 680
THE SUPREME COURT OF INDIA [CHAP.

208
In civil cases the review of the Supreme Court orders and judgments is possible
on any of the following grounds
(a) Discovery of new and important matter or evidence.
(b) Mistake or error in the record.
(c) Any other sufficient reason—a ground analogous to two abovestated in
(a) and (b) grounds.
There is no express provision in the Constitution of India, declaring the
Constitution to be the Supreme Law of the land. The framers of the Constitution,
it may be said, deemed such a declaration superfluous, because they might have
believed the power to be clearly enough implied when all the organs of the
(overnment, Federal and State, owe their origin to the Constitution and derive
powers therefrom and the Constitution itself cannot be altered except in the manner
specifically laid down in the Constitution as provided for in Article 368.
Similarly the Constitution does not expressly empower the Courts to declare
laws invalid. But, the absence of such a provision does not restrict the right of the
courts to decide whether a piece of legislation is void or not. And this is a necessary
consequence of the supremacy of the Constitution. Moreover, a Federal polity
functions within demarcated and delimited spheres. The Constitution, as such,
imposes definite limitations on the different organs of Government and exercise of
any excess of authority by any organ of Government is transgression of the
Constitutional limitations and, accordingly, void under the Constitution. It is for the
Courts to determine whether any of the Constitutional limitations has been exceeded
or not. Constitutionally there are two kinds of limitations on the powers of the
Legislature : (1) Legislative Competence, and (2) Fundamental Rights conferred by
Part Ill of the Constitution-60
(e) Enlargement of jurisdiction.—Article 138 of the Constitution provides for
enlargement of the Supreme Court's jurisdiction. In 1970 Parliament passed the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (28 of
197(Y), whereby an additional right of appeal was given to the accused in two cases.
(1) Power to punish for contempt—The Supreme Court is declared a Court
of Record under Article 129. Specific provision in the Constitution in this respect
is introduced in order to remove any doubt. 61 As a Court of Record it has all the
powers of such a Court including the power to punish for its contempt. Guiding
principles in this regard have been laid down by the Supreme Court. This
extraordinary power to punish for scandalizing the Court is a weapon to be used
sparingly and always with reference to the administration of justice 3 and not for
personal insult of a Judge which is not affecting the administration of justice. Where
public interest demands it the Court will not shrink from exercising it and imposing
59 See A.C.Kapoor The Constitutional History of India, Ed. 2, Ch. 26, 569.
60. Ibid.
61. Hiralal V. Slate of UP.. AIR 1954SC743.
62. Ambard v. A.G.for Trinidad & Tobago. (1946) AC 335; i'rospectie Publication (P)Lid. v. State of
Maharashira, AIR 1971 SC 221. 230; Sebastian M. Ho'igray v Union of India, AIR 1984 SC 1227,
1228, M.R. Parashar v. Farooq AbdulLah (Dr.) AIR 1984 SC 615. 617,618. See also Pritani Pal V.
H.C. of M. (1993) I SCC 529: 1993 scc (Cri)356: AIR 1992 SC 904.
63. Bath,rra RaniakrlVJ,n(, v Stale of Madras. AIR 1952 SC 149,
IIj JURISDICTION AND POWERS OF THE SUPREME COURT 209
even by way of imprisonment, in cases where a mere fine may not be adequate.64
No ordinary law enacted by Parliament under Entry 77, List I can take away this
power of the Supreme Court.
(g) Enforcement of decrees, orders, etc.—The Federal Court of India, under

the Government of India Act, 1935, was not authorised to pronounce any judgment
other than in a declaratory form.
The SLiprenle Court, under Article 142 is empowered to pass decrees or make.
necessary orders for doing complete Justice 65 in the exercise of its jurisdiction. The
Supreme Court can make orders for the purpose of securing the attendance of any
person, the discovery (Jr production of documents or any investigation. The mode
of execution of such decrees is left to the Union Parliament to pass necessary
legislation. The President has made the Supreme Court (Decrees and Orders)
Enforcement Order. 1954. 1
(Ii) Ancillary powers.—Ailicle 140 provides some elasticity to the original and
appellate powers of the Supreme Court by permitting the Parliamente7 to pass
legislation to supplement those provisions. Under this Article the Supreme Court
has the power to transfer a criminal case or appeal from one High Court to another
"whenever it is made to appear to the Supreme Court that an order under this section
is expedient in the ends of Justice."
(i) Power to Issue wriLs.—The Constitution of India has given very important
and also very wide powers to the Supreme Court of India under Article 32.68 It
provides for the enforcement of Fundamental Rights. as conferred by Part III of the
Constitution, by means of writs when it is moved by 'appropriate proceedines"
This expression ''appropriate proceedings" has been defined in the Judges Appoini-
tncnz and Transfer case. This includes in its fold the Social Action litigation or
popularly called the Public Interest Litigation. 70 The Supreme Court is empowered
to issue appropriate writs, orders and directions for the purpose of enforcing
Fundamental Rights. Clause (2) of Article 32 gives a very wide jurisdiction to the
Supreme Court by empowering it to issue directions, orders or writs including writs
in the nature of habeas corpus. mandamus, prohibition, quo warranto
and certiorari,
whichever may be appropriate for the enforcement of the Fundamental Rights as
conferred by Part Ill of the Constitution. -` The right to constitutional remedies as
provided by Article 32 is itself a Fundamental Right. The Supreme Court is
constituted the protector and guarantor of Fundamental Rights 72 it is the duty
of the Supreme Court to grant relief under Article 32 where the existence of a
64 Rzan-ul . Hasa,( v Sizzle of UP.. 1953 SCR 581: Pratap

Singh v. Gurbuksh. AIR 1962 SC 1172.
65. MoM. Ants v. Union of Iiidia, 1993 Supp (1) .5CC 145. See also Kashina g
h C. Jaunt (Dr.) v
Speaker, (1993) 2 SCC 703 MR 1993 SC 1873 (can make an order which is just).
66. See D.D.Basu, Act.'., RLilCS and Orders w'.4r the Constitution of India,
Book 1, 309
67 Parliament substituted S 527 of the Code of Criminal Procedure by enacting Code of Cnminai
Procedure (Amendment) Act, 1952.
68. KocIuo7n, v. State of Madras, AIR 1959 SC 725
69. (1982)2SCR 365
70. Bandhua Mu-kr, Morchri V. Union of India, (1984) 3 scc 61: AIR 1984 SC 802.
71. Sec also Ras/udAiz,ned v. Munkipatilonid. 1950 SCR 566;
Bncoppa '. Nagappo, (1955) I SCR 250
See also AR. Rlacksh,eld, Fundamental Rights and the !,uf, g
u(jo,ial Vjab,Lrrv of the Indian Supreme
(ouri, (1965) 8 JILl 139-217.
72. Rome.sl, Tha1ipar v Stoic 'if Mthj AIR 1950 SC 124.
210 THE SUPREME COURT OFINDIA
Fundamental Right and its breach, actual or threatened, 73 isprimaftecie established

In Charanjit Lal case 75 , Muklierjea, J. explainin g the scope and ambit of Article 32
said. ''Article 32 gives us very wide discretion in the matter of framing Our writs
to suit the exigencies of particular cases, and the application of the petitioner cannot
be thrown out simply on the ground that the proper writ has not been prayed for."
Clause (4) of Article 32 specifically provides that the right to move the Supreme
Court for the enforcement of Fundamental Rights which is guaranteed by this article
shall not be suspended except as provided by Article 359 (In Emergency) of the
Constitution. The power of the Supreme Court to issue writs cannot he taken away
by any legislation. Any law which renders nugatory or illusory the exercise of the
Supreme Court's power under Article 32 is void.' (' In Kesavananr/a Rhciratj case 77,
the Supreme Court overruling Golak Nath case78 held that though Parliament can
amend any part of the Constitution, it cannot change the 'basic and essential''
features of the Constitution. The original writ jurisdiction under Article 32 will fall
under this protection and be Immune frontParliament's amending power.
The jurisdiction of the Supreme Court to issue writs is concurrent and not
exclusive. Under Article 226 similar powers have been granted to the Indian High
Courts. It is established that an application under Article 32 lies in the first instance
to the Supreme Court, without first resorting to the High Court under Article 226.
It has been sai0 l that: "The writ of this Court will run over territory extending to
over two million square miles.. It can truly be said that the jurisdiction and powers
of this Court in their nature and extent are wider than those exercised by the highest
court of any country in the Commonwealth on by the Supreme Court of U.S.A......
(j ) Other Powers.—The Constitution of India has given, under different
Articles, power to the Supreme Court to decide cases. In all such cases the
decision of the .Supreme Court will he considered final. Some of these provisions
are discussed as below:
According to Article 7 I the Supreme Court is empowered to go into disputes
arising out of or in connection with the election of the President or Vice-President.
The decisiqn of the Supreme Court will be final in these cases. Under Article 317
the Chairman or a member of the Public Service Commission will be removed on
the ground of misbehaviour only when the Supreme Court, to whom the matter was
referred by the Pfesident of India, holds on enquiry that such a Chairman or member
must be removed from office. DuniTig the period of enquiry by the Supreme Court
73: Tatalmn andSie'1 Co. v. Sarkar. AIR l%i SC 6S (68)
74. Kochunni v. State oJ Madras, AIR 1959 SC 725.
75. Charanjt:Li4v Union of Ifldia. AIR 1951 SC 41, 53: 1950 SCR 869.
76. Gopalwi v State of Madras. AIR 1950 SC 27.
77. (1973)4 5CC 225. A special Bench of all the 13 Judges was constituted for this purpose.
in Shukla, V.N.7 Constitution of India (1993•EcJn). See details
78. Goluk ,Vatli Y. State of Punjab, AIR 1967 SC 1643.
In this case a special Bench comprising of all eleven
Judges of the Supreme Court was constituted Five Judges led by the then Chief Justice, Mr. K Subba
Rao, voted to overrule Shankan Praswl and Sajjwi Singh; Five
others led by Mr Justice Wanchoo
voted to affirm. Mr. Justice Hidoyatullab agreed with the then Chief Justice, Mr. Subba Rao, and held
that Parliament cannot
away or abridge" fundamental rights by amending Part III of the
Constitution.
79. !?o,nesh Thappar v State ojMadras, AIR 1950 SC 124 (per
Patanjali Sastri, J.) 126.
80. Welcome Address of Sri M Setalvad on 28th January,
1950 see 1950 SCR I, 3-4: Inaugural Address
of Chief Justice Kania on Jan. 28, 1950. See 1950 SCR 7.
11] DOCTRINE OF PRECEDENTS AND THE SUPREME COURT 211
such members may be suspended by the President of India. The Supreme Court can
declare a law unconstitutional or ultra t'ires if the Parliament or State Legislature
enacts a law on the subject which is not given in their respective lists.
(k) Conclusion.—An analysis of the provisions 8t abovesaid shows that the
Supreme Court is constituted to function-
(i) as the protector of the fundamental rights and liberties of the individuals
in exercise of its original as well as appellate jurisdiction;
(ii) as the ultimate authority to interpret and enforce the provisions of the
Constitution and the laws;
(iii) as the final court of appeal in all matters, constitutional, civil, criminal,
revenue, etc. against all decisions and orders of all courts and tribunals
in the country, and
(iv) as the sole tribunal to decide Centre-State and inter-State disputes and to
give an opinion in an advisory capacity on important questions of law or
fact on reference by the President.
Thus the Supreme Court occupies the most vital and exalted position under our
constitutional set up, entrusted with the power to utter the final word in all matters
relating to the interpretation of the Constitution and the laws and their enforcement
and constitutes the symbol of national unit y in the field of administration of law
and justice.82
4. Doctrine of Precedents and the Supreme Court

Article 141 of the Constitution of India provides that the law declared by the
Supreme Court shall be binding on all courts within the territory of India. This
provision corresponds to Section 212 of the Government 01 India Act, 1935 which
provided that the law declared by the Federal Court and by any judgment of the
Privy Council was binding on all courts in British India.83
The doctrine of precedents is given constitutional recognition under Article 141
of the Constitution of India. The decisions of the Supreme Court are a source of
law. 14 They have the binding force of law. The provisions of Article 141 show that
even the obiter dicta of the Supreme Court, on a point raised and argued before it,
will be binding. 85 Where [here is a hierarchy of courts as in India the law declared
by the superior court must be binding on inferior courts. 86 The Supreme Court has
the authority to reverse its own judgment. 87 Only the ratio decidendi or the principle
laid down in a case has the binding force of law and not the whole case. Sometimes
it becomes very difficult to find out the ratio of a case.
The opinion of the Supreme Court under Article 143 is also binding on the
subordinate courts. 88 It will have a high persuasive authority. The expression "all
81. Rama lois: Legal and Constitutional History of India 1984 Edn., 226.
82. Ibid.
83. Kithorilol Y. Debt Praw4, AIR 1950 Pat 53, Maja Prasad v. Nageshwar Sahal, AIR 1925 PC 272.
84 Bengal iron Corpn. v. C.T.O..(1994) Supp(I)SCC3IO : Alit 1993 SC 2414.
85. See Radha.ranj v. Kumar,
Srcir, AIR 1953 Cal 524:1 T. Com ,iisswner v. Va.rjr, AIR 1959 SC 814 (821).
86 Dwark.adas v. Shotopur Spg. Co., AIR 1954 SC 119.
87. Bengal immunity v. Stare of Bihar, (1955) 2 .SCR 603 (628). Supreme Cacrtc Advocates-(M-Record
Assn v. Union of India, (1993) 4 SCC 441 (guidelines for and legal effect of—given)
88. Special Courts Bill, 1978, Re, (1979) 1 SCC 380, supra Note 83.5. Nagraf v. State of Karnataka. 1993
212 THE SUPREME COURT OFINOIA ECI-IM.
courts", as used in Article 14 I does not include the Supreme Court. Hence it follows
that the Supreme Court will be free to overrule and reverse its previous judgments
but it would be slow to take such it step. The words all courts ... in India' indicate
that even the subordinate courts are bound to follow decisions of the Supreme Court
in preference to the decisions of their respective High Courts in case there is any
conflict between the two decisions. It is the judgment of the majority in the Supreme
Court which is binding on subordinate courts." However, as expressed by the
Supreme Court itself if the subject is of such fundamental importance to national
life or the reasoning is so plainly erroneous in the light of the later thou g ht. !hat ji
is wiser to be ultimately right rather than to be consistently wrong, the Sup-t
Court may change or reverse its opinion.90
As regards the binding effect of the pre-Constitution Privy Council judgments,
the view taken by the Nagpur91 and Bombay 92 High Courts appears to be correct,
that they are binding oii all courts in India except the Supreme Court, till the Supreme
Court takes a different view. The Calcutta High Court has held a contrary view.93
5. Recommendations of the Law Commission

Some important recornniendations of the Law Commission 94 on Supreme Court
are briefly stated as follows:
(a) Supreme Court Judges should not be appointed on the basis of communal
and re g ional considerations.
(h) Best efforts should be made to recruit a member from distinguished
members of the Bar.
(c) The tenure of the Judges should be of at least 10 years and that of Chief
Justice should be 5 to 7 years.
(d) Increase in retiring age is not necessary.
(e) Instead of appointing a seniorrnost Judge as Chief Justice of India, the
most suitable person from the Bench or Bar or from High Court be
appointed.
(J No suggestion regarding increase in salary is made.95
(g) A retired Judge should not indulge in chamber practice and he should
not accept any employment under the Union or the State,
(h) Enlargement of jurisdiction of Supreme Court in criminal matters is not
necessary. 97
(i) Before admitting petitions under Article 32 preliminary hearing was
desirable.
Supp (4) SCC 595.

89. bLot. Panchoyat, B/iavwgar v. Mu! jamad Hajs Cajur & Co.. AIR 1984 Guj 98, 10.
90. Ganga Sugar Corpn. v. State of U P., AIR 1980 SC 286. 294, Javedflh,ned v. State of Mcihiirhtrg
(1985) I SCC 275.
91. Pwijabi V. Shmrao, AIR 1955 Nag 293.
92. State of Bombay v. Chaygatilal, AIR 1955 Born I. 6.
93. Calcutta (opri. v. Director of Ra;ioninS. AIR 1955 Cat 282.
94. Law Commission of India. Reform of JudicialAdmthistrcuion (Fourteenth Report), 32-57.
95. ibid.. 43.
96. Ib:d.,45.
97. lbid,46.
1 lJ SUPREME COURT AND RECENT CHANGES 213
(j) Powers of a Single Judge or a Division Bench to deal with contested

interlocutory and miscellaneous matter be increased.'
One may not agree with suggestions (d) and (f) stated above. Competence,
sincerity and physical fitness should be the main considerations instead of age. As
regards salary, as the value of rupee is, decreasing and prices are soaring the salary
should increase with the price index.
Fortunately some relief has been given by the passing of the Supreme Court
(Conditions of Service) Amendment Act, 1976 (Act 36 of 1976). By this Act the
provision of grant of family pension and death-.cuin-retirement gratuity is extended.
Also a conveyance allowance is given besides a sumptuary allowance. Increase in
pension and post-retirement medical facilities are the other benefits given b y this
Act.
6. Recent Changes
Amendments made in the Constitution by the Forty-Second Amendment Act,
1976 (18. 12.1976) were the most far-reaching and drastic of all the amendments
made since the inception of the Constitution.
By effecting a change in Article 39 immunity was granted in respect of all
legislations meant to give effect to all or any of the principles set out in the Directive
Principles. Consequently an effort was made to establish supremacy of legislative
enactments over the Fundamental Rights.
The Forty-Second Amendment was made during emergency (August 1975 to
December 1976). It was made by the ruling party, the Congress (1). However, after
the General Elections of March 1977 the Janta Party was voted into power and it
reversed the whole process by introducing the Forty-Third Amendment Act (13-4-
1978). It deleted Articles 31-D, 32-A, 131-A, 144-A and 226-A and restored the
jurisidiction of the Supreme Court and the High Courts. The Forty-Fourth Amend-
ment Act, 1979 (30-4-1979) introduced a new Article 71 which gave power to the
Supreme Court to decide disputes relating to the election of the President and the
Vice-President. Article 134-A gave powers to High Courts either suo motu or on
application to grant or refuse a certificate to appeal to the Supreme Court. 2 Article
139 was substituted to ensure speedy trial. Amended Article 359 provided that even
during the emergency the right to personal liberty (Articles 20 and 21) shall not be
cur-tailed. Thus the 43rd and 44th Amendments are a landmark in the history of our
Constitution because the amendments had the full and unstinted backing of the
people as a whole. It restored practically the status quo.
It is doubtless that independent and impartial judiciary is the pillar of liberty.
It is essential that the Judges must be secure in their tenure of office and they must
have a salary commensurate with their responsibilites. Lord Hewart 3 observed,
'independence of judiciary is essential because many of the most significant
victories for freedom and justice have been won in law courts and the liberties of
the citizen are closely bound up with the complete independence of judges". L.S.
I. Law C mms.csi(m of India, Reform of Judicial Adjninisjration (, Fourteenth Report). 32-57.

2. Keshaz v. Roinachandra. (1980) 2 Kar U 432 (FB).
3. Lord t1cwrt, The New De.cpolAsrn. 102.
214 THE SUPREME COURT OF INDIA
Amery' said, "Independence of the judiciary loses all meaning ii' any judicial
decision unpleasing to the party leaders can at once be reversed by fresh and even
retrospective legislation''.
- 1 -
4. L.S.Amery, Essay on British Parliamentary Government," in Parliament: A Survey, edited by Lord

Campion, 54.
12
Development of Criminal Law
• with exceptions crime was considered to be a wrong done to the injured part y , not
an offence against the State and punishment was regarded as the private right of the aggrieved
patsy
T.K Banerjee. Background to Indian Criminal Law. p 62
No clear distinction existed between private and public law.., between Crime and Tort.
This led to injustice and corruption.
infra, pars 2(b)
The Moghal conquerors forced on the people qi India she Mohammedan Crimiriril law
irrespecti-ie of their religious beliefs. Ii was jorpotfrn that flraI,jti and rz'F India was the
btrtl, place of Islam cad of the law if Quran '... the application of Mo/wminedan Criminal
law as a ge,i.'rol law to all persons in India was stopped in 1432.
Rankin, p. 275
SYNOPSIS
Ancient Hindu Criminal Law (c) No distinction between private & pub-
2. Early Muslim Criminal Law lic law
(a) Sources (d) Blood-money & Pardon
(h) Classification of offences (c) No distinction between murder & ho-
(c) Punishments micide
(i) Qisas (f) Ahslute dieretion under Tazir
(ii) Diva (g) Irrational law of Evidence
(iti) 1-larld 4. Reforms by English Adminisators
(iv) Tsar (a) \Varren Hastings
(d) Criminal Law in other parts of the (b) Cornwallis
country (c) Subsequent reforms up to 1831
(i) In Benai'as & Agra 5 End of Muslim Law as General Law (1832)
(ii) In Madras 6. First Indian Law Commission and Indian
(iii) In Bombay Penal Code
(iv) In Punjab (a) General
3. Defects of Mohammedan Criminal Law (6) The Indian Penal Code, 1860
(a) Incomprehensibility of principle (c) Necessity of reforms
(b) Unscientific Classification (d) Reform of Criminal Procedure Code
1. Ancient Hindu Criminal Law

Before the conquest of India by the Muslims, the penal law prevailing in India
was the Hindu Criminal Law. It is now well established that in ancient India there
existed a systematic and well defined criminal law) The punishment of a criminal
was considered to be a sort of expiation which removed impurities from the man
of sinful promptings and reformed his character. Ancient Smriti writers were also
fully aware of various purposes served by punishing the criminal S.2 Maim,3 Yajna-
valka4 and Brihaspati 5 state that there were four methods of punishment, namely,
by gentle admonition, by severe reproof, by fine and by corporal punishment and
declare that these punishments shall be inflicted separately or together according to
I. For details, see Chap. I of this Book at 11-15,

2. Kautilya'sArthasastra Vol. IV, 10
3. Manusmnti. viii.
4. 'iajnavalkyasnsriii, 1.
5 Briha.spatismrio. See also Max Muller edition, Sacred Books of the East, Vol XXXIII.
215
216 DEVELOPMENT OF CRIMINAL LAW [CHAP,
the nature of offence. The punishments served four main purposes, namely, to meet
the urge of the person suffered, for revenge or retaliation, as deterrent, and preventive
measures and for reformation or redemption of the evil doer. 6 The Dwvhwiveka?,
quotes a verse in which the considerations that should weigh in awarding punishment
are brought together, namely, the offender's caste, the value of the thing, the extent
or measure, use or usefulness of the thing with regard to which an offence is
committed, the person against whom an offence is committed, age, abilit y , qualities,
time, place and the nature of the offence. Certain classes of persons were exempt
from punishment under the ancient criminal law.
2. Early Muslim Criminal Law

Before the advent of the British, the Mohammedan Criminal Law was prevailing
in India. , Muslims after conquering India imposed their criminal law on Hindus
whom they conquered.
(a) Sources.—Qurari, is believed to be of divine origin. The Mohammedan
Criminal Jaw s is based on it. It is the first source of Muslim law. To meet the
requirements of society this was felt to be inadequate. Consequently, rules of conduct
(called Surma) deduced from oral precepts, actions and decisions of the Prophet
constituted the secondar y source. Concurrence of the companions of Muhammad
and the aid of anology constituted respectively the third and fourth source of the
Muslin) Law.,'
Hidaya 1 ° and Fatawa-i-Alamgiri' t expounded the Criminal law. The former laid
down the general rules and principles while the latter was a collection of case-law.
(b) Classification of Offences:—Under four broad principles, the Mohammedan
Criminal Law" classified all offences for punishment, namely, (1) Qisas or retalia-
tion, Ni) Diya or blood-mone y . (iii) Hdd or fixed penalties; and (iv) Tazir or
discretionary punishment.
Hidaya presents a curious mixture of great vagueness and extreme technicality
of the Mohammedan Criminal Law.13
Thus the Muslim criminal law tried to make the distinction between murder
and culpable homicide but it did not rest on the intention or want of intention of
the culprit. It rested oil the method employed in committing the crime. This was
6 P. V. Kane, History (fDJwtsnci.rasj. Vol. III, 388-1').

7. Dandaviveko of VardIin,nejn (Gaikwrid Oriental Series), 36.
8. For the origin and nature of the Muslim Criminal Law, See T K. Hanerjee, Background to Indian
Criminal Law, 34-36.
9. Fitzgerald, Mohammedan Law. 3-8; see also R.K. Wilson, An Introduction to the Study oJ'Anglo
Molia,nmedwi Law, 14-18.
10. It is a commentary upon the Bidyul-ul-Moobzadee composed by Sheikh Boorhan-ud . Din All, son of
Abu Bukr,
It. It consisted of 61 books which were composed in Arabic under the authority of Emperor Aurangzeb
and was later on translated into Persian.
11 For details see in Chap. I of this Book at 33 . 34, see also Rama Jois : Legal & Conti rational History
of India, 1984, 10.12,
13. The offence of homicide is divided into live kinds
(i ) Katlu-amd or wilful homicide by a deadly weapon, (ii) Karla-Shahab-wnd or wilful homicide, (iii)
Krla . Kheiio or erroneous homicide, (iv) involuntary homicide by an involuntary act, (v) accidental
homicide. See J.F. Stephen A history ojCrirnirial law of England. Vol. ill. Ch 33, 292.
121 MUSLIM CRIMINAL LAW 217
peculiar and generated grave injustice. As pointed out by Banerjee.' 4 "with excep-
tions crime was considered to be a wrong done to the injured party. not an offence
against the State and punishment was regarded the private right of the aggrieved
party." There was no class distinction between private arid public law—between
crime and tort. This led to injustice and corruption.
(c) Punishments
(i) Qiss.—Qisas or retaliation applied specially to offences against the person,
e.g. wilful killing, maiming and grave injury. It was classified into two, in cases of
death and in cases short of death. This right was regarded to be the right of man
(Ha.kka-Admi) and not of public or of God. 14 The right of the person murdered
devolved on his legal heirs who represented him in the exaction of it.
(ii) Diya—In certain eases, where no retaliation was allowed, the injured party
had a right to demand only blood-money which was known as Diya. Diya could be
exchanged for Qisas. Blood-money could be accepted in lieu of retaliation. Due to
this detective arrangement murderers could escape by payment of money. Many evil
practices developed out of it,
(iii) Hadd.—In the case of Iladd, the law prescribed and fixed the penalties for
certain offences. In such offences the Judge was required to pass a tentence
according to the provisions of the law. Punishments under Hadd were given in
offences like Zina (illicit intercourse), drinking wine, theft, highway robbery, accus-
ing a married woman etc. In case of Zina death by stoning or scourging and in case
of theft amputation of accused's hands were the punishments. These punishments
were very harsh and the proof of offence was made very essential.
(iv) Tazir.—Thzir meant discretionary punishment. Offences for which no
punishment was prescribed were left to the discretion of the Judges to give any sort
of punishment from imprisonment and banishment to public exposure. The circum-
stances of each case determined the Tazir. The conditions of convictions in Tazir
were not so strict as for cases under I/add. Above all these, the King had a right
called, "Right of Sivasat' to punish the gLlilt\' in the interest of the general public.
(d) Criminal Law in other parts of the country
(i) In BeItaraS and Agra.—The development of criminal law, as applicable to
Benaras and other ceded and conquered territories, was more or less on the steps
similar to the development of the law of crimes in Bengal. A short account of the
criminal law in Bengal is already given above. On certain matters special legislation
was passed in Benaras, Agra and other ceded districts. The British India legislators
made the criminal law applicable to all castes. In 1817 the throwing of children into
the sea (Sagar) or other places was made a criminal offence. The evil practice of
burning of widows alive on the death of their husbands was made a criminal offence
in 1830. By Section 23 of Regulation XVI of 1795, it was provided that in the
province of Banaras Brahmins will not be punished with death and for them
transportation was substituted for capital offence. This privilege of Brahmins was
abolished by Section 15 of the Regulation of 1817. In J3anaras the authorities gave
recognition to many Hindu ideas, feelings and practices.
14. T.K. Bancrjee. Backgri,und to Indian Criminal Law. 40-44.

218 1DEVELOPMENT OF CRIMINAL LAW

1CHAI'
(ii) In Madras.—In Madras Presidency, the Mohammedan Criminal Law was
enforced in the same way as in the Presidency of Bengal. Regulations of 1 808 and
1811 made some remarkable contribution but on the whole the law which was in
force resembled the law in force in Lower Bengal and so closely as not to require
any special notice.
(iii) In Bombay.—In
Bombay the Mohammedan Criminal Law was not the
general law of the land. Section 36 of Regulation V in 1799 laid down a scheme
for the application of personal laws in the cases of Hindus and Mohammedans,
while Parsees and Christians were to be governed by English law. In Mohammedan
Law, as it applied in Bombay, certain modifications were made on the lines of the
Cornwallis Code of 1793. The main reason for this peculiarity was that at the time
of annexation, Bombay was not under Muslim rule. Therefore, the Hindu Law of
crime developed in Bombay.
When Mountstuat't Filphinstone was Governor of Bombay, he passed a series
of Regulations which came to be known as the Elphinstone's Code of 1827. The
preamble cited that it had been the practice of the British Government of Bombay
to apply to its subjects respectively their peculiar laws, modified and amended as
necessity required. In this way Bombay was the first Province in India in which a
Penal Code was enacted. Anderson said, "There was no difficulty in applying in
general code based upon European principles to the mixed population of the
Presidency of Bombay". 15
The Code was very simple and short and was written
more in the style of a treatise than in that of a law. Stephen said, "It was, I believe,
successful and effective, and it remained in force for upwards of thirty years, till it
was superseded by the Indian Penal Code. It applied only to the Company Courts".
(iv) In Punjab.—After
the death of Raja Ranjit Singh in 1939 the .Sikhs were
defeated in the Second Sikh War and Lord Dalhousie annexed the Punjab to the
British Empire on 29th March, 1849. However, it was difficult to
in absence of any , control the Sikhs
legal system. The Mohammedan Law was not acceptable to the
Sikhs and introduction of immediate legislation for the purpose was not possible. A
Board of three Commissioners was therefore appointed. As Stephen states, "First
the three Commissioners and afterwards Lord Lawrence proceeded to cause short
treatises, which acted as codes, to be drawn up by Some of the officers under their
orders, by which codes the work of governing the Province was carried on"."They
contained important points which were considered necessary for the purposes of
administration
Sir Richard Temple prepared the first Code for the administration of the Punjab
in 1853. It dealt with civil as well as criminal matters. Some time later a part of
the Code which dealt with criminal law and procedure was developed and recast
by Sir Charles Aitchison, They were confirmed later on by the Indian Council's Act
of 1861.
15. For derails see G. Anderson, British Administration in India.

16. J.F. Stephen-4 History of
Law", at 295. the Criminal Law of FMgland, Vol. 111, Chap. XXXIII 'Indian Criminal
17. Ibid., 296.
121 DEFECTS OF MOHAMMEDAN CRIMINAL LAW 219
This position of the criminal law in the most important parts of India, namely,
Bengal, Madras, Bombay, the Punjab, Benaras, Agra, etc., continued till 1858 when
the Company's Government was taken over by the Crown.
3. Defects of Mohammedan Criminal Law

(a) incomprehensibility of principle.—Though certain broad principles of
Mohammedan Criminal Law were laid down, as stated above, still in many cases
the criminal law was not certain and uniform. In actual practice it was realised that
the law laid down in Hidaya and Fatawa-t-Alamgiri was mostly conflicting, con-
fusing and incompatible. In each case the interpretation of law depended on the
Qazi who presided over the Court.' 8
Referring to the defective state of law Stephen observed:
"The Mohammedan Criminal Law was open to every kind of objection. It
was occasionally cruel. It was frequently technical, and it often mitigated the
extravagant harshness of its provisions by rules of evidence which practically
excluded the possibility of carrying them into effect. Thus for instance, immoral
intercourse (dna) between a woman and a married man was in all cases
punishable by death, whether violence was used or not: but punishment is barred
by the existence of any doubt on the question of right or by any conception in
the mind of the accused that the woman is lawful to him and by his alleging
such idea as his excuse. Moreover the evidence of women in such an accusation
was rejected." ' 9
(b) Unscientific Classificaiion.—The inherent defect of the Mohammedan
Criminal Law was in its conception and classification of crimes. Crimes were of
three kinds: (a) Crimes against God; (b) against the State, and (c) against private
individuals. Banerjee has pointed out, 'with exceptions crime was considered to be
a wrong done to the injured party not an offence against the State and punishment
was regarded as the private right of the aggrieved party" 20
(c) No distinction between private and public law.— There was no clear
distinction between private and public law. The basic notion in the Mohammedan
Jurisprudence was to secure satisfaction for the injured rather than to afford protec-
tion to the society at large. This weakness of Mohammedan Law was sufficient to
encourage many persons to commit murders.
(d) Blood-money & Pardon—The law of Diya or blood-money was also highly
unsatisfactory in the interest of the society. According to the Mohammedan Law,
the son or the nearest kin of the murdered person was authorised to pardon the
murderers of their parents. This made the life of a human being very cheap to be
assessed in money value. The Mohammedan Law made no distinction between crime
and tort.
In cases, where the deceased person left no heirs to punish the murderer or to
demand blood-money no specific provision was laid down in the Quran. Even if a
person had left behind some minor heirs, it was necessary to wait until the infant
heirs had grown up before a murderer could be capitally punished. For a long period
18. Sri Ram Sharma. Mughal Gcreninieni and Administration. 200-201
19. See "Indian Criminal Law in Stephen. A Hz.riory of Criminal Low of England. Vol. III, 293.
20. T K. Banerjee, Background to Indian Criminal Law. 62.

220 https://t.me/LawCollegeNotes_Stuffs
DEVELOPMENT OFCRIMINAL
of I'M"- SUCh Conth [CHAP
was no Specific provjsjo cting and importantquestions re
Corruption. in the Quran mained unsettled as there
This unc
ertainty led to Injustice and
(e) No distjj0
w be t
een murder and homicide,
Law allowed
for shed g distjnctio between the murder Perpetrated Mohammedan Cr imnaj
din blood, and death caused by a deliberate a Wi th an
o ct. instrument formed
ffences was also very severe but the Moha Th e Puni shment for these
Mutilation Tis/leer
or pu blic exp edan Law confused sin and crime.
were other seve osure, use of Cor
Cr iminal Law. re punishnten and common fo and dogging of females
g
- minor offences under Muslim
( Absolute
dis cretion under
TazjrThe law of
discretionary punishment was also very
vague which provided for
Judges. Even innocent persons were punished by which gave to o much
1flJ USt j e and bribery the POwer to the
in courts. This led to Corruption,
the courts
() and amongst Police officers
wasirrational
alsove law of Evidence Th
Law,ry technical de Jaw of Evidence under Muslim
medan could be convicted fective and unsa Criminal
ca pitally on the evidence
tisfactory For example no Moham.
Mohammedan's Words were of an
Evi dence of two women was regarded as being i nfidel In
other cases a
re garded as being equi valent to those of two Hindus
the evidence must be direct (i.e. eye Witfles - to that of one
and not man. Moreover
of Haj or Kjsa and Inurrler the evidence of a Woman
to COptjO circuJnstanhiaj)
was and in all cases
bribery and In inad missIble 21
care for the crimi justice It seemed as if the law was framed with a This led
special
truth was punished nal to escape It thus helped
the
accused and one who told the
In Spite of all these defects in the Mohiarnjnedan Cr
that the dcfec were not p
eculia t j minaj Law at is also said
to it but were the
early law of every Country inclu Concomint
England 22 U1 11t ele ments of the
some respects, Und
En glish Crjminaj L T.K. Banerjee23 has pointed out,
Law
of oubtedly the Mohammedan Law was superior to the
P erfec t. English Law that period which was still rude and crude and far from
w
thief could never be capitally ould Phang a man for stealing trivial thing but
the severest un ished' Dr s
pun i s in Bengal a
. Aspinall24 Observes that in "Prescribing
Criminal Law of the hments for comes
eighteenth against
century person
Which punit was in advance of the English
with much greater sev ished Offences
erity'',
Ho against Property
wever, the defects of the Mohammedan Criminal Law
crowing demand for reforms in it from every gr adually led to a
s ection of the
Medan administrators took no definite steps to improve theS ociety. Thespecially
situation Moham
India
because of the strong ties between the religion and law. It was only during the East
Company's administration under the
Lord Cornwajjj that strong Gove rnorship of Warren
Punish the off re formati ve steps were
enders by reconstituting the taken to Suppress Hastings and
the evils and
Moha mmedan Criminal Law courts and
21. Suprnno 16.
22 For a det led acad
88-89 103-104. discussion on the point seq
W.A. Robson,
23. T.K. Baaerjee Cjvj(jtjon and
Back roid io /ndja, Comp the Growth uJ La
24. A. ASPjSI 14w 67.
Car nwajji5 in Bellgal, 61
121 REFORMS BY ENGLISH ADMINISTRATORS 221

by passing various regulations to remove the defective provisions of the Moham-
medan Law.
4 Reforms by English Administrators

The Mohammedan Criminal Law, as we have stated above, suffered from many
defects. The English adiiunistrators of East India Company realised from time to
time that many provisions of the Mohammedan Criminal Law were repugnant to
good government, natural justice and commonsense. They introduced certain reforms
from time to time to mould, refashion and amend the Mohammedan Criminal Law
so as to adapt it to their new conceptions of policy and behaviour, though for a
long time it continued to be the law of the land.
(a) Warren Hastings—Referring to the period before Warren Hastings came to
Bengal, Stephen observes, ''Of the English Criminal Law practised in India it is
needless to say more than that it was regarded as the English Criminal Law as it
stood in 1726 when the Charter was granted by which the Mayor's Court and the
Court of Quarter Sessions... were established. "25
Soon after the acquisition of Diwani by the East India Company, the question
arose whether the Company could alter the criminal law then in force in India. The
first interference with the Mohammedan Criminal Law came in 1772 when Warren
Hastings changed the existing law regarding ducoitv to s'!ppress the robbers and
dacoits. He pointed out, in his letter, "The Mohammedan Law often obliges the
Sovereign to interpose and to prevent the guilty from escaping with impunity and
to strike at the root of such disorders as the law may nol reach.." Hastings criticised
boldly and attempted to introduce reforms in various ways. To regulate the machin-
cry of justice in Bengal, Warren Hastings prepared plans and introduced reforms in
1772, 1774 and 1780 respectively as well as suggested various reforins 26 His further
proposals for reforms were not heeded because as expressed by Rankin G.C. in his
Background to Indian law (1946. 169) "The cloudy title of the Company to the
Nizamat made it slow to alter the criminal law."
(b) Lard Cornwallis.—From 1772 to 1790, no special effort was made to change
the Mohammedan Criminal Law. The problem of law and order as well as to improve
the defective state of the Mohammedan Law were seriously considered by Lord
Cornwallis when he came to India in 1790. Lord Cornwallis, who succeeded Warren
Hastings, concentrated his attention on removing two main defects, namely (a) gross
defects in Mohammedan Criminal Law, and (b) defects in the constitution of courts.
Lord Cornwallis' reforms in the Mohammedan Criminal Law were introduced
on 3rd December, 1790 by a Regulation of the Government of Bengal. (I) He
introduced the importance of intention in committing a crime, instead of the weapon
with which the crime was committed 21. Consequently he rejected Abu Hanifa's
doctrine and accepted Doctrine of Yusuf and Mohammad. (2) Sacking the next-of-
25. It is controversial whether English Law was wtroduced in India in 1726 or later on. This controversy
became serious after the trial of Raa Nand Kumar in 1775 - For details see
See also J.F. Stephen, The Story ojNwaconwr and the Impeachment Chapter V of this Book
The Trial of Maiwraj a Nnd Kumar B.N. Pnde.
of Sr Elijah Impey: Beveridge,
Introduction of English Law into India; and MC
Selalvad, The Common Law in India.
2. For details see
"Judicial Reforms of Warren Hastings' in Chapter IV of (his Book
27. See also Aspinall, Cornwallis ut Bengal,
69 Rankin, Background to Indian Law, 170.
222 DEVELOPMENT OF CRIMINAL LAW [CHAP.
kin's discretion to accept blood-money he decided to punish the wrong-doer. (3)

Punishment of amputation and mutilation of organs were substituted by fine and
hard-labour and imprisonment. For this purpose a Regulation in 1791 was passed.
(4) in case of refusal or neglect to prosecute the offender by relatives of the deceased
the record was to be sent to Sadar Nizamat Adalat for passing final orders. This
important step was taken in 1792. (5) Consideration of witnesses on religious
grounds and gender basis were abolished. The Muslim law thus stood modified in
1792. (6) On 1st May, 1793, the Cornwallis Code 29 - a body of forty eight
enactments - was passed. Regulation IX of 1793 in effect restated the enactments
which provided for modification of the Mohammedan Criminal Law during the last
three years. Thus it laid down the general principles on which the administration of
criminal justice was to proceed. (7) In order to make the law certain in 1793 it was
also provided that the Regulations made by the Government were to be codified
according to the prescribed form and they were to be published and translated in
Indian languages.30
The system which was provided under Cornwallis Code for Bengal was sub-
sequently also adopted in Madras and Bombay Presidencies with certain amendments.
(c) Subsequent reforms up to 183/—The process of introducing reforms in the
Mohammedan Criminal Law continued till 1832 when the application of Muslim
Law as a general law was totally abolished. Various piecemeal reforms which were
introduced from 1797 to 1832 in the Mohammedan Criminal Law were as follows:
(I) Persons unable to pay blood-money were set free (Regulation XIV of
1797').
(2) Fine imposed on a criminal was to go to Government and not to private
persons (Regulation XIV of 1797).
(3) Non-payment of fine was to result in a fixed term of imprisonment
(Regulation XIV of 1797).
(4) Mitigation or pardon could be recommended to the Governor-General-in-
Council in case of Injustice (Regulation XIV of 1797).
(5) Penalities for false testimony being too severe were in the first instance
replaced by Imprinting (stamping) words on the culprit's forehead and
later oil practice was also stopped and rules were framed for the
purpose.
(6) Regulation IV of 1799 penalised the offence of treason,
(7) Dharna was made an offence by Regulation V of the same year. Punish-
ment was prescribed for it.
(8) By Regulation 11 convicts sentenced to imprisonment, who escaped from
the jail before the expiry of the term of their punishment, were declared
liable to transportation to some place beyond the seas either for the
remaining life or for a short term.
(9) Regulation VIII of 1799 provided sentence of capital punishment in
certain cases e.g. in cases where parent killed the child, master killed the
28. See Resolution in the proceedings of the Governor-General-in-Council, dated 10th October, 1791
29. For details s ee Chaper VI of Book
30. Regulation XLI of 1793.
121 REFORMS BY ENGLISH IN ADMINISTRATORS 223
slave etc. Earlier, these cases were considered as justifiable under the
Muslim Law.
(10) In committing homicide a distinction between innocent intention and
criminal intention was made by Regulation VIII of 1801. The Moham-
medan law had failed to distinguish between these. Death sentence was
prescribed for the latter.
(11) Practice of infanticide and its abetment were declared equivalent to
murder and were made punishable with death penalty. Even an attempt
was punishable.
(12) Regulation 111 of 1803 provided that in cases where a person was liable
to discretionary punishment under the Mohammedan Law, the Faiwa of
the law officers was merely to declare the same in general terms, stating
the grounds why the prisoner was subject to discretionary punishment and
the punishment. short of death, was to be proposed by the Judge of Circuit
or by the Sadar Nizaina! Adaiat. 31 This had the effect of removing bribery,
corruption and luck of uniformity.
(13) It was provided that "no punishment was to be inflicted only on suspicion;
if in a particular case the evidence fell short of legal requisite for Hatid
or Qisa but was nevertheless sufficient to convict the prisoner on strong
presumptive proof or violent presumption, the Jtdge was to sentence the
accused to the full amount as if the prisoner was convicted on full legal
evidence." 32 In all other serious cases, where no penalty was fixed by
any regulation, the Regulation providcd for a maximum punishment of
seven years' hard labour and thirty-nine stripes.
(14) Robbery was another very recurrent offence which was coiiiiiion in the
country at that time. But suitable legislation to deal with them was passed
only as late as 1803. Regulation LIII of 1803 abolished the condition of
the place of robbery which was given an important place in the Moham-
medan Criminal Law. It also abolished the necessity of evidence of any
special kind. In all cases of murder committed in the prosecution of
robbery , or aiding or abetting the same or being accessary thereto the
offenders were to he sentenced to death. For habitual and notorious
robbers, in consideration of circumstances, the fVazamaj Ad4ai was
empowered to inflict the capital sentence. In simple robbery seven years'
punishment was given.
(15) Dacoity was another major problem to be checked by law and punishment.
Regulation IX of 1808 provided that notorious dacoits were liable to
imprisonment or transportation for life-, if they would not surrender
themselves within the specific period of the proclamation. Laws were
made more stringent to check dacoity.
(l) In order to check crimes of burglary, the existing Regulations were
modified. Regulation I of 1811 provided for the punishment of imprison-
inent in banishment for 14 years and to the corporal punishment of 39
31. See T.K. Banerji, &I( kt row ) d 10 lnthwi Criminal Low. 81

32. Ibid.
224 DEVELOPMENT OF CRIMINAL LAW [CHAP.

stripes for the offence of burglary between sunset and sunrise. Similarly
punishment was laid clown for other types of attempts to commit burglary.
(17) In case of punishing adultery the Regulation XVII of 1817 provided that
the punishment could be given on confession, creditable testimony or
circumstantial evidence. It further laid down the maximum punishment
of seven years' hard labour and thirty stripes for the offence of adultery
and rape.
(18) Other Important Regulations were passed to stop slave trade in the
country, 33 enticing away females and not maintaining the family, 34
to
prohibit Began," to punish for affrays with homicide. 36 The use of Corah
as an instrument of punishment in the execution of sentences of any
criminal court was prohibited by Section 4 of Regulation XII of 1825
and it substituted the use of rattan fit place. By Section 3 corporal
punishment was totally forbidden for female convicts. The same Regula-
tion further restricted the number of cases in which reference to Nizarnat
A&iat was necessary. Similarly various other Regulations were passed
in order to check various other types of criminal activities.
(19) By Regulation XVII, on 4th December 1829, the practice of self-immo-
lation on the funeral pyre of her husband (called Sati) was declared illegal.
Madras and Bombay followed suit. 37
The provisions made by the Regulations from time to time were like patchwork
on the Mohammedan Criminal Law. Commenting on the state of criminal law,
Stephen observed,'Ohecrionable in all respects as this systcm was, it was con-
sidered necessary to make it the foundation of the criminal law administered by the
Company's Courts, though its grosser features were removed in some cases by
Regulations, in others by decisions of the Sadar courts and in others by circulars
and orders of various kinds. It became necessary in many instances besides correcting
the law to supply its defects and for this purpose all sorts of expedients were devised,
the law of England. instructions fmnl the Government general ideas of justice,
analogies, in short almost anything which occurred to those by whom the system
was administered were resorted to for that purpose. The result was a hopelessly
confused, feeble, indeterminate system of which no one could make anything at
all."3t
5. End of Muslim Law as the Geqeral Law (1832)
So far, we have discussed the piecemeal reforms made by the English admiri-
istranors to remove the defects of the Mohammedan Criminal Law. The most
remarkable and unique change took place in 1832 when the application of Moham-
medan Criminal Law as a general law to all persons in India was stopped. As stated
in the preceding pages, the Moghal conquerors forced on the people of India the
33. Regulation xof 1811.
34. Regulation VII of 1819.
35. Regulation III of 1820.
36 Regulation 11 of 1923-
37. R.C. Majurndar: The 111sf ory & Culture of the Indian People.
Ed. 1965, Vol. X, Part II, 268.75.
38 See J.F. Siephen, A History i.f the Criminal Law of England,
Law", at 293-94. Vol III, Chap. XXXIII "Indian Criminal
121 THE INDIAN PENAL CODE 225
Mohammedan Criminal Law irrespective of their religious beliefs. "It was forgotten
that Arabia and not India was the birth-place of Islam and of the law of Qurazi"
The Mohammedan Law was an archaic and primitive system which totally neglected
the Hindu Criminal Law. It was also highly objectionable in the interest of many
persons who did not profess the Mohammedan faith to be liable to trial and
punishment under the provisions of Mohammedan Criminal Law.
Regulation Vi of 1832 played a very important tole in shaping the future course
of criminal law in India. It empowered the Judges of Nizamat Adalat to overrule
Farwas. It also provided that non-Muslims who were under trial could demand that
they did not want to be tried according to the Mohammedan Law of crimes. On
such a request, the Regulation authorised the Judge to seek help of the natives in
any of the following three ways:
(i) By appointing the natives to the jury. It was the duty of the Judge to
appoint a jury and also to lay down the manner in which the jury was to
give its verdict.
(ii) By constituting two or more persons as assessors. The opinion of each
of the assessors was to be given separately.
(iii) By referring any such case or any point to a panchayat of persons.
On the whole, the ultimate responsibility to decide cases was exclusively given
to the presiding officer. Non-Muslims were also made free from the jurisdiction of
the Mohammedan Criminal Law. But the Regulation VI of 1832 did not explain by
what law a Hindu or European claiming exemption was to he tried.9
After 1832, the Jury system, as it prevailed in England,` was introduced in
India. This system was highly criticised as an entire failure as the Judge generally
put such persons in the box who always agreed with hini.11
6. First Indian Law Commission and Indian Penal Code

(a) General.—Before the enactment of the Charter Act of 1833, there were
many discrepancies in the Regulations which stated the law relating to crimes.
Certain provisions of the Mohammedan Criminal Law which were not changed by
the Regulations were also in a defective state. The result was utter chaos and
confusion in the administration of criminal justice in India. Stephen pointed at its
weaknesses, defects, confusion and utter want of principle and unity 42 while George
Campbell recognised it as a patchwork made up of pieces engrafted at all times and
seasons on a ground nearly covered and obliterated.., the general result is that all
the worst and most common crimes are satisfactorily provided for by special
enactments but that there is a very great want of definition, accuracy and uniformity
as to the miscellaneous offences ... it wants remodelling, classification and codifica-
tion.
39. Campbell, Modern India, 465-66.

40. For details see V.D. Kulshreshtha, A Textbook of English Legal History, 2nd Edn., Chap. VIII, 49-54.
41. ibid.
42. J.F. Stephen, A History of the Criminal Law of England. Vol. Ill, Chap. XXXIII "Indian Criminal
Law", at 295-97.
43. George Campbell, Modern India, 465. See also Lord Bryce. Studies in History and Jurisprudence.
Vol. 1, 129.199. 200; for a detailed account of the Administration of Criminal Justice during the period
see R.C. Majumdar The history and Culture of the Indian People. Vol 9, 1963, 347-352.
DEVELOPMENT OF CRIMINAL LAW [CHAP.

226
(b) The Indian Penal Code, 1860.--In order to tackle the existing defective
state of legislation, the British Parliament passed the Charter Act of 1833. It changed
the Governor-General of Bengal into the Governor-General of India. For the first
time in the legislative history of India, he was empowered to legislate for the whole
of British India. The powers of the Presidencies of Bombay and Madras to legislate
were abolished. It led to the centralisation of legislative authority in India. The Act
also provided for the appointment of a Fourth Member, as the Law Member, to the
Council of the Governor-General of India. T.B. Macaulay was appointed the first
Law Member. Section 53 provided for the appointment of a Law Commission for
the purposes of framing suitable legal codes for India.
In 1834, the first Law Commission of India was constituted under the Chair-
manship of Lord Macaulay. The Commission was directed to take up the preparation
of a Penal Code for India. In the instructions to the Commissioners, drawn up by
Macaulay, Bentham's "principles of punishment and his criteria for a code" found
clear expression. The work on the Penal Code took over two years and the
Commission submitted its final Report on 31st December, 1837. Its recommendations
did not however find immediate acceptance of the Government but it was considered
to be the most significant and historic contribution of the Commission. it was to
supersede the English Criminal Law in the Presidency towns and the Mohammedan
and all other penal laws in the Moffussil areas in the whole of British India. Most
of the opinions were received by 1840 but no concrete step towards their consider-
ation was taken for some years. While posterity hailed Macaulay's code as "a work
of genius , the opposition it met with is hardly surprising. The Draft of the Penal
Code, when it was circulated for opinion, evoked a good deal of opposition and
many eminent Judges and the Advocate-General were against it. "The saying in
East Bengal is,' said Sir C.P. Ilbert, 'that every little herd boy carries a red umbrella
under one arm and a copy of the Penal Code with the other". In the words of
Fitzjames Stephen, "Lord Macaulay's great work was far too daring and original
to be adopted at once and it is not surprising that the period of gestation was
prolonged.' ' For not less than twenty-two years, the Code remained in the shape
of a draft and it under-went minutely careful and elaborate revision at the hands of
the Members of the Legislative Council. 4 Belore it was given a final shape,
Macaulay's Draft was revised by Sir Barnes Peacock. The suppression of the Mutiny
and the transfer of the Government, from the Company to the Crown, changed the
conditions and its necessity was greatly realised. Finally, the Indian Penal Code was
passed into law on 6th October, 1860 as an Act XLV of 1860. it was translated
into almost all the written languages of India and suitable steps were taken to make
even zamindars and pardanashin women acquainted with its provisions.
In drafting the Indian Penal Code the Commissioners no doubt derived much
valuable help from the French Penal Code and Livingston's Code of Louisiana but
above all the basis of the Indian Penal Code was the criminal law of England. In
the words of Stephen, "The Indian Penal Code may be described as the criminal
44. For details see Chapter XIV of this book.

45. C.P. Uberl, The Mechanics of Law Making, 166.
46. J.F.Stephen. Life and Letters of Macaulay. Vol. IX, 421.
47. Second Law Commission also introduced changes in the Draft of Penal Code. For details see Chapter
Xli of this book.
121 THE INDIAN PENAL CODE 227
law of England freed from all technicalities and superfluities, systematically arranged
and modified in some few particulars to suit the circumstances of British India. I
do not believe that it contains any matter whatever which have been adopted from
the Mohammedan Law. The Code consists of 511 sections and it deserves notice
as a proof of the degree in which the leading features of human nature and human
conduct resemble each other in different countries......
Whitley Stokes observed, "Besides repressing the crimes common to all coun-
tries, it has abated, if not extirpated, the crimes peculiar to India, such as thuggee,
professional sodomy, dedicating girls to a life of temple-hartotry, human sacrifices,
exposing infants, burning widows, burying lepers alive, gang robbery, torturing
peasants and witnesses and sitting dharna. ''
(c) Necessity of Reforms—The Indian Penal Code, which was drafted by the
First Indian Law Commission headed by Lord Macaulay and with subsequent
changes, was passed in 1860. One cannot question the fact that it is by far the most
important piece of Indian legislation. It is also a fact that since then much water
has flowed under the bridge. It has also become an indisputable fact that it requires
a thorough revision by an expert committee.
As early as 1887 Whitley Stokes 50 remarked. "The time therefore has apparently
come for repealing Act XLV of 1860 and for re-enacting it with the changes made
by the Acts amending it and with such further improvements in arrangement,
wording and substance as may commend themselves to the Government of India
after consulting the learned Judges of the High Courts, and the ablest of the officers
by whom the Code is administered in the moffussil" Whitley Stokess' remark was
based on the fact that during the last 24 years i.e. ironi 186() to 184, a large number
of important and sometimes conflicting decisions on the interpretation for the
provisions of the Code were delivered by Lhe High CourL'; of Calcutta, Bombay.
Madras and Allahabad. Stokes has also supported his suggestion by pointing out
that "Macaulay himself was of opinion that no point of law ought to continue to
be a doubtful point for more than three or four years after it has been mooted in a
court of justice". The main contention of Stokes still strongly supports those who
advocate for introducing reforms in the Indian Penal' Code. Since 1860, the political,
economic, social and other related circumstances have greatly changed. The cas-law
material on the provisions of the Penal Code has multiplied. The clecisns of the
various High Courts, Privy Council and after 1950 of the Supreme Court of India
have further contributed to the development of law and added to the large mass of
case-law. The commentaries on the Indian Penal Code have also multiplied into
several volumes. A comprehensive amendment Bill 1974) for amending the I.P.C.
and introducing new offences is pending in Parliament.
The Constitution guaranteed Fundamental Rights to the citizens of India and
also laid down ''Directive Principles" of State policy. Since then the implementation
of the five year plans has led to unprecedented growth of industrialisation in India.
Rapid expansion of the automobile industry and a large number of new problems
48 J F. Stephen, A History the Cnnwwl Law of England. Vol iii. Chap. XXXIII ''Indian Criminal
Law" at 300.
49 Whjiicy Stokes, The Anglo Indian Codes, Vol 1,71 For details see the Indian Penal Code, 1860.
50 Whitley Stokes, op. cit, 72.
228 DEVELOPMENT OF CRIMINAL LAW
have changed the whole economic and social outlook of people. Indian Parliament
has enacted a large number of laws in various fields, namely, industrial, economic,
social, etc. It will be the greatest blunder to think that the conceptions of crime and
punishment have not changed since 1860, when the Penal Code was enacted. It is
also worthwhile to note that even within a period of last 120 years, i.e. from 1860
to 1980, the Indian Penal Code was amended somehow or other fifty-eight times
by legislation
In the light of modern developments which have changed Indian conditions in
various ways, it has also become essential to reconsider afresh on the provisions of
the Penal Code. The Code needs re-arranging of its many sections. Many overlapping
provisions require careful consideration. Those sections which are extremely precise,
bald and leave much to the ingenuity of Construction, must be properly redrafted
Apart from this, it is of great importance to reconsider the theory of punishment
and to introduce a reformative element into it. The question of abolition or retention
of capital punishment requires serious consideration in the light of modern national
and international developments. Sentence of transportation, imprisonment, fine,
forfeiture, inequality of punishment, genesis of crime and their degree, etc. are other
very important matters involving major policy decisions, and on an all-India basis
require a very careful consideration by experts. Never before in history, the Gov-
ernment of India had such a responsibility as it has now to deal with these vital
issues in the interest of the common people, and the administrators alike.
As such, a revision of the century-old Indian Penal Code, to bring it into line
with the modern conceptions of crime and punishment has become a necessity in
the best interest of the country. A comprehensive amendment Bill to modernise the
Penal Code was introduced in 1972 but lapsed. Recently the LPC has been amended
by introducting new Sections 376-A to 376-D, S. 498-A, S. 304-B and S. 364-A
but such piece-work is no substitute for a complete surgery.
(d) Reform of Criminal Procedure Code.—The Code of Criminal Procedure,
1898 (5 of 1898) was repealed and the new Code of Criminal Procedure, 1973 (2
of 1974) brought into force from April 1, 1974. Comprehensive changes have been
made in all the spheres, the executive set-up, abrogation of committal proceedings
sentencing practice and the like.
..
'3
Racial Distinction
To give every English defendant in every Civil cause a right to briny the native plaintiff
before the Supreme Court is to give every dishonest Englishman an immunity against almost
all civil prosecution,'' -
"...We proclaim to the Indian people that there are two Sorts of justice, (4 course (me
which we think good enough for them, and another of
ourselves. superior quality which we keep for
Macaulay: infra Para 2. sub . para 5
SYNOPSIS
I. Origin
(e) At of 1836 abolishes Discrimination
2 Distinction in Civil justice
3. Distinction in Criminal justice
(a) Position up to 1813 (a) Position up to 1836
(b) Position after 1813 (6) Positio n after 1835
(c) Charter Act of 1833 continues Dis-
(c) Cnminaj Law (Removal of Racial Dis.
crimjnat ion Crirniriation) Act, 1949
(d) Macaulay's Opinion
I. Origin
The grant of Diwani to the English not only spelled out the establishment of
British Empire in India but also strengthened their belief in our shortsightedness and
helplessness, the direct result of which was the practice of racial distinction. The
British subjects in India were consequently originally exempt from jurisdiction of
Company's Courts, whether civil or criminal.
It is the high executive officials that largely determine the nature and character
of the Government. In the early days of the administration of the Company, as said
by Macaulay, ''even the character of the Governor-General was less important than
the character and spirit of the servants of the Company by whom the administration
of India was carried out."' This was so because the senior and junior merchants,
factors and 'writers' performed commercial as well as administrative duties. Their
selection was made in England, not on merits but on their 'requests' as ordered by
the Court of Directors in 1731, This Sort of 'patronage' which was believed by the
Directors as their important privilege naturally led to favouritism and "The service
became practically the monopoly of certain families." It resulted in corruption. Clive
failed to check this and Hastings too was proved a failure in controlling it. It was
Cornwall i s who for the first time in 1793 took steps in this direction. The Charter
Act of 1793 provided that all the vacancies in the offices etc. in the civil line of
the Company's service would be filled from amongst the Company's servants,
subject to their signing a covenant not to receive presents or to carry on private
trade. Consequently the superior grade and offices were reserved for them. 2
This
was so not because they were efficient or honest but because they had no faith in
Indians. This system of nomination remained in vogue up to 1833.
I. Macaulay's Speech in the House of Commons, June, 1853 (quoted in Chap. 1, VI, 358); R C. Majumdar:
The History & Culture of Indian People, 1903, Vol. IX, Pt. 1,
334.335.
2. History & Culture of Indian People, 1963, Vol. IX, Pt I, 335
[229 1
230 RACIAL DISTINCTION [CHAP.
2. Distinction in Civil justice

(a) Position up to 1813: Under the Regulating Act the English were exempt
from the jurisdiction of the Company's Courts. Only the Supreme Court of Judicature
at Calcutta had jurisdiction over them. In so far as Bombay and Madras were
concerned the position was the same. The Registration Act in Bengal also provided
that the British horn subjects would be subject to the jurisdiction of the Supreme
Courts and not to Company Courts. In Bombay and Madras these provisions were
implemented up to 1799 and 1802 under Regulation 18 of 1802 and Regulation 3
of 1799. In Bengal Lord Cornwallis in 1793 prohibited the English to reside beyond
a distance often miles of Calcutta unless they executed a bond subjecting themselves
to the jurisdiction of the Moffussil Diwani Adalats in cases where the amount in
dispute did not exceed Rs. 5001-. This distinctive position was however sought to
he changed by the Charter Act of 1813. It put restrictions on the patronage practiced
by the Directors and made every British subject residing, trading or holding
immovable property at a distance of more than ten miles from the Presidency towns,
subject to the jurisdiction of the Company's Courts in civil matters filed against
them by the natives. A right of appeal, however was granted to them whereby they
could appeal to His Majesty's Courts (Supreme Courts) instead of Sadar Diwani
Adalats. This was a privilege granted to them. This prevented proper administration
of justice.
(b) Positron after 1813: In 1814 the position was that the British could not be
sued in a Moffussil Adalat below the rank ui a Ditriet Court and for this purpose
it was provided that the Indian Commissioners, Munsifs and Sadar Ameens were
not to have any power to decide cases wherein the English, Americans and the
Europeans were a party. However this state of affairs was removed and Regulation
in 1827 extended the jurisdiction of Sadar Ameens over Europeans. This was to
remain only up to 1831. In 1831, William Benunck on reconstitution of the civil
judiciary prohibited the Munsifs, Sadar Ameens and Principal Sadar Ameens to try
such disputes where the Englishmen were parties. The privilege was thus restored.
The result was that the oppression and discrimination continued. The procedure
in the Supreme Court was very slow and the expenses very great. Justice was thus
ten times costlier than in England. The ministerial officers attached to the Supreme
Court in Calcutta made scandalous fortunes. Natives in the moffussil were thus
deterred by the expense of litigation before these tribunals with the result that
Englishman might without danger, refuse to pay their debts. 3 The state of things
was thus described by Macaulay:
"Till the passing of Act XI of 1836 an Englishman at Agra or Benaras, who
owed a small debt to a native, who had beaten a native, who had come with a
body of bludgeon-man and ploughed up a native's land, if sued by the injured
party for damages, was able to drag that party before the Supreme Court of
Calcutta (a distance perhaps of 1000 miles), a Court which in one most important
point—the character of the judges—stands as high as any court can stand, but
which in every other respect I believe to be the worst in India, the most dilatory,
and the most ruinously expensive. The expenses of litigation in England are so
3. Ibid. 34.4 . 345: Jocph Chi1lcy Athnrnisrazivc Pro,!ernr of British lrsdiu (9W). 456-457.
231
DISTINCTION IN CIVIL JUSTICE
13
heavy that people sit down quietly under wrongs and submit to losses rather
than go to law, and yet theEnglish are the richest people in the world. The
people of India are poor and the expenses of litigation are five times as great
as the expenses of litigation at Westminst er .... 1 speak of Bengal, where the
system is now in full operation. At Madras, the Supreme Court has, I believe,
fulfilled its mission. It has done its work. It has beggared every rich 4 native
within its jurisdiction and is inactive for want of somebody to ruin.
was the state of affairs
(c) Charter Act of 1833 continues discrimination: This
when the Charter Act of 1833 opened the doors of British India for the British
subjects. The act granted them ample opportunities to acquire property and the
the native's bore a very complex and ugly character
problem of their rights vis a vis
which if not controlled would create great disturbances. The English misbehaved
and fully exploited the situation. This state of affairs had in its roots the following
causes: eagerness to obtain quick monetary advantages, consciousness of power,
pride of a fancied superiority of race, absence of adequate check of public opinion
and the administration.
Section 85 of the Act of 1833 was therefore envisaged to protect the natives
from insults and outrages of the English against their persons, properties, religions
and opinions. However the apparent anomaly could be seen in the provision made
by Section 46 of the Act which made one specific reservation, a judicial favour so
to say, for the British subjects and it was that the Government of India could not
Directors empowering any courts,
make a law, without the previous sanction of the
their children to death
other than the Supreme Courts. to sentence British subjects or
or which shall abolish the courts so chartered. This made the Government to think
as to what jurisdiction should be conferred on the Company Courts.
Macaulay was in favour of elimination of discrimina-
(d) Macaulay's opinion:
tion. In his opinion discrimination in administering justice had a demoralising effect;
not only this but it lowered down the prestige of Company Courts in the eyes of
the natives that these courts which might be good for millions of Indians could not
hundred whitemen. In his words
be trusted to administer common justice to a few
this was "to cry down the Company's Courts. We proclaim to the Indian people
that there are two sorts of justice, a coarse one which we think good enough for
them, and another of superior quality which we keep for ourselves. If we take pains
to show that we distrust our highest courts, how can we expect that the natives of
the country will place confidence in them .... If [the Sadar Adalat] is not fit for the
purpose, it ought to be made so. If it is fit to administer justice to the body of the
people, why should we exempt : a mere handful of settlers from this jurisdiction."
The distinction in his opinion proclaims that "The natives of India may well put
up with something less than justice or that Englishmen in India have a title to
English defendant in every civil cause
something more than justice ...... . To give every
the Supreme Court is to give every
a right to bring the native plaintiff before
dishonest Englishman an immunity against almost all civil prosecution."
Consequently the privilege granted
(e) Act of 1836 abolishes discrimination:
under the Charter Act of 1813 was abolished by Act XI of 1836 and it was provided
that no person by reason of birth or descent should be exempt in any civil
4. ibid.. 345: quoted in Strachey op cit. 116-117.

232 RACIAL 15I3i'rNCTloP4 [CHAP.
proceedings from the jurisdiction of the Company's Courts above that of Munsif in
Bengal, Sadar Aineens and District Munsiffs in Madras. Bombay also was no
exception.
Against this measure a great hue and dry was raised by the white people and
the Act was considered by them to be the "Black Act" However the Government
did budge and remained firm. Dr. Jam in this connection notes an interesting
' that the agitation was carried out not by thewhit,emen in the moffussil to
poiit.
whom the Act affected so much, but by those white people in Calcutta who were
to remain under the jurisdiction of the Supreme Court as usual. Arty way this measure
which was described as just and equitable had one important lacuna that it pertined
to civil proceedings and consequently discrimination in the field of criminal law
continued.
In 1839, it was provided that no person would be exempt from the jurisdiction
of the revenue courts or Munsiffs in connection with proceedings for recovery of
rent arrears. Finally by Act VI of 1843 the Englishmen were brought under the
jurisdiction of Munsiffs Courts also. This gave the Munsiffs Courts jurisdiction on
every person irrespective of birth, caste or creed. Thus the last trace and the remanant
of distinction in civil matters was abolished. The same happened in Madras in 1850
by Act No. III.
3. Distinction in Criminal justice

() Position up to 1836: It must be noted that the special privileges or judicial
favours which the English people enjoyed in the field of civil justice were abolished
after 1843 but the favours in the held of criminal justice continued for a longer
time after that. By Regulating Act -1773 the British subjects residing in the provinces
of Bengal. Bihar and Orissa were under the jurisdiction of the Supreme Court so
that no lower court could ever try them. This was a racial distinction. In 1790,
however Lord Cornwallis made a provision whereunder the Magistrates in the
moffussil could inquire into the charges against the British subjects and could
apprehend them and send them for trial before the Supreme Court. But they could
not try them. The racial distinction thus continued and by provisions of Section 10
of Regulation 5 in 1799 and by Section 19 of Regulation 6 in 1802 the same
remained in life even in Bombay and Madras. This favour was meant for the British
- subjects only and for no other foreigners. It was provided in 1793 to appoint Justices
of Peace from amongst the covenanted servants of the Company. These Justices of
Peace in 1796 were given powers as said above but the defect was that they could
not try the English. It was the Supreme Court only that could try them. In 1807 in
Bombay and Madras the same provisions were enacted but it could make not an
iota of reduction in practice of racial discrimination.
In 1813, the Charter Act' instituted a licensing system for the Britishers who
desired to come to India. Due to this the doors of India were opened for them to
settle here and exploit. The EngLish, as we have seen in previous paras misbehaved
and the racial distinction provided them quite a nice opportunity. Assault, forcible
entry and other injuries inflicted by the English on the Indians went unredressed.
However it was provided by the Act to supply redress in such cases and it therefore
gave powers to the magistrates who could act as Justices of Peace and try the English
people and punish them by fine not exceeding five hundred rupees or imprison them
131 DISTINCtION INCIRMINALJUSTICE 233

LI P to two months in case of non-payment of fine. Curiously enough, however, such
convictions could be removed by a writ of certiorari into the Supreme Court as a
Court of Oyer and terminer and gaol delivery. The writs were devised as a matter
of check upon the powers of the Justices of Peace.
In 1832, the Justices of Peace could be appointed from any person residing in
the territory of the Company (but not a foreigner), however, no Indian could be
appointed. The functions of the Justice of Peace were threefold: to try and punish
under certain Acts and Statutes under summary conviction without help of a jury;
to investigate charges for committing or discharging the accused and to prevent
breaches of peace. As observed by Ilhert, though the local magistrates had powers
to send an Englishman for trial before the Supreme Court )'et) to impose upon
the native complainant and witness the obligation of repairing many hundred miles
to obtain redress was to subject them to dela y, fatigue and expense which would
be more intolerable than the injury they had suffered."
This was the position up to 1833. Thereafter taking into consideration Section
46 of the Charter of 1833 it was thought by the Directors that "they could not
possibly fulfil the obligation of protecting the Indians from insult and outrage
according to the direction in Clause 85 of the Act, unless they rendered both the
natives and the Europeans responsible to the same judicial control." There can he
no equality of protection where justice is not equall y and on equal terms accessible
to all ... justice is to be distributed to men of every race, creed and colour, according
to its essence, and with as little diversity of circumstances as possible."
(b) Position after 1836: The passing" the "Riack Act'' in 1836 accelerated
the situation and Macaulay was not of the opinion of exempting a mere handful of
the settlers without having re g ard to the interests of the Indians. Institutions exist
for the benefit not of the few but of the many. The First Law Commission was of
the opinion of subjecting the English to the jurisdiction of some courts (but not
necessarily the moffussil criminal courts) for the protection of the English them-
selves. This showed their pride of race. For this purpose by Act IV of 1943 they
issued Commission of Peace to presidency magistrates who could try the English
for capital offences. Thus jurisdiction was conferred only on the English to try the
English. None except a British subject could he made a Justice of Peace. For other
crimes excepting capital crimes the courts of sessions could try them with the help
of assessors of which at least one was to be an Englishman. From the judgments
of these lower courts appeals could lie to the sessions courl and from sessions court
to the Sadar Nizamat Adalat. The check that was exercised by means of certiorari
as said before was thus removed and the powers of the Justices of Peace in the
moffussi! were taken away. Now the appeal from the decision of Justices of Peace
would lie to the same court according to the same rules. The result of these provisions
was that even for minor and pett y offences an Englishman could be tried by a
Justices of Peace who had to be an Englishman or the Company's servant. This was
a privilege causing distinction. Describing the state of racial distinction the Calcutta
Review 6 of 1 846 writes: "Innumerable instances are on record which show how
5. Ilbert: TheGovemnientof1njja 1922, 75.

6. CR. VI (1846), 145-6: R.C. Majumda.r : Hi,vIor)' & Culture uf indian Peaple. Vol. IX,
345, 346. 1963. Part I,

234 RACIAL D1ST1NCJON
lamentably this indulgence has been abused, and how frequently British Europeans,
after the commission of outrages, which at Calcutta or at home would have been
visited with the most condign punishment, have baffled the most strenuous efforts
of justice. The only remedy at present is a prosecution in the Supreme Court, to
which as it is not in the power of poor people living at a distance of several leagues
to resort there is no real redress for wrongs; consequently that salutary influence
which the presence of neighbouring and competent authority cannot fail to exert
over a community is unfelt by British European subjects. Unrestrained in their
actions - with large sums at their command - contaminated by daily intercourse
with depravated natives and forgetful of their God, they had been known to equal
the worst Zamindars in cruelty and oppression. False charges, connivance at perjury,
even subornation of perjury - affrays - unnecessary disputes - have been as
things of everyday occurance with them."
To remove this distinction, Law Member of the Government of India, Mr.
Bethune drafted a bill. This and three other bills were proposed to end this glaring
inequity but against these bills (called Black Acts) violent agitations were started
and the British Parliament was informed. The Indians made counter-agi tat ions' but
it was of no avail. The bills were withdrawn from the Legislative Council. This
distinction continued not only up to 1856 when the High Courts were established.
but even the revised Criminal Procedure Code of 1872 failed to remove it and so
it continued. The consequences were that the Englishmen could go into the interior,
do any sort of mischief and assaults etc. and still were exempt from the jurisdiction
of the local courts. It was like a licence to tyranny. This continued up to 1922. In
1923 the Code of Criminal Procedure made some improvements. Accordingly the
accused Europeans and the Indians were placed on equal footings and could be tried
by the same courts. However according to Section 275 of Cr. P.C. the only privilege
allowed to the English was that they could be tried with the help of jury consisting
of a majority of Europeans or Americans. A reciprocal provision existed for the
Indians too.
(c) Criminal law (Removal of Racial Discrimination) Act, 1949: It was only in
1949 after independence that by passing of the Criminal Law (Removal of Racial
lDiscrimination) Act that the remnants of the racial distinction in the field of criminal
justice were abolished.
7. C.R. VI (1846j, 145-61 R.C. Majuindar His'wy & Culture of Indian PeopLe, Vol. IX, 1963, Pail I,
345 , 3'16.
14
Charter Act, 1833 & Codification

no country ever stood to much in need of a code of law as India and . .1 believe
also that there never was it country in which the ivant might be so easily supplied... Our
principle is simply this—Uniformity when you can have, diversity when you must have it, but
in all cases certainty.' --Macaulay
C.H. Phillips: The East India Company,
1784-1834 (1940), p. 290
"The Charter Act of 1833 forms a watershed in the legal History of india."
"Section 53 of the Charter Act was the legislative mainspring of law reform in India.
Rankin G. C.: Background to Indian Law,
(1946), p. 17
SYNOPSIS
I. System of Regulation Law up to (iii) Code of Civil Procedure
1833 (iv) Law of Limitation
(a) Charter of 1601 (v) Stamp Law
(b) Subsequent Charters (vi) Contribution of Law Commission
(c) Grant of Diwani (b) The Second Law Commission, 1853
(d) Hastings Plan (i) Reports
(e) Regulating Act, 1773 (ii) Enactment of some Codes
(f) Act of Settlement, 1781 (c) The Third Law Commission, 1861:
(g) Cornwnlbs Code The Golden Age of Codification
(h) Statute of 1797 (d) The Fourth Law Commission, 1879
(i) Regulations of 1802 & 1807 5. Law Commits ion under Indian Constitution
(j) Charter Act, 1813 (a) The Fifth Law Commsjon, 1955
2 Defects of the System (i) Members
(i) Faulty drafting (ii) Terms of Reference
(a) Lack of unifonnity (iii) Reports suhtnined
(iii) Parallel legislation (b) Second Law Commission
(iv) Uncertainty (c) 'third Law Commission
(v) Other vices (d) Fourth Law Commission
3. Charter of 1833 and Reforms in Legislation (e) Fifth Law Commission
(a) Factors leading to reforms of 1833 (f) Sixth Law Commission
(i) Supreme Court's power & juris- (c) Seventh Law Commission
diction (Ii) Eighth Law Commission
(ii) Economic conditions (i,i Ninth Law Commission
(iii) Public opinion in England (j) Tenth Law Commission
(iv) Favour to Christianity (k) Eleventh Law Commission
(v) Travails through which it passed (1) Twelfth Law Cotrtmissin
(b) Provisions of the Charter Act, 1833 (ma) Thirteenth Law Commission
(c) Emanation of the idea of Codification 6 Codification
(d) Provision for Law Commission (i) Meaning and object
4. Working of the Law Commissions (ii) In favour of Codification
(a) The First Law Commission, 1834 (iii) Against Codification
(i) Penal Code (is) Technique of Drafting
(ii) Lax Loci Report (v) Modern Trends
[ 235 1
236 CHARTER ACT, 1833 AND CODIFICATION [CHAP.
1. System of Regulation Law up to 1833

(a) Charter of 1601.—The earliest origin of the system of Regulation Law can
be traced from the provisions of the first charter which was issued by Queen
Elizabeth in 1601. It empowered the Governor and Company, "to make, ordain and
constitute such and so many reasonable laws, constitutions, orders and ordinances
For the good government of the said Company, and of all factors, masters, mariners
and other officers, employed or to be employed in any of the voyages, and for the
better advancement of the trade and traffic ...... .These provisions clearly state that
in the beginning the primary aim of the English Company was to work for the
promotion of English trade in India. In this connection the Charter of 1601 gave
necessary powers to the Company which regulated the working of its employees in
India.
(h) Subsequent Charters—The Charters of 1609 and 1661 also empowered the
Company with the same powers as were granted by the Charter of 1601. But in fact
the powers of the Company's agent in India were for the first time provided by the
Charter of 1726.2 The charter established the Mayor's Court at Calcutta, Madras
and Bombay, and gave powers to the Governor and Council of respective presiden-
cies to make laws, "for the good Government and regulation of the several
corporations hereby created, and of the inhabitants of the several towns, places and
factories aforesaid respectively......These laws and penalties were required to be
reasonable and in conformity with the laws of England,-' The Charter of 1753, also
incorporated provisions similar to that of the Charter of 1726.
(c) Grant of Diwani.—A new era in the political history of India began with
the Battle of Plassey and subsequent acquisition of the Diwa.ni by the English
Company. 4 'l'he Company emerged out stronger and its ambitious English Governors
began to think in terms of laying a strong foundation for the British Empire in
India. 5 Morley observed, "From the date of the Battle of Plassey in 1757 down to
the subjugation of the Punjab in our own times, new provinces and new nations
have constantly and successively been brought under British rule either by cession
or conquest. They have been found to possess different laws and customs and distinct
and various rights of property, they have consequently presented new facts requiring
the introduction of fresh laws into our codes for their government". In order to
administer the old and new territories the laws were not made by the Legislature,
but the supervisors, who were the Company's servants, prepared the necessary laws.
(ci) Hastings' Plan.—Warren Hastings, who was transferred from Madras to the
Governorship of Calcutta, prepared a plan in 1772 for the proper administration of
justice in Bengal. In order to regulate the working of the administrative machinery
he made many rules and passed orders. In due course however the Company's
I. Ilberi, The Government India (1898), 464. For detailed study of Legislative System before 1834.
see S V Desikachar, Centralised Legislation: A History of the Legislalive System of British India from
1834-11161,Ch. I.
2. A.B. Keith observes that there is 'no evidence of any serious claims to possess legislative authority
proper" before 1726. Se A.B Keith, A Con.rlitutional History of In,.ha. 1600-1936 (1937),42-3. See
aLso. Ch. II of this Book.
3. See Fawcett, The Century of British Justice in India (1934), 223.24.
British
4. See Chapter IV of this Book. Thornton, History of India Vol. 1.410-20.
5. Lord (Jive and Warren Hastings are famous as the founders ot the British Empire in India.
.•=
141

SYSMOFREGULATION
Officj5 1833
sums 237
collected
Due to thefr large
of money
huge wealth the Company's servants either by their private wade or malpractices.
Their , regarding a were also nicknamed as
d the Secret cquisition of wealth reached England also. e Select
the woeftj Th COflJjee
sre of affairs ofappointedby
the Company Lo North in 1772 described in their reports
indj a As reco i ndicdng Clive for his unpardonable
Openedup as rded by Horace Walpole 'Such a scene of t Sins in
makes us shudder.... We are yranny and plunder has been
i n our delicacy of
obtaining iL" 8 Snja in Our lust for god, and Dutch
In order to curb these
Company's administration
administration in malpractices and regula te
I ntervene by enacting a new legislation.
India, the BritiSh Parliament considered it necessary to
(e) Regulating
Act, 1773. The
in 1773. 11 It
ap pointed a Governor British Parliament enacted the Re
gulating Act
at Calcutta.They Were empowered-General
iS to frame and Council for the Bengal Presidency
Regulations
ative machinery. It also establish Con trolling the admjn
was ap pointed
the first Governor - ed a Supreme Court at Calcutta. Warren
Ge neral, H astings
empowered the GovernoGral e and Sections 36 and 37 of the Re
Rules, Ordinan C gu1atjg Act
ces and Regul ouncil to make and issue the necessary
ations as were just and
to the laws of the realm, for the good order and civil reasonable and not repugnant
Company's s ettlement at Fort
William and to gov ernment of the United
forfejte The proviso to these sections e nforce them by
tion5 etc., should ' reasonable fines and
fu rther laid down that such Rules Regula.
lot be valid unless r
In due course the Suprem egister in the Supreme Court of
give v alidity by reg.iSteri e Court emerged more Powerful Calcutta
Council ng the Regulations framed by thebec ause of its Power to
m Governor -General and
difficultiesThe Government
Some of the Company's settlemen
very im por t at Bengal faced many
Regu lating Act. tant cases also re
flected the dec and lacun in the
m Act of Settlement
erit in 1781 in order to J?8).The British
Britishof Parliament enacted the Act of Seffle
situation developed by the defects the R
1781 autho rised the it. ' () As re gards the Power to frame egulating Act and to meet the
Governor -General and C Regul ations, the Act of
Provincial Councils and Courts ouncil to frame ReguJaj0 for the
of Di rectors and the Secretary
.Copies of such Regulations were sent to the Court
Regula tions. The veto of the of State within
months from the passing of such
was clearly stated Supreme Court did not extend to these Regulations.
would have legal that v the ReguJatj0s made by the GovernorGefleral.0 It
es sential Only His alidity and their registration in the Supreme Court
Majes ty-in-
w as not
them witj1 two yea" But011 in had
maers the Power
g withineithertheto disallow or amend
Supreme Court, t was comin
esse ntial for thett Pmvincj juri sdictjo of the
aj Co
register in the respective uncils to get such Regulatio5
area the veto Power of the Supreme
Supreme Court Court It means in areas other than moffusil
w as allowed to
6 . See MilL H co ntinue
7 History of Brjh India 0
1. III, 326-27 . P.E. Robcns History 8,,,
offridz, &ln. 1976, C?i. 1ofHorae Walpole, 11, 149 ,,hIndj 179
8. 1 6, quoted in &C. Kaor;
U & Wilson. The History ofB Vo
ind l iii, 257-60
9. Eighteenth n1u Vol. IV, 263; Ma1co Sj0 Le of Robert W.E.H,
Clive A 1976.6.
Kapoor,
10.
of Eg1ad In
11. 21 Ceo iii, C70 S.

23.
238 CHARTER ACT, 1833 AND CODIFICATION ICHAP.
The judicial and legislative systems evolved under the Act of 171 in respect
of Calcutta were extended later to the Presidency towns of Madras and Bombay. A
Recorder's Court was set up at each of these places in 179712 and it was replaced
by a Supreme Court in Madras in 180013 and in Bombay in 1921" provisions
in respect of legislation were extended to them in 1807.11
Under the authority of these statutes several Regulations were passed for the
administration of justice and collection of revenue in India. No doubt the standard
of these Regulations deteriorated gradually as there was no prescribed uniform
pattern laid down by any Regulation. It was a sort of haphazard growth of
Regulations and no proper care was taken to set them properly for future reference.
The Regulations existed partly in manuscript and partly on detached papers. At times
it was very difficult to sort out the relevant Regulation out of the bundle of
Regulations. Due to these difficulties it was considered necessary to improve the
form of Regulations and to find out some ways and means so that the public at
large, lawyers and Judges could also derive full advantage of the Regulations.
(g) Cornwallis Code—The Reforms of Lord Cornwallis 16 played a very im-
portant role in history of legislative drafting in India. The real credit goes to Lord
Cornwallis for taking special initiative to improve the legislative methods, forms
and to introduce uniformity in the system of Regulation Laws in India. While
introducing his famous code in 1793 Cornwallis was very careful and introduced
all the necessary reforms in the Regulations. a set which subsequently became
famous as "Cornwallis Code". It was in 1793 that the "Preamble" was added, for
the first time, to the Regulations. It was also provided by Regulation XLI of 1793
that at the expiry of each year the Regulations would be printed and hound up in
volumes. Lord Cornwallis' legislative wisdom of this sort was subsequently followed
in Madras and Bombay Presidencies. In the Preamble of Regulation XLI of 1793
Lord Cornwallis stated all the Regulations passed by the Government should be
formed into a regular code, should be translated in country languages with grounds
of enactment prefixed to it and that courts should base their decisions thereon. A
Code formed upon above principles will enable to defend privileges and obtain
speedy redress against infringement thereof.
In this way, the use of the Preamble made the Regulations very useful for the
lawyers, Judges and the public in general.
(h) Statute of 1797.—In Bengal Statute of 1797 17 , which was passed by the
British Parliament, approved the method and form laid down by Lord Cornwallis
in the Regulation XLI of 1793. Section 8 of the Statute of 1797. It is important to
note that these provisions of the Statutes of 1781 and 1797 were the main sources
of legislative authority as derived from Parliament in respect of the Moffussil areas.
(1) Regulations of 1802 & 1807.—In Madras, Regulations were made under the
authority of the Acts 39th and 40th of George III in 1800)8 Section 11 of this Act
12. 37 Geo. IlI,C. 142, S. 9.

13. 39 and 40Geo, III, C79, S. 2.
14. 4 Geo. IV, C71, S. 7.
15. 47 Geo. ItI,C68,Ss. 1-2.
16. See Chapter VI of this nook under para 2(c).
17 37 Geo. 111, C 1427 S. 8.
19 l3 and 4OGen III, C79
141 DEFECTS OF THE 010 SYSTEM

239
empowered the Governor-in-Council at Fort St. George to frame Regulations for the
Provincial Courts and Councils in that Presidency. Regulation I of 1802 further
provided for the formation of a regular code on the basis of Lord Cornwallis' Plan
(Bengal Regulation XLI of 1793) as adopted in Bengal.
The Bombay Government was initially authorised to make Regulations by
Section 11 of the Act of 1799.19 Full authority to frame Regulations was granted
to the Bombay Government by the Act of 1807.20 Thus the system of legislation
evolved in Bengal in respect of the moffussil areas was adopted by Bombay in
179921 with few alterations from the Bengal Code.
In 1807, the British Parliament by an Act provided that the Governors and
Councils at Bombay and Madras were empowered to frame Regulations independent
of the Governor-Gen
eral-in-Council at Calcutta. They were required to send a copy
of such Regulations to the Governor-General- i n- Council at Calcutta. Thus at the
close of 1807 the three Presidencies were separately authorised to frame independent
legislation for their territories. On the other hand this practice of separate legislation
created confusion in Regulations due to lack of correlation and coordination amongst
them.
(i) Charter Ac:, 1813.—The Charter Act of 1813 further extended the legislative
Powers conferred on the Provincial Councils. All persons living under the protection
of East India Company were required to obey these Regulations in their respective
territorial limits. The Act also provided for a strict control of the British Parliament
over the three Presidency Councils by stating that copies of all the Regulations shall
be annually placed before the British Parliament. Thus the power of legislative
control shifted to England. No doubt the intention and aim of the Act was to improve
the legislative activity in India ; in practice it led to adverse reaction and created
conflicts amongst the three Presidencies due to lack of uniformity and mutual
understanding in their respective systems. Each of them claimed an independent
outlook in India and subordination only to the British Parliament. The Supreme
Court also exercised its veto power and it was necessary for Provincial Regulations
to be registered in respect of legislation affecting matters coming within their
jurisdiction.
2. Defects of the System
During the period 1600 to 1833, the Regulations were made specially in the
field of procedure and to deal with the current problems of the growing British
Empire in India. They were mostly issued to meet the conditions and situations
which the British faced in administering India from time to time. Apart from these
there were also Regulations dealing with the substantive law. In the sphere of
administration of justice the Regulations were issued to establish both Civil and
Criminal Courts of the Moffussil area and determined the mode of their proceedings.
They dealt with Police, Revenue, Excise, Salt, Opium,Coins and many other similar
subjects. They respected personal laws of Hindus and Mohammedans and left
untouched the laws of contracts and torts.
19. 37 Geo. Ill, C 142.
20. 47 Goo. HI, S. 2, C 68.
21. 37 Geo. III,C 142.

CHARTER ACT, 1833 AND CODIFICATION ICHAP.

240
The haphazard growth of Regulation Laws was given, a proper shape by the
reforms of Lord Cornwallis in 1793. "Preamble" was given in the beginning of
every Regulation law irk. order to state reasons for their enactment. They can give
us an idea of the social, political ad economic conditions and the problems of the
country which the Englishmen were tackling in those days. A study of the way in
which new problems of administration were dealt with in those days may assist the
adthinistrators even today to control the new situation and emerging problems.
Morley22 admired these efforts of the British in administration' of Justice as resulting
in "prosperity and good government', Lord Wellesley 2` described them as "the
noblest proof of just, wise and honest government restoring happiness tranquillity
and security" and Rankin 24 termed them as "a true method of progress and in
general the only method which would work." However, the system suffered from
grave defects.
(i) Foully draping. —The system of Regulation Law became an unsystematic
mass which was highly complicated. It was also due to the fact that the Government
framed, modified and abrogated laws to meet the peculiar circumstances from time
to time. The law was only to be found in the wilderness of enactments and circular
orders of the courts. As Sir Henry Cunningham observed, "Human diligence shrank
from the task of searching amid the voluminous provisions of obsolete or repealed
legislation for a germ of living law; and grave illegality frequently occured OW1fl
to ignorance which chaotic conditions of the Statute Book rendered almost inevit'
able." Therc appears great truiii in this observation.
(ii) Lack of uniformity.—The Regulation Laws were "frequently ill-drawn, for
they had been drafted by inexperienced persons with little skilled advice, frequently
conflicting. In some cases as a result of varying conditions but in others merely by
accident; and in all cases enforceable only in the Company's courts because they
had never been submitted to and registered by the King's courts"'. A little
improvement was made only after Lord Cornwallis' reforms and though they were
given a better shape yet it was not satisfactory.
(iii) Parallel legislation.—As stated earlier three parallel Legislatures in each
Province were established in India and while working in their law making process
they did not have any consideration for the laws made by each other. At times it
also gave rise to confusion resulting in serious conflicts amongst them. Even on the
same topics, the Regulations passed at Bombay, Madras and Calcutta greatly
differed. It is rightly said "l'he Anglo Indian Regulations made by these different
Legislatures contained widely different provisions many of which were amazingly
unwise". As such the system of Regulations greatly suffered from the lack of
uniformity.
- (iv) Uncerlainty.—"UncertaintY" was another grave defect of the system of
Regulation Law. As the records show, these Regulations were changed, amended.
abrogated or cancelled so often that it was very difficult even to recollect and decide
about the proper existence of a particular Regulation Law.
22. See W.H. Morley, The Administration of Justice in British India

23. Quotation cited by Morely in The Administral ion of Justice in British In4ia. at 159.
24. G.C. Rankin, Background to Indian Law, 198.
25, Cambridge Jlrstc'r of hal,a, Vol V. F.dited by Dodwell. 5.
141 CHARTER OF 1833

241
(v) Other vices.—The imperfections of the legislative system up to the enactment
of the Charter of 1833 were, in the words of Sir Charles Grant, mainly three: 'The
first was in the nature of the laws and regulations by
which India was governed,
the second was in the ill-defined authority and power from which these various laws
and regulations emanated; and the third was the
anomalous and sometimes conflict-
ing, judicatures by which the laws were administered, or in other words the detects
were in the laws themselves, in the authority for making them, and in the manner
of executing therri".26
Thus the demerits outweighed the merits of this system and it became extremely
difficult for the lawyers, judges and public at large, to find out as to which law they
must obey. As a result Injustice was bound to come in. It also gave rise to corrupt
practices; briber y and chaos also gradually developed. A stage was reached when
the system of Regulation Law became a great danger not only to the administrative
and judicial machinery but it gave a jolt even to the pillars of the British Empire
in India.
3. Charter of 1833 and Reforms in Legislation

The Charter Act of 1833 made many Important reforms in the legislative set-up
of India. It created, for the first time in history, an all-India Legislature at Calcutta
having authority to make laws and regulations for all territories under the Govern-
merit of the Company at that time. The Governments of Madras and Bombay were
deprived of their legislative powers. The legislative power was thus centralised and
vested in the Gov ernor-General-in-Council at Calcutta. Steps were also taken in the
direction of achieving uniformity and certainty in the legislation. Since then the laws
passed by the Governor-General were called "Acts".
a) Factors leading to Reforn e.r of 1833
Though there were defects in the existing system of Regulation Law, but these
alone were not responsible for the reforms which were introduced in 1833. There
were other factors which compelled the British Government to introduce reforms.
(1) Supreme Court's power & jurisdiction.—It is interesting to note that the
demand for reforms was not due to enlightened public opinion in India but it was
mostly from the public servants. They realised the defects of the existing system.
The jurisdiction of the Supreme Court was uncertain and anomalous. Veto power
of the Supreme Court relating to le g islation was another cause of trouble for the
public servants in administration. The Supreme Court's activities in matters affecting
the nioffussij areas were always a constant source of conflicts and irritation between
the Judges of the Supreme Court and the Governor-General or Governors.28
26. Speech by Charles Grant in the Housc ofComr p ons, 13th June 1833, Hansard (Ill Series), Vol. XVIII.
727-9. Lord Macaulay declared that what is being administered as law we 'but a kind of rude and
capricious equity' Speech by Macaulay in the Fluuse of Commons on 10th July, 1833, Hansard (III
Series), Vol. XIX, 532.
27. Evils and oppressions were silently suffered by Indians even when the y
- were extreme, and became
intolerable; only outbursts of local character, sometimes violent were visible. See S.B. Chaudhuri, Civil
DLczurljance during the British Rule in India 1765-1857 (1955).
28. Peter Auber's Evidence stated about the growing conflict between the Supreme Court of Bombay and
the Government of Bombay Presidency. See Parliamentary Papers (U.K.) H.C. No. 735, 1 of 1831-32;
Evidence of Sir Edward Ryan, Parliamentary Papers, H.C. No. 20 of 1852-53, Q 2356. For detailed
text of correspondence see Parliamentary Papers, H.C. No. 320-E of 1831 .
(ii) Economic conditions.—Th e deteriorating economic condition of the Com-

pany was also responsible for the reforms of 1833. Due to deficit budgets Lord
William Bentinck, the Governor-Genera], was specially directed by the Directors to
reduce the expenditure of the subordinate Presidencies. 29 Centralisation in adminis-
trative and financial matters also influenced the legislative sphere a great deal.
(iii) Public opinion in England—The trend of public opinion in England also
influenced the Company's policies in India. The question of freely allowing Britishers
and Europeans to settle and do enterprise in India was also gaining importance.3°
It was also having legal and judicial reactions. In order to satisfy English public
opinion an English lawyer was appointed as a member of the Governor-General's
Council. It ensured Englishmen that due attention was given to their laws, customs
and rights in India.
(iv) Favour to Christianity—An alliance between the British commercial inter-
ests and the Evangelicals (Methodists who wanted to spread Catholic faith in
India31 ), in which the former wanted a free field for their investment in India and
the latter considered it essential for spreading the Christian religion in India,
necessitated the passing of a new charter.
Desikachar has pointed out, "The influence of the Whig liberals, the paternalists
and the utilitarians can be clearly seen in the charter discussions and the various
provisions of the Charter Act. 32 The influence of the utilitarians was at its peak at
the time when the Charter was being discussed in England and most of those who
played an important role in determining the policy were under the Benthamite spell. t3
(v) Travails through which it passed—Before the final draft of the Charter Act
of 1833 was prepared it passed through various expert committees, discussions,
correspondence and spadcwork in India and England."
In England, apart from the influence of Benthamires, the Government machinery
and the various Select Committees of the Parliament from 1830 to 1832 considered
the subject-matter of reforms which was at its draft stage. 35 According to Thornton,
the collection of the last of the Select Committees was "the largest mass of evidence
extant at the time". On 13th June, 1833 Parliament passed the famous resolutions
29. See C.H. Philips, The East India Company. 1784-1934, 288 (1940); For instructions. see Edward
Thompson, The Life of Charle.' LordMetcalfe(1937), Appendix A; ArnksTripathi, Trade and Finance
in the Bengal Presidency, (1956), 218.
30. See Report of the Select Committee on the Affairs of the East India Company, Parliamentary Papers,
H.C. No. 734 of 1831-32, General App. V, 26-27. See also Minutes dated Dec. 8, 1829, and dated May
30, 1829 in Parliamentary Papers, H.C. No. 734, App. V 286 and 279, respectively. For the views of
Raja Rain Mohan Roy and Dwarkanath Tagore. see J.K. Majumdar, Indian Speeches and Documents
an British Rule, 1821-1928 (1937), 42-5.
31. Eric Stokes, The English Utililarians and India (1959), 40.
32. S.V. Desikachar, Centralized Legislation: A History of the Legiskuive System of British India from
1834-1861, (1965), 36.
33. Namely, Lord Broogham, who introduced the Bill in Parliament; Charles Grant. the Younger; Hyde
Villiers; T.B. Macaulay: Halt Mackenzie; James Mill; Edward Strachey: Lord Bentinek; Alexander
Ross; Rlphinstone, etc. were either strong l3enthamites or had faith in ii All these persons were directly
or indirectly related to the framing, passing and unpiemenung of the provisions of the Charter Act of
1833. For detailed study, see Eric Stokes, The English Utilitarians and India; Elk Halevy, The Growth
of Philosophic Radicalism (1928).
34. For a detailed account, see Peter Auber, Rise and Progress of the British Power in India, (1937)
658-713; and Edward Thornton, The History of the British Empire in India. (1943). Vol. V, Chap. 28
35. Thornton, op. cit., 282, 315-353.
14] CIIARTEROF 1833

243
of Charles Grant which provided for the termination of the trading activities of the
Company and the continuation in its hands of the administration of India. The Charter
Bill which was introduced in the House of Commons on 28th June after a thorough
inquiry into the affairs of the Company received the Royal assent and finally became
law on 28th August, 1833"
Macaulay, who carried the Bill through the House of Commons during the
illness of Charles Grant, in his speech on 10th July, 1833 in the House of Commons,
observed, "I believe that no country ever stood so much in need
of a code of law
as India and..I believe also that there never was a country in which the want might
be so easily supplied''. He said, ''our principle IS simply
this - uniformity when
you can have it, diversity when you must have it, but in all cases, certainty"
(b) Provisions of the Charter Act, 1833
The Charter Act of 1833 introduced important changes in the constitution of

the Company as well as in the legislative machinery of India. It aimed specially at
the centralisation of the legislative activity. "In 1833'', says Cowel1, 8 "the attention
of Parliament was directed to three leading vices in the process of the Indian
Government, The first was in the nature of the laws and regulations; the second was
in the ill-defined authority and power from which these various laws and regulations
emanated; and the third was the anomalous and sometimes conflicting judicatures
by which the laws were administered...''.
Certain basic principles, which formed the basis of the legislative provisions of
the Charter Act of 1833, were as follows: (l) The restrictions on European settlement
and enterprise were to be mostly abolished, making due provision for the protection
of Indians. (2) The disjointed system of governing India with three practically
independent Presidency Governments was to give place to a centralised system, and
the control exercised from England was to be rationalised and confined to essential
matters. (3) And, lastly, the legislative machinery was to be remodelled to effect
necessary reforms in the field of law and justice. 39 Rankin has, therefore, remarked,
"The Charter Act of 1833 forms a watershed in the legal history
of India '!°
The Chaster Act of 1833 made the following important provisions:
(ii The territorial possessions of the Company were allowed to remain under
its government for another terra of twent y years (oil 30-4-1854) in "trust for
His Majesty, his heirs an4 successors". The commercial functions of the
Company were taken away and the Company remained only as a political
functionary.
(ii) The Act centralised administration of the country. All the Presidencies
of Bengal, Bombay and Madras were placed under the control of the Governor-
General. He was given the powers to superintend, direct and control all the civil
and military affairs of the country.
36. 3 and 4 William IV, C 85.

37. T.B. Macaulays important role,
see C. PhiUips, The East India Company 1784-1834(1940), 290-95.
38. H. Cowelj, History and Constitution of the Courts and Legislative Authorities in India.
74.
39. See S.V. DesUc.ach.r, Centralised Legislation: A History of
the Legislative System of British IndiaJron
1834 to 1861,41.
40. Background to Indian Law, I7,(1946
CHARTER ACT, 1933 AND CODIFiCATION [CHAP.

244
(iii) The Governor-General of Bengal became the 'Governor-General of

India'. The powers of the Governor-General were increased tremendously.
(iv) A very important step was taken to achieve legislative centralisation
in India. Before the Charter Act of 1833 was passed there existed five different
kinds of laws which conflicted with one another. They were - the Acts passed
by the Parliament, the Charter Acts, the Orders of the Governor-General-in-
Council known as Regulations, the Orders of the Supreme Court and the laws
made by the different Presidencies. Now the Governor-General-in-Council was
alone empowered to make laws in India. The enactments were no more called
Regulations but they were called "Acts". The powers of the subordinate
governments of Madras and Bombay were limited. The Governments of Madras
and Bombay could make or suspend laws "in cases of urgent necessity"
(Governor was required to submit proof of it to the Governor-General) subject
to the final approval of the Governor-General. They were also empowered to
propose for consideration of the Governor-General-in-Council such draft of laws
as they considered expedient together with reasons for proposing the same.
(v) The Act increased the members of the Council from three to four. The
fourth member was the Law Member specially appointed to fulfil the legislative
duties of the Governor-General. His presence was made essential at the time of
passing of any legislation. He had no power to sit or vote for other matters.
Lord Macaulay was the first law member-
(0) Section 53 of the Act of 1933 empowered the Governor-General-in-
Council to appoint a Law Commission from time to lime. The Commission was
to enquire fully "into the jurisdiction, powers and rules of the existing courts
of justice and police establishments in the said territor i es and all existing forms
of judicial procedure and into the nature and operation of all laws, whether civil
or criminal, prevailing in any part of the said territories in India".
(vii) Section 87 of the Act declared that "No Indian subject of the Company
in India shall by reason only of his religion, place of birth, colour or any of
them, he disabled from holding any place, office or employment under the
Company". This provision became very important as it was a bold step to
remove disqualifications. However this provision was merely a "grandiose
gesture which signified nothing really". The abject of the Act, it was empha-
sised was not to ascertain qualification but to remove disqualification. In
application of the provision fitness alone was "henceforth to be the criterian of
eli g ibility' . 4 ' The excellent sentiment as Keith observed, "was not of much
political importance, since nothing was done, despite the views of Munro,
Malcolm, Elphinstone, Sleeman and Bishop Herber, to repeal the provision
which excluded all but covenanted servants from occupying places worth over
£ 500 a year. 42 In fact not a single Indian was appointed to the corivenanted
service during the Company's regime. The importance of this provision lies in
the fact, according to Shri Ram Sharma 43 that it became the "sheet anchor of
political agitation in India towards the end of the century. Almost all the political
41. Despatch of 10-12.1834, para 105: Kapoor: Constitutional History of India. 1976, Edn. 2, 30.
42 Supra note 2. 135.
43. A Const,Vutionat History of India, 64: Kapoor, op. cit., 30.
14) CI-IARTEROF 1833 245

activities in the earlier year of national awakening turned on this clause, which
came very handy when demands were being made for giving Indians equal
opportunities in adminsrcation."
(viii) The Governor-General was required forthwith to take into consider-
ation the steps to mitigate the state of slavery and to ameliorate the condition
of slaves throughout the British territories in India (S. 88).
(c) Emanation of the idea of Codification
From the time, when Queen Elizabeth granted the First Charter of 1601 to the
East India Company, to the passing of the Charter Act of 1833 there was gradual
development towards having a systematic and uniformsystem of law. From the
early Charter it appears that the Company never even dreamt to form a British
Empire in India. At that time it was purely a trading Company. Various charters
which were issued from 1601 to 1693 were purely of a commercial nature empower-
ing the Company to control its employees by framing rules and regulations. George
I's Charter of 1726 created Corporations at Calcutta, Bombay and Madras and
established Mayor's Courts at three places. The Governor and Council in these three
places were authorised "to make, constitute and ordain by-laws and rules for the
good government and to impose reasonable pains and penalties upon all persons
offending against the same". After the Battle of Plassey the Company emerged out
stronger and there appeared to be a slight change in its outlook from 'mere trading
merchants' to 'gaining political power' in India. Lord Clive and Warren Hastings
laid down the real foundations of the British Empire in India. The nature and Contents
of the Charters, which were granted to the Company after 1765, also changed. So
also the sphere to the rule-making power of the Company was enlarged.
In 1765, wher1 the Company took over the responsibility of collecting Diwani,
Company officials issued orders and framed rules and re gulations for the people of
Bengal in connection with the improvemcnt of the administration. It was not done
through any Legislature but was done through the servants of the Company. Warren
Hastings Plan of 1772 was the first British India Code consisting of 37 rules dealing
with Civil and Criminal Law. it was followed by the Regulating Act of 1773 which
empowered the Governor-General-in-Council to make and issue rules, regulations
and ordinances for the good order and civil government of the United Company's
settlement at Fort William in Bengal. It was also provided that these rules etc.,
would be valid only after their registration in the Supreme Court, The Supreme
Court exercised veto power not to register the legislation framed by the Governor-
General. Reforms were introduced by the Act of Settlement in 1781. The Governor-
General was empowered to frame regulations for the Provincial Courts in nioffusil
areas independently of the Supreme Court but subject to the Executive Government
in India. In areas which were under the jurisdiction of the Supreme Court in a
Presidency, it was still necessary to register legislation with the Court. Though the
rules and regulations were formed and issued from time to time neither was there
any set pattern nor division of the legislation. Its growth was in a haphazard way
which needed much improvement and reform.
Credit goes to Lord Cornwallis who specially took the initiative to improve the
form and nature of the Regulations and Rules. Cornwallis Code of 1793 was a
wonderful achievement in this direction. Preamble was made compulsory in each
legislation. Other similar improvements were made. At the end of 1907 a unif'orm
system of legislation prevailed in the three Presidencies of Calcutta, Madras and
Bombay. Apart from the Governor-General's authority in Bengal to frame legisla-
tion, Governors-in-Council in Madras and Bombay were also empowered to enact
legislation independently. The Charter Act of 1813 also made certain alterations in
the legislative power of the three Presidencies. Its result was that all the three
Councils issued and framed a large number of Rules and Regulations. Most of them
were conflicting and created a lot of confusion. Law became uncertain because of
lack of uniformity and stability. Even timely amendments and revisions were not
incorporated in the original Rules and Regulations. The system of Regulation Laws
proved very defective. In Bengal alone there were more than 675 Regulations which
contained several sections. Thus they resulted in great uncertainty. 'Diversity'
prevailed where 'uniformity' was needed the most. The personal laws of Hindus
and Mohammedans were left untouched.
In order to present the various laws in a nutshell various digests and collections
of these Regulations were prepared and printed by individuals privately, e.g. Har-
rington's Analysis of 1805, Colebrooke's Digest of 1807, Auber's Analysis of 1826,
Blunt and Shakespeare also prepared Analysis of 1824-28. Similarly D. Dale
published an alphabetical index to the Regulations of the Government of Bengal.
On the whole it can be concluded that within the period 1.765 to 1833 the
unprecedented growth of Regulations by the three Presidencies resulted in various
evils of uncertainty and lack of unifonnity. Conflicting provisions created confusion.
This state of affairs compelled the British Parliament to take steps for the centrali-
sation and regularisation of legislation for the whole of India.
(cO Provision for Law Commission
The Charter Act of 1833 played a very important role in shaping and moulding
the future course of law-making in India. Earlier, the important provisions of the
Charter Act of 1833 were discussed in detail. As is well known. Section 40 of the
Charter provided for the appointment of one additional member Thomas Babington
Macaulay to the Governor-General's Council. He was not entitled to vote except in
meetings called for making laws and regulations.
It was considered essential to prepare a code for Criminal law, evidence.
contracts, limitation and also codes to regulate the civil and criminal procedure in
the whole of India by the same legislation. Regarding the intention of the framers
of the Act of 1833, Kaye said, "A comprehensive consolidation and codification of
Indian laws was contemplated."
Section 53 empowered the Governor-General to establish a Law Commission
of India. The main purpose entrusted to the Commission was to provide a common
law and, therefore Section 53 provided, "Such laws as may be applicable to all
classes of she inhabitants, due regard being had to the rights, feelings and peculiar
usages of the people, shall be enacted and all laws and customs having the force
of law within the territories shall be ascertained and consolidated and as occasion
may require amended. The Commission shall fully enquire into the jurisdiction,
powers and rules of the existing courts of justice, police establishments and forms
44, See under the title "3. Charter Ac: of 1833' in this Chapter.
141 WORKING OF THE LAW COMMISSIONS

247
of the judicial procedure, due regard being had to the distinction of cases, religions,
manners and opinions prevailing amongst different races and in different parts
of
the said territories". Due to these provisions of far-reaching Consequences Rankin
remarked, "Section 53 of the Charter was the legislative mainspring of law reform
in India".
In his speech of 10th July, 1833, Lord Macaula y emphasised the necessity and
the underlying principle of codification of Indian Law before the House of Commons
thus: "As I believe that India stands more in need of a code than any other country.
in the world, I believe also that there is no country on which that great benefit can
more easily be conferred. A code is almost the only blessing—perhaps it is the only
blessing—which absolute Government are better fitted to confer on a nation than
popular Government." "We do not mean that all the people of India should live
under the same law: far from it we know how desirable that object is but we also
know that it is unattainable. Our principle is simply this---(Jnijórn ii ty where
you can
have if—Diversity where you must have it—but in all cases Certainty.'
4. Working of the Law Commissions

(a) The First Law commission, 1834
According to the provisions of Section 53 of the Charter Act of 1833, the First
Law Commission was appointed in India in 1834 with the fullest powers to inquire
and report. It was composed of T.B. Macaulay (as Chairman) and four-members,
namely, C.H. Cameron, J.M. Macleod, G.W. Anderson and F. Miilett. The last three
members represented Madras, Bombay and Calcutta respectively.
(i) Penal Code—As the system of administration of criminal justice was most
unsatisfactory , the local Government directed the Commission to take its first step
to tackle this branch of law. The members of the Commission prepared a draft Penal
Code which they submitted to Lord Auckland, the Gove rnor-General, on 2nd May,
1837. In the forwarding letter the Commission remarked, "The Penal Code cannot
be clear and explicit while the substantive civil law and the law of procedure are
dark and confused." 6 Lord Macaulay referred to the Penal Code of India as "a
sort of work which must wait long for justice as I well knew when I laboured at
it". Stokes made the observation, "Besides repressing the crimes peculiar to India
such as Thuggee, dedicating girls to a life of temple-harlotry, human sacrifices,
burning of widows, gang robbery, sitting dharna etc." In the words of Fitzjames
Stephen,47Lord Macaulay's great work was far too daring and original to be adopted
at once, and it is not surprising that the period of gestation was prolonged. It did
not become law till 1860.
In due course certain changes were made in the membership of the Commission.
Macaulay returned to England in 1837 and Andrew Amos became the Law Member
and Chairman of the Commission. After Amos, Cameron succeeded him as Law
Member in 1843. H. Borra jaj ie succeded Anderson and Elliott succeeded Macleod.
Cameron and Milieu were the two old members who remained in the Commission
from 1834 to 1843.
45. See Hancarri House of Commons Debates. Third Series, Vol XIX, 531-33
46. Letter of 14th Oct., 1937, prefixed to the Draft Periai Code. For details of
The Anglo-Indian Codes, X. the letter see Whitley Stokes,
47. See Fitzjames Stephen, Life and Letters cMacauLoy.
248 CHARTER ACE, 1833 AND CODIFICATION [CHAP.
(ii) Lex Loci Report.—Another important subject to which the Commission was
required to devote its attention was the problem of uncertainty of the substantive
civil law which was applicable to the Christians, Anglo-Indians and Armenians. As
it involved personal laws of different communities, it became a very difficult and
complicated task for the Commission- There was no lex loci or law of the land for
persons other than Hindus and Moharñmedans in the Moffussil while the Presidency
towns had a lex 1oc in English Law..
After careful study and consideajtion the Law Commission submitted its report
on 31st October, 1840 to the Government- The Law Commission, under the
Chairmanship of Andrew Amos, recommended that an Act should be passed making
the substantive law of England the lex loci i.e. the law of the land outside the
Presidency towns in moffussil areas, which shall be applicable to all except Hindus
and Mohammedans 41 The main recommendations of the Commission were as
follows:
(a) Such laws of England as were applicable to the conditions of the people of
India and not inconsistent with the Regulations and Acts in force in the country
were to be extended over the whole of British India outside the Presidency towns
and all persons other than Hindus and Muslims were to be subject to them.
(b) All questions concerning marriage, divorce and adoption concerning persons
other than Christians were to be decided by the rules of the sect to which the
parties belonged.
(C) There was to be a College of Justice at etch of the Presidencies with the
Judges of the Supreme Court and Sadar Courts as members. In all appeals fiiii
the decisions of the moflussii courts, the appellate court was to consist of one
Judge of the Supreme Court, with or without associates.
It can be concluded that the Commission's proposal was to make English Law
the lex loci of the moffussil areas as in the case of the Presidency towns. The La'
Commission also submitted a draft Bill on 22nd May, 1841 to the Government.49
The Lex Loci Report of the Indian Law Commission was sent to all the
Presidencies in India for their opinion. The progress in the direction of lex loci
measure was halted by the preoccupations of Lord Auckland. In due course it was
realised that there were many objections to the Commission's recommendations. The
critics pointed out that ''the English substantive law was a very wasteful affair and
was not within the comprehension of ordinary people. A life-time was required to
master it." There was a sharp difference of opinion as to the course of policy to
be pursued. In the meantime the Directors ordered not 10 pass any law for declaring
tex loci and the matter remained pending until the Second Law Commission was
appointed.
(iii) Code of Civil Procedure—The Commission drafted a Code of Civil
Procedure and suggested various reforms in the procedure of civil suits.
(iv) Law of Limüatioii.-'---The Law Commission prepared a valuable report on
the Law of Limitation and with a draft Bill on it, submitted it to the Government
on 26th February, 1842.
49. See also, Alan (ikdhiil, The Republic q India. 155.
49. For details of the provIsirn ce' Rmn .ini ' f.egnl 4 Con uurir,,ia1 H.cior y o r hitho 1984.6-7-70
141 WORKING OFTHE LAW COMMISSIONS 249
(i,') Stamp Law.----Another matter referred to the Commission was Stamp Laws
which were in a state of conflict and confusion. The Commission submitted its report
on 21st February, 1837. It was not till 1860 that a comprehensive law relating to
stamps was passed for the whole of British India.
(vi) Contribution of Law Commission.—The First Law Commission of India
made unique contribution to Indian Law. Though the drafts of various codes, were
not immediately passed by the Legislature as codified law, the basic foundation of
future codification was laid down by it. The greatest credit goes to Macaulay for
his initiative in preparing a draft code of Penal Law in India. In fact subsequent
Law Commissions were built on the foundations laid by the First Commission. After
Macaulay's return to England activities of the Law Commissions lost their speed.
Rankin remarked, "The Commission had done brilliant work in drafting Penal Code,
a detailed and valuable, but unpublished work........but the times were not propitious
for law reform and the Law Commission was withering and losing influence for
lack of success."50
The Commission made a unique contribution by submitting the Lex Loci Report.
It was a major step towards the Rule of Law. Though at the instance of the Directors
it was placed in cold storage yet it had the fortune of getting support from the
Government of India. It was really practical solution to the ever increasing problem
of the administrators in controlling the activities of Europeans in India.
It is also said that the labours of the Commission did nut, on the whole, lead
to the enactment of "any very large number of substantial Acts" which might have
impressed cotilemporrtcs, and the Commission left behind it only an impression
that it '.Vas a failure, as costly as it was complete.'' 51 Referring to the reasonsfor
the failure of the Law Commission. Desikachar observed. "The general charge
against the Commissioners was that they were visionary, doctrinaire and impractical-
This was no doubt true to no small extent."52
On the whole, from the historical point of view, the First Law Commission did
serve a useful purpose. Its labour paved the way for the future codification of laws
in India. in the ultimate analysis, it can be stated that the fault was neither with the
persons, nor with the political conditions but was the lack of power ,iu the body
which was empowered to prepare great schemes of reform. The supreme legislative
authority paid little attention to the schemes submitted to it for firm decisions. The
thinking and the willing parts to the legislative organism were very much out of
joint.53
Being encouraged with the Law Commission's work, various digests and guides
were published in India.
50. Rankin. Background to Indian Law, 148.
51. J.W. Kaye. The Admin,so-airon ofthe East India Compernv. 106-7-see aLso Rankin. op. cit. 2?
52. Desikachar. Ceiuraii_ced Legi.clai ion. 212.
53. For detailed analysis, see the Evidence of Fi. Halliday. Parliamentary Papers. House of Corrunonr
No 426 of 1852-53.
54. B.K. Acharya, Codificaliem in India, Ch. l Marshinan A Guide to the Civil Law of the Presidency
of Fort William (1 MO).
A.D. Campbell A Collection of the Regulations of the Madras Presidency from 1802 (1840).
Fulwar Shipwuh : Abridgement of the Criminal Regulations and Acts up to 1843.
W. Morley An Analytical Digest of the reported cases decided by the Supreme Courts.
Beaufori A Digest of the Criminal Laws of the Presidency of Fort William 1846).
(b) The Second Law Commission, 1853

The Charter Act of 1853 empowered Her Majesty to appoint a Law Commission
in England for India. The task entrusted to the Commission was, "to examine and
consider the recommendations of the First Law Commission and enactments pro-
posed by it, for the reform of judicial procedure and laws of India as might be
referred to them for consideration". The life of the Second Law Commission was
fixed at three years which was to expire in 1856. The Charter Act, 1853 further
authorised Her Majesty to direct the Commission to submit reports on these matters
and especially to report from time to time what laws or regulations should be made
or enacted in relation to these matters, but every such report was to be submitted
within a period of three years after the passing of this Act.55
Accordingly, Her Majesty appointed the Second Law Commission in England
on 29th November, 1853. It is a bit surprising to note that the Second Law
Commission for India was appointed in England. 55 The Commission was composed
of the best legal luminaries of England, and of persons with judicial experience in
India and associated with the work of the First Law Conunission. The Commission
was required to submit its reports within a period of three years i.e. up to 1856.
(i) Reports—The Second Law Commission submitted four Reports to the Indian
Government. The First Report was submittted in 1855 and the Second in 1856. the
Third and Fourth Reports were submitted in 1856.
In the First Report the Commission submitted a plan for the reforms in judiciary
and in courts' procedure.
In its Second Report, the Commission agreed with the Lex Loci Report of the
First Commission. It suggested that there must be a substantive civil law for persons
in the rnoffussil who had no law of their own. it expressed the firm view that no
attempt to codify the personal laws of the Hindus and Mohammedans should be
made, because any such attempt "might tend to obstruct rather than promote the
gradual process of improvement in the state of population". Two members of the
Commission, namely Sir John Jervis and Robert Lowe, expressed the opinion that
English Law should be recognised as the lex loci of the moffussil areas.
The Third Report of the Commission contained a plan for establishing a judicial
system and procedure in the North Western Provinces. It was on the pattern of
Bengal with slight changes to meet special conditions.
The Fourth Report was concerning the judicial plan for the Presidencies of
Bombay and Madras.
(ii) Enactment of some Codes.—No material progress was made in the codifi-
cation of Indian Law even after the various reports of the First and Second Law
Commissions. The Government was less inclined to accept the drafts of the various
codes. Events of 1857 which are known as mutiny gave a shocking jolt to the British
Baynes, Richasd Clarke, Fenwicke, Harrison, Sutherland and Field to prepared and published various
other digests and collections of Regulations.
55. Section 28, Charter Act 1853.
56. It composed of Sir John Romilly, as President of the Commission; and other members were: Sir John
Jervis, Chief Justice of the Common Pleas; Six Edward Ryan, Es-Chief Justice of the Supreme Court
of Calcutta; Robert Lowe (later on became Lord Sherbooke): C.H.Cameron, President of the First Law
Commission and Law Member of Calcutta Council; John M. Mac land, of Civil Service Madrss; and
T.F. Ellis. Hawkins was appointed Secretary to the Law Commission.
141 WORKING OF THE LAW COMMISSIONS 251

Government of India. As a result of it the British Parliament dissolved the East
India Company and the Crown took over the direct responsibility of the Government
of India. The administrators faced many difficulties in controlling the judicial
administration of India in the absence of any suitable legislation—substantive as
well as procedural.
In 1859 the Indian Legislature enacted a Code of Civil Procedure (VIII of 1859)
and a Limitation Act (X of 1859). A Code of Criminal Procedure was passed in
1861 (XXV of 1861). The Indian Penal Code, which was drafted by Lord Macaulay
was revised and enacted into law in 1860, The Penal Code was translated later into
almost all the languages in India. "The saying in Eastern Bengal is", says Sir C.P.
Ilbert. "that every little herd boy carried a red umbrella tinder one arm and a copy
of the Indian Penal Code with the other and thus its provisions were made known
even to pczrdana.shui ladies and Zamindars too." The Government made every effort
to inform the general public about crimes which will be punishable under the Indian
Penal Code of 1860. The bulk of the adjective law of India was thus for the first
time codified.
In Punjab, under the guidance of Lord Lawrence and his colleagues attempts
were made towards the codification of certain provincial laws. Sir Richard Temple
prepared a hook called, Principles of Laws, which was later on known as the Punjab
Cn'il Code. The first draft of this Code was made in 1853. No doubt it was a
praiseworthy attempt but the Government of India refused to recognise it as a code
for Punjab. Sometime later after introducing certain modifications the Government
passed this Code as Punjab Laws Act of 1872.
(c) The Third Law Commission, 1861
The Golden Age of Codification.—On 14th December, 1861, the Third Law
Commission was appointed in India under the Chairmanship of Lord Romilly. 57 The
Secretary of State for India directed the Commission to submit its report soon so
that effect may be given to those recommendations at an early date. The Commis-
sioners were also asked to prepare a body of substantive law using law of England
as a basis having due regard for the institutions. Rankin observed, "The appointment
of the Third Law Commission set on foot the work of drafting and may be taken
as the end of the discussion on policy and as closing - if not a chapter - at least
a paragraph of British Indian history which may be entitled 'the Codes are corn-
ing'.''58
In seven reports the Third Law Commission prepared and submitted drafts of
several codes as under:
57. Its original members were, Sir W Erie, Sir E Ryan, R. Low. Justice Wills and John Macpherson
Macirod. Later on Sir W.M James, John Henderson and Justice Lush respectively succeeded Sir \V
Eric, Justice Wills and John Henderson
58. Rankin, Background to Indian Law. 45,
59. For details of reports see Rama Joi: Leç'ri/ & Con.ctitunona1I1Lstor ()I India. (1984), 73.79

SI.
No. of the Subject Year or Date
No. Resort of submission
1. First The Indian Succession Act 1864
2. Second The Contract Bill 1866
3. Third The Negotiable Instruments Bill 1867
4. Fourth (No draft of any Code submitted) 1867
5. Fifth The Evidence Bill 1868
6. Sixth The Transfer of Property Bill 1870
7. Seventh Revised draft of Criminal Procedure 1870
However, as a consequence of the undue interference of the Select Committee
of the Legislative Council, which made many changes in the draft submitted by the
Third Law Commission conflicts arose between the members of the Law Coin-
mission and the Government of India. Ultimately the members of the Commission
submitted their resignation in 1870. In the words of Ilbert, "The Third Law
Commission ended in a huff'.
Apart from the Commission's contributions, the Legislative Department of the
Government of India was also busy in its legislative activities under the guidance
of Sir H.S. Maine and Sir James Stephen. Sir H.S. Maine, Law Member of the
Governor-General's Council, introduced the Indian Companies Bill in 1865 which
was finally passed on 9th March, 1866. This Indian Companies Act of 1666 Was
mostly based on the En glish Companies Act of 1862, with a few alterations here
and there to meet the peculiar conditions of India. In 1868. the First General Clauses
Act was passed.
In 1869. Sir James Stephens was appointed the Law Member of the Council of
the Governor-General in place of Sir H.S. Maine, who returned to En gland in the
same year. Sir James Stephens played an important role in preparing and passing
the Indian Divorce Act of 1869 and the Code of Criminal Procedure of 1872.
During the tenure of H.S. Maine and Sir James Stephens, the following other
important Acts were passed by the Legislative Council of India:
(1) The Religious Endowments Act, 1863.
(ii) The Official Trustees Act, 1864.
(iii) The Carriers Act, 1865.
(iv) The Indian Succession Act, 1865.
(v) The Parsi Intestate Succession Act, 1865.
(vi) The Parsi Marriage and Divorce Act, 1865.
(vii) The Native Convert's Marriage Dissolution Act, 1866.
(viii) The Indian Trustees Act, 1865.
(ix) The Trustees and Mortgagees Powers Act, 1866.
(x) The Public Gambling Act, 1867.
(xi) The Press and Registration of Books Act, 1867.
(xii) The Indian Divorce Act, 1869.
(xiii) The Court Fees Act, 1870.
(xiv) The Female Infanticide Prevention Act, 1870.
(xv) The Hindu Wills Act, 1870.
141 WORKING OF THE LAW COMMISSIONS 253
(xvi) The Indian Evidence Act, 1872.

(xvii) The Special Marriage Act, 1872.
(xviii) The Punjab Laws Act, 1872.
(xix) The Indian Contract Act, 1872.
A study of the legislative activities of the period 1862 to 1872 points Out that
on the one hand the Third Law Commission was busy in making its contribution to
the codification of the Indian Law, on the other hand, Sir H.S. Maine 60 and Sir James
F. Stephens. 1 both respectively as the Law Members of the Government, played a vital
role in the shaping of the codification of law in various spheres. As such this period
also became famous as "the Golden Age of Codification in British India".
In 1873 Lord Hobhouse succeeded Sir James Stephens as Law Member of the
Government of India. As the activities of the Third Law Commission and of both
the previous Law Members of the Council created considerable uneasiness in India
and England he was given definite instructions ''to go slow with the legislative
machine in India". The Specific Relief Act (I of 1877) was therefore the only new
enactment passed during Hobhouse's term of office.
(d) The Fourth Law Commission, 1879
The Government of India appointed the Fourth Law Commission on 11th
February, 1879 . 62 In 1877 the Government of India, while accepting the proposals
of Lord Salisbury , entrusted Dr. Whitley Stokes with the preparation of Bills dealing
with Private Trusts, Easements, Alluvion and Diluvion, Master and Servant, Nego-
tiable Instruments and Transfer of Property. On 11th February. 1879 these Bills
were referred to the Fourth Law Commission for its consideration and report. The
Commission submitted its report on 15th November, 1879. Some important recom-
mendations of the Fourth Law Commission were as follows: -.
(I) The process of codification of substantive laws should conlinue.
(ii) The English Law should be made the basis of the future codes in India
and its material should be recast.
(iii) The eventual combination of those divisions as parts of a single and
general code should be borne in mind.
(iv) In recasting English materials due regard should be had to native habits
and modes of thought. The forms and propositions of codes should be
broad, simple and readily intelligible:
(v) Uniformity in legislation should be aimed at; but local and special customs
should be treated with great respect.
(vi) Existing law of persons should not be expanded at present by codification
except that the operation of the European British Minors Act, 1874 should
be extended.
60. During Maines tenure nearly two hundred eleven Acts were passed. See Hunter. Seven Years JInthWI
Legislation (1870): Rankin. Background to Indian Law. 73
61. See Ilbert, Sir James Stephens as a Legislator" (1894) 10 LOR 222-7; Hunter, A Life of the Earl of
Mayo, II, 1876, 140230
62. Sir Charles Turner, Dr. Whitely Stokes and Raymond West were its three members
254 CHARTER ACE, 1833 AND CODIFICATION [CHAP.

(vii) The laws relating to Negotiable instruments, Transfer of Property, Trusts,
Alluvion, Easements and Master-Servant should be codified and Bills already
prepared should be passed into law subject to suggested amendments.
(viii) Concurrently the laws relating to insurance, carriers and lien should be
codified.
(ix) The law of actionable wrongs should be codified.
(x) The Legislature should then deal with the law of property in its whole
extent.
(xi) Preparation should be made for a systematic Chapter on Interpretation.
The Legislative Council of India, on the recommendation of the Law Com-
mission, passed codes relating to Negotiable Instruments in 1881 and those relating
to Trusts, Transfer of Property and Easements in 1882. The law of Civil Wrong
(Torts) was not codified though 'Indian Civil Wrongs Bill" was prepared. Till
today this area is uncodifieci and is mostly covered by English Law of 'Forts. The
Commission also recommended for one CODE wherein all different kinds of law
was to be incorporated in separate chapters. This and the above proposition about
codification of civil wrongs remained without any practical shape. Even today in
1995 the position is the same. It should be noted that this was the last Commission
appointed by the British in India. Certain revised editions of the law dealing with
procedure, both civil and criminal, were also passed.
Even after the Fourth Law Commission submitted its report, the Legislative
Council continued to codify Indian Law in different spheres. It became necessary
iii ul-der to deal with the new problems and the y were regulated by new Legislations
The Law Commissions' contribution to Indian Law proved the utility of codification
in India. Those who were opposed to codification in India realised its importance
and utility in Indian affairs, administrative as well as judicial. Montague remarked,
"Should the English Empire in India prove durable, the Indian Codes will do much
to transform Indian civilisation. Even should that empire pass away these codes will
remain the first successful essays towards the recasting of English Law.' '
The role of Law Commissions and their contribution to Indian Law was thus
described by M.C. Setalvad in the 1-lamlyn Lectures;
'The labour of these Comnii.cs ions consisting of eminent English Jurists,
spread over half a century, gave to India a system of codes dealing with
important parts of substantive and procedural civil and criminal - law... The
Commissions ..became powerful instruments which injected English Common
and statute law and equitable principles into the expanding structure of India,i
Jurisprudence.'
5. Law Commission under Indian ConSfitution

(a) The Fifth Low Commission, 1955
On 15th August 1947 India won independence and adopted the Indian Constitu-
tion by the Constituent Assembly on 26th November, 1949 which became effective
63. F.C. Montague, Introduction to [lent/jam's Frugniens on Government, 56 . 57. See also Sir Frederick
Pollock, The Lxpwision ci] Common Law, 16-17.
64. M.C. Setalvad, The Common Law in India. 28-29. For the Uniform rules followed by draftsmen of
Indian Code, See Whitley Stokes, The Anglo-Indian Codes, XXII.
141 LAW COMMISSION UNDER INDIAN CONSTITUTION 255

from 26th January 1950. Article 372 of the Constitution continued all the laws which
were in force in India prior to the commencement of the Constitution subject to the
provisions contained in the Constitution in view of the provisions for Fundamental
Rights and the Directive Principles contained in the Constitution re-examination of
the prevailing laws was necessary. For this a Law Commission was a must. On 5th
August, 1956, Shri C.C. Biswas, the Law Minister, announced in the Lok Sabha the
appointment of a Law Commission. It was the Fifth Law Commission after 1883
but after independence of India it was the First Law Commission. It consisted of
eleven members including Sri M.C. Setalvad, the Attorney-General of India, who
was appointed its Chairman. Ten eminent members of the Law Commission were
selected from both the Bench and the Bar. In the first instance the Commission was
appointed for a short term, namely up to the end of 1956. The headquarter of the
Law Commission was established in New Delhi.
On 19th November, 1954 the Lok Sabha passed the following Resolution for
the purpose.
(i) Members—Eleven persons, who were appointed Members of the Law
Commission, were as follows:
Shri M.C. Setalvad, Attorney-General of India (Chairman); Shri M.C. Chagla,
Chief Justice of Bombay High Court; Shri K.N. Wanchoo, Chief Justice of the
Rajasthan High Court; Shri G.N. Das, Retired Judge of the Calcutta High Court;
Shi-i P. Satyanarayana Rae, Retired Judge of the Madras High Court; Dr, N.C. Sen
Gupta, Advocate, Calcutta; Shrm V.K.T. Chari, Advocate-Genera], Madras; Sri
Narasa Rajah, Advocate-General, Andhra; Shri S.M. Sikri, Advocate-General, Pun-
jab; Shri G.S. Pathak, Advocate, Allahabad; Shri G.N. Joshi, Advocate, Bombay
and Shri N.A. Palkiwala, Advocate, Bombay, joined in 1957 as Part-time Members.
(ii) Terms of reference—The terms of reference to the Commission were; (1)
to review the system of judicial administration in all its aspects and suggest ways
for improving it and making it speedy and less expensive; (2) to examine the Central
Acts of general application and importance and recommend lines on which they
should be amended, revised, consolidated or otherwise brought up-to--date.
With regard to the first term of reference, the Commission's inquiry into the
system of judicial administration was to be comprehensive and thorough including
in its scope—
(a) the operation and effect of laws. suhstaniive as well as procedural, with
a view to eliminating unnecessary litigation, speeding up the disposal of
cases and making justice less expensive;
(b) the organization of courts, both civil and criminal;
(c) recruitment of the judiciary both civil and criminal; and
(6) the level of the Bar and of legal education.
With regard to the second term of reference, the Commission's principal
objectives in the provision of existing legislation was—
(a) to simplify the laws in general, and the procedural laws in particular;
(b) to ascribe if any provisions are inconsistent with the Constitution and
suggest necessary alterations or omissions;
(c) to remove anomalies and ambiguities brought lo light by conflicting
decisions of High Courts or otherwise;
(d) to consider Local variations introduced by State Legislation in the concur-

rent field with a view to reintroducing and maintaining uniformity;
(e) to consolidate Acts pertaining to the same subject with such technical
revision as may be found 'necessar y : and
(f to suggest modifications wherever necessary for implementing the Direc-
tive Principles of State Policy laid down in the Constitution.
The Commission was required to function in two sections. It was specially done
so that it may perform its task expeditiously and effectively. The first section
consisted of the Chairman and the first named three Members and was to deal mainly
with the question of reform of judicial administration. While the second section of
the Commission consisted of the remaining members who were mainly concerned
with statute law revision on the lines as stated above. The two sections, however,
were required to work in close co-operation with each other under the direction of
the Chairman. The Chairman of the Commission was also empowered to Co-opt as
members, one or two practising lawyers of a State to assist the Commission's
inquiries in that State. The Commission has been reconstituted from time to time
and the reports so far made are numerous.
(iii) Reports submitted from 131h August, 1955 to 19th December, 1958—The
Law Commission submitted fourteen Reports durin g its period of three years before
it was reconstituted in December, 1958. The reports were as follows:
Sl.No. No. of the Subject Date of
Report submission
I. First Liability of the State in Tort 11th May, 1956
.2. Second Parliamentary Legislation 2nd July, 1956
Relating to Sales Tax
3. Third Limitation Act 21st July, 1956
4. Fourth On the proposal that High 1st Aug., 1956
Courts should sit in Benches
at different places in a State
5. Fifth British Statutes Applicable to 11th May, 1957
India
6. Sixth Registration Act 13th July, 1957
7. Seventh Partnership Act 13th July, 1957
8. Eighth Sale of Goods Act 1st March, 1958
9. Ninth Specific Relief Act 19th July, 1958
10. Tenth Law of Acquisition and 26th September, 1958
Requisition of Land
11 Eleventh Negotiable Instruments Act 26th September, 1958

12 Twelfth Income Tax Act, 1922 26th September, 1958

13 Thirteenth Contract Act 26th September, 1958

14 Fourteenth Report on the Reform of Judicial 26th September, 1958
Administration65
65. Students looking for details of recommendations should either see the Reports or may refer to Rama
Jots: Legal & Cnsgiguiio,iat History of India; Vol .2 (1984) 88-91.
LAW COMMISSION UNDER INDIAN CONSTITUTION 257

1411
(b) Second Law Commission (Chairman: Justice T.L. Venkatarwna Aiyar)
On expiry of the term of the members of the Law Commission, it was
reconstituted in December 1958.
The Commission was appointed for a term of three years from December 1958
to December 1961. The terms of reference to the reconstituted Law Commission
were to examine the Central Acts of general application and importance and
recommend the lines on which the y should be amended, revised, consclidated, or
otherwise brought up to date.
The principal objectives of the reconstituted Commission in the revision of the
existing statute laws, were as follows:
(a) to simplify the laws in general, and the procedural laws in particular:
(b) to ascertain if any provisions are inconsistent with the Constitution and
suggest the necessary alterations or omissions
(c) to remove anomalies and ambiguities brought to light by conflicting
(d) to consider local variations introduced by State legislation in the concur-
rent field with a view to re-introducing and maintaining uniformity;
(e) to consolidate Acts pertaining to the same subject with such technical
revision as may be found necessary;
(I) to suggest modifications wherever necessary for implementing the Direc-
tive Principles of State Policy laid down in the Constitution; and
(g) to suggest a general policy in revising the laws.
The Commission was at liberty to devise its own procedure for its work, for
collecting information and for ascertaining public opinion.
Reports submitted by the Law Commission from 20th December, 1958 to 19th
December, 1961 were e ig ht in number, as follows:
SI. No. of the Subject Date of
No. Re ort submission
1. Fifteenth Law Relating to Marriage 19th Aug., 1960
and Divorce Amongst
Christians in India
2. Sixteenth Official Trustees Act, 1.913 25th Nov.. 1960
3. Seventeenth Official Trusts Act, 1882 6th Jan., 1961
4. Eiehteenth The Converts' Marriage 23rd Feb., 1961
Dissolution Act, 1866
5. Nineteenth The Administrator-General 19th June, 1961
Act, 1913
6. Twentieth Law of Hire-Purchase 19th June, 1961
7. Twenty-first Law of Marine Insurance 21st Sept., 1961
Twenty- Christian Marriage and 15th Dec., 1961
S.
second Matrimonial Causes Bill,
1961
258 CHARTER ACT, 1833 AND CODIFICATION [CHAP -
(c) Third La y Commission (Chairman: Justice J.L. Kapur)
The term of the members on the Law Commission expired on 19th December,
1961. The Government, considering the necessity, reconstituted the Commission and
appointed new members for a term of three years i.e. from 20th December, 1961
to 19th December, 1964.
In the absence of new terms of reference the Commission continued to work
on the terms which were referred to it in 1959. During its three-year period of tenure
the Commission submitted the following five R000rts:
SI. No. of the Subject
No. Date of
Report
submission
I. Twenty-third The Law of Foreign Marriages 8th Aug., 1962
2. Twenty-fourth The Commissions of Inquiry 26th Sept., 1963
Act, 1952
3. Twenty-fifth Report of Evidence of Officers 27th Sept., 1963
about forged stamps,
currency notes, etc.
4. Twenty-sixth Report on Insolvency Laws 23rd March, 1964
5. Twenty-seventh Report on the Code of Civil
13th Dec., 1964
Procedure, 1908
(d) Fourth Law Commission (Chairma,n Justice J.L. Kapur)

The Commissions term ot three years expired on 19th December, 1964. The
Government reconstituted the Commission for the third time and appointed new
members for a term of four years, i.e. from 20th December, 1964 to 1968.
During the period of four years from 20th December, 1964 to 29th February,
1968 the Commission submitted Five Reports, as follows:
SI. No. of the Subject
Date of
No Report
submission
1. Twenty-eighth Report on the Indian Oaths Act, 22nd May, 1965
1973
2. Twenty-ninth Report on the proposal to 11th Feb., 1966
include certain Social and
Economic Offences in the
Indian Penal Code
3. Thirtieth Report on Section' 5, Central March, 1967
Sales Tax Act, 1956 (Taxation
by States of sales in course of
import)
4. Thirty-first Section 30(2), Indian May, 1967
Registration Act, 1908
(Extentiori to Delhi)
5. Thirty-second Section 9, Code of Criminal 29th May, 1967
- Procedure, 1898
14] LAW COMMISSION UNDER INDIAN CONSTITUTION 259
St. No, of the Subject Date of

No. Report -submission
6. Thirty-third Section 44 of Cr.P.C., 1898— 15th Dec., 1967
Suggestion to and provision
relating to reporting of, and
disclosure in evidence about
offences relating to bribery
7. Thirty-fourth Report on the Indian 15th Feb., 1967
Registration Act, 1,909
8. Thirty-fifth Report on Capital Punishment 19th Dec., 1967
9. 'l'hirty-sixth Report on Sections 497, 498 and 9th Jan., 1968
499, Cr.P.C., 1898, Grant of
bail with condition
10. Thirty-seventh Report on the Cr.P.C. 1898— 19th Feb., 1968
(Sections I to 176)
II. Thirty-eighth Report on the Indian Post Office 24th Feb., 1968
Act, 1898
The thirty-fifth report made a move for abolition of death sentence. Earlier
moves in 1931, 19 S 6, 1961 & 1962 to remove death sentence were rejected. Under
the Penal Code death sentence is provided for offences under Sections 121, 132.
194, 302. 303, 305, 307 &. 396. Making an elaborate report in this regard the
Commission recommended that a person below the age of 18 shall not be sentenced
to death but very recently the Supreme Court has upheld the validity of the death
sentence in Bachan Singh v. State of Punjab".
(e) Fifth Law commission
The Commission was reconstituted for the fourth time in Marc Ii 1968. The terms
of reference remain the same. The time old practice of appointing a retired Judge
of the Supreme Court as Chairman of the Commission was not followed and Shri
K.V.K. Sundaram, a retired I.C.S., was appointed Chairman. Apart from these
full-time members, Shri P.M. Baxi in the Ministry of Law and Legislative Council,
was appointed to work as Secretary to the Law Commission.
Up to September, 1971, the Commission submitted the following repoits:
Si. No. of the Subject Date of

No. Report submission
ion
I. Thirty-ninth Report on the punishment of 15th July, 1968
imprisonment for life under
the I.P.0
2. Fortieth Law relating to Attendance of 10th March, 1969
Prisoners in Courts
3. Forty-first Cr. P.C., 1898 24 Sept., 1969
66. AIR 1980 SC 898.

Wa
l CHARTER ACT, 1833 AND CODIFICATION CHAP.

4. Forty-Second I.P.C., 1860 2nd June, 1971
5. Forty-third Report on the Offences against 31st Aug., 1971
the National Security
6. Forty-fourth Appellate Jurisdiction of the 31st Aug., 1971
Supreme Court in Civil
Matters
On recommendations of the Commission the 1898 Code of Criminal Procedure

was repealed and the Cr.P.C. 1973 was enacted by Parliament.67
(f) Sixth Law Commission
The Commission was reconstituted in September 1971 - Dr. P.R. Gajendragadkar,
former Chief Justice of India was the Chairman.
The Terms of Reference of the Law Commission reconstituted with effect from
Septermber 1, 1971 were:
(i) To simplify the laws in general, and the procedural laws in particular;
(ii) to ascertain if any provisions are inconsistent with the Constitution and
suggest the necessary alterations or omissions;
(iii) to remove anomalies and ambiguities brought to light by conflicting
(iv) to consider local variations introduced by State Legislation in the concur-
rent field, with a view to re-introducing and maintaining uniformity;
(ii) to consolidate Acts pertaining to the same subject with such technical
revision as may be found necessary;
(vi) to examine existing laws in the background of the Directive Principles of
State Policy contained in Part IV of the Constitution and to suggest
amendments insofar as these laws are inconsistent with those principles.
(vii) to suggest a general policy in revising the laws;
(viii) to consider the advisability or need for any fresh le gislation to effectuate
the Directive Principles; and
(ix) to review the working of the Constitution and suggest any amendments
from the point of view of enabling the different authorities under the
Constitution more effectively to implement the Directive Principles.
The Commission had been very active and submitted the following reports:
Report . submission
1. Forty-fifth Civil Appeals to the Supreme Court 28th Oct., 1971
on a Certificate of Fitness
67. For citails see Rama Jois: Legal & Constitutional History of India, Vol. 2, 1984. 95.97


2. Forty-sixth The Constitution (25th Amendment) 28th Oct., 1971
Bill, 1971
3. Forty- Trial and Punishment of Social and 28th Feb., 1972
seventh Economic Offences
4. Forty-eighth Some questions under Cr. P.C. Bill, 25th July, 1972
1970
5. Forty-ninth The proposal for inclusion of 28th Aug., 1972
agricultual income in total income
for purposes of determining the
rate of income tax under the
Income Tax Act, 1961
6. Fiftieth The proposal to include persons 28th Aug.. 1972
connected with Public
examinations within the definition
of 'Public servant' in the I.P.0
7. Fifty-first Compensation for injury caused by 15th Sept., 1972
automobiles in hit-and-run cases
& Fifty-second Estate Duty on property acquired 4th Dec.. 1972
after death
9. Fifty-third Effect of Pensions Act, 1871, on 4th Dec., 1972
the right to sue for pensions o
retired members of the public.
services
10. Fifty-fourth Code of Civil Procedure, 1908 6th Feb.. 1973
11. Fifty-fifth Report on the rate of interest after 14th May, 1973
decree and interest on costs under
Ss. 34 and 35 of the C.P.C.. 1908
12. Fifty-sixth Notice of suit required under 14th May, 1973
certain Statutory provisions
13. Fifty-seventh Benami Transactions 7th Aug., 1973
14. Fifty-eighth Structure and Jurisdiction of the 8th Jan., 1974
Higher Judiciary
15. Fifty-ninth Hindu Marriage Act, 1955 and the 6th March, 1974
Special Marriage Act, 1954
16. Sixtieth General Clauses Act, 1897 20th May, 1974
17. Sixty-first Certain problems connected with 20th May, 1974
power of the States to levy a tax
on the sale of goods and with the
Central Sales Tax Act, 1956
262 CHARTER ACT, 1833 AND CODIFICATION

[CHAP.
(g) Seventh Law Commission
The Commission was reconstituted for the sixth time (bein g the Seventh Law
Commission after Independence) under the Chairmanship of Dr. P.B. Cajendragad-
kar, former Chief Justice of India, who thus occupied the position of the Chairman
for the second time. "The term of the Commission was for three years from
1-9-1974. P.M. Bakshi continued as Member Secretary of the Commission, The
Commission functioned till 31-8-1977.
During its tenure, the Commission submitted the followirie renorrc'
S1. Name of the Subject
No. Date of
Rennrt
submission
I . Sixty-second Report on the Workmen's 15th Oct., 1974
Compensation Act, 1923
2. Sixty-third Report on the Interest Act, 21st Feb., 1975
1839
3. Sixty-fourth Report on the Suppression of 7th March, 1975
Immoral Traffic in Women
and Chris Act, 1956
4. Sixty-fifth Report on Recognition of 5th April, 1976
Foreign Divorces
5. Sixty-sixth Report on the Married 12th May, 1976
Women's Property Act, 1874
6. Sixty-seventh Report on the [adion Stamp 1st 1977
Act, 1999 -
7. Sixty-eighth Report on the Powers of 15th March, 1977
Attorney Act, 1882
8. Sixty-ninth Report on the Indian Evidence 9th May, 1977
Act, 1872
9. Seventieth To effect a change in
electoral College
(/') Eighth Lw Commission

The Commission was reconstituted for the seventh time (being the eighth Law
Commission after Independence) in 1977 under the chairmanship of Mr. Justice H.R.
Khanna,
The Terms of Reference of the Law Commission with effect from 1-9-1977
were as under:
t. To keep under review the system of judicial administration to ensure that it
is responsive to the reasonable demands of the times and in particular to secure—
(a) elimination of delays, speedy clearance of arrears and reduction in costs
so as to secure quick and economical disposal of cases without affecting
the cardinal principle that decisions should be just and fair;
(h) simplification of procedure to reduce and eliminate technicalities and
devices for delay so that it operates not as an end in itself but as a means
of achieving justice;
14) LAW COMMISSION UNDER INDIAN CONSTITUTION

263
(c) improvement of standards of all concerned with the administration of
justice.
2. To examine the existing laws in the light of Directive Principles of State
Policy and to suggest ways of improvement and reform and also to suggest such
legislation as might be necessary to implement the Directive Principles and to attain
the objectives set out in the Preamble to the Constitution.
3. To revise the Central Acts of general importance so as to simplify them and
to remove anomalies, ambiguities and inequities.
4. 1'o consider and to convey to the Government its views on any other subject
relating to law and judicial administration that may be referred to t.
After Ms. Justice Khanna resigned, Mr. Justice P.V. Dixit, former Chief Justice
of the Madhya Pradesh High Court, took over as Chairman of the Commission on
17-11-1979. Shri P.M. Bakshi continued as Member-Secretary of the Commission
The Commission functioned till 31-8-1980.
During its tenure, the Commission submitted the following
SI. No. of the Subject Datc of
No. Report
submission
1. Seventy-first Report on the Hindu Marriage 7th April, 1978
Act, 1955—Irretrievable
breakdown of marriage. as a
ground of divorce
2. Seventy-second Report on Article 220 of the 10th April 1978
Con sti tut ion—Restriction on
practice after being a
permanent Judge
3. Seventy-third Report on Criminal Liability for 15th May, 1978
failure by husband to pay
maintenance or permanent
alimony granted to the wife by
the Court under certain
enactments or rules of law
4 Seventy-fourth Report on the proposal to amend 8th Aug., 1978
the Indian Evidence Act, 1872
so as to render admissible
certain statements made by
witnesses before the
Commission of Enquiry and
other statutory authorities

5 Seventy-fifth Report on the Disciplinary 6th Nov.. 1978
Jurisdiction under the
Advocates Act, 1961
6. Seventy-sixth Report on the Arbitration Act, 9th Nov.. 1978
1940

7. Seventy-seventh Report on Delay and Arrears in 27th Nov., 1978
Trial Courts
8. Seventy-eighth Report on Congestion of under 2nd Feb., 1979
trial prisoners in jails
9. Seventy-ninth Report on Delay and Arrears in 10th May, 1979
High Courts and other
Appellate Courts
10. Eightieth Report on the Method of 10th Aug., 1979
Appointment of Judges
(1) Ninth Law Commission (Chairman: Justice, P. V. Dixit)
SI. No. of the . Subjcdt Date of
'I. Eighty-first Report on the Hindu Widows 20th Dec., 1979
Remarriage Act, 1856
2. Eighty-second Report on the effect of 2nd Feb., 1980
nomination under Section
39, Insurance Act, 1938
13 Eighty-third Report on the Guardian:; & 26th April, 1980
Wards Act, 1890 and certain
provisions of the Hindu
Minority and Guardianship
Act, 1956
1 4 Eighty -fourth Report on Rape and Allied 25th April, 1980
Offences—some questions of
substantive law, procedure
and evidence
15 Eighty-fifth Report on claims for 2nd June, 1980
compensation under Chapter
V III of the Motor Vehicles
Act, 1939
6. Eighty-sixth Report on the Partition Act, 4th Sept., 1980
1995
1 7. Eighty-seventh Report on the Identification of 4th Sept., 1980
Prisoners Act, 1920
-•_____
*
(j) Tenth Law Com,nissio,, (Chairman Justice K. K. Mathew)

I. Eighty-eighth Governmental privilege in 10th Jan., 1983
Evidence: Sections 123-124 and
162. Indian Evidence Act, 1872
and Article 74 and 163 of the
Constitution
2. Eighty-ninth The Limitation Act, 1963 28th Feb., 1983
3. Ninetieth The Grounds of Divorce amongst 17th May. 1983
Christians in India: Section 10
of the Indian Divorce Act, 1869
4, Ninety-first Dowry deaths and Law reform: 10th Aug.. 1983
Amending the Hindu Marriage
Act, 1955, the Indian Penal
Code, 1860 and the Indian
Evidence Act, 1872
5. Ninety-second Damages in application for 16th Aug.. 1983
Judicial Review:
recommendations for legislation
6. Ninety-third Disclosure of sources of 9th Sept., 1983
infoiniation by Mass Media
7. Ninety-fourth Evidence obtained illegally or 28th Oct., 1983
improperly: proposed Section
166-A, Indian Evidence Act,
1872
8. Ninety-fifth Constitutional Division within the 1st March, 1984
Supreme Court— A proposal for
9. Ninety-sixth Repeal of certain obsolete Central 19th March, 1984
Acts
110. Ninety-seventh Section 28, Indian Contract Act, 31st March, 1984
1872, prescriptive clauses in
contracts
4. Ninety-eighth Sections 24 to 26 Hindu Marriage 17th April, 1984
Act, 1955: orders for interim
maintenance and orders for the
maintenance of children in
matrimonial proceedings
111. Ninety-ninth Oral and Written arguments in 26th April. 1984
the Higher Courts
112. Hundredth Litigation by and against the 8th May, 1984
government. some
recommendations for reforms

I
[CHAP.
266 CHARTER ACT, 1833 AND CODIFICATION

14. Hundred-first Freedom of Speech and 28th May, 1984
Expression under Article 19 of
the Constitution:
recommendation to extend it to
Indian Corporations
15. Hundred-second Section 122(1) of the Code of 2nd July, 1984
Criminal Procedure 1973:
imprisonment for breach o
bond for keeping the peace with
sureties
16. Hundred-third Unfair Terms in Contract 28th July, 1984
17. Hundred-fourth Judicial Officers' Protection Act 10th Oct., 1984
1850
IS. Hundred-fifth Quality Control and inspection of 27th Oct., 1984
consumer goods
19. Hundred-sixth Section 103-A, Motor Vehicles 30th Nov., 1984
Act, 1939: effect of Transfer of
a Motor Vehicle on insurance
20. Hundred-seventh Laws of Citizenship 3rd Dec., 1984
21. Hundred-eighth Promissory Estoppel 12th Dec., 1984
22. Hundred-nineth Indecent advertisements: Sections 8th Jan., 1985
292-293 of Indian Penal Code
23. Hundred-tenth Indian Succession Act, 1925 25th Feb., 1985
24. Hundred and Fatal Accidents Act, 1855 16th May, 1985
eleventh

25. Hundred and Section 45 of the Insurance Act, 6th June, 1985
twelfth 1938

26. Hundred and Injuries in Police Custody— 29th July, 1985
thirteenth Suggested Section 114-13,
Evidence Act
(k) Eleventh Law Commission (Chairman Justice D.A. De.oi)

No.Report submission
I. Hundred Gram Nyayalaya—Alternative 12th Aug., 1986
Fourteenth Forum for Resolution of
Disputes at Grass Roots Level
2. Hundred Tax Courts 28th Aug., 1986
fifteenth
3. Hundred Formation of an All India 27th Nov., 1986
sixteenth Judicial Service
14] LAW COMMISSION UNDER INDIAN CONSTITUTION 267

4. Hundred Training of Judicial Officers 28th Nov., 1986
seventheerith
5. Hundred Method of Appointment to 26th Dec., 1986
eighteenth Subordinate Courts/Subordinate
Judiciary
6. Hundred Access to Exclusive Forum for 19th Feb., 1987
nineteenth Victims of Motor Accidents
under Motor Vehicles Act, 1939
7. Hundred Manpower Planning in Judiciary: 31st July, 1987
twentieth A Blueprint
8. Hundred A New Forum for Judicial 31st July, 1987
twenty-first Appointments
9. Hundred Forum for National Uniformity 9th Dec., 1987
twenty-second in Labour Adjudication
10, Hundred Decentralisation of 15th Jan.. 1988
twenty-third Administration of Justice
Disputes involving Centres of
Higher Education
Ii. Hundred The Hi gh Court Arrears - A 29th Feb.. 1988
twenty-fourth Fresh Look
12. Hundred The Supreme Court - A Fresh 11th May, 1988
twenty-fifth Look
13. Hundred Government and Public Sector 12th May, 1988
twenty-sixth Undertaking Litigation -
Policy and Strategies
14. Hundred Resource Allocation for 14th June. 1988
twenty-seventh Infrastructural Services iii
Judicial Administration (A
Continuuarn of the Report on
Manpower Planning in
Judiciary : A Blueprint)
15. Hundred Cost of Litigation 1st July, 1988
twenty-eighth
16. Hundred Urban Litigation - Mediation as 8th August, 1988
twenty-nineth alternative to Adjudication
17. Hundred Benarrii Transactions : A 14th August. 1988
thirteeth Continuuam
18. Hundred Role of legal profession in 31st August, 1988
thirty-first Administration of Justice
268 CHARTER ACT, 1833 AND CODIFICATION (CHAP.
(1) Twelfth Law Commission (Chairman Shri M.P. Thakkar)
[1. No. of the Subject Date of

No. Report Presentation
1. Hundred Need for Amendment of the 9th April, 1989
Thirty-second Provisions of Chapter IX of the
Code of Criminal Procedure, 1973
in order to ameliorate the hardship
and mitigate the distress of
neglected women, Children and
parents.
2. Hundred Removal of Discrimination against 29th Aug., 1989
thirty-third women in matters relating to
Guardianship and Custody of
Minor Children and Elaboration of
the Welfare Principles

3 Hundred Removing deficiencies in Certain 28th Sep., 1989
thirty-fourth provisions of the Workmen's
Compensation Act, 1923

4 Hundred Women in Custody. 14th Dec., 1989
thirty-fifth

5 Hundred Conflicts in High Court decisions 21st Feb., 1990
thirty-sixth on Central Laws -How to
foreclose and ho* to resolve.

6 Hundred Need for creating office of 28th Sep., 1990
thirty-seventh ombudsman and for evolving
legislative-administrative measure
inter alia to relieve hardships
caused by inordinate delays in
settling provident fund claims of
beneficiaries.

'4 Hundred Legislative Protection for Slum and 20th Dec., 1990
thirty-eighth Pavement Dwellers.

8 Hundred Urgent need to amend under XXI 4th April, 1991
thirty-nineth Rule 92(2), Code of Civil
Procedure to remove an anomaly
which nullifies the benevolent
intention of the Legislature and
occasions injustice to judgment-
debtors sought to be beneflttcd

9 Hundred Need to amend Order V, Rule 19A 19th April, 1991
fortieth of the Code of Civil Procedure,
1908 relating to service of
summons by registered post with
a view to foreclose likely injustice.

141 CODIFICATION OF LAWS 269
rr No. of the Subject Date of

- -----
10. Hundred Need for amending the law as list July, 1991
forty-first regards power of courts to restore
criminal revisional applications and
criminal cases dismissed for default
in apperance.
It. Hundred Concessional treatment for offenders 22nd Aug., 1991
forty-second who, on their own initiative choose
to plead guilty without any
bargaining.
(m) Thirteenth Law Commission (Chairman Justice K.N. Singh)
St. No. of the Subject Date of

1. Hundred Conflicting judicial decisions 28th April 1992
forty-fourth pertaining to the Code of Civil
Procedure, 1908
2. Hundred Article 12 of the Constitution and 26th Nov., 1992
torty-tifth Public Sector Undertakings
3. Hundred Sale of Women and Children : 26th Feb., 1993
forty-sixth Proposed Section 373-A, Indian
Penal Code
4. Hundred Specific Relief Act, 1963 6th Oct., 1993
forty-seventh
5. Hundred Repeal of certain pre-Central Act 26th Nov., 1993
torty-eighth
5. Hundred Removal of Certain deficiencies 11th Feb., 1994
forty-nineth in the Motor Vehicles Act,
1988 (No. 59 of 1988)
7. Hundred Suggesting some amendments to 10th May. 1994
fiftieth the Code of Civil Procedure
(Act No V of 1908)
8. Hundred Admiralty Jurisdiction
Fifty-first
9. Hundred Custodial Crimes
Fifty-second
10. Hundred Inter-Country Adoption
Fifty-third
6. Codification
(1) Meaning and objecs.—Courtenay Ilbert described Benthani as the Chief
Apostle of codification and to him, the word "codification" owes its origin. From
the fifteenth century onwards the term came to be applied to a more or less
comprehensive, systematic statement in a written form of major bodies of law, such
as the Civil law or the Criminal law of a particular country, superseding the mixture
of customs. decisions and bits of legislation which had previously applied. 68 A
code is thus a species of enacted law which purports to formulate the law so that
it becomes the authoritative, comprehensive and exclusive source of that law in
the area.
It will he worthwhile to prepare a Code if it answers to this description.
Enactment necessarily means that the law is developed by the deliberate will of
the Legislature, Before it enacts a law, the Legislature will feel the need for advice
on the views of economists, social scientists, interested bodies and ordinary citizens
as well as lawyers. Enactment enables a scientific planning and deigning process,
which taps the wisdom and experience of the whole community to be brought to
bear on the formation of the law. The Law Commission is an important instrument
for ensuring that this planning and consultative process will be available to
Parliament.
As quoted by Ilbert in "Legislative Methods and Forms', 122 ()901), 69 (z) A
code is a complete digest. Such is the first rule. Whatever is not in the code of laws
ought not to be the law" (p. 205). (ii) The object of the code is that eeiyone may
consult the law which he stands in need of, in the least possible time ( p. 193). (iii)
1 he great utility of the code of laws is to cause the debates of lawyers and bad laws
of former time to be forgotten (p. 208). (iv) A code framed upon these principles
would not require schools for its explanation, would not require canonists to unravel
its subtleties. It would speak a language familiar o everybody; each one might
consult it at his need. It would be distinguished from all other books by its greater
simplicity and clearness."
(ii) !n favour of Codification.—As could he seen from the preceding chapters,
before codification or at the beginning of the 19th century there were in action
various laws, charters, statutes, regulations circulars and judge-made laws—(ij The
Hindu law with its commentaries, (ii) The Muslim law and usage, (iii) Charters and
Letters Patent of the Company, (iv) The English Common law and Statutes, (i')
Regulations of the local governments, ( ti) Circular orders of the Nizamat Adalats
and Diwani Adalats, (vii) Decisions of courts applying the principles of Justice,
Equity and Good Conscience. The consequences were that no pronouncement could
be finally made which could not be objected to or called in question. As said by
Charles Grant besides this there were commissions of the Governments and treaties
of the Crown, treaties of the Indian Government and inferences could be drawn at
pleasure. The position was that it led to a state of circumstances which would justify
almost any construction of it or qualification of its force. What was administered in
the Court was not law but a kind of rude and capricious equity. The decision in a
68. Walker The Oxford Companion to Law. Ed. 1980, 234.
69. Rana Jots: Leal & C"ncriiuiionaI Hicff,r of fndio. (1984) 62
141 CODIFICATION OF LAWS 271
given case was like a Iottery2° It was also necessary to remove the three inherent
vices in law [supra para. 2 (v)]. And Codification was therefore necessary.
In a despatch dated 10th March, 1877 from the Government of India to the
Secretary of State it has been stated that:
(i) Codification would be of the utmost utility, not only to the judges and
the legal profession, but also to the people and the Government;
(ii) It would save labour and thus facilitate the despatch of business and
cheapen the cost of litigation;
(id) It would tend to keep our untrained judges from error;
(ñ') It would settle disputed questions on which our Superior Courts are unable
to agree
(v) It would preclude the introduction of technicalities and doctrines unsuited
to this country;
(vi) It would perhaps enable us to make urgently needed reforms without the
risk of exciting popular opposition and it would assuredly diffuse among
the people of India a more accurate knowledge of their rights and duties
than they will ever attain if their law is left in its present state, i.e. partially
codified.
(vu) Codification makes the law certain, uniform, accurate and concise, besides
bringing about a sort of unity in the legal sphere.
(viii) According to Pollock it is an instrument of new constructive power,
enabling the legislator to combine the good points of statute law and case
law while avoiding almost all their respective drawbacks. In order order to get
rid of the accumulated mass of comments and decisions, Sir James F.
Stephen said that "re-enactment of the various Codifying Acts is "as
necessary as repairs are necessary to a railway''. If you want your laws
to be really good and simple, you must go on re-enacting them as often
as such a number of cases are decided upon them.
(iii) Against Codification.
(i) Codification does not usher in all that is good and perfect. The first
objection to codification is its inherent incompleteness. As criticised that
"A code is a want developed by progressive and unscientific legislation
and that it is impossible to have a code which shall be complete and
self-sufficing. This idea, however, should not dishearten one from pro-
ceeding in the direction of codification.
(ii) Accumulation of comments and decisions would overburden codification,
it is said, and the code would become useless. However, this dc-awback
can be removed by re-enacting the Code.
(iii) Codification checks the natural growth of law, it stereotypes the law and
prevents its elasticity. Against these drawbacks one should not forget that
codification brings certainty, a very important factor in law. Elasticity can
only be maintained by re-enaction of laws.
70. Hansard Debates. III series, Vol. XVIII, 698: Raxna .Iois Legal & Constitutional History of India.
(1984). 6-64.
(iv) It is also said that codification makes the defects of the law more clear
and thus it encourages knaves in their evil designs. But there are in fact
more chances to deceive others when the law is not codified than when
it is codified. This objection was also raised in India when the First Law
Commission began its work and subsequently when the Indian Easement
Act was passed. It is also worth noting in this respect that the long, smooth
and satisfactory working of the Act has by this time proved that this
objection is baseless. The codes may prove a bit of a failure due to their
faulty construction but it can be improved subsequently.
(i") Technique of Drafting—A careful enquiry into the Codes and enactments
prepared and produced so far by the Law Commissions would reveal the general
pattern and the drafting technique followed by it.
a) The enactment at the very outset briefly lays down the object and purpose
of the law and also states whether the measure is meant for consolidating,
amending or repealing the existing law.
(b) Next in the line comes the nomenclature in the shortest possible manner
indicating the subject matter of enactment.
(c) After a short title there follows the provision of the date from which all
or any of the parts of the Act are to be effective. At times this function
is left to the executive which declares the effective date for enforcement
of the part or parts of the Act and also declares the whole, or part of the
territory in which the Act is to become operative.
(d) Every enactment invariably lays down the definition clause which explains the
meaning assigned to particular words and expressions used in the Act. This
precaution has the benefit of avoiding unnecessary interpretations of words.
(e) The substantive part of the law is then conveniently divided into different
topics, each topic into a chapter or chapters and each chapter into various
sections. Sections may be divided into sub-sections. When necessary
provisitius and exceptions are inserted to make the sense of a section
more clear and definite.
(I) Besides the use of sub-sections, provisos and exceptions, a method of
illustrations is also used (as is done in the ].P.C. Evidence Act & Contract
Act) which is useful in indicating application of the law. However, this
method of illustrations (which was suggested by Bentham) is now not
used. It has lost its importance altogether.
(v) Modern Trends—The modern trend in India is towards codification of laws.
No doubt codification is a difficult road and yet it is the road along which the
legislative work is now firmly proceeding in India. The advantages of the enacted
law so greatly outweigh as defects that there can be no doubt about its superiority
over other forms of legal development and expression.
However, it has to be noted that inspite of Codification in several important
areas of law India has still to codify the area of Civil wrongs. This is an important
and most useful branch wherein litigation is fast increasing. The Fourth Law
Commission attempted here but the inaction of the Government is surprising. Till
today nothing has been done in this direction. Besides, India now is in dire need of
a Common Civil Code without which the whole nation might disintegrate. Such a
need was never felt before.
15
Influence of English Law in India

English law in India, like the Roman law in Mediaeval Europe "enjoyed a persuasive
authority as being an embodiment of written reason, and impressed its own character on a
formally independent jurisprudence
Pollock, tsp. cit p. 134 : A Gledhill:
The Republic of India. Ed. 2. pp. 211-212
"Before the Plan of 1772 the phrase, ' Justice, Equity and Good Conscience " meant
only the discretion of the Judge who wo.c having knowledge of English Law only.
Infra pant 4(n)
'There is nothing in our Constitution which prevents us from deporting from a previous
decision if we are convinced of its error and its baneful ejiec: on the general interest of the
public. Article 141 which Lays down that she law declared by this court shall be binding on
all courts within the Territory of India quite obviously refers to courts other than this court.
Das C.J. in Bengal Inununity Co.
v. State of Bihor. AIR 1955 Sc 631
SYNOPSIS
1. General (is) Criticism
1 English Common Law Meaning (v) Advantages and disadvantages
3. Principles of Justice. Equity and Good Con- 6. Import of 'English Itiw and Codification
science
(1) Penal Codes. Codes of Civil and
4. English Law and Crown's Charters up to Criminal Procedure
1832
(ii) Indian Succession Act, 1885 (X of
(i) Controvers y on the introduction of 1885)
English Law in India
(iii.) lixtian Contract A..t (IX of 1872)
(ii) Warren Hastings' Plan of , 1772
(iv) Indian Evidence Act (1872)
(iii) Non-interference as to Personal laws
(iv) Modification of Criminal law by Eng- (v) Transfer of Property Act (1882)
lish notions (vi) Easement Act (1882)
(a) Bengal (vii) Law of Torts
(b) Agra, Benaras and other ceded 7. Attempts to govern Natives and Englishmen
districts by their respective laws - Causes of failure
(c) Madras 8. Codification and Native Laws
1d Rotribay (i) influence of English notions on
(v) State of law up to 1832 Mohammedan law
5. Application of English Law (ii) influence of English notions on Hindu
(i) Cases wherein it produced injustice Law
(ii) Cases wherein the Courts refused to (iii) What caved Hindu law from complete
apply it change
(iii) Cases wherein it was successfully ap- 9. English law: Influence on Indian Legislation
plied 10. Special features of English law in India
I. General
From the twelfth tv the sixteenth centuries principles and rules of Roman Law
spread over Western Euopc and influenced, in different degrees. the legal systems
all over the world. Similarly in India, the concepts, principles and rules of the English
Law initially spread over a few provinces and gradually over all the states in India,
and influenced the whole of Asia. As is well known, the British came to India, to
advance themselves, to establish themselves as traders and acquired power and
having acquired power, to consolidate themselves as rulers of the whole country.
Some of those who were sent out from England to guide the destinies of India were
actuated by the loftiest of motives while others were disinterested in the petty
273 1
274 INFLUENCE OF ENGLISH LAW IN INDIA [CHAP.
squabbles between individuals. They, in effect, evolved an efficient system of

administration of justice in which fair play predominated and which we have
inherited, in India. But English justice, as we shall see, was always pragmatic even
in their own country and necessarily so in India.
Instructions were given to the English administrators and judges to decide cases
according to justice, equity and good conscience, for which no rule was clearly laid
down in the Acts of Parliament or regulations or customary law of India. "Under
the name of justice, equity and good conscience, the general law of British India,
save so far as the authority of native law was preserved, came to be so much of
English law as was considered applicable or rather was not considered inapplicable
to the conditions of Indian society." According to Rankin, "the influence of the
Common law in India is due not so much to a "reception", though that has played
no inconsiderable part, as to a process of codification carried out on the grand
scate..." 2 But in fact the English law in India like the Roman law in Mediaeval
Europe, "enjoyed a persuasive authority as being an embodiment of written reason,
and impressed its own character on a formally independent jurisprudence"3
As pointed out by Professor Holdsworth the English Law was "received" in
India, exactly for the same reasons as the Roman Law was received in Europe.
These reasons are, firstly to solve the problems of the more advanced stage of
civilization and secondly to adapt it to new environment.' As observed by Setalvad
"the expectation has come true."5
The manner in which this permeation of English law took place was altered,
but its extent was in no way diminished when in the nineteenth century the law was
codified in India.6
It is a paradox in history that the law and judicial system which the British had
fostered in India should have helped Indians to obtain their freedom from Britain.
This strangely fascinating story of the transformation of the English Common law
into Indian jurisprudence forms the main theme of this chapter.
2. English Common Law Meaning
The expression, "Common Law of England", in fact refers to the unwritten
legal doctrines which include English customs and traditions developed by the
English courts in the past centuries. It does not include the statute law of England.
When the expression "English Common Law" is used with reference to India it
includes the English statute law also. The expression is used in a wider sense in
India. ''In that wider sense" said Setalvad, "the expression will include not only
what in England is known strictly as common law but also its traditions, some of
the principles underlying the English statute law, the equitable principles. developed
in England in order to mitigate the rigours of the common law and even the attitudes
and methods pervading the British system of the administiation of justice.-7
I. Pollock, Expansion of ljw Common i.izw, 133.

2. Rankin, Background Ia Inô.j Low, 21.
3. Potlock, op. cii. 134 A. Gkdht1, The Republic of/nc/ia, 2nd Edn., 211-212,
4. W S. Iloldsworth, Preface to the Isi Edo. of the Law of Torts, by S. Ramaswamy iyer.
5. M.C. Setalvad, The Common Law in Mcjja, Hamlyn Lectures. Twelfth series, 225
6. For details regarding "Codification in India-.sec Chapter XIV of this Book.
7 M C Seinlvad The Common Law in India, 3.4
151 THE CROWN CHARTERS

275
3. Principles of Justice, Equity and Good Conscience

The basic meaning of equity is evenness, fairness, justice and the word is used
synonymously for natural justice. The term is also used as contrasted with strict
rules of law, acquitas as against strictwn jus or rigor juris. In this sense equity
1.11
the application to particular circumstances of the standard of what seems naturally

just and right, as contrasted with the application to those circumstances of a rule of
law, which may not provide for such circumstances or provide what seems unrea-
sonable or unfair. A Court or tribunal is a court of equity as well as of law in so
far as it may do what is right in accordance with reason and justice. 8 It was by the
late seventeenth century in England that equity principles first evolved into a system.
Till then its principles were hazy and unclear. In the beginning of the Adalat system
in India, therefore, application of the principles of justice and fairplay mainly
depended on the discretion of a judge. And the discretion of one judge in those
times differed from the discretion of another judge. This resulted in confusion,
uncertainty and injustice. This can be easily perceived from the administration of
justice during the company regime. We shall now examine what role these principles
and the common law of England played in developing the administration of law in
India and the branches of law not covered by specific provisions of personal law.
Moreover the haphazard growth of law prepared a ground for codification,
4, English Law und Crown's Charters up to 1832
The powers granted by the Charter of Queen Elizabeth in 1600 to the East India
Company were renewed in 1609 by a new charter of James I. The charters permitted
and empowered the Company to make and constitute laws and issue orders and
ordinances for its internal administration in its factories in India those laws were to
be reasonable and not contrary to customs and statutes of British realm. To some
extent it was an indirect import of the English Law in India. Sir Thomas Roe,
Ambassador of James I secured from the Moghul Emperor under a treaty, authority
to administer justice amongst Englishmen employed in the Company's factory at
Surat.
The Charter of 1661, which was granted by Charles I to the Company,
authorised the executive Government of the Company, i.e. the Governors and
Councils 'to judge all persons belonging to the said Government and Company or
that they should live under them in all causes whether civil or criminal" according
to the laws of England. In 1668 when Bombay was transferred to the English
Company by the Portuguese, Charles II issued a charter providing for the application
of English law to Bombay in place of the Portuguese law.9
In 1726 George I granted a new thartei to the Company establishing three
Crown's Courts, i.e. Mayor's Courts, one in each of the three Presidency towns of
Calcutta, Bombay and Madras. The Mayor's courts were authorised "to try, hear
and determine all civil suits, actions and pleas between party and party and to give
judgment and sentence according to justice and right". It was an ambiguous
expression. In the absence of any set of rules or laws, the Englishmen who presided
. David Watker: The Oxford Companion to Law. 1980 424.
9. For details see Chapter 11 01 this book.
10. George I issued the charter on 24th September. 1726
over the Mayor's Courts depended more and more on the English common law and
it was applied in so far as they considered suitable in the circumstances of the
country. In Mayor of Lyons v. East India Company", Lord Brougham observed:
'...in construing the Charter of George I, there can be no doubt that it was
intended that the English Law should be administered as nearly as the circum-
stances of the place and of the inhabitants, should admit. The words, 'give
judgment according to justice and right in suits and pleas between parry and
party' could have no other reasonable meaning than justice and right, according
to the laws of England, so far as they recognised private rights between party
and party."
The Charter of 172I, therefore, indirectly introduced the English Common Law,
Equity of Statute Law which was ill force in England at that tithe, so far as they
were applicable to Indiau circumstances.
The Charter of 1753, issued by George 11, reconstituted the Mayor's Courts in
the three Presidency Towns also expressly stated that these King's Courts would
not try actions between Indians unless both the parties agreed to submit the case to
the Mayor's Court to be decided; But according to Morley 12, it does not appear that
the native inhabitants of Bombay, were ever actually exempted from the jurisdiction
of the Mayor's Court or that any peculiar laws were administered to them in that
Court.
(i) Controversy on the introduction of English Law in India.-- In 1775, when
Raja Nand Kumar was tried under the English Stature of 1729, for lorgery' 3 and
the Supreme Court passed sentence ot death on him, a great controversy arose
regarding the year in which English Statutes were made applicable to India. The
main question for consideration was - whether the English Laws were introduced
in. 1,726 or in 1753." There was a difference of opinion amongst judges of the
Supreme Court on this point. Chambers, Macaulay, Mill and Beveridge 15 opined
that the Statute of 1729 was not applicable to India while Impey, Hyde, La Maisre,
Keith 16, Fawcett 17 and Rankin 1t opined that it applied to India.
(ii) Warren Hastings' Plan of 1772.—
The scheme of law envisaged by the Plan of 1772 may be classified into three
headings: (a) Those Acts of Parliament which extended to India, either expressly or
by necessary implication, were to be enforced by all courts in India. In other matters
the rules laid down by regulations of the Local Government were to be applied, (b)
Hindu law and Mohammedan law were to be applied respectively in matters relating
to Hindus and Mohammedans regarding inhrintance, marriage, caste and religious
11. 1 MIA 272.

12. Morley's Digest, Introduction, cixix.
13. See ch. 5, para 6(a) supra.
14. See for details. B.N. Pandey, introduction of Engh.ch Law into India. 78, 80. 106: Chapter V of this
Book.
15. See Supra, Ch. V. Regulating Act.
16. Keith, A Constiriat onal History of India, 77; Thompson and Garrat, British Ride in India, 125. 357-9
17. Fawcett, First Century of British Justice in India, 215.
18 Rankin, Background to Indian Law, I
151 THE CROWN CHARTERS 277

Institutions, (c) on all matters the courts were required to act according to justice,
equity and good conscience)9
The Plan of 1772, therefore, indirectly introduced English Law in India. In civil
litigation, the personal laws of Hindus and Mohammedans were safeguarded only
in few specified matters but for all other matters no specific direction regarding the
law was laid down. The phrase "justice, equity and good conscience" meant only
the discretion of the Judge who was having knowledge of English law only.
(iii) Non -interference as to Personal laws.—As stated earlier, the Charter of
1753, which reconstituted the Mayor's Courts in the Presidency Towns, exempted
the natives of the Presidency Towns in civil litigation from the jurisdiction of the
Mayor's Courts. The Courts werc empowered to try such cases where both the
parties consented to refer the matter to such Court. The Regulating Act of 1773,
was issued under the Crown's Charter of 1774 and established a Supreme Court at
Calcutta superseding the Mayor's Court. It also appointed a Governor-General of
Bengal and constituted his Council. The conflicting provisions of the Charter of
1774 and the Regulating Act created conflict. Apart from this, due to certain
ill-defined powers of the Supreme Court, it came into serious conflict with the
Governor-General and his Council. The Council resisted the claim of the Supreme
Court to introduce English law in the moffussil areas. The Council strongly opposed,
"the attempt to extend to the inhabitants of these Provinces (Bengal Provinces) the
jurisdiction of the Supreme Court of Judicature and the authority of the English
Law, and of the forms and fictions of that law which are yet more intolerable because
less capable of being understood." 20 in many leading cases", e.g., trial of Raja
Nand Kumar, Kossijurah case, Patna case, etc., there was open conflict between
the Supreme Court and the Governor-General's Council. The situation was further
worsened due to the lack of any provision either in the Regulating Act of 1773 or
in the Charter of 1774, regarding the law which the Court was required to administer.
Interference in each other's working became common which created a severe crisis.22
In order to remedy this state of affairs, the Act of Settlement 23 was passed in
178 1 by the British Parliament. It explained and defined the powers and jurisdiction
of the Supreme Court at Fort William in Bengal. Section 17 expressly stated that
in disputes between the native inhabitants of Calcutta, ''their inheritance and
succession to land, rents and goods and all matters of contract and dealing between
party and party" shall be determined in the case of Mohammedans and Hindus of
their respective laws and where only one of the parties shall be a Mohammedan or
Hindu "by the laws and usages of the defendant". Similarly Section 18 of the Act
of 1871, reserved for the natives their laws and customs.
This reservation of the native laws to Hindus and Mohammedans was extended
to Madras and Bombay by Sections 12 and 13 of the Act of 1797, which established
the Recorder's Courts at Madras and Bombay. Subsequently when the Supreme
19. For detatls, see G C. Venkau Ssbba Rao, The Influence of Western Law on the Irtdlwt Legal System",
1965 Aligarh Law Journal 3-4; See also Ch. 4, para 6, supra for details of the plan.
20. See Rankin. &iclçground to Indian Lay,', 8
21. For details see in this Book Chapter V.
22. Ibid.
23. 21 Ceo, Ill C 70 of 1781. The word "succession" was added to the word "inheritance" by the Act
of 1781.
n ] https://t.me/LawCollegeNotes_Stuffs
INFLUENCE OFENGLISH LAW IN INDIA [CHAP.

278
Court was established (in 1800) at Madras and (in 1823) at Bombay the provisions
of the Act of 1781, were extended to them.
This position continued up to 1832, in all three Presidencies with slight
modifications. On the whole it is a fact that the native laws were respected. So far
as English notions are concerned, it may be submitted that in all other matters which
were outside the sphere of the reserved matters, English notions were introduced.
In Bombay, English law was given first preference, e.g. it was enacted, "the
law to be observed, in the trial of suits shall be ACLS of Parliament and Regulations
of Government applicable to the case, in the absence of such Acts and Regulations,
the usages of the country in which the suit arose; if none such appears the law of
defendant and in the absence of specific law and usage, 'justice, equity and good
conscience'." 24 In the garb of the phrase "justice, equity and good conscienceYA
English notions of law and justice were introduced in India. In 1887 Lord Fiobhouse
expressed the view that "justice, equity and good conscience" could be "interpreted
to mean the rules of English law if found applicable to Indian society and circum-
stances.' '25
Apart from this, under the influence of English Judges, native law and usages
were supplemented, modified and superseded by English law to a large extent
without any express legislation in this respect.
(iv) Modification of Criminal la"? 26 by English nortons.--Duriiig its early period,
one of the objects of the East India Company was to make as little alteration as
possible in the existing state of the Mohammedan law and system of criminal courts.
The Mohammedan law, therefore, was administered by the criminal courts in India
for long. As soon as the Company gained some strength it realised the necessity to
make important changes in certain matters of Mohammedan law of crimes as
according to them no civilised Government would like to tolerate them. As Ilbert
puts it, "It was impossible to enforce the law of retaliation for murder, of stoning
for sexual immorality or of mutilation for theft or to recognise the incapacity of
unbelievers to give evidence in cases affecting Mohammedans."
Warren Hastings and Lord Cornwallis frequently criticised the provisions of the
Mohammedan Criminal Law and whenever they got any opportunity they introduced
changes in it. In Harrington's Analysis of the Bengal Regulations, giving a true
picture of the Mohammedan Criminal Law he states that it became "like a patchwork
quilt". Regulation Vi of 1832, marked the end of the Mohammedan Criminal Law
as a general law applicable to all persons. However, the Mohammedan Criminal
Law was not completely set aside till the Penal Code of 1860, and the Criminal
Procedure Code of 1861, were enacted and came into operation. The process of
superseding native law by English law, so far as the administration of criminal
justice was concerned was completed after the enactment of the Indian Evidence
Act in 1872.
The development of criminal justice in the Presidency Town and the influence
of English notions on it were as follows:
24. For details see Appendix W in this Book.
25. Waghela Rajsanji v. Sheikh Mjcludin, I997 14 Ind. App. R9,96.
26. For detailed account of Muslim Criminal Law and subsequent reforms, see Chapter XII of this Book.

(a) Bengal—As a consequence of the Battle of Plassey (1757), and the Battle
of Buxar (1764) and Lord Clive's successful effort for securing grant of Diwani
rights of Bengal, Bihar and Orissa from the Moghul Emperor, the British rule in
India began in effect. The administration of these territories was in the name of the
Moghul Emperor. The Subedar, under these Moghul Rulers in Bengal, was auth-
orised to administer criminal justice as well as revenue and civil justice. Regarding
'Nizamat', it is said "that in Feb. 1765, Nujm-ul-Dowla, the Subedar entered into
a treaty with the Company enabling them to exercise his authority; so that they
could claim to hold the 'diwani' from the Emperor and the 'Nizamat' from the
Subedar." 27 But the Company's authorities finally took the administration of crimi-
nal justice in 1790, from the Naib Nazim (who was head of the chief criminal court),
in their own hands at Murshidabad.
The legislators in these three Provinces amended the Mohammedan Criminal
Law, suiting to the conditions of their respective Provinces and also with a view to
removing such severity of the Criminal Law. Some legislators rcommerided its
compelie abolition, but however the principles of Edmund Burke were allowed to
prevail, "a disposition to preserve and an ability to improve taken together, would
be my standard of statesmen."
Warren Hastings in 1772 (Art. 38), enacted that dacoits were to be executed in
their village, the village was to be fined and the families of the dacoits were to be
made slaves of the State. This system was purely English in character. Provisic.n
regarding slavery was not suitable to the conditions of India; therefore, it was
abolished by the Charter Act of 1833.
In his letter, dated 10th July, 1773, Hastings suggested many other reforms in
the existing Mohammedan Criminal Law to the Government of Bengal. "Hastings
objected to the distinction made by the courts following Abu Hanifa in cases of
homicide. 25 He objected also to the option granted by the law to the next of kin to
claim or waive their right of retaliation and to the rule that they should themselves
take part in executing sentence of death."29
Lord Cornwallis, in his minutes 1st Dec., 1790, pointed out the gross defects
of the Mohammedan Law and the constitution of Mohammedan Criminal Courts.
He refused to accept the opinion of Abu Hanifa and adopted the opinion of Abu
Yusuf and Imam Mohammed. Thus he recognised the intent as the criterion of
murder. Similarly other proposals of Cornwallis were enacted in 1790 and finalized
in the form of the Cornwallis Code of 1793. Lord Bryce observed: "It was inevitable
that the English should take criminal justice into their own hands - the Romans
had done the same in their provinces - and inevitable also that they should alter
the penal law in conformity with their own ideas"
Taking a bird's eye view of the 48 enactments of the Cornwallis Code, 1793,
we can easily understand the extent to which the English Law had influenced the
then prevailing Mohammedan Criminal Law. Still the completion of the reforms in
the Criminal Law was more complicated. Rankin has well said. "A procedure was
V. Stephen, Nand Kumar and impey, Vol.!. 10,
2. Sec Ch. 12. 2(C), supra.
29. Rankin, Background to Indian Law, 170.
30. Bryce. Studies in History and Jurisprudence. Vol. 1, 120.
INFLUENCE OF ENGLISH LAW IN INDIA ICHAP.

280
required whereby the futwa should be bye-passed or circumvented so as to permit

substantive reform." The religious persuasion of witnesses were not to be considered
a bar for the conviction of a prisoner, but where the evidence of a witness would
be deemed incompetent by Mohammedan law because he was not a Mohammedan,
the Law Officer was to say what would have been his 'futwa', had the witness been
of that religion. When the case was to be referred to the Nizamat Adalat, the trial
court's power to pass the sentence was taken away. Thus the responsibility was
shifted to the Judges of the Nizamat Adalat (i.e. members of the Council), from the
shoulders ,of the Law Officers.
When the cases came before the Nizamat Adalat the Law Officers of this Court
used to give further 'futwa' aod the Nizamat Adalat was to give judgment accord-
ingly. It was by Regulation XVII of 1817, that the two or more Judges of the
Nizamat Adalat were given the power to convict and pass sentence although its own
Law Officers were in favour of acquittal. Thus the verdict of Mohammedan Law
Officers was not binding upon the Judges, on the other hand it was at the mercy of
the Judges to accept their opinions or not. Records of the Court are clear testimony
to the fact that justice gained a lot under such reformed regulations.
Specific Instances of Reforms : To tackle robbery and dacoity Regulation LEI
of 1803, was passed. "It abolished the conditions as to place, all places being put
on the same footing, whether or not they were on or near a highway or at a distance
from any inhabited spot. It also abolished the network of distinctions as to one of
the robbers being a minor or lunatic or relation of the persons robbed or having an
interest in the property or his share of the plunder being less than ten dirhams in
value. It abolished also the necessity of having evidence of a special kind and
enabled convictions to be based upon confessions, evidence of credible witnesses
or strong circumstantial evidence. It detailed a procedure in which the Law Officer's
'futwa' the Judge's sentence and the reference to the Nizarnat Adalat were assigned
their respective parts. Mere secret larceny or theft, whether from a person or a
house, was left by Section 5 of this regulation to discretionary punishment." 31
The offences of 'perjury, forgery and their derivatives' were amongst those
for which 'discretionary punishment' (Tazir), was laid down in Mohammedan
Criminal Law. Abu Hanifa was of the opinion that the 'Tu.sheer' or 'exposure in a
public place' under circumstances of ignominy was the proper penalty for perjury
under the Mohammedan Criminal Law, Regulations XVII of 1797 and VIII of 1803,
modified the law on this subject. In 1807 Regulation II, provided the punishment
of 'godena'. Regulation XVII of 1817, by Section 12 abolished the 'godena' in such
cases while it was retained for those sentenced to imprisonment for life. In 1837,
the accused was made to ride on an ass for exposure in a public place. Ultimately
Act H of 1849, totally abolished the evil punishments of marking by 'godena' and
'Tusheer' or 'public exposure'. In the same way, gradual reforms were also made
for the offences of homicide, adultery, etc., with the help of English laws and
practices.
In 1832, Regulation VI gave a death blow to the Mohammedan Criminal Law,
the result being that the Mohammedan Criminal Law was no more applicable in the
civil and criminal courts as a general law in British India. This Regulation set out
31. Rankin, Background to !,tthan Law. 176.
•

three ways for civil courts to administer justice: (a) reference to Pancl-iayat, (b) by
having them assessors, (c) or employing them as a jury; but the court's decisions
in all cases were final. Criminal court's were given full liberty according to their
Laws.
(I,) Agra, Benaros and other ceded districts—Bengal Regulations regarding
Criminal Law were also applicable in Benaras (which in 1838 became a province
of Agra) and in ceded provinces. Apart from these regulations, some new ones were
also passed to check the peculiar evil practices; which were common in Benaras
specially. By Regulation Ill of 1804, the practice amongst Rajkoomars of starving
female infants to death, was declared to be a crime equivalent to murder. The evil
practice of sitting 'dharna' was also abolished gradually by Regulation XXI of 1795,
111 of 1804; c.f.-VII of 1820 and Section 508 of Indian Penal Code. In Bertaras till
1817, Brahmins were not punished with death, though life sentence was substituted
for the capital sentence. This privilege of Brahmins was abolished by Regulation
XVII of 1817. All changes were the result of the influence of English legal notions
in India.
(c) Madras—To suppress crimes in Madras, legislation was passed more or
less on the same lines as in Bengal and Benaras, giving due consideration to the
peculiar features of Madras. As such the Bengal Regulation X of 1793 and the
Cornwallis Code were also followed in Madras. In 1803, Regulation XV repeated
Bengal Regulation LiEl of the same year which dealt with the doctrine of 'TaLir'
and robbery with violence.
(d) Boinbav.---. ln Bombay, crinuital justice was administered upon lines different
from those of Bengal and Madras. in a letter of 1822 Elphin, tone describes the
Bombay system as follows:
"We do not, as in Bengal, profess to adopt the Mohammedan Code. We profess
to apply that Code to Mohammedan persons, the Hindoo Code to Hindoos, who
form by far the greatest part of the subjects. The Mohammedan Law is almost as
much a dead letter in practice with us as it is in Bengal and the Hindoo Law
generally gives the Raja on all occasions the choice of all possible punishments.
The consequence is that the judge has to make a new law for each case.''32
Elphinstone the Governor of Bombay Presidency realised the necessity of a
better and more uniform s y stem of law, both civil and criminal. In 1827 he drafted
a code of 30 regulations for Bombay; in certain matters i(was also an improvement
upon the Cornwallis Code of 1793. A biographer33 has said about Sir George William
Anderson (1791-1857):
'He was employed by Mr. Elphinstone in passing the first systematic code of
laws attempted in British India, known as the Bombay Code of 1827, which was a
great advance upon anything previously attempted in India and served to prove, by
thirty years' experience of its working, that there was no difficulty in applying a
General code, founded upon European principles, to the mixed population of India."
(v) State of law up to 1832.—The unsatisfactory state of law in British India
at that time is quite clear from the various enquiries and reports which preceded the
32. J.E. Golcbrook, Life of Elphrns:one, (!882) Vol. 11. 125.
33. Sir Alexander Arbuthnoi in D.N.B.
282 INFLUENCE OF ENGUSH LAW IN INDIA [CHAP.

Charter of 1833. At this time, the Governor-General possessed a right to veto the
legislation of subordinate Governments. Each of the three Presidencies enjoyed equal
legislative powers.
In the laws of the Presidencies, lack of uniformity was the greatest defect. The
Law of England remained, in the three Presidency Towns, the basis of the criminal
jurisdiction of the Supreme Court. The system of Regulations which existed before
1833 was described by Morley as "incongruous and indigested mass."
The judges of the Calcutta Supreme Court, while describing the state of law in
India, observed picturesquely the utter state of chaos in law and its adminifration.35
5. Application of English law

(i) Cases wherein it produced injustice.—Application of the principles of Justice.
Equity and Good Conscience, produced, as said before uncertainty and injustice.
The following cases explain the result of such application as illustrated by Rama
Jois.36
In Musaminat Khanum Jan" though contract was not one of the matter with
respect to which Hindu or Muslim Law was made applicable, the said law was
applied to the extent considered necessary. In Deen Dayal v. Kylas Chunder 38 and
Gopal Ram Chandar v. Gangaran Anand39 , rule of Damdupat was not applied to
Hindus, and higher interest was permitted to be collected in cases of usufructuary
mortgage. In Govind Dayal v. Jncr'atulla 4° right of pre-emption contained in Muslim
Law was applied in Bengal and United Provinces, but it was refused to be enforced
in Madras4 ' and Bombay, except in Gujarat' 2 on the ground that it was not consistent
with the principles of Justice, Equity and Good Conscience. In the absence of any
specific law in certain matters customs were also enforced. For instance in Rama
Rao v. Rust urn Khan 43 the right of a muslim to perform rites of burial was recognised.
This process of applying principles of Justice, Equity and Good Conscience was
accelerated with the coming into existence of High Courts in 1 862 to which English
Barristers were appointed as judges and also due to Privy Council becoming the
higher court of appeal for India since 1833 which pressed into service these
principles.44
(ii) Cases wherein the Courts refused to apply it.—In the following cases"' the
courts refused to apply the principles of English law as they did not suit Indian
conditions. In a well known case of Nawab Khwaja Mohammad Khan v. Husaini
Begum46 the rule that a third party to a contract cannot enforce it, was not applied
34 Mortcy. Administration of Justice of British India (1858),158; Digest, Vol. 1 clv.

35. Cited by C. rasitbeforc Committee on the Charter Act, Ilansard, 3rd Series, Vol 18, 729.
36 Legal & Constitutional History of 1dia (Ed. 1984). Vol. II, 41.
37. 4S.D.A. Rep. 212/I827,Rijin4arNaraiy Rao v. Bijoy Govutd Sing. 2MIA 181.
38. ILR I Cal 92.
39, ILR 20 Born 721.
40. hR 7 All 775 (1870).
41. Ibrahim Sail, v. Muni Mirwjdin Sail,, 6 Mad HCR 26(1870).
42. Mohammad Beg Y. Narain, AIR 1929 Born 255.
43. ILR 26 Born 198.
44. M.C. Setalvad. The Common Law in India, 31-32(1960).
45. Supra ii. 33, 42-44.
46. 37 IA 152. -
151 APPLICATION OF ENGUSH LAW 283

and the right of a woman for whose benefit her father entered into contract with
another for payment of Rs. 500/- as a consideration for her marriage with his son
was held enforceable at the instance of that woman. The Privy Council held that
refusal to enforce such contract would result in grave injustice, regarding the tact
that practice of entering into such contract was prevalent among the Muslims. In
regard to the principle of English law that plea of special damages was necessary
for damages for oral defamation. The same was held inapplicable in moffusil in
case of Par.'arhi v. Mannar" but in so far as Presidency Towns were concerned it
was strictly applied, Bhoono Money Dassee v. Norobar Biswas being the case in
point. On the claim of Shia Muslims to take out a religious procession on a public
highway, the Privy Council held that distinction between indictment and action in
regard to what is done on a public highway found in English law should not be
applied in India, overruling several High Court decisions. 49 In Khushalchand v.
Mahadeogiri 5 English law relating to superstitious uses was not applied in case of
a Hindu religious endoment by the Bombay High Court. Similarly the distinction
between English Common law and Equity was not recognised on the ground that
there was no such dichotomy in India and there has been fusion of both the
jurisdictions, Juttender Mohun Tagore v. Ganendra Mohun Tagore 51 , being the case
decided on the point. Consequently. as decided in Rani Cithatra Kumari Debi v.
Mohan Bikranz Shah 52 , there could be only one owner and if the property was vested
in a trustee then he himself was to be regarded as the owner. A Benami transaction
was construed as having created a resulting trust and could not he treated as intended
advancement as it was regarded under English law depending on the source of
purchase money having regard to the large scale prevalence of benami transaction
among the natives. This rule was applied to Hindus and Muslims as w' " However
in Kerwick v. Kerwick 54 this rule was held inapplicable to Englishmen rn India. Rule
of Equity of redemption was not recognised on the ground that no such rule existed
in Hindu Law. 55 However after 1858 the position changed and the Adalat started
applying the principles of equity of redemption for the fact that many transactions
had taken place on that basis. Consequently the Privy Council reluctantly accepted
that position in law with respect to transactions which took place after 1858. In
regard to the principle of the law of 'Maintenance and Champerty' it was held in
Pitchakutty v. Kwnala Nayakkan 56 that it should not be made applicable to
Presidency towns; and the same position obtained in the Mofftsil. In 1852 the Sadar
Adalat held that it was not wrong for one party to advance money for meeting the
cost of litigation of another. 17 The law in the Presidency was also brought in
47. ILR 8 Mad l75(884)

48. ILR 28 Cal 452.
49. ManzarHassan v. Mohwnmadzanurn, 521A 61.
50. 12 Born 1-ICR 214 (1875).
51. (1872) IA Supp147,71.
52. 58 IA 279
53. Gopi Krut Gosain v. Gangapersaud Gosain, 6 MIA 53: Moulvie Sayyud UzhurAli v. Bibi Win! Fatima.
13 MJA 232.
54. 47 IA 275.
55 Pattabhrramier v. Venkatraf, Naicker, 13 MIA 560; A1exwuIr John Forbes Y. Ameroonjc.ca Begum.
10 MIA 348
56. 1 Mad HR 153.
57. KshanIa1 Bhoomick v. Peare Soondree. SDA (1852) Beng 394: Panchkowree Mehioon v. Kale echa ran
284 INFLUENCE OF ENGLISH LAW IN INDIA ICHAP.
conformity with the moffusil holding that there existed no justification for difference
in law between moffussil and Presidency Towns. 58
(iii) Cases" wherein it was successfully applied.—On the basis of the principles
of Justice, Equity and Good Conscience the Courts successfully applied the principles
of English law in the following cases. In the first case a Muslim created a charge
on his property by deposit of title deeds in favour of an Armenian. After some time
the Muslim transferred the property in favoir of a Hindu who in turn transferred it
to a British subject. The Armenian filed a suit against all in the S.D.A. of Madras
but the court dismissed it holding that the doctrine of constructive notice was not
applicable in India. However the Privy Council, in appeal, held that direction to act
according to Justice, Equity and Good Conscience required that the principles of
English law viz., that ri.gkt created by deposit of title deeds could be deprived only
by a subsequent bcw' fide purchaser for value without notice should he applied.
The decision of ithe S.D.A. was therefore reversed.60 The Bombay High Court
follow-el this decision and applied the principle in Dada Honaji v. Babaji. In
Waghela Rajsanji v. Shekh Masluddtn. 62 a question was raised whether a guardian
was competent to make covenants on behalf of the ward so as to create a personal
liability on the ward. Applying the principles of English law on grounds of Justice,
Equity and Good Conscience the Privy Council held that it would be improper to
uphold the validity of such a covenant. In one case 63 the land was washed away by
Ganges and later it was formed again. Applying the principles it was held that the
land regained belonged to the owner. In the famous case of Rum Coomar V.
Macqueen' 4 the Privy Council applied the principle of estoppel by holding out. The
principle is that-where a person who is the real owner of property allows another
to hold himself as the owner and that when a third person purchases the property
believing that the apparent owner is the real owner, the latter was debarred to assert
his undisclosed or secret title, in the absence of the knowledge on the part of the
purchaser about the title of the real owner. In yet another important decision the
Privy Council recognised the right of the Crown to escheat the property of a deceased
Brahmin.65 According to Hindu law this could not be done but that principle was
excluded. Besides the principle of the clog on the equity of redemption 66 and
restriction on alienation of property to strangers, and that transfer should be only to
any one of the relatives were held valid and applied.67
(iv) Criticism—On the whole the principles of Justice, Equity and Good
Conscience had a very profound influence in developing the Indian Jurisprudence.
Principles of English law were applied with necessary changes to the Indian
Suth 9, W.R. 490.

58. Ram Coo,nar v. Chander Canto, 4 IA 23 (1 7fj-1877).
59. Supra n. 33.41-42.
60. Vardeu Seth Sou v. Luckpathy. 9 MIA 307.
61. 2 Born HCR 36 (186S).
62. )41A 89,96<1887).
63. Fe/Lx Lopez v. Alziddwj Mohan Thakoor, 13 MIA 467.
64. (1872)]A Supp. 40.
65. Collector of Ma.culEpaUo.ni v. Cavay Venkcata, 8 MIA 500; Ranee S,net Kowar v. Mirza Htmrnut, 3
IA 92.
66. Me/iart'an Khan v Mokhnna, 57 IA 16R
67. Moh,ned Reza v. Abba.r Ban g/i Bibi. 59 IA 236.
151 APPLICATION OF ENGLISH LAW 285

conditions. In Torts as no Swadeshi law of torts existed on which improvement
could be made the entire English law of torts was applied in India. However, i t
would be seen that it took the Britishers in this country roughly a century to evolve
a proper system of administration of Justice. So far as this facet of their functions
in India is concerned the credit goes to them but so far as the other facet of the
picture is concerned its history is full of frauds and intrigues, full of breach of
promises, and setting one community against the other for the sake of procuring,
sustaining and consolidating their political power. The General Editor of "The
History and Culture of the Indian Peppje", prepared and published by the Bharatiya
Vidya Bhavan under the directions of Dr. K.M. Munshi, in preface to volume nine,
part one, has rightly expressed 69 that establishment of paramount authority of the
British "created a frame work of an all India administration on a solid basis, such
as India had probably never known, save under the Maurya and the Mughal
Emperors" but the other side,—"the true colour (and) the colonial imperialism of
British rule in India" should not be lost sight of. There is ample positive evidence
as to the real nature of many aspects of British Imperialism which has thrown off
the mask of benevolence under which it was successfully hidden for a long time.70
For this purpose the writings of the English historians like George Thompson, John
Bright, Henry Fawcett, Sir Charles Digby, Wyndham and Sir Henry Cotton cannot
be lightly dismissed as irresponsible criticism. Some British scholars wrote books
on select topics, primarily with a view to defend British officials and British policy
in India against charges levelled by old writers. In general the writings of Englishmen
from about the last quarter of the nineteenth century were tinged by the spirit of
imperialism which was their legacy of the British rule. V.A. Smith's Oxftird History
in India (1919) and the Cambridge History of India, Vols. V(1929) and Vol. VI are
from his point of view products of men who honestly believed in the doctrine--my
country, right or wrong." 7 ' One looks in vain in this history for the names and
careers of men like Rain Mohan Roy, Ishwar Chandra Vidya Sagar, Barikim Chandra
Chatterjee, Ramkrjshna Paramhans, Keshav Chandra Sen, Swami Vivekanand,
Dayanand Saraswati, Surendra Nath Banerjee, M.G. Ranade, Dad.abhaj Naoroji,
Pherozshah Mehta, Bal Gangadhar Tilak and a host of others who will be remem-
bered as makers of modern India.72
(v) Advantages and d isadvanrages.—However the advantages and disadvantages
of the application of the English law may be recapitulated succinctly 73 as under: (i)
It helped development of various branches of law not covered by either Hindu law
or Mohammedan law. (ii) In the absence of sound provisions of personal laws it
served as avaluable source of sound law. (iii) it removed uncertainty in law. (iv)
Distinction between rnoffusil law and presidency towns law was removed.
68. Rama Jois: Legal & Constitutional History of India (1984), Vol. II, 44.
69. pp. xxi-xsxv.
70. Ib3d., xxii.
71. Ibid., x.xiii.
72. lbid, xaiv; Errors of Cambridge History are not of omission only, the errors of corumis.cion are equally,
if not more, grave and serious; for the real account of the British political, social and legal atrocities
the reader may refer to Pardit Sundarlal's two volumes titled 'Bharat Men Angrezi Raj", which were
banned in India before independence.
73. Rama Jcis: Legal & Constitutional History of India. (1984). Vol. IL 44-45.
As to the disadvantages it may be said that (i) at times the rules applied by
English Judges were not consistent with customs, habits and circumstances and were
technical in nature which generated injustice. (ii) This resulted in judicial legislation
by imposing rules foreign to this country. 74
In spite of the above, the fact remains that one law for the whole of British
India made the march of the country towards independence quicker and systematic.
6. Import of English Law and Codification

The Charter Act of 1833, introduced important changes in the constitution of
the East India Company and the system of Indian administration. It established, for
the first time in the history of British India, a single Legislature for all the
Presidencies which were under British control, empowered to legislate for persons
in the Presidency Towns as well as the moffusils and appointed the First Indian
Law Commission.
By appointing the First Law Commission, the British Parliament tried to achieve,
in the words of Lord Macaulay, "Unijth-mity where it was possible, diversity where
it was necessary but in all cases certainty". The First Indian Law Commission,
headed by Lord Macaulay, submitted many reports on various laws. The reports
were based on a detailed study primarily of the English Law. The English Law, to
the extent it suited Indian conditions, usages and customs, was thus systematically
imported into India. The codification of Indian Law was a systematic import of
English Law into India through the four Law Commissions.75
(I) Penal Codes, Codes of Civil and Criminal Procedure.— Though the First
Indian Law Commission under the Chairmanship of Lord Macaulay submitted its
Report on Penal Code, it was not until 1860, that the Indian Penal Code was placed
on the Indian Statute Book. Apart from English Law, the French Code was of a
great help as a model and on many questions it afforded valuable suggestions which
were utilised by the Law Commission in framing the Indian Penal Code. Whitley
Stokes observed:
"Besides repressing the crimes common to all countries it has abated if
not extirpated the crimes peculiar to India, such as thu.gee, professional sodomy,
dedicating girls into a life of temple harlotry, human sacrifices, exposing infants,
burning widows, burying lepers alive, gang robbery, torturing peasants and
witnesses, sitting dharna.
The Code of Civil Procedure was passed in 1859 and the Code of Criminal
Procedure was passed in 1.861 (now replaced by Act 2 of 1974) The Law of
Procedure was supplemented by the Evidence Act (I of 1872). the Limitation Act
(LX of 1908) and by the Specific Relief Act (1 of 1877), which stands on the
borderland of substantive and adjective law. These Acts applied to all persons in
British India whether European or native and wholly displaced and superseded native
law on the subjects to which they related.
(ii) Indian Succession Act, 1885 (X of 1885).—This Act is based on English
Law but is declared by Section 2 to constitute, subject to certain exceptions, the
law of British India applicable to all cases of intestate or testamentary succession.
74. Minute of Sir H.S. Maine, dt. 17-7-1879, quoted by Jam & by R. Jois in their works.
75 For the contrihurion of each Law Commission, see Chap. XIV of this Book.
'
15) ATTEMPTS TO GOVERN NATIVES AND ENGLISHMEN 287

But the exceptions are so wide as to exclude almost all natives of India. The
provisions of the Act are declared (Section 331), not to apply to the property of any
Hindu, Mohammedan or Buddhist.
(iii) Indian Contract Act (IX of 1872).—This Act does not cover the whole field
of Contract Law but so far as it extends, is general in its application and supersedes
the Native Law of Contract.
In 1930 and 1932 separate Acts were passed, resisting more fully and minutely
of law on Sale of Goods (111 of 1930) and Partnership (IX of 1932), on the lines
of the English statute which codified the law upon these subjects in ] 893 and 1890.
The Indian Sale of Goods Acts, 1930. keeps close contact with the English Act of
1893. The new Partnership Act has also derived similar advantage from the work
done in England.
(iv) Indian Evidence Act (1872)—ft was drawn up by James Fitzjames Stephen.
Before the passing of this Act, the English rules had no authority. A study of this
Act will enable us to realise the extent to which English notions were incorporated
in it. Even Stephen himself pointed Out, "The truth is that the English Law of
Evidence was inevitably introduced into India to an uncertain and indefinite extent
as soon as English lawyers began to exercise any influence over the administration
of justice in India......
(v)
Transfer of Property Act (1882).—This Act also co,tains certain provisions
which reflect the influence of English notions, e.g. the provisions as to mortgage
which recognises and regulates forms of security in accordance with native as well
as Engish usage. Saving clauses for Hindus, Mohammedans or Buddhists are also
there, e.g. Section 2.
(vi) Easement Act (1882).—This Act is in force in the various parts
of India.
It also embodies principles of English law but is not to derogate from certain
governmental and customary rights.
(vii) Law of Torts.—'The Law of Torts or Civil Wron g
s as administered by the
courts of British India, whether to Europeans or to natives, was practically English
Law. The draft of a bill to codify it was prepared some years ago, but further
measures have never been taken for its codification.
As regards the process of the expansion of the Common Law in India, in 1895.
Sir Fredrick Pollock said, ''In British India the general principles of our law, by a
process which we may summarily describe as judicial application confirmed and
extended by legislation, have in the course of this century, but much more rapidly
within the last generation, covered the whole field of criminal law, civil wrongs,
contract, evidence, procedure in the higher or not in the lower courts, and a good
deal of the law of property.. It is not too much to say that a modified English Law
is thus becoming the general law of British India.76
7. Attempts to govern Natives and Englishmen by their respective laws—
Causes of failure
We have already seen before that the East India Company began to govern
natives by native law and Englishmen by English law. This is the natural system
76. Frederick Pollock The &pansw,
J of the Coirunopi Low, 16-17
288 INFLUENCE OF ENGLISH LAW IN INDIA (CHAP.
which is applied in a conquered country or in a vassal State (i.e. in a State where

complete sovereignty has not been assumed by the dominant power), where local
variations have however to be adjusted. The variations are important because the
extent to which Native Laws and usages can be recognised and enforced depends
materially on the degree of the civilisation which the vassal State has attained. Had
this system been successful in India, the contribution of English law to India would
have been less.
The system broke down in India due to various causes and so there was an
Opportunity for English Law to influence Indian Law. It will not be out of place to
have a review of the causes of this failure.
Causes of failure of above attempts
(a) Difficulty of ascertaining the Native Law (various religions).
(b) Defects in the Native Law where they were ascertainable.
These defects had to be supplied by English Judges and Magistrates
from their remembrance, often imperfect, of principles of English Law
which were supplied under the name of Justice, Equity and Good Con-
science.
(c) Native Laws often embodied rules repugnant to the traditions and morality
of the ruling race. An English Magistrate could not enforce, and the
English Government could not recognise, the degenerate criminal law in
Indian , Mohammedanisin.
Thus the Native Law was beaten at every point by English case law and by
Regulations of the Indian Legislatures.
8. Codification and Natives Laws
In India, as elsewhere, codification has been brought about by the pressure of
practical necessity. In India it became necessary to draw up, for the guidance of
untrained Jud ges and Magistrates, a set of rules which they could easily understand
and which were adapted to the circumstances of the country. But since the framers
have been English, it is a natural corollary that English notions must have been
imported as has been the case (infra).
(i) influence of English notions on Mohammedan law.—
Though Warren Hastings' Plan of 1772 by Rule 23 kept the reservation of
personal laws of Moharumedans, still in those topics we find that the English law
was gradually imported. Judicial reforms of Cornwallis and subsequent Regulations
and Acts have influenced Mohammedan criminal law to a great extent. We shall
analyse the British element in Anglo-Mohammedan Law point by point as follows:
(1) Indian Penal Code : The Muslim criminal law was first modified piecemeal
(as seen above) and then it was superseded altogether by the Indian Penal Code.
(2) Slavery : By Act V of 1843, abolishing slavery throughout British India, all
the learning on that subject which was found in Muslim law books was rendered
inoperative.
(3) Age of Majority : The Indian Majority Act of 1875, raised in one sense and
lowered in another the age in which a Muslim was to become capable of contracting
and disposing of property. Similarly the Act X of 1891, made punishable as rape,
--,--.
IS] CODIFICATION AND NATIVE LAWS 289

such early sexual intercourse (the woman being under twelve years of age) even
between husband and wife which was not an offence in Muslim Law.
(4) Pre-emption : The statutory provisions about pre-emption in the Punjab, the
North-West Frontier Provinces and Oudh have considerably modified the Moham-
medan Law of Pre-emption enforced in those provinces.
(5) Case Low Another far-reaching modification was the substitution of
judiciary for professional case law.
(6) wakfs : In the matter of Wakfs or public or private endowments, there was
a pr'. gressive tightening of case law against the recognition of private settlements.
Under pure Mohammedan Law a Wakf exclusively for the benefit of the settler's
family was perfectly valid. But the Privy Council, however, had held in Abdul Fata
Mahonied v. Russomoy 77
that "a Wakf for the benefit of the settler's family, children,
descendants and for charity was valid only if there was a substantial dedication of
the property to charitable uses in some period of time or other." This decision led
to dissatisfaction amongst Muslims with the result that the Mussalman Wakt
Validating Act was passed in 1913- But this had not provided for retrospective effect
and so another Wakf Act of 1923 was passed. However, the Muslim law relating
to Wakf was modified in so far as 'reservation for the religious or pious purposes
was made essential' is concerned.
(7) Sale . According to pure Mohammedan Law a sale is complete on payment
of the price and tiaiisfer of possession. There was no need of registration of the
transaction whatever be the value of the subject-matter. But this has been superseded
by the Transfer of Property Act according to which a sale of property of value of
Rs. 100 or upwards is not complete unless made by a registered instrument.
(8) Marriage etc. : The Shariat Act of 1937 and the Dissolution of Muslim
Marriage Act also introduced certain changes in Mohammedan Law on the basis of
English notions.
On the whole, we may note the Mohammedan Law rclaLing to marriage,
paternity, wills, gifts, wakfs, sale and pre-emption was greatly influenced by the
English notions of justice through English judges and various Acts.
(ii) Influence of English notions on Hindu Law—Rule 23 of
Hastings' Plan of 1772, provided for the reservation of the personal lawsthe Warren
of Hindus
'in suits regarding inheritance, marriage, caste and other religious usages or institu-
tions'. In the year 1781, the Act of Settlement laid down that in cases of Contract,
succession and dealings between parties, the Hindu law was to be applied if both
the parties were Hindus. The Cornwallis Code of 1793, similarly provided for the
reservation of the personal laws of Hindus. Thus it is clear that in all other eases
(topics not provided for in various Acts) English Law was to be applied and not
the personal law of Hindus.
The early English administrators also modified the rules of Hindu criminal law
on the basis of English notions. In 1817, they abolished (1) the rule of exemption
of Benaras Brahmins from death penalty. (2) They made the throwing of children
into the sea at Sagar or other places a criminal offence, and (3) prohibited the
burning of widows alive on the death of their husbands in 1830. (4) Where injustice
-
77. 22 Ind. App. 76.
290 INFLUENCE OF ENGLISH LAW IN INDIA [CRAP.
was patent, they also modified the rules of succession, inheritance and marriage. (5)
They repeated the religious law which compelled a person to pay the debts of his
father and grandfather. (6) Widow marriage was also legalised. Thus gradually
English notions influenced the Hindu criminal law in Benaras and Bombay.
Codification of laws further influenced and modified the Hindu substantive civil
law to a great extent as follows:
(7) The Statute 20 Geo. III C. 70 safeguarded the personal laws of Hindus in
matters of contract dealing between party and party, inheritance and succession. This
right was taken away by the Indian Contract Act IX of 1872, which was mostly
based on English notions.
(8) The Caste Disabilities Removal Act of 1850, laid down that when one party
shall be Hindu or Mohammedan, the laws of those religions shall not be permitted
to operate to deprive such party or parties of any property.
(9) The Indian Succession Act applies to Hindu wills (Section 82) and has the
effect of partially abrogating the rule of Hindu Law, that gift by the husband of
immovable property to the wife without express words creating an absolute estate,
conveys only a limited interest. It is another instance where codification affected
Hindu Law.
(JO) British Indian administrators changed the rules of Hindu marriage where
it was incumbent on them on moral and equitable grounds to alter it. The following
Regulations and Acts were passed which changed the structure of Hindu society
and introduced the English notions:
(i) Abolition of Sati (Reg. XVII of 1829).
(ii) Hindu Widows Remarriage Act (XV of 1856).
(iii) Native Converts Marriage Dissolution Act (XXI of 1866).
(iv) Civil Marriage Act (III of 1872).
(v) The Indian Criminal Law Amendment Act (X of 1891).
(vi) Marriage Act of Certain Malabar Hindus (Mad. Act. 1V of 1896).
(vii) Anand Marriage Act (VII of 1909).
(viii) The Hindu Women's Right to Property Act of 1937-
(ix) The Child Marriage Restraint Act, 1928 (Amended in 1938 and 1949).
(x) The Hindu Married Women's Right to Separate Residence and Mainten-
ance Act of 1946.
(11) The Guardians and Wards Act of 1890 is a complete code, which defined
the rights and remedies of wards and guardians.
(12) The Indian Majority Act of 1875, has affected the rules of Hindu Law on
the subject. In Hindu Law, youths belonging to any of the three superior castes
ceased to be minors upon ending their "studentship". Sudra youths attained their
majority upon completing sixteen years. 18 This Act fixed the age of majority at IS
years.
(13) The Indian Penal Code has changed the old Hindu Law of crimes and has
also provided a uniform code for all the Presidencies and for all persons without
any distinction.
78. (I)Manu., Ch. VItI.
151 INFLUENCE OF ENGLISH LAW ON INDIAN LEGISLATION 291

(14) The constitution, jurisdiction and procedure of criminal courts in British
India were regulated by the Code of Criminal Procedure (V of 1898). In the
administration of criminal justice it superseded the native Hindu Law.
(15) The Indian Evidence Act of 1872, superseded all the native rules of
evidence. It was based mostly on the English Law of Evidence, modified to suit the
people of this country. The rule of Hindu Law requiring the lapse of I2years before
an absent person of whom nothing had been heard could be presumed to he ilead,
was applicable to the "presumption of Death". But the Evidence Act of 1872,
changed the existing native rules and provided that a period of seven years' absence
without any trace is sufficient to raise a presumption of death.
(16) Apart from codified laws, Indian courts also played an important role in
introducing English and foreign notions of law and justice in Indian Law. English
wec adopma tiy the Indian courts when on certain questions the Hindu Law
was silent and litigation was before the courts for decision.7
(iii) What soved i-lin.du law from 'complete change.—In spite
of the major forces
which assisted in introducing English notions of law and justice into Hindu Law,
Hindu Law was not completely changed. Hindu law was saved from the influence
of foreign laws due to certain reasons. First, English common law was terr i
torial
while Hindu Law was not territorial but depended mostly on religion. Cowell
observed, 'The laws which Hindus and Mohammedans obey, do not recognise
territorial limits. The Shasiras and the Quran
revealed religion and law to different
peoples each of whom recognised a common faith as the only bond of union, but
were ignorant of the novel doctrine that law and sovereignty could be co-terminous
with territorial limits."
9. English law: Influence on Indian Legislation

On 15th August, 1947, with the transfer of political power from the British to
Indians, the Dominion of India was created. The India Independence Act, 1947,
played a vital role in regulating the new conditions of the Dominion of India. Under
the Act a Constituent Assembly was constituted to frame a new Constitution of
India. After three years' hard labour the Constituent Assembly of India passed the
new Constitution of India which came into force oil January, 1950.
From 1947 to 1950 the Dominion Legislature of India framed various laws to
tackle the problems. The framework of the Dominion and Provincial Legislatures
remained the same as was under tht Government of India Act, 1935. The federal
structure was accepted by the Constitution-makers of India. The Constitution of
India, 1950, created a Central Government and the constituent regional units*
provided for the distribution of powers between them. In his
the Common Law in India, M.C. Setalvad observed, Hamlyn Lectures on
Cons titution not only drew largely from "The builders of the Indian
the collection of British ideas and iflStitutins
which was India's heritage from British rule, but the y
also rook care to maintain a
continuity with the Gave rnmenlal system which had up under the British.
They believed not in severing their links with the past but rather in treasuring all
that had been useful and to which they had been accustomed. The structure which
79 See Vedenoyaga Mudattar v. Vedwnm,1 27 Mad 59; Ga.ngu v
Chawird,hagaba, 32 Born 275.
emerged was, therefore, not only basically British in its framework but took the
form of an alteration and extension of what had previously existed."80
(a) The Constitution of India, 1950, has been greatly influenced by the British
principles of a responsible government. The Cabinet System in India is similar to
that of the British Cabinet'system. Instead of the King, India has chosen "The
President" as the Constitutional Head of the State. The general framework of the
Constitution is based on the Act of 1935 and a federal structure of Government was
accepted by the makers of the Constitution. Jennings said, "The machinery of
Government is essentially British and the whole collection of British constitutional
conventions has apparently been incorporated as conventions." 8t The Parliamentary
system, the Executive system, the Judicial system, all the three important wings of
the Government, remained similar to that of British system of Government. In Rai
Saheb Ram Jawaya Kapur v. State of Punjab 82 , the Supreme Court of India stated
that, "Our Constitution, though federal in its structure, is modelled on the British
Parliamentary system... we have the same system of parliamentary executive as in
England and the Council of Ministers consisting, as it does, of the members of the
legislature is, like the British Cabinet, a hyphen which joins, a buckle which fastens
the legislative part of the Stare to the executive part".
(h) Apart from this, the legislative powers of the two Houses of Parliament,
e.g.. in relation to Money Bill, subordinate legislation, Administrative tribunals,
judicial power, personal liberty are other important areas in which the English Law
has greatly influenced the Constitution of India. But it does not mean that we are
solely dependent on English Law, traditions and conventions, 83 The Indian Constitu-
tion has borrowed its prov1i'Jt1s from the various Constitutions of the world. It
reflects Indi.n traditions and ideas of justice.
(c) Article 372 of the Constitution of India provides for the continuance of the
existing laws and their adaptation. The object of clause (i) of this Article is to
sanction the continuance of the existing laws until they are repealed or amended by
a competent authority under the Constitution. The expression "law in force"
includes not only the enactments of the Indian Legislature but also the Common
law of the land which was being administered by the courts in India It includes
not only personal laws, viz., the Hindu and Mohammedan Laws, but also rules of
English Common law, e.g., the Law of Torts as well as Customary Laws. In 1955
the Government of India appointed a Law Commission to study and suggest
necessary changes in the existing Laws to suit Indian conditions.
(d) During the post-Constitution period the Indian Parliament has passed a large
number of Acts specially to deal with its emerging socio-economic and political
conditions. The implementation of three Five Years Plans, has led to the unpre-
cedented development of industriahsation and has created- new problems and situ-
ations. Amongst the existing Indian administrators, the persons who were specially
trained by British, still dominate. In certain respects the influence of English Law
80. M.C. Selalvad, The common Law in India. 159.

81. Sir Ivor Jennings, Some Charnctersjics of the Indian Con.cwu4on, 2.
82. (1955) 2 SCR 225. 236, 237, see also Sharnsher Singh v. State of Punjab, (1974)2 SCC 831.
83. The formulation of our Fundamental Rights and the judicial control over legislation are two important
matters in which India has made a departure from English Law and tradition.
IS] SPECIAL FEATURES OF ENGLISH LAW IN INDIA 293

is more in the new Indian conditions where-Indian problems are similar to those of
the English.
10. Special Features of English Law in India
To the English Common law we owe the fundamental principles of our public
law—The rule of law, individual freedom, limited powers of the Government. In
the sphere of administration of justice, the system of trial, the legal profession, the
independence of judiciary, system of judicial precedents and justice according to
law, are all based on the principles of English Law.
The "Doctrine of Precedents" which is deep-rooted in English Law, was first
introduced in India in 1726, when the Mayor's Courts were established in India
Since then the judicial precedents have played a very important role in shaping
Indian Law. Section 212 of the Government of India Act also provided that the law
laid down by the Privy Council would be binding on all courts in India. It also
followed that every court was absolutely bound by the decisions of the superior
courts. Article 141 of the Indian Constitution, 1950, provides.' the law declared by
the Supreme Court shall be binding on all courts within the territory of India." This
is based on English principles, though by this provision there is some departure
from the English practice. in England, the House of Lords is bound by its own
decisions but in India, the Supreme Court is not hound by its own decisions. The
Supreme Court of India, the highest judicial organ in India is free to change the
law which it laid down in an earlier case.. Bengal Immunity Co. v. State of Bihar84,
Das. C.J. observcd
There is nothing in our Constitution which prevents us from departing
from a previous decision if we are convinced of its error and its baneful effect
on the general Interest of the public. Article 1 4-1 which lays clown that the law
declared b y this Court shall be binding on all courts within the territory of India
quite obviously refers to courts other than this Court.'
Concluding, it can be stated that the British Empire has left an imperishable
contribution to the enrichment of India's legal heritage. Apart from this, but equally
of importance is the fact that with the ending of British Raj in India the time is ripe
enough for us to make a beginning of a new understanding of India's national
peculiarities in the legal sphere. A study of India's ancient history will reveal the
fact that what we now call "the unique principles of English Common law" were
in fact originated in India. During the Mediaeval and British periods, we were made
10
forget our own "Ancient Hindu Period" which was our "glorious past" in various
respects. The principles of Indian philosophy, traditions, social and legal order, which
formed the backbone of our glorious past can be co-related to meet the growing
problems and new conditions of India today, Let us not forget that India still retains
her intellectual treasure despite the influence of English Common law.
84. AIR 1955 SC 631,672;

see also Dwa.rkn Dos .Srinivarv. ShalapurSp. & Wg. Co.. AIR 1954,5C 119,
127. See al so) Minerva Mills Ltd. v Union of hid,,,,
(1980)3 SCC 625 ' AIR 1980 SC 1789 : D.S.
Na,kara v. Union of India, (1983) I 5CC 305; 5 C. Vernw V. Chancellor, Nagpur University, (1990) 4
5CC SS . Punjab Land Development and Redarnaaon Corpomrion Lid v. Presiding O7icer, Labour
Court, Chandigarh, (1990) 3 SCC 682.
95 See Ch. XXI, 4h3-45, 414. 233. in.frci
20
The Rule of Law and

Constitutional Developments
"Government and their policies n iall change, What constitutes to the stability of the State
is its judiciary. A nation nuts afford to lace its confidence in its King or even in its Parliament
but it would be an evil day if it loses its confidence in icjudiciasy. Amidst the strident clanwur
of political strife and the tumult of the clash of conflicting cla.rsec the Courts
of
steadfast and impartial. Only a real and full acceptance of these principles conLaw remain
enable our
new barn democratic republic to
V.G. Raniachandran:
Administrative Law, 2nd. Ed., 1984, p. 32
Eternal vigilance is the price of liberty
Harold Lasky
'Liberty has never come from the ,i,'overn,nent Libern' has alway.c conic from the subjects
of it. The history of liberty is a history of resistance. The history
of liberty is a history of
limitations of government power, not the increase of it.
Woodrow Wilson
God, give us men. A time like this demands;
Strong minds, great hearts, true faith and ready hands;
Men whom the lust of aJJice mlon.c not kill,'
Men iy lu,m the spoils of office cannot buy;
Men who possevi opinions and a will:
Men who have honour; men who will not lie:
Men who can stand before a demagogue and damn his treacherous flatteries without
winking;
Tall men, Sun-crowned, who live above the fog;
In public duly and in private thinking.
H.R. Khanna: Making of India's Constitution
(1981), in preface (quoting N.A. Palkhivala) p. vi
SYNOPSIS
I. The Rule of Law
(iv) Maneka Gandhi v. R.P.O. (A new
(a) Legal Concept; Meaning approach)
(b) Concept of Rule of Law (ii ) S.P. Gupta V. Union of India
(c) Origin (Right to know)
(I/) Definition
(ii) Minerva Mills Ltd. Y. Union of
(e) Dicey's Concept n
I dia (Power to amend Constitu-
If) I mplications and importance tion)
(ii) Diccy's Concept criticised (vii) A.S. Pa,, V. St. of A.P. (The Dc
(h) Latest improvements by I.L.I. facto doctrine)
2. Indian Position prior to Constitution (viii) All Saints High School case
(a) Hindu Period (Autonomy of Minority
(b) Muslim Period Institution)
(c) British Period (i.$) Air India core (Excessive delega-
3. Post-Independence Period tion)
(a) Affirmation of Rule of Law by the (r) 14. C. Mehta V. tJnjt,,i of India
Constitution (Strict liability of Enterprise)
(it) Landmark Decisions (xi) Central Inland Water Trairport
(') Ke.cavanwufrj Bharatj CO MM Lid case (Service clause
(ii) Indira Goad/ti v Raj Nurain held void)
(iii) The Habeas Corpus case (xii) The Shalt Bano core
(xiii) Mart' Roy v, State of Kerala
(xiv) National Anthem case
1 394 1
THE RULE OF LAW

395
4. Recent Developments (ii) ti-f ory Roy v. State of Kerala
(1) Govcriurtern liability for gross breach (c) National Ant/tern case
of Fundamental Rights : Compensation (d) Why a Common Civil Code?
cases (e) Uniform Civil Code Bill
(ii) Liability of the Government in Con- (x) Article 124(4) & Motion of Impeach-
tract and Tort ment against a Supreme Court Judge
(ii,) Doctrine of Promissory Estoppel (xi) The Eventful Ayodhya Problem and its
Traditional view given up Constitutional Aftermath
(iv) New Enforcement Direction : The Rat- (a) Use & Misuse of Article 356
lain Municipality case (b) Secularism & the Constitution
(v) Public Interest Litigation Amendment Bill, 1993
(vi)Quality Control Measures and the Con- (c) A Critique of the Legislation to
sumer Protection Movement delink Religion from Politics
(vii) Environmental Control Measures (xii) The Kashmir Problem and Article 370
(viii)Lok Adalats and Legal Aid Pro- (xlii) The Mandal Commission case & The
grammes Reservation Policy
(ix) The Common Civil Code
(a) The Shah Bo case
1. The Rule of Law

(a) Legal Concept Meaning.—The doctrine of rule of law is a legal concept:
a mental process contrasted with perception. For example a contract is a legal
concept abstracted from various instances of legal relationships which are called
Contracts. Consequently a concept is an abstraction from particular things or events
forming a general notion. It is a tool of thought which we use to deal with certain
situations and its development is guided as much by a desire to do justice in the
individual case as by any a priori logic which deals with the inherent properties of
a concept. Compared with the broadness of a principle or the elasticity of a standard
a concept comparatively fixes contours of legal thought'
The development and formulations of concepts and doctrines arc the works of
judges, not of legislation, which treats particular rules only.
(b) Concept of Rule of Law.—Latin expression for the rule of law is "La
Legalite". Rule of Law is quite similar to American expression "due process of
Law" which connotes government on principles of law and not of men; law must
really rule and that justice should prevail. It means conduct of legal proceedings
according to the established principles and rules safeguarding individual and group
rights.
This concept of rule of law which embraces within its fold legislation (enacted
law i.e. lex) and principles of natural justice (i.e. jus) is so powerful and all pervading
that no democratic country could afford to disregard it. It is therefore the sole basis
of Administrative-Law-Structure
(c) Origin—The concept, it is said, first arose in England in 1215 but even
before this period its roots are traced in Roman law when Kourad 11, the Holy
Roman Emperor2 by his decree on 18-5-1027 A.D. declared that no lord in his
kingdom shall be deprived of his land but by the laws of his Empire and by the
judgment of his peers. In England King John Lackland in Magna Carta' of 1225
I. Walker: The Osford Conpanwn to Law. 1980, 265 Paton: A Text-Book (?f Jurisprudence.
1964. Ed.
3.204-06.
2. 1024 to 1039 A.D.
3. Chapter 39.
396 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS [CHAP.
declared that 'No free man shall be taken or arrested or disseised or exiled or in
some way destroyed, nor will we go upon him nor will we send for him, except
under a kful judgnent of his equals and by the law of the land. In the reign of
Henry 111 4 this was reformulated by Coke 5 and in 1354 it was declared that ''no
man shall be put out of land or tenemant, nor taken, nor imprisoned, nor disinherited,
nor put to death without being brought to answer without due process of law.' '
The concept thus originated in middle ages on the basis of the belief that there were
certain fundamental laws which could not be altered even by government. This
connects this concept with that of natural law. In England, the seventeenth century
witnessed a struggle between the King, Court and Parliament and the Court and
Parliament emerged victorious which gave impetus to this concept which had its
origin in the idea propounded by Sir Edward Coke that the king cannot be above
law; he is subject to the power of law and to God both.
In 1885 the idea of rule- of law became synonymous with due process of law
in America as it encompassed within itself the broad principles of law enacted or
natural, kind or cruel, just or unjust. The word ''due" signifies fair and adequate
procedure according to principles of natural justice. This idea has now become so
firm. so fundamental and universally accepted that men cannot change it.
In America by the Fifth' and the Fourteentl) 9 amendment of its Constitution the
concept of rule of law was adopted and extended to state actions. It means the same
as the law of the land.
(d) Definition.—The concept, though of utmost importance defies an y dcfini
non. It is unclear in its connotations. It is so fluid that it is likely that everyone may
understand and express it in his own way.
(e) I)iceys Concept—As expounded by Dice y, in Law of the Constitution it
means "that all men are equal before the law, whether they be officials or not
(except the Queen), so that the acts of officials in carrying out the behests of the
Executive Government are cognisable by the ordinary Courts and judged by the
ordinary law, as including any special powers, privileges and exemptions attributed
to the.Crown by the prerogative or statute. So far as offences are concerned, an
offender will not be punished except for a breach of the ordinary law, and in the
ordinary Courts: There is here an absence of the exercise of arbitrary power. Further
the fundamental rights of citizens are rooted in the ordinary law, and not upon any
special "constitutional guarantees". 1 '3 Dicey attributed the following three meanings
to the doctrine of Rule of Law (I) Supremacy of law; (2) Equality before law;
and (3) Predominance of legal spirit.
The concept of Rule of Law thus includes the following three ideas
(i) Absence of arbitrary power;
(ii) Equality before Law and .
4. Oct. 28. 1216 to Nov: 16. 1272

5. Henry's Oarterb'Coke. - -
6. Reign of Edward III 132710 1377. .
7. 23Edn. III C-3.
8. in 1791.
9. In 11167.
10. H urke: Osborn 's Concise Law Diciianarv, Ed. 6. 1976, 297.
-
,,., r• -
201 THE RULE OF LAW 397
(iii) Protection of Individual Liberties.

(f) Implications and importance.—.-"The concept implies that the ruler must
also be subject to law. It is the subordination of all authorities, legislative, executive.
judicial and other to certain principles which would generally be accepted as
characteristic of law, such as the ideas of the fundamental principles of justice, moral
principles, fairness and due process. It implies respect for the supreme value and
dignity of the individual)"
No civilised country on this earth can run its government without law. Law
rests on subjection of force to reason and "reason is the life of the law, nay, the
common law itself is nothing else but reason") 2 It thus boils down that the law
must rule and the rule of law is opposed to governmental arbitrariness and tyranny
of power. Finally the government itself is subject to law, it cannot disregard it or
reformulate it to suit its own purpose. The concept and its enforcement therefore
acts as a brake on governmental actions lest they become barbaric and anarchic.
Government intervention in many daily activities of the citizens is on the increase
creating a possibility of arbitrariness in state action. The Rule of Law is useful,
therefore, as a counter to this situation) 3 A democratic legislature, as suggested by
Justice Bhagwati, may "make laws, but its power should not be unfettered, and that
there should be an independent judiciary to protect the citizen against the excesses
of executive and legislative
(g) Dicey's concept criticised—The concept advocated by Dicey has been
criticised from various angles. According to Dicey—(l) there should be no inter-
ference by the government, and (2) that the courts were supreme in determination
of disputes since everyone was equal before law. But the first meaning was much
less true than , in Dicey's time and the second meaning has become untrue since
Diccy's time. Passing of the Crown Proceedings Act, 1947 (abolishing Crown
privileges in litigation), curtailment of liberties, establishment of Tribunals for
deciding issues other than the common law, the rise of trade unionism which coerced
the English Parliament into granting them immunity from the ordinary rules of law
(e.g. immunity from liability in tort) and the increase in lawlessness and the decline
in trust in the Courts are the proofs in support of the above. Besides, his conception
about the third meaning was wholly wrong as it was based on the idea of sovereignty
of the Parliament. The Judiciary in England according to him was only the interpreter
of the Act and nothing more. This was so because in England there are no
constitutional guarantees as they exist in the written Constitutions of India and
America.
However, as observed by Dr. Jam, in substance. Dicey's emphasis. on the whole.
in his enunciation of Rule of Law is on the absence of arbitrary power, equality
before law and legal protection to certain basic human rights, and these ideas remain
relevant and significant in every democratic country. It is also true that dictated by
needs of practical government, a number of exceptions have been engrafted on these
ideas in modern democratic countries. e.g. there is a universal growth of broad
II. Walker: Oxford co,ripan.ion to Law. 1980. 1093.
12. Institutes: commentary upon Littleton. First Institute 8.97-b.
13.Jam: Indian Constitutional Law. Ed. 4, 1987.5.
14. Bachan Singh, (1982)
3 SCC 24, quoted in Jain.
398 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS[CHAP.
discretionary powers of the administration; administrative tribunals have grown; the

institution of preventive detention has become the normal feature in many democratic
countries. Nevertheless, the basic ideas are worth preserving and promoting)5
(h) Latest Improvements by I.L.I.
The concept of Rule of Law, which arose and developed in Anglo-American
countries and which is the backbone of a welfare State has been accepted in India
under Parts III and IV of the Constitution.
In order to achieve the oblectives outlined in the Constitution of India: Justice,
Liberty, Equality and Fraternity: Rule of Law is the only instrument available.
Otherwise people will not be able to control and curb monopolistic power and
madness of potitical parties which "drains vitality from the rule of law )6 As
expressed by the Law Commission (it' India in its Fourteenth Report, where there is
no effective opposition in legislature, the legislature and the executive inevitably
tend to be intolerant and sometimes even contemptuous of the decisions of the Courts
interpreting laws in a manner which they consider to be opposed to their policies. This
tendency to trample ruthlessly upon the rights of the individuals with the aid of a
steamroller majority is to be deprecated. And this nation has experienced this truth.
As Ramachandran in his treatise 17 says, "Government and their policies may
change. What constitutes to the stability of the state is its judiciary. Amidst the
strident clamour of political strife and the tumult of the clash of conflicting classes
the Courts of Law remain steadfast and impartial. Only a real and full acceptance
of these principles can enable our new born democratic republic to survive."
The Indian Law Institute gives the following nleaning' t to Rule of Law.
(a) Powers of executive may be increased only in unavoidable circumstances.
(h) Discretionary powers of the executive should be limited.
(c) Power handed over to executive is not its inherent power, it is granted
to it by law.
(d) Administrative decisions should be subject to judicial review.
(e) There should be proper publicity in case of delegated legislation and it
should be subject to control of Parliament and Judiciary.
(f) Principles of natural justice should be observed by administration while
decisions are taken.
The Supreme Court of India explaining this concept said in Sonia Raj 19 "The
absence of arbitrary power is the first postulate o Rule of Law upon which our
constitutional edifice is based. If the discretion is exercised without any principle
or without any rule, it is a situation amounting to the antethesis of Rule of Law."
In Om Prakash case 20 the Supreme Court observed that in the present context,
it means, "the authority of the law courts to test all administrative action by the
standard of legality. The administrative or executive action that does not meet the
15. Indian Constiiuiional Law, Ed. 4, 1997. 5.

16. Rain Prcrsad Naran Salt, v. Siaze of Bihar. AIR 1953 SC 215, 217,
Ii. Administrative Law. 2nd Edn., 1984, 32.
18. See AdrniaLrrthve Law by Takwani. Ch. I.
19. Santa Raj v. State oJHwyana. (1990) 2 SCC 653.
20. Chief Settlement Coinmi.. Punjab v. Oat Prakash, AIR 1969 SC 33 :(1968) 3 SCR 655.
201 PRE-CONSTITUTION CONCEPT OF RULE OF LAW 399
standard will be set aside if the aggrieved person brings the appropriate action in
the competent court."
2. Indian Position prior to Constitution
(a) Hindu Period.— According to Dharma Shastra in ancient India what
prevailed was the "Rule of Dharma". The idea of Rule of Dharma is wider in its
connotations than what we understand by the expression rule of law or due process
of law. IDharma included within its ambit not only what was just and legal but what
was moral and natural as understood in Neeti Shashtras. Before the origin of the
state (Rajya) and creation of Kingship there was an ideal stateless society but on
account of influential, powerful and avaricious people, wickedness increased. Fall
in standard of behaviour gave birth to a system of legal proceedings for enforcement
of rights and punishment of wrongs. And the King who was appointed did this task.
From this arse Rajyadharma, that is, the law laying down the powers, duties and
responsibilities of the king. Side by side courts with their powers, functions and
procedure as part of Dharma were established. And this marks the commencement
of legal and constitutional history of India.21
The word Dharma in Ancient India touched wide varieties of topics and its
essence has been described in various works. 22 The importance of Dharma was so
much that it sustained the life of an individual, the society and the world. That is
why Manu forcefully stressed its scrupulous observance. 25 As noted by Rama Jois24
when the word Dharma is used in context of the word Rai y a it only means law and
Dharmarajya means Rule of Law and not religion or a theocratic state. In the context
of legal and constitutional history Dharina means Rajya Dharma evolved by the
Society through ages and it is binding both on the King, the ruler, and the people,
the ruled. That the King was not the fountain of law and was not above law depicts
that law was held in great esteem. Herein lie embedded the germs of Administrative
law in Ancient India. Rules of natural justice similar to those existing at present
were in vogue at that time as expressed by Vasishta. They were: 25 (a) no decision
should be taken singly: (h) the business of deciding disputes should be transacted—
(i) on the dias. (it) in the open. (iii) without bias, (iv) by giving reasons for findings,
and (v) after hearing both the parties.
(b) Muslim Period--Like the Hindus, the Muslims never regarded the King
as the fountain of law, he was only the fountain of justice. This was so because the
underlying fundamental concept under Muslim law, like the Hindu law was that the
authority of the king was subordinate to that of law. As noted 26 the Mughal Kings
also observed the principles of natural justice, heard the parties in open court
(darbar). gave fair and open hearing and pronounced judgment in open court The
fair justice (adol insaf) of Jehangir is remembered by people like the one adminis-
tered by Hindu Chola King M.M. Kondacho who allowed a bell of justice to be
rung by anyone who wanted justice. Thus the precedent started in Ancient India by
21. M. Rama Joist Legal & Constitutional FIi.ctory of India. Vol. I. 8-9.
22. Sec Mahattharut, Shanti Parv 60. 7-8 : Manu Smrin. X-63; Yapzava/kye, 1-122 Vasi.ch. 26-4
Vishnu 13.17,
23. Manu: VIII-15 : Dharma pro:ect.r those who Protect it. Those who destroy Dharrna get
24. Legal & Constitutional Histor y of India. 8-9. destroyed
25. S. Vardacharj. J.: Hindu Judicial System, (1946), 52.
26. Ramachandran- Administrative Law, 1994 Edn., Ch. I.
Hindu Kings was continued by the Mughals. However we may not put this practice
of deciding disputes on par with that of the administrative tribunal because the
comparison is out of place.
(c) British Period—The British entered India as traders and slowly and
surreptitiously by their shrewdness, craft and cunning they held sway over this -vast
country. With their advent the rule of Dharma withered. They discharged only the
primary task of governing the people and collecting revenues neglecting their
essential duties. However the British gave to this country a system of administration
of justice which deserves our respect. The history of their efforts to evolve a system
has been given step by step in previous chapters. From 1600 onwards to 1858 no
sgniticant achievements are noticed except preparation of some codes and digests.
The struggle For independence in 1857 by the Indians opened the eyes of the British
arid made them act for the good government in India. Law Commissions were
appointed and some important Acts were enacted. Between 1834 and 1939 certain
measures by enacting Acts and Regulations in the field of public safety, 27 public
health, 28 public morality. 29 transport,t0 labour 3
' and economy- 112 were taken. As a
result of these enactments. administrative licences were granted, trade, transport and
uaffic in explosives were regulated and this made the executive powerful which did
give rise to disputes and injustice for remedying which some device was needed
which was absent.
The period of 1939 to 1947 was a period when the Second World War Started
which lasted up to 1945. During this period the Defence of India Act and the Rules
were enacted. These gave vast unguided and absolute powers to the executive which
interfered with the life, liberty and property of individuals. Uncontrollable power of
the executive without safeguards for the interests of the affected Persons marked an
acute need for its control.
3. Post-Independence Period
India won independence on 15th August, 1947 and it became a welfare State
(Sovereign Democrat i c Republic) having a mixed economy. The Indian nation on
26th January, 1950 gave a Constitution to itself. It undertook a vast programme of
social and economic upliftmcnt and reconstruction. National planning was resorted
to. The Government of India, since it was wedded to the objectives of Justice -
social, economic and political; Equal!!)' of status and Opportunity; Liberty
thought. expression, belief, faith and worship; and Fraternity
assuring the dignity
of the individual and the unity of the nation, passed a number of legislations 31 in
27. The Sarais Act, 1867; The Arms Act,
1878; The Indian Explosives Act, 1884;
Act. 1899 ;The Indian Boilers Act. 1923. The Indian Petroicuiri
28, The Opium Act. 1878 ,
The Epidemic Diseases Act, 1897 ; The Dangerous Drugs Act, 1930 ; The
Indian Medical Council Act. 1933.
29. The Dramatic Public Performances
Act. 1870; The Cineniatograph Act. 1918-
10. The Stage Can iagc Act. 1901; The Bombay
Port Trust Act, 1879. The Indian Motor V ehicles Act,
$914 The Rail w ays Acts of 1854, $879, 1890;
The Indian Merchant Shipping Act. 923
3$. The Indian Trade I)isputec Act, 1929 The Workmen's Compensation Act, 1923 The Payment of
W ages Act. 1930. The Factories Act. 1934 ; The
Indian Mines Act, 1923.
32. The Indian TariffAct. 1934 The Indian Co;ttpaniesAct,
$913 :
Reserve Bank of India Act, $934; The Tea Control Act, 1938; The Cotton Trancr( Act. 1923 The
The Tariff Conunission Act, $951. The Indian Rubber Control Act. 1913
33. Industrial Disputes Act, 1947 Minimuit, Wages
Act. 1948 Factories Act. 1948 ;
Employees' State
201 POST-coNsTjTu'rloN DEV ELOPMENTS AND RULE OF LAW

401
this direction. The various Acts depict the social security measures, fixation o
minimum rates of wages, regulation of private enterprises so as to avoid disparities
of income and wealth, to have a planned industrialisation,
decen t ralisation of
economic power and curbing of anti-social activities. This progress is all towards
establishing a Rule of Law.
(a) Affirmation of Rule of Law by the Constitution—The
Con stitution
embodies within itself the Concept of Rule of Law as could be observed from the
following provisions.
The Preamble declares the ideals of justice, liberty, equality and fraternity.
Ill enshrines fundamental rights of citizens. Right to Equality Part
Right to seven freedoms (i.e. (Articles 14 to 18),
freedom of speech, expression, association movement
residence property, profession and persona] liberty (Articles 19 to 22),
exploitation (Articles
(Articles 23-24), Right to f Right against
reedom of religion (Articles 25 to 28),
Cultural and Educational rights (Articles 29-30),
Right to enforce fundamental rights
(Articles 32 and 226). These fundamental rights are a restriction on the law-making
power of the Indian P
arliament. Of course reasonable restrictions can
be imposed
on these rights in times of emergency, Part IV of the Constitution regarding Directive
Principles of State Policy, guarantees protection of the same liberties to an individual
considered as a part of the c ommunity and the State can pass measures
stre ngthening
them. In the words of Ranlachandran these are like the antidotes against the fungus
that may be created by too much insistence on fundamental rights. Against breach
of fundamental rights High Court or Supreme Court under Article 226 or 32 could
be moved. Part III of the Constitution indicates the present basis of the Rule of Law
while Part IV is the pointer for the future law.
In India the C
onstitution is supreme and the three organs of government
legislature, executive and judiciary are subordinate to it. Every organ is independent
in its field and has to act within the framework of the C onst i
doctrine of judicial review has been accepted by the ltution. However the
C onstitution so that rnala fide
actions of the executive and ultra vires actions of the legislature could be challenged.
This is provided by Articles 32 and 226 whereunder an individual wronged can
move the High Court or the Supreme Court for the purpose, The President of the
Indian Republic has to take an oath to preserve, protect and defend the Constitution
No person is to he deprived of his life and personal liberty
procedure established bi' law or of his property except according to
save by the authority of law (Articles
21 and 31). No person is above the law, not even the Government The maxim that
"The King can do no wrong"
is equality before the law andhas not been made applicable to India because there
equal protection of laws (Article 14).
Doctrine
equality is also maintained in public service (Article 16). The Union and the Stareof
G
overnments can be sued in ordinary Courts like individuals for breach of
contracts
and for committing wrongs (torts) against an individual This, then affirms the Rule
of Law by the Co
nstitution of India. The Fourteenth Report of the Law Commission
of India rightly projects this position.34
insurance
of Act. 1948; industrial (Development & Regulation) Act. 1951; Requisitioning & Acquisition
Im movable Property Act, 1952 ; Es.ccinj Comm
M aternity Benefit Act, 1961 ; Payment of Bonus Act,odities Act, 1955 ; Companies Act, 1956
1965 ; Banking Companies (Acquisition &
Transferof Undertakings) Act, 1969 ; Equal Remuneration Act, 1976 ; Urban Land (Ceiling
Regulation) Act, 1976;l3idj W &
34. See Ramaclr dran : orkers' Welfare Fund Act, 1976 etc
Adnzn:.ctmj t e Law, 1
984. II, quoting from (1958) 14th Report, 671,
THE RULE OF LAW AND CONSTITUTIONAL DEvELOPMEr-flS ICHAP.

402
There is a large scale delegation of legislative and judicial power to adminis-

trative authorities which extend their tentacles into social, economic and political
domain and interfere with the actions of the individuals, companies and other
corporate and non-corporate hodies. For the purpose of national planning the
executive possesses wide powers in respect of land ceiling, control of basic indus-
tries, taxation and mobilisation of labour etc. Amidst these circumstances one should
he soon disillusioned about the fact that individual liberty can be protected only by
traditional doctrines laid down in high sounding words. If we pause to look and
think, we find some demonic statutes like the Preventive Detention Act, or Main-
tenance of Internal Security Act, 1971 (MISA). National Security Act. 1980 (NASA)
and the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) passed
by the Parliament which encroach upon the liberty of citizens.
Though the President and Governor under Articles 53 and 154 are to act ill
accordance with the Constitution, this alone by itself cannot protect and save the
doctrine of rule of law. It is the people and people alone whose constant vigilance
would save the rule of law. Moreover, since the fundamental rights of citizens flow
from the Constitution, it would he by zealously guarding those rights by the judiciary
by interpretation to save the rule of law, that can aid the firm establishment of the
concept in India. And that is what is done by the Judiciary in India as would be
evident from some landmark cases that follow this short discussion.
(b) Landmark Decisions.—The central and the most characteristic feature of
our Constitution is the concept of the rule of law which means, in the present context.
the authority of the law courts to test all administrative action by the standard of
legality. The administrative or executive action that does not meet the standard will
he set aside if the aggrieved person brings the appropriate action in the competent
Court. 36 This basic truism has been affirmed by the Supreme Court of India as and
when it had the opportunity to do so.
(i) Kesavananda Bharati.—In this case Kesavananda filed a writ on 2L3-
1970, under Article 32 to the Supreme Court for enforcement of his fundamental
rights under Articles 25, 26, 14 and 19( 1 )(f), for declaring the Kerala Law Reforms
(Amendment) Act, 1969 as ultra vires and challenged the validity of the Constitu-
tional Amendment Act, 1971, passed after he filed his writ. The 24th Amendment
Act was passed with a view to supersede the majority decision of the Supreme Court
in Golaknaih ' 3 case.
It was once canvassed in this case" that the fundamental rights could not be
taken away or abridged even by a constitutional amendment. Kesaeananda's case
overruled this decision. The court observed that the objectives specified in the
Preamble contain the basic structure of the Constitution and that cannot be amended
in exercise of the power under- Article 368. (This theory of basic structure was
exploded by the 42nd Amendment Act of 1976 but as it stands today the Supreme
Court adheres to the doctrine of basic structure 39 as was observed in Minerva Mills
35, Ramaswamy J. in(1958-59) I J III. 31-32.

36. Chief Settlement (jo,nn;icsu,ner. .Punjab v Omit Pnikash, AIR 1969 SC 33.
37 Ke.ravananda Bha,aii v. State of Kerala, (1973)4 SC 225: AIR 1973 SC 1461.
38. Go!aknath v. Stoic of Punjab, AIR 1967 SC 1641.
39. Some of the basic structures identified in this case (were and) are: (i) Supremacy of the Constitution;
(Ii) IederI structure: (iii) Democratic sysletli of the Guseiiuueiit, (o) Equality hind peisonat liberty
20 POST-cONSTrrIJTION DEVELOPMENTS AND RULE OF LAW

403
case. 40
However the fundamental rights may be amended according to the procedure
laid down in Article 368).
It was laid down that there is no disharmony between the
fundamental rights
and the directive principles. The y
are supplements of one another to bring about a
social revolution and to establish a social welfare State. Any of the fundamental
rights may be abrogated or overriden for enabling the State to achieve the goal of
the Directives. The court has a responsibility to interpret the Constitution so as to
ensure the achievement of the goal abovesaid. The mandate addressed in Article 37
is not only to the legislature but to the judiciary too. Judicial review is the basic
feature of the Constitution and it cannot be taken away by amendment in law. This
judgment thus stresses the need for fundamental rights, the i
mportance of Directives
and Supreme Court's responsibility in carrying out the same by suitably interpreting
them and the need for judicial review. Our goal in framing the
lay down the form of political democracy C onstitution is to
and to lay down that our ideal is economic
democracy. All
these point to the existence of rule of law in this country.
(ii) Indira Nehru v. Raj Narain 4t .._jn
this case election of SMmatj Indira
Nehru as a Member of Parliament from Rae Bareilly Constituency was challenged
by Raj Narain on account of various irregularities practised by her and on her behalf
in her election. The Allahabad High Court by its judgment on
12-6-1975 declared
her election to be void and disqualified her for six years for election. Shrimati
Gandhi preferred an appeal to the Supreme Court. Raj Narain also hd made a
counter appeal to Supreme Court to the extent that the Allahabad High Court
judgment was against him. While the appeal was pending disposal, an emergency
under Article 352 of the Constitution was declared (on 25th June,
1975) by the
government and immediately after this by the 39th Amendment to the Constitution.
Mrs. Gandhi's election was validated. By amending Article
7 1 the Parliament took
away Supreme Court's jurisdiction to decide disputes regarding election of a
President or a Vice-President and vested it in a separate body to be formed. This
ex parte decision was without following judicial procedure, was autocratic and
rendered the Supreme Court meaningless. On and after August 10, 1976 the Janta
Government headed by Morarji Desai did away with this anti-democratic step of
replacing the highest judicial tribunal by a non-judicial body. By 44th Amendment
the jurisdiction of the Supreme Court was restored. Thus even a Constitutional
amendment may be void if it excludes a matter from judicial review. This reiterates
the rule of law.
(iii) The Habeas Corpus case.—The case of A.D.M.,
ShukJa42 is known as the Habeas Corpus case. Jabalpur v. Shivakant
On June 25. 1975, as a result of
internal disturbances emergency was proclaimed and seven freedoms under Article
19 stood suspended. Many leaders were arrested under MISA.
Writ petitions by writ
of Habeas Corpus were filed in a number of High Courts. On June 27, 1975, the
President (Pakhruddjn Ali Ahmed) issued under Article 359, an order, suspending
of individual cttirens and dignity of individual as following from fundamental rights; (v)
Powers of
judicial review and (vi) Distribution of sovereign power between the Legislature. Executive and
Judiciary. For discuss ion ace Ch. IS (supra) para 4.
40. (1980) 3 SCC 625.
41. 1975 SUppSCCI
42. (1 9476)25CC 521
THE PULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS [CHAP.

404
enforcement of the Articles 14, 21 and 22. The question before the Court was
whether the right to personal liberty could be enforced in a Court of law since it
was suspended. Could it be ignored, trampled upon and curtailed? And whether
there is a Rule of Law apart from Article 21 for which the Court should stand as
the guardian of liberty of citizens. The state argued that since the enforcement of
the Article 21 was suspended the petitions were to be dismissed outright. Various
High Courts rejected this argument and the Government of India filed an appeal to
the Supreme Court which was heard by a bench of five judges: Ray, CJ., Khanna,
Be g , Chandrachud and Bhagwati Ji.
The Supreme Court by a majority of four to one held that even if a person is
detained without following the law by which he is detained or if the executive
exercises the power mala fide the Court cannot set him free. Thus ludicial protection
against illegal arrest and detention would be zero and petitioners did not have any
standing to approach the Court. In the words of the Court itself, which answered
the question, "whether there was any "rule of law" in India apart from Article 21,"
in negative43.
It was only Mr. Justice Khanna who sounded a very powerful note of dissent
with the majority view. He observed: "Rule of law is the antithesis of arbitrariness.
It is accepted in all civilised societies. It has come to be regarded as a mark of a
free society. It seems to maintain a balance between the opposite notions of
individual liberty and public order". Going further he said that 'Even in absence
of Article 21 in the Constitution, the slate has got no power to deprive a person of
his life or liberty without the authority of law. This is tile essential postulate and
basic assumption of the rule of law and not of men in all civilised nations. Without
such sanctity of life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning.... As observed by Friedmann
in Law in a Chanting Society, absence of rule of law would nevertheless be absence
of rule of law even though it is brought about by a law to repeal all laws."44
The observations of Khanna, J. thus affirm the Rule of Law and describe it in
a striking manner. The concept of Rule of Law has been affirmed and reiterated by
the Supreme Court of India in subsequent cases.45
(iv) Maneka Gandhi v. Regional Passport Orncer (A new approach).—In
this case the petitioner's passport was impounded by the authorities without giving
reasons. In the interest of the general public no reasons could be supplied, they
replied. The petitioner challenged this on grounds of illegality, equality clause of
the Constitution and on absence of opportunity to be heard. The Court held that the
procedure prescribed to impound the passport must be reasonable, fair and just and
not arbitrary, fanciful or oppressive. It was argued that although there are no positive
words in the Statute requiring that the party shall be heard, yet the justice of Common
law will supply the omission of the legislature. Thus even in an administrative
43. This was the majori;y decision. The majority consisted of Ray C. J. and Beg. Chandrachud and
Bhagwati JJ.
For a bitterly severe cnticisrn of this majority view sco—ILM. Seerval Habeas Corpus Case
Emergency and Future Safeguards, 1977.
44 (1976)2 SCC 521. paras 525 . 536. 575. 593.
45. Soma Raj v. State (if!*ar)na, Supra.
4€. I978; ISCC 248.
201 POST-cONSTITtJTLON DEVELOPMENTS AND RULE OF LAW 405

proceeding, which involves civil consequences. the doctrine of natural justice must
be held to be applicable. The powers assumed and exercised by the government
were therefore excessive and suffered from the vice of" over-breadth". Section
10(3)(c) of the Passport Act, 1967 was held ultra vires since it provided impounding
without procedure. This case thus strengthens the rule of law concept with reference
to personal liberty and right to freedom of movement by injecting the principles of
natural justice because, as it is, natural justice cannot be fitted into rigid rnoulds.47
(v) S.P. Gupta v. Union of India—Similarly "The Right to Know" has
become an integral part of the citizen's right in our democracy. As held in S.P.
Gupta v. Union of India 48 ''No democratic government can survive without account-
ability and the basic postulate of accountability is that the people should have
information about the functioning of government".
(vi) Minerva Mills Ltd. v. Union of India (Power to amend the Constitu-
tion) 49 .—The petitioner in this case challenged the validity of some provisions of
Sick Textile Undertakings (Nationalisation) Act as well as the constitutionality of
the 39th Amendment Act of the Constitution which inserted the impugned Nation-
alisation Act as Entry 105 in the Ninth Schedule of the Constitution. The Supreme
Court held that Article 368 does not enable the Parliament to alter the basic structure
or framework of the Constitution. Parliament's power to amend the Constitution is
limited and under the exercise of that limited power it cannot enhance or enlarge
that very power into an absolute power. Indeed, a limited amendin g power is one
of the basic features of our Constitution... the donee of a limited power awinol by
the exercise of that power convert the limited power into an unlimited one. The
newly inserted Clauses (4) and (5) of Article 368 were therefore held to be
unconstitutional. The decision thus fortifies the idea of the rule of law.
"Fundamental rights" Constitute the ark' (' of the Constitution''. The Court
remarked that the nature and quality of the 42nd Amendment is such that it virtually
tears away the heart of basic fundamental freedoms. "Three Articles of our Coti-
.stitution and only three stand between the heaven of freedom, into which Tacore
wanted his country to awake, and the abyss of unrestrained power. They are Articles
14, 19 and 21."
(vii) A.S. Rao v. State of A.P. (The de facto doctrine).---In Achanti Sreeiijvaxcm
Rao 52 a question was raised whether the jud g ments rendered by the judges whose
appointments were quashed by the Supreme Court were valid. If void they were.
required to be set aside (see Articles 233, 233-A and 21 of the Constitution). The
court held that they were valid. ''A judge, de facto, therefore, is one who is not a
mere intruder or usurper but one who holds office, under colour of lawful authority,
though his appointment is detective and may later be found to be defcetive. Whatever
the defect of his title to the office, judgments pronounced by him and acts done by
him when he was clothed with the powers and functions of the office, albeit
47. See also A.K. Gopattui v .Srure uJ Madras, 1 950SCR 85: Khwijk Si,igh v. Stweo/ U.!'.. ([964) 1 SCR
332 Sarwwir Singh v. A.P.O.. AIR 1967 SC 1836.
48. 1982 Supp SCC 87.
49. (1980)3 SCC 625.
50. Kesavarianda Riwraij, (1973)4 SCC 225.
51. (1980)3S25
52. A.S. Sr:niuiu Rae) v Strife oJ4 p ( 1981)3 SCC 133.
THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS CHAP.

406
unlawfully, have the same efficacy as judgments pronounced and acts done by a
judge de jute. Such is the de facto doctrine borne of necessity and public policy to
prevent needless confusion and endless mischief. There is yet another rule based on
public policy: the defective appointment of a de facto judge may be questioned
directly in a proceeding to which he be a party but it cannot be permitted to be
questioned in a litigation between two private litigants, a litigation which is of no
concern or consequence to the judge, except as a judge".
The Court further observed that "the de facto doctrine is not a stranger to the
Constitution or to the Parliament and the Legislatures of the States''. It saves such
acts. Articles 71(2) of the Constitution and Section 107(2) of the Representation of
the People Act, 1951 are the instances of the application of this doctrine. It therefore
cannot he said that the procedure prescribed by law has not been followed.53
(viii) All Saints High School case (Autonom) , of Mmorilv lnsrituiion).---In All
Saints High School V. Government of Andhra Pradesh 54 the question was whether
certain provisions of the Andhra Pradesh Recognised Private Educational Institutions
Control Act offend against the fundamental right conferred on minorities by Article
30(1). The Court held that the fundamental right enshrined in Article 30(1) was
completely in consonance with the secular nature of democracy and Directives in
the Constitution. However this right does not give a free licence for maladministra-
tion so as to defeat the avowed object of the Article. The State has the right to take
measures to promote the abovesaid objects but under cover of such measures the
State etc. cannot destroy the autonomy, personality and individuality of the institution
and render the right of the administration of the management nugatory or illusory.
The concept of rule of law thus marches on in the welfare State.
(ix) Air India case (Excessive delegation).—It is true that a discretionary power
may not necessarily be a discriminatory power but where a statute confers a power
on an authority to decide matters of moment without laying down any guidelines
or principles or norms the power has to be struck down as being violative of Article
14. Accordingly in Air India case55 Regulations 46 and 47 of Air India Employee.s
Service Regulations and Regulation 12 of the Indian Airlines (Flying Crew) Service
Regulations were challenged as being discriminatory and ultra vires. The court struck
down the provisions as invalid, the same being violative of Article 14 and suffering
from the vice of excessive delegation of powers.
(x) M.C. Mehta v. Union of India56 (Strict Liability of Enterprise).—In this
case important questions of law relating to the interpretation of Articles 21 and 32
arose. There was a gas leak in one of the plants and a writ petition was filed against
Shriram Foods and Fertiliser Industries in order to obtain a direction for closure of
the various units on the ground that they were hazardous to the community and
therefore the same should be removed from their present place and relocated in
another place where they would not be dangerous to the health and safety of the
people. A three-judge bench gave its judgment on 17-2-1986 and allowed the
industry to continue. However, during the pendency of the petition there was an
53. (1980)2 SCC 478 A.S. 5,iniw,.ca Roo v. Slate of A.P.. (1981) 3 SCC 133.
54. AIR (980 SC (042.
55 Air India v Narpesh Mer?ei. (1981) 4 SC 335.
56. (1987) 1 5CC 395: see also (1986) 2 SC 176 & ((986)2 SC M.
I
201 POST-CONSTITUTION D
EVELOPMENTS AND RULE OF LAW
407
escape of oleum gas on 4-12-1985 from one of
the units and an application for
award of compensation to the victims of Oleum gas was filed. The following
questions were considered:
(I) Whether the application for c ompensation such as this could be made
at this stage. (2) Its scope and ambit under Article 32, (3) Whether a letter
could be entertained as a writ, (4) Scope and ambit of epistolary jurisdiction
and the locus standi in Public Interest Litigation, (5)
The doctrine of State Action
in America and its application in India, (6) The forward march of human rights
and the d e v
elopment of the new Human Right Jurisprudence, and (7) Strict
liability of the enterprise engaged in hazardous activities.
Question number I and 3 were answered in affirmative; regarding number
5
the court replied in negative but accepted that the American expositions may provide
a useful guide. After the historic case of Rudal Sah 51
this is another historic case
wherein the court awarded compensation for enforcement of the fundamental right
of life under Article 21. The Court expressed that throughout the last few years the
horizon, of Article 12 had been expanded. Its purpose is to inject respect for human
rights and social conscience in our corporate Structure. The apprehensions of the
defendants that this would give a death blow to private entrepreneurial activity are
out of place. Similarly in Ramana Shett y
a pprehensions were raised but he public sector
v. Indian Airport Authority 58 such
c orporations, were brought within
the scope and ambit of Article 12 and were subjected to the discipline of fundamental
rights. It is through creative interpretation and bold innovation that the human rights
Jurisprudence have been developed in our country to a remarkable extent and this
forward march of the human rights movement cannot be allowed to be halted by
unfounded apprehensions expressed by status quoists. However, the question whether
private corporation like Shriram would fall within the scope of Article 12 was left
open by the Court.59
Regarding the liability of the corporation for its hazardous activities if harm
results, the enterprise is strictly and absolutely liable to compensate all the affected
persons and the exceptions under the rule in Rylnds v. Fletcher 61
would not operate
here. The measure of compensation the Court held, must be co-related to the
magnitude and capacity of the enterprise because it should have a deterrent effect.
The larger and more prosperous the enterprise, the greater must be the amount
compensation payable. of
The judgment of the case is certainly an indicator of the trend of liberalisation

of locus
standi rules. Moreover the process has set in for making the fun
damental
rights under Article 21 applicable to private sector, with the assistance of public
policy doctrine under the law of contracts 6t
in the right to life . 62 and by including the right to livelihood
In the opinion of Dr. Jain the fundamental rights should be
57. (1983) 4 SCC 141 AIR 1983 SC 1086
(aJfirrned).
58. (1979) 3 SCC 489.
59.
For deciding whether a body is a state within the meaning of A eIe 12. test has been laid down in
Sam Prak/i Rekhj v. Union of India. (
198 1 ) I SC 449. Se Iso Dr
Tethno/o.y Bamlxyv. (19117)4 Reports (Del) 381 Wherein the id institute P. C. Join v. bid Insti of
instrumentality and hence a statutory authority under Art. 12 was held to be a st3tc
60. (1868) LR3HL33Q.
61. Central (i:/a,i4 Water case, (1986) 3 SCC 156.
62. Olga Teijis c ate. (1985)3 SCC 545.
408 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS ICHAP.
enforced not only against the Stare but also against a citizen, or a person or a private
sector so as to lay a firm foundation of human rights. We cannot permit private
corporations and the multitude of citizens and person collectively and individually
to flagrantly disregard and violate the spirit of the constitutional provisions and
flourish as an irnperium in imperie.
(xi) Central Inland Water Transport Corporation Ltd. v. Brojo Nath64
(Service clause held void).—In West Bengal State Electricity Board ," the Supreme
Court struck down a' service regulation providing that a permanent employee's
services may be terminated by serving three months' notice or on payment of a
salary for the corresponding period in lieu thereof. The provision was held violative
of Article 14 and was held void. It was a naked hire and fire rule viciously
discriminating. The Supreme Court, as it seems, has thought it fit to banish such a
rule altogether and very recently in Central Inland W.T. Corporation case it has
held that not only is such a clause violative of Article 14 but also void under Section
23 of the Indian Contract Act. Being wholly against right and reason, it is wholly
unconscionable and against public interest and public policy. The rule of law thus-
marches onward.
(xii) Shah Bano case
(xiii) Ma,7' Roy v. Stale of Kerala
(xiv) National Anthem case—see infra para 4 at (ix) for details.—See also
"Rule of Law" heading in Supreme Court Yearly Digest. 1994. p. 660, and the
following cases in the footnote.
4. Recent Developments
Amongst the new areas of legal development the main movements regarding
government liability for gross breach of fundamental rights, liability for return of
seized property, liability for performance of promises; the Social Action Litigation,
Lok Adalats and Legal Aid Programmes; The Consumer Protection Movement and
environmental control measures and the move towards a Common Civil Code are
worth mentioning.
(i) Government Liability for gross breach of Fundamental Rights: Com-
pensation eases—In an article by the late Shri S.N. Jam, Director, Indian Law
Institute it was submitted that everyone who successfully obtains a writ of habeas
corpus, a hoarder, a blackmarketeer. a smuggler or an anti-social element would be
able to assert a claim for compensation by way of damages for deprivation of his
personal liberty by the functionaries of the State, who appear to have acted either
in excess of authority or whose action was found not to be lawful.
63. Dr. I) C. lain: Case anal y sis. Art ith serlian. ([987) 14 Reports 289.91.
64. (1986)3SCC 156.
65. (1985)3SCC 116.
66. Suprrne Court. Advocates-an .Rpinrd ,tcsr: v Union oJintha. (993)4 SCC 441 (on appoinlilient of
Judges of the S.C. and the H.Cc ) Food Cospnraiion i/ India v. Kamdhenu Cattle Feed Industries.
(1993) I 5CC 71 (on principle of non-arbitrariness and rule of law) D. K. Yadav v. J.M.A Industries
Lid.. (1993) 3 SCC 259 (on principles of natural usbce) Niltibuti Betze,s, v. State of Oric.ca. (1993)
2 SCC 746 (on rights of prisoners and under trials and compensation); Vi na y Chandra Mislua. (1995)
2 SCC 584 (Contempt of Court)
201 RECENI DIVELOPMENTS-_t

OVT LIABILITY IN CONTRACT ANt) TORT 4()9
This very aspect surfaced III M. Hongray v. Union of Indid' 7 . An officer
attached to the Baptist Church and a Headmaster, in this case, were taken away by
Army Authorities for questioning and since then they were found
missing. In a writ
of habeas corpus the Authorities failed to produce them and also failed to offer any
rational explanation for their disappearance. There was thus a violation of Article
21 of the Constitution (deprivation of personal liberty and life) and a contempt of
court in not obeying the writ. The Supreme Court therefore ordered that the wife
01 each ci the persons be paid rupees one lakh by the Union of India. Violation of
personal liberation and unlawful detention compensated for the idea of awarding
compensation for violation of fundamental rights was invented and carried to new
dimensions first in case of Rude! Sah v. State of Bihar.
Findini that detention (14
years) of the petitioner after his acquittal by a court of competent jurisdiction was
wholly unjustified, the Suj5rcme Court awarded Rs. 35,00(1/- to Ruda] Sah as
compensation. In the opinion of the Court this was one of the lelline ways in which
gross violation of that right could reasonably he prevented and due compliance with
the mandate of Article 21 secured. This bold and bre.ak!JiiougIfcoin(hepistJiro
mcnt was still carried further in Bhint Sin/t V. State of J.K.
69, where the Court
awarded Rs. 50.000/- as compensat i
on for a five-da y detention of MLA for prevent-
ing him from attending (lie assembl y
session. Similarly court has awarded compen-
sation in cases of death in police custody, rape on domestic working women and
tribal wonlar while in police cuswdv and death of an army officer in mysterious
circumstances. It has thus upheld the rule of 1aw.
(ii) Liability of the Government in Contract and Tort—As
maxim that ''The King can do no wrong" is said before the
inapplicable in India, because its
existence and application is quite contrary to the Rule of Law. 7
' here the Union
and the States are legal persons and can be sued for breach of contract and for
committing a tor. They can file suits and proceedings can be filed
against them
Prior to coming into force of the Constitution of India, the Britishers ruled this
country. Britishers carried trade with India through the East India Company until
the East India Company was abolished and the Crown assumed direct responsibility
of the Government of India in 1858.
67. (1984)3SCc82
68. (1983)4S(_-C 141.
69. (1985)4,5CC 677.
70. Ni/bail Behra v. State ofOri.v..
11993i2 SCC746 (death in Police custody rule ofsovereig p immunity
nor applicable): Delhi Do,iuj she Workjn5 9/orneflc
F'rn-tim v. Union of Indict (1995) I 5CC 14 iiapc
of domestic working women ) P. Radfinam v. State jjj
Gujsraj. (1994) SCC (Cri) 1163. (tape of ii jOel
women in police custody, interim compensatior Rs- 50(00 granted) . Sawirider Singh
Death of 1994 SCC (Cri) 1464 (custodial death & compencaijon) : A r Grover Re,
(Police atrociiies...._Conlpencatlofl) . Chnruji Kaur (Snii) s. (mba i:jder5in1,,i t Dcigs, v Si. c[UP
of Army Officer). of India. (1994)2 SCC (Death
71. In England, wherefrom this maxim ori
g inated, the Crown Pr(xecdings Act, 1947. has now reduced
King's position to that of an oidinary liti gant. See
Garner. Administrative law. 985. 199
72. Stale of Raju.cilia,r v Vidrju 0 ij
ELc! India Co.. (. 1831 I sign. AIR 1962 SC 933 :962 Supp (2) SCR 741 citing Bunk of Bengal V.
Rep. 120 (Co liable to pay interest) Modol0y v Morton, (1875) I
Bra CC 469 28 ER 1245 (Co suh;cct to the tinsdctjon of the municipal Courts in all matters and
proceedings undertaken by the As
Sec also Join IALI!,m, Salt Wnrkc case,pnvate trading company.) Basu Administrative Law. 1986. 344
(1994)4 5CC I and N Nciee,th o Ran:ce. (1994)6 SCC 205
wherein the (iovcnentr liability in tort i s
Immunity.rmu explained rejecting the outdated doctrine of sovelcign
410 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS CHAP.
Previous cases show that the East India Company was liable in law as a private
person. The Supreme Court of Calcutta rightly observed and reiterated the above
proposition in Steam Navigation Co. case' s , that there is a grent and clear distinction
between acts done in the Exercise of what arc usua1v termed sovereign powers and
acts clone in the conduct of the undertakings which might he carried on by private
individual.c without having such powers delegated to them .74
Articles 294, 298. 299 and 300 of the Constitution of India recognise this
liability.
For contracts the Government would be liable if (1) it is in writing 75 , ( 2)
executed on behalf7 of the government b y a person authorised in this behalf, and
(3) is expressed in the name of the President or the Governor, as the case may he.
If this is not so, that is, if this mandatory requirements are not complied with, the
Contract would not be legal and cannot he enforced. Fernandez v. State of Koran.
taka78 supports this proposition.
'Ihe Government is also made liable under the principles of quasi-contract or
restitution. Putting the situation in a simple way the Government can be made liable
under Section 70 of the Indian Contract Act on the principle of Unjust Enrichment. 79
In B.K. Mondal case 0 the court observed that if it was held that Section 70 was
inapplicable in regard to dealings where officers of government enter into contract
orally or without strictly complying with the provisions of Section 175 (3) of Lhr
Act, it would lead to extremely unreasonable consequences and may even hamp
it not wholly bring to a standstill the efficient working of the Government front
to day. The Coo it said that in such cases the State Government, like ordinary citizens
is subject to provisions of Section 70. If it has accepted the things delivered to it
or enjoyed the work done for it, such acceptance and enjoyment would afford it
valid basis for compensation against It. Section 70 should be read as supplementing
the provisions of Section 175(3) of the Act.8'
In the area of contractual rights the Supreme Court will entertain petitions if
arbitrariness, absence of fair play and breach of the principles of natural justice on
the part of the government is proved. Mahabir Auto Store0 2 is a case on the point.
Here, the corporation suddenly and abruptly stopped supply of materials to the
applicant which was clearly against the principles of natural justice. Relying on
73. I'e,,insu/ar A Oriental .Steon, wi,i,'iitui,i Cov Secretar y u/State. (186!) 5 Bo in HCR App. I Bourke
AOC 166.
74. Id., 14 Kac,uriIal V Slate iij U. 1'.. AIR 965 SC 1039 (1965) I SCR 375.
75. Kariuns/zi v. State ofBomay. AIR 1964 SCD 4 (964)4 SCR 984, Unto,, of India v Ru/ui Rain. AIR
963 SC 1685 (19(A)3 5CR 164 i Unu 'a of/ru/ia V. N.K.(P) Lid.. (1973)3 SCC 874 AIR 1972 SC
915 Duyee,rv Garments Frtcu,r, V State of Reij<istht,n. (1970) 3 SCC 874 : AIR 1971 SC 141.
76. Bhikh Roj Jwpuria v. Union ufindic:, (1962)2 SCR 880: AIR 1962 SC 113 State of f0har v. Koran,
ChandThapar, AIR 19623C 110: (1962) 1 SCR 827.
77. Karwn.slu Jet/ia v. Suite of lJo,nbuv, supra: Davecs Garments I" for, supra.
78. (1990)2 SCC 488: AIR 1990 SC 958 Ruin Gajudliar v. State a] U.I. (1990)2 SCC 486.
79 l'rnsukhja Electric Supply Ci; Y. State alAsswn, AIR 1990 SC 123 i (1989)3 SC 709: Ma/iabir
Kishore v State of M./', (1989)45CC I: AIR 1990 SC 313 West Bengit! v. B.K. tilondal. AIR 1962
SC 779 (1962) Supp(I)SCR 876.
80. Supra
81. B. tiloncla/ case. 789 a! AIR. See also CJiaitii;bhüj VjtI,aldcri v tilr'reshwar Parasram. AIR 1954
SC 236 : 1954 SCR 817 (Observ:,iioas of Bsse, J. to this effect)
82. Maluth,r Auto Storer v. Indian Oil (.nrJu;ratlrin. (1990) 3 SCC 732 : AIR 1990 SC 1031.
201 RECENT DEVELOPMENTS—GOVT LIABILITY IN CONTRACT AND TORT 4 II

Raiihakrishna Agarwa! 83 the Supreme Court observed that every action of the State
organ must he informed by reason and if not in appropriate cases it may be
questioned, as in this case, as arbitrary and ma y be struck down because it does not
meet the test of Article 14.
These and other cases 8-; go to show that the law had brought the State activity
in contractual matters also within the purview of judicial review. This is but logical.
This position holds good in grant of Government largesse aIso.
So far as tortious liability is concerned the State had been held to be vicariously
liable for the lortious acts of its servants. It stands on the footing of two 'vel-known
doctrines : (1) Respoerlear Superior, and NO QLI1 facit per al/wa Jacit pet 'i
Social convenience and rough justice are the basis of vicarious liability. i/ic
Penn/solar and Oriental Steam Navigation Cu. v. Secretor,' of State' is the first
leading case in this area The Court in this case made the Secretary of State liable
for damages occasioned by the negligence of the servants in the service of the
government. The negligence should however, be such as would render an ordinary
employer liable.87
One may say that the classification of acts of the Secretar y of the State into
sovereign and non-sovereign acts was a misnomer and the meaning given to it in
//wi Bhanji case was a correct one. 11ciri B/tanji' case was decided by the Madras
High Court which held that the immunity (3f' the East India Company extended only
to what aie known as 'Acts of State" strictly so called. The distinction based on
sovereign, and non-sovereign functions was not well founded. Consequently, in
VOyawati ll it was held that the immunity based on the En glish law had no validity
i
in India. After independence there was no justification in pr nciple or in public
interest that the State should not be held liable vicariously for the tortious acts of
its servants. Thus the feudalistic notion of Justice that the ''Kin g can do no wrong''
was rejected by the Indian Supreme Court.
This development of law was unfortunately hindered by Kasrurilaf° case hut
subsequent cases91 point to a stand consistent with holding the State liable vicariously
for the acts of its servants. The Law Commission of India, in its First Report 92 has
recommended to remove this distinction which has no justification.
83. Radhakrrc/znaflgar,valv. Slate of Biljr (1977)3 SCC457 AIR (977 S( - 1490. Sec also E P. Rovapj'n
V . Stoic of TN. (1974) 4 SCC 3; Mnflek(, Uwidhi v Union t# India. ( 978) I .5CC 248 Ajv I/asia
V. Kluthd Mujib Sehravcjrd,, (1981)1 5CC 722 1?.U.S/trio v.
In(ernaij t,,ial Airport Au1Iy,rje'-/ of/ni/u,
(1979) 3 SCC 489 : Dwivkudijt Mai1aiza* 5on V. /t(iardt,f Tru,e ('f/be Port of Born/toy. (1989)
3SCC 293.
84 Shi,Iek/u, Vgd',j,rjj,t v, State .' ,f II - P . (1990)3 SCC 752 (per Mukhcrjee J.): SJ,rileklii, V,d3arthi
V .5 late
of U P.(l99I) I SCC2I2.
85. RD. Shelf)' case. upra
86 ( 1861) 5 Born HCR App I
87. Id. at 14.
88..Se(reO;r'' of 5/ice v. Hurt !jha!,jj, (1882) ILR 5 Mad 273.
89 State of Rajasthan v VifIvat i vi i . AIR 1962 SC 933: 1902 Sup1 2 SCR 741.
90 Kouri/ii! v State of U P. i'JR 1965 SC 1039 (1965) I SCR 375
91. S;.'te ol (;ujwtjt v Me,n ' w Mu/ruined Ilaji Ho,ta. AIR 1907, SC 1885 . (967) 3
SCR 938
Rosa' is: !'nI:I v Store rtfMvciire, ( 1977) 4 5CC 350: AIR 1977 SC 1749.
92. 1950. Liahilny of the State in tori.
412 TILE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS ICFIAP.
The recent judicial trend is undoubtedly in holding the State liable in regard to
tortious acts committed by its servants) These acts include police brutalities,
wrongful arrest and detention, keeping the undertrials in jail for long periods,
committing assault and or beating prisoners etc. In suitable cases compensation has
been awarded. Thus the test developed, in words of Professor Friedmann is
"The proper lest is not an impracticable distinction between governmental and
non-governmental function, but the nature and form of the activity in question" .2
The State is also bound by the statute, as decided in Corporation of Calcutta
(II) case. 3The Common law rule in England that the State is not bound by a statute
is not only archaic but incongruous at any rate after January 26, 1950.
(iii) Doctrine of Promissory Estoppel : Traditional view given up.—A
marked development is reached in case of the doctrine of promissory estoppel.
Estoppel is a concept of Common Law. Equity Courts developed it. It is a
principle which precludes a party from alleging or proving in legal proceedings that
a fact is otherwise than it has appeared to he from the circumstances. Doctrine of
estoppel came to be expressed in two forms called "promissory estoppel" and
"proprietory estoppel". The doctrine of "promissory estoppel" is known by various
names: promissory estoppel, equitable estoppel, quasi estppeI, or estoppel in pais(by
conduct).5
Often described as a rule of evidence, inure correctly it is a principle of law6
and justice here prevails over flutli.
Originated in equity, first pressed into service by Calcutta High Court' in 180
and thereafter by the Supreme Court of India in 1951 and onwards till today the
doctrine has been applied in various cases and fields, especially in the field of public
law. Its starting point may be considered to be the case of Collector of Bombay v.
Municipal Cop& of rue Cii', of &rnibayt.
The essential elements of this doctrine are
I. Sahe!, v. Police Comrnr.. Delhi, (1990) 1 5CC 422. AIR 1990 SC 513. PUDR v, Police Cwnrnr..
Dell,!, (1989) 4 SCC 730 Pia)ipu ihakur v. (lair,,, t t/ fsi iJia. AIR 1986 SC 1199 Keidrel Pcthadi ya v.
S(r,te of Bihar, (1983) 2 SCC 104: AIR, 1982 SC 1167; Khiii,i v. State of Bihar. (1981) I SCC 627
AIR 1981 SC 928 5thçti;j V. Union o/ind,a, (1984) 3 SCC 82 : AIR 1984 SC 1026: Iludal Shah v.
Slate of LOhr,r, (1983) 4 SCC 141: AIR 1993 SC 1086 Sour ol Har ywu, v Durcluirw Devi, (1979) 2
SCC 236 AIR 1979 SC 855 Rajasthan Saiie Rd. Transport Cnrp;i. v. Nartun Shw,kw. (1980) 2 SCC
180 AIR 1980 SC 695 Union of India v MoM. Nathn. (1980) I 5CC 284 : AIR 1980 SC 431:
Shvwn Sunder v. Suite of Rujasihw,, (1974) I SCC 690 AIR 1974 SC 890 Vet',',,, Shethi v. State
of
fithar, ([982i 28CC 583 AIR 1983 SC339 Sheet" Liaise v. Union of India. (1985) I SCC 41: AIR
I3 SC 1 995 : Sf,eela liw'.ce v. (J'iiw, of itu 6i, (1986) 3 5CC 596 : AIR 1986 SC 1773 POOR v.
State of Bihar-. (987) I 5CC 265 : AIR 1987 SC 355,Hucsainara K/,woon v, State of 8,/tar. (1980)
I SCC 81 AIR 1979 SC 1360 Sunil EIa,'ra (ii) v. Detlu Adrnn.. (1980) 3 SCC 488 AIR 1980 SC
1579: (1980) 2 SCR 557 Manna v. Suite e4 U. P.. (1981) 3 SCC 671 AIR 1981 SC 939.
2. Friedmann : Lan &Socuil Change, 271
3. Supdr. and Re,nembrwu era! Le,t,'til ,tdir.s. W. B v. Corporation of Calcuuc, (II). AIR 1967 SC 997
(1967)2SCR 170.
4. Director of Rationing v. Corporation of Ctdcuttu(i). AIR 1960 SC 1355: (1961) 1 SCR 158,
S. For details see Gandhi B. M. : Equity, Tnrcts and Specific Relief 2nd Edn., 1993, 45 to 52.
6. Erpress Newspaper Pet. Ltd. v. Union of India. (1986) I SCC 133
7. Gwipes Mft'. Co. Y. Sourujtnu/1, ILR (1880) 5 Cal 669.
8 AIR 1951SC469:.1952 SCR 43 :54 Bojp LR 122.
201 RECENT DEVELOPMENTS—GOVT. I JAR!! .ITY IN CONTRACT AND TORT

413
(I) There must be representation by one party before another; 9 (2) The other
party must rely thereon'°; and (3) must act to his detriment relying upon
the representation, Ii
After Motilal Sugar case the principal has been extended to various fields in
order to do justice.12
Overruling Jo Ram cate' 3 , Moiila Sugar" put
the law of promissory estoppel
on sound basis, establishing that the application of the principle is a necessary
instrument in the hands of the court to control arbitrary exercise of discretion by
government departments. The Godfre y Philips case' 5 hears great importance for it
not only applied the doctrine but reiterated that
besides a weapon of defence it is a
weapon of o ft e nce. It is now no' univ a shield but a stvo/-c/ too.
The narrow and
technical approach to the doctrine which was encouraged by its rather misleading
nomenclature is now cast off and the doctrine has now full play. Its powerful
exponent was, Bhagwati J.(as he then was))" The doctrine is a significant judicial
contribution towards the rule of law.
(iv) New Enforcement Direction The Ratlam Municipality case'8.—The

dynamic approach is also seen in the Rt/wn Mw:uipolirv case
wherein the Supreme
Court did not accept defence of the municipality that it had no money to chalk out
a plan to remove a public nuisance, The Court observed that the dynamics of the
9 ManIa! Padati;piii 5n rijr Mills C.-i [Al v. Sian' nIt! P . (1979) 2 SCC 1tt9, 4"4
ID. V.P. Kohl, v. Alai Products Lid., (1985) 2 SCC 77 Delhi Cloth t Ge,i. MilL (i Ltd. v Rojasihwy
SE. 13d., ( 1986) 2 5CC 43!.
II Sails!, Sabharwaf V . State o,t Mtthrusl,ira, (1986) 2 SCC 362
12. Century Spinning and Mfi'. Co. Lid. v. (Jlluccnagai' Mwiirjpa/ Council. (1970)1 5CC 582 (applied to
municipality) , 11 han Sutgh v. State of Harwi,,a. (1981) 2 SCC 673
(to cxeuuij yefunct jui,s of the state);
Koihn,t Oil Prod In/.v Co. : Rajkni s. Goill ot Gujarat. AIR I 982 Guj 107 (1.0
adrnitijctatice diiecijü
and orderst HtJr,lIe,J,iljl s GD. Taiiiise. AIR 1982 P&H 439
'Jo uliiveIchje,', Alnni Naga, Go.op
Ho—e A/rig. Society Lid. v State , if Punjth. AIR 1979 P&1-t 196
(to a trust) Ronw Nat/i Pit/al
Sian' of A'eraja, (1973) 2 SCC 650 (where there is manifest injustice)
Gujarat State Fliwnijal
Corporation v. Lotuc HoteLi Pet. Lid., (1983) 3 SCC 379 (to financial corporation)
Sans/i .Sabhan-wa!
v State of Ma!,ijra.chira, (1986) 2 SCC 362
(applied to a land case, Compensation and Interest on
iflVCStfllcni) Garments mnienununuil P't. Ltd. v. Union of ladle',
AIR 1991 Kant 52 (applied inexpert
assistance scheme announced by the Central Government) Suryo NOrCJUI )'cidav
V. Bihar State
Eiettn ity Boat,]. (1985) 2 SCC 38 (in ease of service jurispiudejice):
Philip 5 India Lid., (1985) 4 SCC 369 Union a/ India v. Godfrey
(in case of charging excise dulyo on sec ndary packing) ; Express
Newspapei.r Fy i Lid v. Union of India. (1986) I 5CC 133
(decision taken by Minister of previous
government binds the successor government area of Administrative law) .Sureshk,!, (1983) 2 5CC
445 to education) Del/ti Cloth & Gen. MiI13 V. Union of
India. (1988) I SCC 86 (to Railway
department). Tare ' Singh v. KehnrSinglm, (1989) Supp SCC 316: AIR
1989 SC 1426 (Grant of Land)
V,j Resi,rr (P) Lid. v. State of j. & K.: (959)35CC 115
Gctting up of industry): Acltnk (J,wzd v. Uni
of Jodhpur 1989) I SIT 399 (Admission granted by misike) : State fM. P. v 0nt Puj 'er Mills
(1990) I 5CC 176 (Pa y ment of electricity dimly) Ascii. Commr. of C. T v, D!wro,en,f,tj Ti-rig Co
(1988) 3 SCC 570 Pine Chemicals Ltd. v. Asces.vmng Author/is'. (1992) 2 SCC 83: T/u'atrc Soogmeslt
v. Entertainment Tax it))-. Comm,., Kurtwo/, AIR
1993 AP 137 (Principle does not apply) : Mi s.c Rita
v. Behrwnjszgr tin,.. AIR 1993 On 27 Education - Benefit
of the principle extended in peculiar
CmrcuIns(ance'i) ; Tv/ak Chi,,-a Mundal v State of U P.. AIR 1993 All 30 (Principle where not
applicable): A. J. lot' v. Go'i'i. of Twnil Nodu. AIR 1993 Mad 282
(principle does not apply to change
Of governnient policy iade in larger public interest).
13. iii Rant .5/nv Kuinar v State aJ Hari,a,w (1981) I 5CC II
14. Supra.
IS Supra
16. Supra, at 442-43.
17. Home .Seuerw7' U T. Chandigarh v. Dar.c/lj i i Siugh Grewt,I, (1993)4SCC 25
IX. 1980 SuppSCC 598. (Education)
THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS tCHAP.

4 14
jurisprudential process has a "new enforcement" direction") not merely through

some of the provisions of CrPC 20 as here but also through activated tort conscious-
ness. Similarly in L.R. KaolwaP' it had been reiterated by court that sanitation and
clearing of public streets are the primary duties of a municipality which its bound
to perform. In carrying out these duties paucity of funds or staff is no ground for
its non-performance.
(v) Public Interest Litigation.—From what has gone before and from the
landmark cases which are but samples, it would be easy to perceive that the Courts
are moulding their interpretation for the protection of fundamental rights of citizens
by establishment of the Rule of Law which is the backbone to a democratic system.
The Supreme Court and High Courts treat letters from citizens as writ and try
to give speedy justice. It is also called Social Action Litigation (SAL). The heart
of the SAL proceedings in the words of Dr. Upendra Brtxi is rather "that gross
violation of fundamental rights that has actually occurred in the exercise of state
powers, either by commission (repression) or omission (lawless disregard of statutory
or constitutionally imposed duties). The facts relied upon initially by the SAL
petitioner, in most cases, are as stated in the Press. And the SAL petitioner is himself
often not the victim of repression or lawlessness, but a public citizen". This
movement has the blessings of the Supreme Court and High Courts and Chief Justice
Bhagwati, Justice Krishna Iyer (retired long back) and others are its exponents.
According to Dr. Agrawala, 'Perhaps, the concept of SAL (without giving it a
nomenclature) was initiated in India by Krishna Iyer J. in 1976 in Mumbai Kamgar
Sabha case 22 wherein rules of standing were liberalised. Krishna Iyer J. for the first
time used the word epistolary' jurisdiction." The Gujarat High Court through
Justice M.P. Thakkar (now Judge, Supreme Court) has been a pioneer in this
connection.
This type of litigation is not limited to Habeas Corpus petitions but it has been
spread in all directions where gross violation of rights occur.
Public Interest Litigation is a novel feature and a new chapter in Indian Judicial
System. 23 As observed by Bhagwati J. in the Judges' Transfer case 24 "It is ..... a
new jurisprudence which the court is evolving, a jurisprudence which demands
judicial statesmanship and high creative ability. The frontiers of public are expanding
far and wide and new concepts and doctrines which will change the complexion of
the law and which were so far embedded in the womb of the future, are beginning
to be born". It is thus a highly effective weapon in the arrnoury of the law for
19. Arts. 38 & 47, Constitution,
20. IPC, S. 188 & M l. Municipal Ad, S. 123.
21. LR. Koolwat V. .5rO1e of Rujaczhan. (1987)4 Reports 53.
22. Mwnbai Kwngur .tithha v. 4bdulblwi. (1976) 3 SCC 832 his other important decisions in thi s area
are: Suni(Bwru v. Del hifldmn., (1980)3 SCC 488; Municipal CounciL RaiIa,n v. Vardhi hand, (1980)
4 SCC 162 ,Akhil Blwruuyu Sothis Karntochari Sang/i v. Union of India,' (1981)1 3CC 246 Fertili7er
Corpit. Kain,e,ar Union v. Union of India, (1981) I SCC 568 : AIR 1981 SC 344 ; Arad Rickshaw
Pullers' Union, Amritsar v Suite of Punjab, 1980 Supp SCC 601 ; see S K. Agrawala : Publication
Inlere.ct Litigation in India. 1985, 8.
23. See Balancing the Scales of Justice--Financing Public Interest Law in America (A Report by the
Council for P.I. Law (1976). 6,7 quoted by Prof. S.K. Agrawala : Public Interest Litigation in India,
A critique. 2.
24. (1981)Supp SCC 97 (219).
201 RECENT DEV

LLOPMENTS_ PUBLIC INTER EiT I ITIGATION
15 4
reaching social justice to the common man. Role played by the court is more
assertive here it is creative rather than passive. The traditional rule in re
locus standi is becoming obsolescent and the principle is broadened.25 g ard to
Ilusainara Kha too,, v. State of Bi/zar, Upenrira Bw.i v. State of Uttar

Pradesh 27 . ch,nna,n,na Sodas v. State (Delhi Adfljnjs(rQ(j(,r,)2S
student of a 3rd
Law of Delhi Law Faculty and a worker suing as SAL group;
v. State of Thha 9 Kadra Pcthadiva
(ynune tribais growing up in Sub-jail, awaiting trial) Association
for Social Action and Legal Thouhi (Assalt) V. Slate
of M.P.-`) (pctition by Jaw
teachers' group for inhuman torture of young prisoners in Chhatarpur Jail) ;
Rickshaw Ped/ers V. State of Pun/n631 , Azad
are some of the instances
Three principal groups are workin g
for SAL: Citizens For Democracy (CFD),
The People's Union of Civil Liberties (PUCL) and The Peoples Union Ir Demo.
cratic Rights (PUDR).
In A. V. iVacha,,e V. Union of It dia 32
, Begul/a B. Raju v State of A.P. 33 and
Olga TellR v. Iiornbo' Municipal Corporation 74
the Supreme Court has ruled that
right to life includes right to livelihood. The defence of necessity was explained by
the Court. This is a new and dynamic interpretation hy the Court in public interest
Justice Bhagwatj gave a conlprehensis;e exposition to the concept of SAL in
Gupta v. Union of I,idia 5 , while in PUI)R S.P.
v. Union of India known as ''Ajd
Case", he observed that the Court would be moved for this put pose if wily a letter
is addressed to it drawing its attention to legal injury. The Court is thus concerned
with little man'' 11. In R.L. & E. Kendra. Dehradun v. UP
ordered the closure of all but ei g the Supreme Court
ht limestone quarries becausc,of the reckless
destruction of the habitat and the grave ecological imbalance it produced. Similarly
for the cause of old and infirm retired pensJoners, for the release of bonded
labourers working in Stone quarries, 40
compensation, 4 against unjustifiable police atrocities and for
' against ragging a junior student of a medical college. 42 against the
practice of issuing promulgation of Ordinances on a large scale which
fraud on the Constitution o f India, amount to a
against police brutalities in jail. for causing
25. PU!)!? v. of(Jiiw,,
India, (1982) 3
20. 19 0 S Ct.: (Journal) 35. SC 235 AIR 1982 SC 1473.
27. (1983) 2 5:.0 308.
28 WP.2526011982
29. W 5943 of 1980
30. W.P. 8332 of 1981
31. 1980 Siipp SCC 601.
32. (1982) I SCC 205
33. (1984) I SCC 66.
34. (1985)3 SCC 546.
35. 1981 SUPPSCC87
36. ( 1982) 3 SCC 23.5
37. See also Bihar Legal Suppar,
Sn(jc' v. chief JUSIILC i
(Court is conccrncd with small men'' us much as 'f /'idia. (1980) 4 SCC 767 : AIR 1987 SC 58.
''big industrial itc'' ).
38. (1985)25CC471
39. D.S. Nakara V.
IJnjr,, uf/nd, (1983)1 5CC 305: AIR 1983 SC 130
40. Bw,dhn Mu tt, Mrirchc, V.
41. I'Ll!,!? v. Svne of Thh,j, Come btdm (1984) 3 .8CC 161 : AIR 1984 SC 802
42 501e if lIP. V.A Pare,,, (1987) I .8CC 265: AIR 1987 SC 355
4 yo SttuiCflf
43. D.0 Wad/,a v. State of Th/ . of Med,ta! College 11985) 3 SCC 169 AIR 1985 SC 910.
(1987) I 5CC 378 : AIR 1987 SC 579
44. San" Bairn (II) v. Delhi Ad;i,,i (1980) 3SC 488: AIR
1980 Sc 1579.
416 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS (CHAP.
irreversible damage to the patients in an eye camp, 45 for "need for immediate help
and relief to the victims" of the Bhopal Gas Leak Disaster, 46 and for issuing a
direction to the Government that every injured citizen brought for medical treatment
should instantaneously be given aid to preserve his life and only thereafter the
procedural criminal law should be allowed to operate in order to avoid negligent
death of injured, 47 a petition can be filed and writ or an appropriate order can be
issued-
In some cases exemplary costs" and provisional compensation 49 have been
awarded. The concept though a latecomer, as compared to the American concept of
Public Interest Law is moving slowly but steadily in the direction of awarding
economic justice. The courts by their judicial activism 50 are trying hard to mould
their exposition and Interpretation of law in such a way as to fulfil the Directives
contained in the Constitution of India which in fact asserts the Rule of Law and
predominance of legal spirit. A silent social revolution with a new kind of
enforcement of economic rights is thus supporting and expanding the Rule of
Law.
(vi) Quality Control Measures and the Consumer Protection Movement.—
The quest of the State is the welfare of inhabitants within the country demanding
statutes which have consumerist orientations. Thus, the public controls on the
freedom of trade assume greater importance and various legislations aimed at the
Consumer Welfare have taken shape. Quality control is one measure which aims at
consumer protection and the producer welfare too.
During pie-independence period certain lawsSt were made in this direction but
they served only a limited purpose of service to people and the major beneficiary
was the British colonialism.
The post-independence economy being a shattered economy full of deficits, a
number of important legislations 52 have been passed to protect the consumer interest
iii a big way.
The concept of quality control 53 received significant attention during the British
rule in India and the AGMARK impressed under this Act has now become a mark
45. A.S. Mimi! v State of UP., (1989)3 5CC 223 : AIR 1989 SC 1570.
46. Clwrwiial Set/mu v. Union of India, (1989) 4 SCC 286: AIR 1989 SC 2039.
47. Porwnanand Kamara v. Union of India, (1990) I SCC 613. See also Ki.vhcn v. State of Orissa. 1989
Supp (I) SCC 258 Sanjay Suri v. Delhi Athmj., 989 Supp (2) SCC 511 ; Shea Nandan Paswan v
State (i/ Bihar, (1987) I 8CC 288 : Shivaji Ilno Pad! V. MM, (,otcivi. (1987)1 SCC 227.
48. Devki Namlaim Prasad v. State of Bihar, (1983)4 SCC 20; Stha.ctin v. Union a/ India, (I 984) I 5CC 82.
49. Rtrdal Sah V. State u/Blimp, (983)4 SCC 141.
50. Francis Corulie Mt Ira v. Administrator, Union Terriusy of I)ellii. (1981)1 SCC 608 (right to fife-
include.,; the right to live with human dignity) Dr. P N. Thwnpv Them-a, (1983) 4 SCC 598 (right to
Life connotes not merely animal existence but the finer graces of human civilisation) ; Baa rd of Trustees
of the Port of Bo,nba-m' v f)riip R. Nadkarni, (I 83) I SCC 124 ; Dronwnrciju Sat ywwruyana v. 4V.T
Rami, Rao, (1988) 20 Rep (AP) (SpI Bch) 128.
51. Poison Act. 1919 ; Sale of Goods Act, 1930: Agriculture Produce (Grading & Marketing) Act, 1937
Defence of India Act. 1939; Essential Supplies (Temporary Powers) Act, 1946 1etc.
52. Forward Contracts (Regulation) Act. 1957 the Emblem & Names (Prevention of Improper Use) Act.
1950 ; the Drugs Control Act, 1950 ; the Indian Standards Institution (Certification of Marks) Act.
1952, the Prevention of Food Adulteration Act. 1954 ; the Essential Commodities Act, 1955 the
Standards of Weight & Measures Act, 1976: etc.
53. Based on "Role of Quality Control Legislations in Consumer Protection- by Pandey & Khanorker,
Legal News & Views. (1993). Vol. VII, No. 9.299 to 306.
201 RECENT DEVELOPNI ENTS—CONS LIM Fp PROTECTION MOVEMENT

417
of quality. The AGMARK 54 has thus a direct hearin g
with the consumer protection
by working as a third party guarantee of
quality. The provisions of the Export
Inspection (Quality Control) Act. 1963 further strengthens this standard.
Besides the Agricultural Produce (Grading and Marketing) Act the Prevention
of Food Adulteration Act, 1954 (protecting the consumers against the menace of
sale of
sub-standard edible items), the Essential Comniodjus Act, 1955 (securing
equitable distribution and availabil i ty of the essential commodities
a fail- prices in
the interest of the general public, i.e. consumers), the Food Products Order, 1955
(ensuring production of qualit y products of trui and
v e g etable products), the Cold
Storage Order. 1961, (ensuring hygienic and proper r
efrigcrati)n conditions in cold
stores). the Meat Food Products Order. 1973 (aiming at hygienic production and
maintenance of control in slaughter), the Monopolies and Restricti .
e Trade Practices
Act, 1969 (known as MRTP Act) (ai moo at the ideal that the opel-union of economic
system does not result i r the concciliratjijn of economic over to the comnhtrit
detriment) etc. are the public oel6src measures. Similarl y
the Standard of Weights
and Measures Act, 1976 and the Standard of Wei g
ht and Measures (Packaged
(ominodities) Rules, 1977 ensure correctness of
weights and measures The Bureau
of Indian Standards Act, I 96 aims at pt >)rnot hg harmonious de
v elopment of the
activities of slandardisa(ion. markin g -57
and quality certification of goods and its
related mnal.teN.
In spite of Iie'sc measures the iltcrest of the coicume rs were not satisfactorily
protected and under lhc;e legislations the onus for redressal of
the gries ances lie
on the Authority enforcing or implementin g
the Act. With increasing awareness, it
was felt necessary to have the participation of the consumei-s therriselves
process of in the
consumer protection. Consequently the Consumer Protection Act 198()
was passed to Provide better protection to consumers 'this aim is sought to be
achieved through a establishment of
the Consumer Protection Council at the Central
and State levels and Consumer Disputes Redrcssal Agencies at the Central, State
and district levels. The obects of
the Central arid State Consumer Protection
Councils are to promote and protect the ri g hts of the consumer
54.
So far 101 commodity gradinsI. and marking rules covering about 142 commodities have been noiiflect
uridcr he Act. gliec & butter, seg etirhlc oils, ground spices, honey. wheat,
a commodities 00 0 & K V.1 are soirif
eo
thernpoi iii
55.
This tisgislatiomi essentially wu.c replacemeni. folrime earlier tegisiauioti'; in ilie series.. ir
India Act, 939 and Essentt:il Suppl y (O'rnpurary Powers) Act 1916. Dehsimcc of
56. The Act has been ii mended in 1984 and 1986.
57.
The confusion between 1St mark and AGMARK need not exist because thc former is applicable in
articles arid processes of indusirmal nature. whem-eas rho la tt
er is exclusively for raw and cetrri-proccsced
produce of agriculture, 1101-liCUNUIC. forestry. etc.
58. These lights are
(I)
The right lobe piliceted against the marketing of goods which ale hazardous to
(u) The right to he irifoi mcd about hIre quati ry, quO iii lifeand properly
ty. potency. Pilit'-y. stdai U and price of goof I'.
so as to he aroleetmi against urilamr trade practices
(hi) The right to be assured, w
herever pos sible io have smccer.s to a variet y
prices of goods at eotimpemiti s-
(ii') The nghm lobe [Ic a rd
and to be assured thai coflsUtl>er.s Interests will reecho the c
appropreite foruim ma oiisrderation ;ii
(v}liie might iciseek redressal againsi unlair I rode pracilecs or unscrupulous OSploit.lijon l
and S fconcmirmtrs
WO The tight to consumer educ,;mi:;
THE RULE OF LAW ArID CONSTITUTIONAL DEVEI.OPMENTS (CHAP.

418
The Consumer Protection Act, 1986 offers an organisational set up to the
consumers at national level, state level and district level to redress their grievances.
As per recent amendment consumer organisations cart now file complaints in the
courts. "Consumer Cells" established at various leveLs in an organiSation attend to
consumer complaints.
The message for consumer welfare is being brought home to masses through
various publicity rreasures. However, this is not enough. These efforts require
acceleration.
To supplement the Government efforts, the Consumers have organised and
formed a strong force to work as a watch-dog for efficient serving of their problems.
th court ordered
In the case of Lucknow Development Authorit y v. M.K. Gupta 59
the State to recover the amount, paid by the State to the aggrieved person, from the
public servant whose rnala fide and oppressive acts gave rise to such a liability of
the State. The Court expressed that the Consumer ProtectiQo Act, 1986 has to be
construed in favour of the consumer to achieve its purpose as it is a social benefit
oriented legislation. This strengthens the Rule of Law.
Medical Profe ssion and the Consumer Protection Act

A question most vigorously urged by the medical profession ail over India is
that they should not be covered under the Consumer Protection Act as the services
rendered by them are not commercial.
There are now scores of cases 60 regarding negligence of doctors. Numerous

cases'51 have been filed against doctors for negligence. The NCDRC in 1986 held
that the doctors were covered under section 2(o) of the Consumer Protection Act,
1986 . 62 The decisions of the various forums are however not untt'orn.63
As observed by Justice Aladi Kuppuswarni, a balance has to be struck between

the right of the patient to he well attended to, and the duty of the doctor to show
59. (1994) 1 5CC 243.251-254, AIR 1994 SC 787.

60. (1) The Andhi'a Pradesh State Consumer Forum awarded a compensation of Ps. 9.70.000 to one P.
Rama Laxmi. She was wrongly operated For cyphitis in the uterus by the doctors : Guarat
Sammiachar Daily. 181h June, 1992.
(ii) The Mahrrmachtra State Consumer Furman ordered two doctors at Rombay to pay Ps. 7 litec as
compcnatmon to one Arvind Kuirir- S Shah After operation the patient to this case lievem regained
consciousness. All comnplainis tirade to tndian Medical Council, the Mahara'htra Stair; Medical
Council & Medical Councilofindia fell on deaf ears: GH 1 ratSamachar Daily ill 171h July. 1992.
(iii) Dr. Stidhanshu Baitach:irys of Municipal Ralavada Hospital. Hornhay was inude in pay
compensation to a boy- palient for operating on a wrong leg Gu i rai Sairiaehar. di. 17th July. 1992.
(n) On' t)ilip Sen's wife at Calcutta was crib jected to a fcr' iltiy lest. Shc was given anaesthesia. After
2 hours she died. Mr. Sen Filed complaint and demanded Rs. 25 lacs as compensation India
Today, June 21, 1993 Doctor, heal thyself, 26-29.
61_ In 14 District Forums of Kerala. There are 1801) such cases. In Tatnilnadu amid Maharashtra. 100 cases
in each are pending Case for coinpensalion above P.c. 10 lacs before National Redressat Comitussion
are 30. The biggest case from view point of compensation is a complaint from Amritsar wherein
compensation of Ps. 3 crores is demanded.
62. India Today, June 21st. 1993. s upra. Doctors held liable : D.P. !Thzindaii v. Gan ,enrwn Hosptiu!. 2
(1991) CPJ 409 ; Va.cnntIra P. Nwk v. Cosmopolitan Hospitals, 2 (1991) CPS 444 Mnpcina v. Dr.
Prernav mi/u Dnsmpu. 2 (1991) CPR 460 (Mad). Doctors not held liable . Sub/ins/i A Panelyn v. Seer..
Baroda City Cult runt US t.toC,iffiOrt. 1991(2) CPR 537 ((jiij); Y. .iinaksh v. U.N. Ntndis1u. 2(1991)
CPJ 533 (Karnataka) , Moribal Dabri Ho.cpixuml Y. A1.1. Gujs'ilkur. 2 (1991) CPJ 684.
63. 1b14.
201
RECENT DEVELOPMENTS—ENVIRONMENTAL CONTROL MEASURES
419
due care to the patient.
He said this while inaugurating a seminar on "medical
negligence and C.P. Act" at Hyderabad, recently
Since the medical and legal professions are interconnected Justice Kuppuswamy
suggested the basics of law should be included in the medical course and vice versa.
He also said that the judicial system
ill vas not in favour of poor litigants as
it was cart-heavy ti ne . con.rwnu,ig and wrcerlain. In America. the law was more n
favour of patients, whereas in UK. it was more in Civour of doctors. Specialists
have therefore a greater duty than the general p r
ski! actitioners, as they possess to
Government HospiljsfA
and the Consumer Pr otection Act : A
disappoi,ztnz ell i
Senice.c rendered free of ch arge, in g o v
ernment hospitals do not come within
the sweep of the C.P. Act.
A high powered workin g group has recently su
g gested to bring the government
hosr)itals under the Act b an amendment of the Act, but the cabinet reportedly
struck down this particular provision
It is suggested that there Could be a rrioratoriunl for 2 or 3
tation of the r y ears on implernen.
ecommenditions of the high-powered working group. This device
would keep the pressure on g l
ivcrriinen( hospitals to improve their services within
a limited time-frame
ft is now left to the collective wisdom of
the uf the Parliament to
decide whether the poor, who may be victims of medical negligence, deserves any
justice and compensation at all."
The consumer protection move,iwnt in India thus slrengthens the Rule of Law.
(viii Envirrinmetit t i Control
Measu res._Seetjf) 2of thc En
tectioii) Act, 1986 defines 'en v im - vi 1-01) (Pro-
onmert'' 'environment pollutant" "
tal pollution'', ' 'ecolog y '' etc. env ironmen-
The problem of env

ironn1entil pollution is as old as human civilisation A vivid
prctwe of remedies thereof is g i v
en by our ancient Sanskrit l iterature. 69
'Sniritis''
of India have specific provisions to ensure the purity of water.
The problem Of pollution is the outcome of urbanisation,
ind ustrialisation. The IP.C. has a few pro ov er-population and
v isions oil Subject, but when faced
with such a giant problem its piovisnons are felt ineffective
Water pollution fir-,St
attracted attention of certain State legislatures and it was only in 1974 that a Central
Act was enacted to combat pollution. This was followed by the Water (Prevention
and Control of Pollution) Cess Act, 1977 and the Air Pollution Act. The latest and
the most drastic law oil subject is En v
------------ ironment (Pro(ection) Act, 198(.
64. Lceii News & Vicwc . 1991. Vol VII. No, 5. Ma
y 993, 180
65 1bi1 Arid this is what ihc -Law of Nedi9enc" says
66 Legal Ncws & Vicwc, 1993 Vol
VII, No 4. Apr. 1993. I 13-I 35
67. Prihp (;nmaj'iiin
0000 ' q Off the Hook" LN&V. 1991, Vol
Concuuiier Proiccijon Act Aiimndiii.ri VII. No 4. i13-35 The
(Apr. 1993). t Hill iii he current sessi Q n of the Parliament
Parliament is awaiting us erriry
68. Armin Rosencranz [3iwan & Noble:
E) i vii g ,n,ne,i,a! Lent- A P011-v
69 " Env ironmental Consc in India 199t Edn Cli I.
Univers ness and Conulnuing Education, 1 io8. publishct - South Gujarat
ity, Surai, See
in Europe aand Ainenca nO,, J m & lain EnI(rufl,,,,',!,,,f Le,is-s 6i India_ 563-4 for details this problem
ICHAP.
THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS
420
It cart be safely said that most at the pie-19 ' O "environmental cases'' were
either actions in tort or standard agency prosecutions under environmental statute
and were therefore unremarkable. They also (lid not receive any special protection
tram the judiciary. But the latest enactrneriL Environment (Protection) Act, 196,
was the result of a necessity felt by the government on account of two catastrophes
that occured in 1984 and the leakage of oleirn,
that befell India the Bhopal Traged y
gas in Shri Raw Fe,iiliser Plant in 1985°
The Oleuiii g as leak provided an opportunity to the Supreme Court of India to
enunciate certain important doctrines on tort law and corporate law (particularly, the
civil liability of directors for wrong commuted by the Corporation).
These developments are quite important and the process. one should say. is
from completed. The spate of new laws, as observed,"cover hitherto unregulated
fields, such as noise, vehicular emissions, hazardous wa1e, hazardous rnicro-nrgi'IPI-
Cost of non-compliance with these
ism V and (lie transportation of toxic chemicals.
laws has been raised due to stringent penalties. The En vironment (Protection) Act.
1986 IS not just contined to wv particular eleiiieiu; it deals with every aspect of it.
insecticides
Legislation of protect tvil d - lift, has also been enacted. The use of
and pesticides is also regulated by se-palate laws. State laws also e.ist to regulate
pollution. To combat pollution some provisions of the I.P.C.. Cr. P.C. C. P. C.
and Law of Tort also cart help.77
One may say that' a uuvernmental effort to ight the pollution with an array
of new regulatory techniques is discerned ill new laws.
Ent'orccmerit strategy for these laws is changed in such a way that the burden
of initiating a court action now rests on an aggrieved polluter who must challenge
the enforcement agency'S order in court. Consequently, from a lawyer's standpoint.
the agency merel y has the task of detending its administrative order.
A marked change in the enforcement of environmental improvement is the
Ganga Action Flail - a gigantic project to restore the quality of the water mu the
will-
river Gan-a. This non-legLVlatt'C' rtl(tU11il'C sugge.st.s the Central governhilents
ingness to support result-oriented schèrhes when the implementation at c[tvi:'oflrnefl-
ml taws has been slack or ineffective. The new legislation has spawned new
enlarcemeit agencies ` and strengthened the older ones.
Deliradun Quarrviiig
The judicial role is also remarkable during past years. In
cifse ,5 by appointment of several expert comutittees the Supreme Court supervised
the regeneration of the valley which had been devastated by limestone quarrying.
On another occasion. functioning like a super-agency, the Supreme Court eudeav-
176 ; AIR q%7 SC 982 (tYxr,) 2

70. MC Mchui v. (Jiii'n o/Indta. AIR 1987 SC %5 : (986)2 SCC
sCC 725.
71. Environmental Law & Policy in India, Edii 1991. supra. 1-2.
See Si,rend,rt
72 I PC. Ss 26S to 200 Cr P.C. Sc 131. 143,CP.0 - S. 91 Law elTon (Negligence)
Kumar v Did. Thuiril, Nadia. AIR 1942 Cal 360: Auleiui v. Aiiuiii. AIR 1929 Born 94.
73. Environment Law & Policy in India. Edn. 1991.2.
74. New auihoriiie cirsatuied
(1) Under cite Hazarikus Micru . organiSII t S Rules ol Deretitber. 1980.
(it) The Recoiribinint DNA Advt:oiy Coianiiitee
(iii) The Review Coimnitlec on Ge ni K Manipulai ion.
Maco'er the Central and State Pollution Control Board-c arc cci tip.
75. Ruin! Liti,iuiu"t A, Entif!eincn Ke,ufrc, v. Sieiie of U. P.. AIR 1985 SC l259.
201 RECENT DE VE
LOPMETS LOF' ADALATS AND LEGAl MD
42 I
mired to reduce poflutt'on of the Ganga by closing
down polluting tanneries -16
municipalit i nd a
es tothe
wastes from flowing into take immediate remedial action to prevent municipal
river
The National Environment Engineer-jn Research
rk Institute
With the wo of preparing a report on pollution in the port areahas by been entruste(j
industries '
Steps for prevention of gas leakage after the Bhopal Tra
tightened In M.C. Mehk, Ca.se g edy have been
a new rule of ''absolu,'
was invented and pre 01 ' /10
fault habit/tv
sented declaring further by
Comp ensation would he correlated to the the court that the incasuj e of

magnitude of the enterprise and its capacit\
to pay. This is a new development because the process of making the fundamental
riohts under Article 21 applicable to the private sector has been started with
assistance of public policy doctrine under the law of contracts Private Corporations
thus cannot now transgress and violate the .spii it of the constitutional P
Article 48-A of the ro v isions,
protect Lind improve the eniConstitUtion enjoins the State that it
. 'i,'on,,mej, ai,d safe ç'uard 'he forest "Shall endeavour To
country Under the Const 1t08n it is also a (111(i wild //'
of i/ic
funda mental duty too.
' In evitably," observes Armin
Ro sencran, 8i ''the r
com ,c reforms have altejed the
plexion of environmental politics.Non-governmLntal
lobbying and envIro or ganisations active iii
nmental litigation, have certainly henefilted from the cilangc
must however be
noted that Environnient Act, 986
and the Water and Air
Acts (1974 and 1981) contain only Penal provisions but do not provide for any
compensation to the V
iCtimS because of some accident or disaster
Sy ndrome once
the casual connection is p r ovided. This bitter truth was
h ighlighted when the
century'5 worst industrial disaster took place at Bhopil in Madhya Pradesh in
De cemhe.r 1984: '!
(via)
Lok Adalats and Legal Aid Programn1e5
Peculiar process of deciding disputes by .0
n egotiaio 5
Adalzits which is a
is a recent successful via a benevolent middle
started first in
country . This. Movement Guiarat and now spread all livthe
r
has the inherent capacity latent ill
of arrears of cases in the c to lessen the burden
ourts. This movement now has covered within its fold
motor accident cases. Gujarat held as many as 130 Lok Adalais clearing more than
21,300 cases, Rajasthan, Ma
harashtra, Orissa and other states following suit have
held Lok Adalats and speeded up the catering of justice Very recently a Bill in 1hi
unnec(Jon giving a legal status and a statutory basis to the Lok Adalats has been
and it has
aw. as been passed, as the reports go. This stren
g thens the Rule of
Under Article 39-A the state has to promote justice on the basis of equal
)Pportunity and to provide free legal aid by suitable legisjalio
ti or schemes so that
76, Mc. Mp/Zfr, v Oman
oJ/ndioi AIR 193 Sc
77 Mf. Me/i:,, 1037
v.VitiOn 0/ Ii/ia, AIR 1988 SC 1115
78 The Water P
ollution control Cell of bombay Poll Trust
and atniosplicie Trust fined 197 chips Rs 17 lacN for Polluting water
79. Af, C Melire; v Union oif Indw
80 AL1ICIC 51 A(g). (1987) 1 5CC 395. For dctidc see supra. P
ara (0 )land,nark dCUS ions
81. Environrn Law & P olicy in India EcIn 1991, 3
82 A Lximnath Dr. Praliblia Upasam. Smi,, Dr. : Drnnges in the Lm of Torts Sonic Reflcct,on
AIR Apal. 1993 (Journal Section) 53 to
58.
THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS ICHAI'.

422
opportunities for securing justice are not denied to any citizen by reason of economic
or other disabilities. Though the Codes of Civil and Criminal Procedure have been
amended for this purpose and Legal Aid Committees (LAC) have been set up by
various High Courts and other subordinate courts unless the lawyers are seriously
involved, good results would not come out.
The Constitution enjoins the State and the courts to give free legal aid to the
poor. But now there is an extension awarded to this idea by the Supreme Court. As
expressed by the Supreme Court" in f-kskot's case, "Free legal assistance at state
cost is now treated as part of the fundamental rights of a person accused of an
offence which may involve jeopardy to his life or personal liberty, .11 he is unable
to engage a lawyer due to his indigence, or unable to secure legal services on account
of other reasons."" The earlier policy was to confine legal aid only to those persons
who could not secure services on account of poverty or indigence. But the Supreme
Court through its interpretative power, extended the scope of providing free legal
aid to those who are in "incommunicado situation". This was sounded by the
Supreme Court as a mandate in Hussainara Khatoon's case 85 . The position was
improved further when the Supreme Court in Khntri v. State of Bihar 86 and in Suk
Das v. Arunachal Pradesh 87 further stated that free legal aid at state cost is the
fundamental right of a person accused of an offence which may involve jeopardy
to his life or personal liberty and that right is implicit in the requirement of
reasonable, fair and just procedure prescribed by Article 21 of the Constitution. Free
legal aid must he provide without the accused applying for it 8s and the State
Government is bound to pay for the counsel. 9 Thus the final position that emerges
is that persons whose means of communication to the outside world remain snapped
on account of incommunicado situation (X) are also entitled to the aforesaid right.
However much depends on the initiative and response of the Bar because courts
alone cannot do much in the absence of information.
The Future of Lok Ada/at
In words of Dr. Baxi, Lok Adalats, on the whole, constitute an innovation in
the administration of justice. The idea is very old and richly developed part of the
tradition of coinmunitarian justice in India. But in India every new idea is either
eulogised to absurdity or condemned beyond invective. We are not yet ready to
fossilise this innovation into a statutory enactment. Dr. Baxi, therefore believes that
there should be social audit of each Lok Adalat and the concerned people should
83. M.H. Hoswt . State of Mahar(Lclit,a. (1978)3 5CC 544

84. Referred to in State aJ Kerala V. Kuttan Alohanwi. (1987) 2 Reports (Ker) 187. 189.
85. (1980) I SCC98.
86. (1981)1SCC635.
87. (1986)2.5CC 409
88. Supean. 90, at 189.
89. (1987) 2 Reports (Ker) 187. 199, supra n. 90.
90. See Harchand Singh Longowal s case and Upendra Baxi's Article: "Let she Body he Produced'. Indian
Express of 5-8-1984. quoted by Gandhi B-M.: Law of Tori, Ed 1987, Ch. 22.913, 914.
91. For a fascinating information on legal aid movement and the groups that are wedded to its
implementation the student is advised to go through, J.S. Gandhi: Sociology of Lc,'i,l Profession. Law
and Legal System—Time India,, Setting (1987) especially 140-62.
20] IECENT DEV ELOPMENTS_. )M5{QN CIVIL r DF 42
unlearn and learn from this audit. if they do not show this capacity. the idea of Lok
Adalat will die an unnatural death.92
(ix) The Common Civil
Code—Article 44 of the Constitution of India requires
the State to strive to secure for its citizens a Common Civil
Code throu ghout India
In the Constituent Assembly when debates were going on the Muslim leaders
apprehended that their personal law would be abrogated by having a Common Civil
Code. But these fears and doubts were dispelled by pointing our that at present India
has achieved an uniformity of ltiw over a vast area and though there was diversity
in personal laws there was nothing sacrosanct about them. The secular activities,
such as inheritance covered by personal laws should be separated from religion. A
uniform law thus prepared and made applicable to all would on the contrary promote
national unity. It was pointed out at that time that, firstly. a Common Civil Code
would infringe the fundamental right of freedom of ieligion as mentioned in Article
25 and secondly, it would amount to a t y ranns to the minority. The first objection
as noted by Dr. Jam and Dr. \'.N . .Shukla in their treatises on Cons titution 94
is
misconceived. Regarding the second point Di'. K.M. Munshi, Member of the
Constituent Assembly observed that "nowhere in advanced Muslim countries the
persona] law of each minority has been recognised as so sacrosanct as to prevent
the enactment of a civil code' '
. In Turkey and Egypt no minority is permitted to
have such rights. In the time of British regime the Khojas were also dissatisfied
when the Shariat Act was passed in ilie Central legislature, but the reformist carried
the point and they had to submit to it. Going further Dr. K.M. Munshi said, "where
were the rights of minorities then? When you want to consolidate a community, you
have to take into consideration the benefits which may accrue to the whole
community and not to the customs of a part of it. Jr is not therefore correct to say
that such an act is tyranny of the majorit y . If you will look to the countries in
Europe which have a civil code, everyone who goes there from an y
part of the
world and every minority has to submit to the Civil Code. It is not felt to be
tyrannical to the minority..... Our lust problem and the most important problem is
to produce national unity in this country. We think we have got national unit
y . But
there are many factors - and Important factors - which still offer serious daiiers
to our national consolidation, and it is very necessary that the whole of our life, so
far as it is restricted to secular spheres, must be uiiifie.d in such a way that as early
as possible we may be able to say, 'We, we are not merely a nation because we
say so. but also in effect; by the way we live, by our pemsonal Jaw, we are a strong
and consolidated nation,' ")S
Dr. K.M. Munshi, like Dr. B.R. Ainbe(lkar was a
visionary. Both dreamt of one, united and strong India.
As observed by no less a person than the President Di'. Shankar Dayal Sharma'
in his Republic Day address on 26 January, 1993
the difference between religion
and coinnWfld/j Sflt
is ''as far as sacred is fr,in profane and good is from evil''.
92. 1987 (14) Repoits (News & Views) 37.
93. CAD. Vol. VII, 540,47 aJo ccc H.R.Khannai
MuAj,ii,' of 1ndi',c C,i,,.rr,nuj,n, 1981. 36.
94. 3am, M P.: 1jdiw onst:rar,,,,jj L4'JW.
Ed. 4, 1987, Ch. 29 746; V.N. Shukla. €'o,,.cii,j,/ii,n of India
Ed 7. 1987, 218
95. CAD. V ol- VII, 547-48.
96. The Lawyers, March 1993, Vol. 8, No. 2, 22-23
424 THE RULE OF LAW ANt) CONSTITUTIONAL DEVELOPMENTS (CHAP.
Communalism breeds discrimination at two levels one, between people of

different ietiiuus and two, between the two sexes. This dangerous and ruinous
effect should he done away with, possibly by introducing a uniform civil code. For
women who constitute almost half the population of India, the uttilorni Civil Code
provides with equality and justice in courts of law - irrespective of their religion
in matters pertaining to marriage, divorce, maintenance, custody of children, inhe-
ritance rights, adoption etc.
The Committee on the status of women in India, in its report' has bewailed on
this matter saying that ''the absence of a uniform civil code,., is an incongruity that
Cannot be justified with all the emphasis that is placed on secularism, science and
modernisation. The continuance of various personal laws which discriminate between
men and wotricn violates the fundamental rights and the Preamble of the Constitution
which promise to secure to all citizens "equalit y of status," and it is also against
the spirit of national integration and seculansrri. Our recominendatioti regarding
amendments of existing laws are only indicators of the direction in which uniformity
has to he achieved.
Matters pertaining to the family as argued by fundamentalists are personal and
therefore within the parairieters of religion. But religions practices being man-made,
they curtail the freedom and equality of women. Thus the fate .of women will be
left not to the Gods, but to the fundamentalists. The examples of the unfair practices
of these t'un'damentalist authorities are : ill treatment of widows 2 , polygam y practised
by men, child marriages, untouchability and other caste disabilities, human sacrifices
(practised by some tribals), purdah, etc.
Examples of Roop Kanwar and Shah Banc indicate that women are in many
cases trapped as they are often wedded (li(erally as well) to their oppressors and
their subordination is thus clothed in religious rhetoric or fundamentalism. The right of
the citizens under Article 25 could well turn out to be ,I right to State support.
ed communalism unless there is a check on Article 27 (which prevents the State
from entanglement with any religion). This State-supported communalism must go,
and the religion should not survive at the cost of women's freedom and equality.3 If
Common Civil Code is enacted and enforced it would help and accelerate national inte-
gration ; overlapping provisions of' law could be avoided, litigation due to personal law
would decrease, sense of oneness and the national spirit would be roused and the country
would emerge with new force and power to fac e,- any odds finally defeating the
communal and the divisionist forces. Israel. Japan. France and Russia are strong today
because of their sense of oneness which we have yet to develop. and propogatc.
The only step taken forward in this direction was the codification of the'Hindu
law in spite of great protest; but the codification of Muslim law or enacting a
Common Civil Code is ,I issue owing o its politicisation. Enlightened
Muslim opinion is, however, in favour of codification'. Finally the Supreme Court
Published in 1975, by the Central Goverrunent.

For example U) in September 1987, Roop Kumnar cor:tinmmmed Sau, an obsolete. inloinan and defeatist
practice. (ii) The Muslim wonun became non-persons upon divorce under the Muslim Women's
(Protection of Right ,, on Divorce) Act
orardc tim/wi b y ' * by 1-teera Nawaz ; The Lmver.m, Vol 8, No. 2. 22-23 (March 1993).
For further reading see, S.S. Nigain. A Plea Jar a UniJonn Law of Divorce. 5 JtLl 47 (1963): S.S.
Nigam: (in/arm Coil Code Set-ulcrLv,n ill India.- ILl, Secularism: ME unpi k-atoms far Law & Life
U, India 153 (966), Minorities and the Lou, 385.476 (1972): Smith india as a Se, u/ar. State. 277 et
seq (1963 -): Gajendra-adkar: Secularism & the Constitution of india, 117-143 (197 1); M.P,Jain: India,,
201 RECENT
CIVIL COrtt 425
has issued a d i recti ve to the Union of India in
Sariri Mudgal ". Union of India, to
'endeavour' framing a uniform civil code and ieport to it by August, 1996 the
steps taken. The Supreme Court opined that : 'Those who pieferred to remain in
India after the partition, fully knew that the Indian leaders did not believe in
two-nation or three-nation theor y
and that in the Indian Republic there was to be
only one nation - Indian Nation and no community could claim to remain a
separate entity on the basis of religion.''
The cases noted below reflect the concern of the Supreme Court in this area.
(a) The Shah Bano c ase".—The question in this case was whether the respond
-
en( was entitled to nininrenance.
In application for revision filed by the respondent
the High Court enhanced the amount of Rs. 25/- as maintenance fixed by the Macis_
trate to Rs. 179.20 per month. fit a iwo-Judge bench of the Supreme Court
ofen-ed the matter to the present bench. The husbands appeal was dismissed with costs.
The Court, referring to a number of authorities, writers and the clear cut
provisions of the Section ruled that Shah Banci was
Section 125 of entitled to take "ecowae to
the Code and i/mr the !crm Mohr in its real (Islamic) sense is an
amount pa yable b) the hurhanef to tile tt'if
i;n marriage and nol on divorce
whatsoever be its variety. Moreover its payment is not occasioned by the divorce
The Court reiterated the promise given by or the ideal laid down by the people
of India in their Constituiioi'as incolporaled in Article 44 unde, the caption
"Directive Pnnciples of State Policy' and said that the State should take lead to
effcruate the principle enunciated n
the Article as it is the State whichis charged
with the duty of' securing a uniFiin Civil Code for the citizen s of the
unquestionably , it has the legislative competence to do so count and
That the First wife is entitled to maintenance when a Mushin husband conriact'
a second marriage is now affirmed recently
ill Be,unt Suban, (aira Ranu) v A M.
Abdool Gafooi 5
by the Supreme Court. Theie was a great hue and cry in the country
against the Shah Bano
decision and to minimise the political pressures and to pamper
the Muslim minority in this country with an ultimate end of vote catching and there-
by to maintain its power the rulin g
party by a brute majority passed a bill in I 98f, to'
become au Act immediately, entitled Muslim Women (Protect i
on of Ruuhts oil
Bill. The Act as criticised in newspapers by jurists 9
r
as exp e has a number of flaws. However
ssed by Shri Noorani'° what is there to prevent a divorced wife from suing
in it
civil court for maintenance and claiming interim relief? The bill is therefore
Coiisniuumo Ed. 4, 987.74(3.
5. 11995) 3 SCC 635. Sec also M.c Jarde,, 1) v,
S.S. Cha,p ru, 1985 Snpp SCC 377
6. 11985)2SCC556
7. MulLi. A1ohw,,ei/jn Law(E4 18,301): Tyabji: t.&clin, Lijsv.
Ed. 4,2()8-69: Dr. Paras Diwarr Muslim
Liii, in /iloderu India Ed. 1982, 30; 1'/ie Quinn
lnicrpieted
ZaIi&,hIah Kliai,, The Quran, 38; The Inewsilig elf die Quran, by Aiuhcr J Aiten'y: MUliarnmal
\ b ot I piJbIi'4icrBd
Pubjjcai ions Delhi; Dr. Allamah KhacJ,in Ratimanj of Islamic
Nun' The Runn,nç (m l u'uial--,4'(f,e Ho/vQu,i'ij,,
Mamiaduke }'ickihall (Tranctaiioum & explanations): T/ic Mean/n 5 0/i/ic
by Taj Co. Lid,. Karachi), Referred to: fla,n,mhjb, v. Zub'jjdi, Bib,, 43 IAG1'ui ions Qtirui, (puihlicheiJ
Fai7amJ Ha.cr,i, 65 IA I 19; A ffinn eif Rid Tahjra v. AHF Chin/sl 294; Syrd Sabir Huca j,, v
473, Fuilut,h, '. K Khadcr tdi. (1980) 4 SCC i t (1979) 2 SCC 31fr 1979 SCC (Cr
25: 1980 SCC (Cdt 916. Mahr Meaning of
a cxpl?&I
also nri in i u-liui/u, case lSupi'a) M.ihr is
8 All. I d Ol. l3aiIIic. Tyaliji and oihcrs arewherein Jui(c Mshinood (in Abthul Kadir v
quoted by Krishna Iyei.
(1880)
8. (19871 2SCC 285.
9. A.G. Nooijnu Glaring n,'10155
inNew I/ill. Ind. Expse' Duly, 21-3-1986.
0. I1u/,
ill-considered and is exposed to sheer ridicule. An appeal is therefore tiled against

this decision and it is lyin g before the larger bench of the Supreme Court for disposal.
(b) Mary Roy v. State of Kerala".—Mary Roy's decision by the Supreme
Court oil Travancore Christian Succession Act, 1916 has brought Christian
women on a par with men under the Indian Succession Act which does not make
any distinction between sons and daughters. In this case Mrs. Mary Roy challenged
the provisions of the Travancore Christian Succession Act, 1916 which discriminated
between sons and daughters in case of succession to father's property. Her father
died intestate and she could claim only Rs. 5000 though the property was worth
more than a crore. The Constitutionality of the Act itself was challenged. The
Supreme Court held that on the corning into force of Part-B States , (Laws) Act, 1951
Travancor Christian Succession Act, 1916 stood repealed and Chapter II of Part V
of the Indian Succession Act. 1925 became applicable and intestate succession to
the property of members of the Indiaii Christian community in the territories of the
erstwhile State of Travancore was therefore governed by Chapter 11 of Part V of
the Indian Succession Act, 1925. No opinion as to whether Sections 2, 28 and 29
were unconstitutional and therefore void, was expressed, as it was unnecessary.
(c) The National Anthem cas& 2 .—During the morning assembly at school the
appellants while respectfully standing during the recitation of the National Anthem,
"Jana Gana Manc," refused to sing it on the ground that it is against the tenets of
their religious faith, The Director of Public Instruction (DPI), Kerala expelled the
children from the school for not singing the same. The Single Judge of the Keralá
High Court rejected the writ and so did the Division Bench of the High Court. The
High Court said, that all rights fundamental or otherwise must therefore subserve
the sovereignty, integrity and unity of the nation and the mere possession of the
religious convictions which run counter to the relevant concerns of political society
does not absolve the citizen from his political responsibilit y . On appeal the Supreme
Court held that this was their re!i,e,ious belief and tenet and leads to no disrespect
to the National Anthem since the boys stood up respectfully and silentl y when the
,came was sung. It also does not lead to a breach ojfunckmmen:al duties under Article
51-A(u). No one can be compelled to sing National Anthem. Non-refusal to sing
National Anthem did not violate the provisions of the Prevention of Insults to
National Honour Act, 1971. In fact the DPI's instructions violated Article 19( l)(a)
and 25(l). The real test of a true deimwcracv is the ability of even an insignificant
minorit y to find its identity under the country's Constitution.
Against this decision of the bench of two judges of the Supreme Court the
Union Government has gone into appeal and like the Shah Burma case the same is
awaiting a final decision.
The case of Bijoe Emmanuel and Mary Roy point at the hurdles in establishing
the rule of law. Religious freedom in this country is not absolute. In fact no right
is absolute., all rights are relative and compared with the national interest and the
fundamental duties as enumerated in Article 5 t-A(a), other rights have to submit to
it lest the unity of India be in jeopardy. As has been ,iotedU what weighed with the
II. (1986) 2 SCC 209. See also Mary Sonia Zach,riah v. Union of India. (1995) I KLT 644 FB. holding
S. JO of Indian Divorce Act, 1869 uncormsrirutionai on the ground that Christian wives suffered
discrimination under S. 10 when compared to wives of other religions.
12 (1986)3SCC6I5.
13. Editor, S.C.C. in(l96)3 SCC618.
20] RECENT D E V ELOPMENTS —COMMON CIVIL CODE

427
Supreme Court is the .
/act tli the appellants were well-behaved and respectful t
the National Anthem when it was swig.
re But what ivould happen ij' they hitherto
fused to stand up when the National Anthem is sung? Does this decision biJl(l all
the other Jehovah's Witnesses in India - Legally? Morally? What would happen
if a member of
the JW reJis'ed to take a form of oath as prescribed in the Third
Schedule of the Constitution if
required to do o? Lastly a 'iegative of a fundamental
, ight cannot he rcro'nj,5 p
c/ as a funda,,,entol right. What is protected is freedom of
speech but the right to remain silent is twr a fundamental right.... This line
of
Protection, therefore seems to be not only faulty but a dangerous one apt to
disintegrate India and it unit'
What happened to the JW in America according to
U.S.A. C o
nstitution should not be a guiding factor in this country. It is a land of
hippies and there are associations of the nudes, in England male having sex with a
male (I.P.C. Sec. 376, sodomy) is no offence, but we do not and can never permit
this under the name of freedom.
(d) Sarla Mudgal v.
Union of India—A serious matter of Hindu husbands
escaping prosecution for bigamy by converting to Islani came before the Supreme
Court. The first wile felt helpless since Islam permitted Polygamy. The Supreme
Co
urt, holding that such marriage was against the provisions of a law, namely, the
Hindu Marriage Act, 1955, the
necessary ingredients of S. 494, [PC making bigamy
Punishable were satisfied. Conversion to Islam by itself did not dissolve the first
marriage and so the second marriage during i
ts subsistence was punishable. To such
a situation the Muslim Personal Law was not
attracted, It wa to be judged by the
rule of justice, equity and good Conscience
Why a Common
reli g Civil Code ?—These four cases expose the domination of
ion over a community, be it Muslim. Syrian Christian or Jehovites. The unity
of India would be at stake if religion is allowed to tighten its grip over Indian
society. We have been a Soverei g
n Socialist Secular Democratic Republic and the
State has no religion; it favours none and is a foe to none. Humanism is oir creed
and a Common Law for all Indians Is
of our ideal. We believe and subscribe to rule
law and it is only a Common Civil Code that would hel'> establish the rule of
law, It is the panacea for all our ills.
As Observed by the former Chief Justice M. H idayatullal)
14 till 1935 the Muslims
of NWFP followed the Hindu Law. The Shariat Act was applied to them Only in
1939. Similarly up to 1934 the Muslims in UP., C.P and Bombay were governed
b
y Hindu Law in matters of succession, The Shariat Act was applied to them only
in 1939 In North Malabar, the Ma
runiakkatliayarn law applied both to Hindus and
Muslims. The Khojas and Cutchi Memons followed the Hindu customs and weje
highly dissatisfied when the Shariat Act was a p
plied to them The enactment of the
Dissolution of Muslini Marria g
es Act. 1939 (an important law reform by legislation)
was passed ill spite of
a great deal of opposition from Muslin) orthodoxy, but it
went through and today no one questions it. Moreover the coufts by judicial review
contribute their share in reforming Muslim law. The Shah Ratio judgment is to be
viewed by the Muslims in this light.
Two major comalunities of Indian federation
cannot lake a leap forward in the tsI'enty fi st century
r (f one is limping and unwilling
to move forwo,.d The Muslim law. it '
we subscribe to the concept of rule Of law,
14 Con cf,Iufr,qI(/ Lai of India. Vol.
Advn M.P. I (edited): Indian Express Daily di 7 -1-1986 in
a ll ailick by L.K
ICHAP.
428 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS
should be reformed. "A Common Civil Code', writes 15 Mr. M.H. Beg, the former
Chief Justice, 'will help the cause of national integration by removing (IiS[)flrcite
loyalties to laws winch have conflicting ideologies. No community is likelY to 1w!l
the cat b y ,naIiiig graliuzous concessions on this issue. It is therefore the State which
is charged with the duty of securing a uniform civil code for the citizens of the
country and unquestionably it has the legislative competence to do so'.
According to Dr. Ambedkar, the provision relating to a uniform civil code
should be included in the fundamental rights chapter and thus should be made
justiciable. He was not satisfied with the acceptance of a Uniform Civil Code as an
ultimate social objective set out in Clause 39. According to him, one of the factors
that has kept India back froni advancing to ,eatio#rhood has been the existence of
personal luv.c based on religion which keeps the Iiütiofl divided into water-tight
compartnienls in rnwrv aspects of life.., a uniform civil code should be guaranteed
6
to the Indian people within a petiod of five to ten years.'' Mr. Madhu Liinnye
was also in favour of Uniform Civil Code.
Dr. Ambedkar in this regard once expressed that to proceed in direction (si
Common Civil Code the Government should first prepare it and like the application
and enforcement of the Sharint Act, 1937 make a beginning that the Code shall
apply only to those who make a declaration that they are prepared to be bound by
it, so that in the initial stage its application may be purely voluntary. Tahir Y'
Mahmood's t') views and views of Prof. !mtiaz Ahmed° and V.D. Tulzapurkar 2t also 's
subscribe to this approach,
Uniform Civil Code Bi11 22 .—A Bill on voluntary Uniform Civil Code is almost
read y for introduction in the session of Parliament A voluntary uniform civil code
is a contradiction in terms. 23 The moment it is made optional it ceases to be uniform.
Distinction is being made between "uniform code" and ''common code" suggesting
that Article 44 does not use the explession 'common''. Such ingenuous refinement
will only lead to greater confusion. The Constituent Assembly debates clearly.show
that by unzfortn civil code the founding fathers meant a family code uniformly
applicable to members of all the communities living in the country. Any attempt to
make the code voluntary or optional must he opposed. Instead of framing such
take
optional civil code, the government would do well to immediate steps to codify
each set of personal laws incorporating therein the requisite reforms making them
uniformly applicable to all the members of the concerned community.
The Bill covers personal law relating to marriage, divorce, minority, ulainten-
once, guardianship and succession. The bill would he applicable to those who opt
for it. If the Bill is passed it would repeal the Special Marriage Act, 1954. Detailed
provisions have also been made for the restitution of conjugal rights and judicial
is. Minorities and the Law: Indian Express, di. 7 . 1 . 1986 in art article by L.K. Advani. M.P.
16. Indian Express. di. 7-1 . 1986 in in article by L.K. Advarti. M P.
17. Indian Express. 11-1- 1930. Shri Limayc is a leader ''Hindustani Andotan''. ornce: National
Headquarters, 84-A, Napean Sea Pond. Bombay-8.
IS. Consiilueni Assembly Debates. Vol. VII. 551, 23rd Nov., 1948: Ind. Express. 3.2-1986
19. One should, for this, refer to Tahir Mahmood's "Personal Law in Crisis', and find out how, why and
to what extent thisrespect was true,
20. See Prof. Jcntiaz Ahmed (JNU) Aluder,iisatiun & Social Clian,i,'e among Machors.
21. V.D. Tutzapurkar : - Par ?l Cam,no,n Civil ('ode", Times of India. 191h October, 1986.
22. (1987) 14 Reports (News & Views) 24.
23 "Porn Cwn,nm, Civil Code'' : V.D. TuIz'ipurkar, in Times of India. daily, dated 26-10-1986.

RECENT DEVELOPMENTS-IMPEACHMENT OF JUSTICE OF SUPREME COURT 429
201
separation. The bill also regulates all consequences of solemnisation of marriage
including maintenance. minotity, guardianship of any person (or his dependants)
whose inarliage is solerunised under the Bill. Succession to property of persons
whose marriage is solemnised under the Bill and to the property of the issues of
such a marriage will be regulated by the provisions of the Indian Succession Act,
1925. The Bill provides for maintenance to wife, widowed daughterin-1aw, children
and aged and infirm parents. The wile is to be maintained by the husband for her
lifetime and she will have a right to live separately without forfeiting her claim to
maintenance, where the husband is guilty of desertion or has treated her with cruelty
or the husband is suffering from a virulent form of leprosy or for any other justifiable
cause A wife and Sons and daughters whether legitimate or illegitimate are also
entitled to maintenance after the death of her husband.
The Bill provides for minority and g uardianship of a boy or unmarried girl
whether legitimate or illegitimate and also for custody of a minor and regarding the
power of a natural guardian with reference to the estate of a minor. In all other
matters not provided in the Bill, the Guardians and Wards Act. 1$90 will apply;
however welfare, of the minor shall he al paramount consideration.
The family courts established under the Family Courts Act, 1984, shalt be
exercising jurisdiction in respect of matters dealt with in the uniform Civil Code.
The provisions conta i ned in the Adoption Bill of 19$0 are also included in the code.
(x) Article 124(4) and Motion or Impeachment against a Supreme Court
Judge - ' Jtsctice v. kciniivwny 's case stands unparatlel in the Coirirutiorral
History of India. This case put to a rest ore only the honesty and character of a
judge hut also the firmness of the Parliament to stand by the side of truth.
Justice. Rarnaswamy, a sitting judge of the Supreme Court had in his capacity
as the Chief Justice of the Pun jab and Haryaria High Court committed rilimemLis
fir ancial irregularities. This was found out from an ai.rdit report of the Accountant
General's office. In April 1990 this news came to light. Oir 23rd July. 1990 the
Chief Justice of India ordered an inquiry in this regard. The Committee of the
Supreme Court gave their report in November 1990. Mr. Rabi Ray, the Lok Sabha
Speaker on 12th March, 1991 admitted a motion signed by 10$ MPs to impeach
Mr. Ramaswamy. Fle appointed a Committee under the Judges Enquiry Act. 196.
Immediately rhereatter the Lok Sabha was di s solved 'nc against a plea that the
impeachment motion had failed, the Supreme Court on 27th October. 1991 by a
majorityjudgment held 26 that it did not lapse and the inquiry must proceed. The
Committee thereafter eh;irge-sheeted 17 the Judge.
In the meantime. in March 1992 the proceedings under the Judges Enquiry Act,
on three
196$ were chailangerl by one Mr. Knishnaswarny. an M.P. by a writ 28
grounds requesting o quash the proceedings. This petition was also challarmged. The
Court dismissed Mr. Krishnaswamy's petition. Againbi another writ petition 20 the
iLirige ' s wife Mrs. Sarotini Rnmaswaiuy chailanged the proceedings°. 'File Judge
24. (197) 14 Rpcis (N ' ws & Views) 24.

25. Lr,wvcrx 1990. 1991. 1992. 1993.
26 Sub C'r,pan, fit r /c'i Joditu:l .tccorurrrrhr/rlv (SUM) . o/ Fdw. (1991) 4 SCC 599
27 4 ch:mrgcs were Ievctted against him. For denauls see The L,nwvers. Vol V. No. 4. and Vol. VIII. No
1.710 & 8-I I. nispciivcIy.
28. W.P. No. 149/1992
29. W. P. No. 514/1992.

430 THE RULE OFLAW AND CONSTITUTIONAL DEVELOPMENTS

[CHAP.
wrote a kttr 3 ' to the SCJA questioning
c redibility of its members but against the
complaint
1992, the of the SCJA before the Supreme Court nothing was done. On 20th July,
C ommittee held the Judge guilty
basis of 10 Out of 14 char g of "proved misbehaviour and on the
es against him. In spite of this
another letter repeating his allegations and th e des parate Judge wrote
a ppealing the M .
Ps. not to impeach him.
As the Judge refused to resign his office he was on 10th May, 1993 summoned
before the Parliament to explain why he should not be
charges which were upheld by the i mpeached for corruption
C
ommittee All the parties ensured the presence
Of their members by Issuing a whip. To succeed the motion had to be supported by
a majority of the total mc
mbershj1) of the House and a majority of not less than
2/3rds of the members present and voting, The Judge's
a d v ocate refuted all the
charges Up to this point t seemed alriglit but when the motion was finally put to
vote, all that was reduced to a nau
g
formality as the tesult ht. It became clear that it had all been a mere
had already been predetermined The Congress
masse abstained from voting.37 (1) party en
Cong re (I) de
fen ded the abdictian of its
penalty of removal bi re sponsibility by saying that the
, ifn peachnie,t, waS excessive and
COIfl);i/t b disp'oporjjo,jate to the acts
/? USappro priajjotheorjudge
jwJi( as the judge had iit been found guilty of any Crimisijf
ial m
isconduct but only of certain
The party Spokcsjna said that adi n jnj,ct,'a,ii,e Ia/3ses.
imp e a chment was. the " br
weapon to be used on "the rarest of rare occasions" abmastra" the ultimate
Had the members voted as they willed there would have been
266 votes in
and notofon
favour the motion to he passed. Thus the motion lapsed due to technical reasons
merit.
In thc end the motion failed The real
i mplications of this failed impeachment
motion lie not in the Particular facts of the case but
Out. And it is Ir them that JustIce Ralnasv/am).'s in the signals that it has sent
imp a
image and the ima g e of' the aborted
eaclj;neiit against him, will stay alive in Public eyes.34
Implications of lapse of rnolio,z :
As for hisimpeachmen t,because of the very
fct that the motion failed due to
t echnical reasons and not on
was not a single vote against the motion,
merits, and that the m
pe rsistently intransigent the 1w/ge standc 'noral1 impeached His

public pe rception apart. stance has already undermined the statute of Judiciary in
diluting
to cast a da people's faith in the rule
of law.
It is bound
mpening effect on the morale of the members of judiciary and other
in stitutions as well as of society at large.
Jurjcc Rama'r case
raises a number of p Which seems to be an instance of Political patronage,
question Is w roblell)s which require immediate
so lution. The most demanding
hether the judges of the High Court and the Supreme Court
immune from any formal
accou ntability. Why so ? are totally

On the plus side, the most
lies in that it has made it positive effect of this case, writes The "Lawyers",
u
mechanism to navoidable that a search be launched for an alternative
to bring guilty judges to
book, having glaringly exposed the utter
30. (l992)4SCC
31. In January. 1992
32 Tial effect i
ve sIflgfh 529 It1emhei
cast against the 'flOiio, 196 voted (Or he motion & here Were 205
33. Emp hac Supplied, a bentjnc No vote
34. The ''rers
Vol. 8. No. 5. 22
201 RECENT DEVELOPMENTS—THE AYODHYA IMBROGLIO 431
inappropriateness of the current impeachment procedure in which the Parliament has

the last word. When Article 124(4) of the Con slitution had come up for discussion
before the Constituent Assembly, its members had expressed fears that if the matter
was ultimately left to the two Houses, political ?nanoeuvering by the majority party
in Parliament would make it very difficult to remove a judge even if he was guilty.
The present case has confirmed their apprehensions and it has amply demonstrated
that the present procedure can never really allow judicial misconduct the impartial
scrutiny it demands.
Hopefully Justice Ramciswamy's case will lead to an amendment of the Con-
stitution, changing the procedures for appointment and removal of a judge, leading
to the selling up of it grievance settlement procedure against the judiciary, a
mechanism of accountability.
Merely introduction of the impeachment motion against Justice Ramaswamy
had cost the nation Rs 66 lakhs. If one adds to this the prior expenditure and the
cost paid in terms of moral loss, it does seem a stupendous price. But if the case
does succeed in leading to a consciousness that a critical inspection he undertaken
at all levels, the cost would be miniscule. That will be a service so great, that the
nation cannot pay so dearly for it!35
(xi) The Eventful Ayodhya Problem and its Constitutional Aftermath.—This
problem which in [he beginning (A.D. 1528) existed as a simple land-grab dispute
has now acquired dangerous proportions giving rise to some Constitutional questions
which cannot be neglected
During A.D. 1528 to 1992 it number of riots broke out and thousands of innocent
persons lost their lives. The British made use of this dispute in affirming and
strengthening their"divide and rule policy''. After Independence the Indian leaders
also toed the line chalked without exhibiting courage to solve the real issues. What
started as a civil dispute in late nineteenth century has now grown hydra headed
with several cases pending 37 in the High Court of Allahabad and the Supreme Court.
Following the 6th December, 1992 incident a dramatic change took place in
the course of litigation. On 7th January, 1991 the President of India for the first
time sought the Court's opinion on a pure question of fact, namely
35 The J.awcrs. Vol. VIll, No. 5. 21
36. In 1528 Babat snatched Oudh from ILS ruler Mir Eaqui. his Subcr, grabbed the land in Ko
Raina-Chandra itt Ayodhya [a pla ce known as ''Rwnii Jan mabhi iorni" land constructed a mosque theion
against sesere opposition from Hindoos. The dispute continued. NawabofOudh. Wajirl All Shahpromised
to return the disputed land but due to uprisings in 1857 he could not cairy out his promise.
37. (i)Origtnal suit by Raghubir Das Mahant of the Janrnabhoonii in court of Sub-judge Faizabad in 1885.
(ii) Suit No. 2 of [950 by Gopal Singh Visharad in Faizabad on 16-1-1950, (iii; Suit No. 26 of 1959
by Nirniohi Akhada of Ayodhya. (iv) Stilt N0. 12 of 1961 b y Sunni Central Waqf Board, (t) Suit No.
216 of 1989 filed in Allahabad II C by Deoki Nandan Agarwala with RAMA as plaintiff and be as
his next friend. Suit No. 12 of 1961 has been indicated as a leading case. On 2 July. 1989. the ll.0
directed to hear all these live suits together by a full bench of tho H C On 1st February. 1986 locks of
the gates were wdered to be opened by th District Judge Against hits two writs {746 of 19116 and
3106 of 1986 dated 12th May 198) were flied and they are pending. However, clue to demolition of
IN, structure nothing survives in these proceedings. Central Government in the end of 1989 allows,
shilanyas to take place on 9-I 1 . 989. On 2-11-1990 Kar Sevakas damage the structure wall.
38. Notification or RJP Government acquiring 2.77 acres of land surrounding the Structure 007th and 10th
October, 1091, Stale Governirienn lakes possession of notified land. Against this Writs No. 1000&
977 of 1991 filed, challenging the sires of the notification. Writs transferred to H.C. the State
Government undertakes to protect Rant Janina Bhoomi-Bahri Masjid snruiaure Notification quached
by a Full Bench of the H.C.in 1992 Demolition of structure oil 6-12-1992.
432
THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS
[CHAP.
"Whether a Hindu temple or any Hindu religious structure existed prior to the
construction of the Rama Janrna-Bhoomi Babri-Masjid (including the premises
of the inner and outer Courtyards of such structure) in the area on which the
structure stood?"
Al! this when whether the court should answer the reference at all is still in
doubt. When the reference is taken up for hearing this question will have to be
answered first In none of the iCiriiçes made to i t
so far has the court refused to
answer although it has explained time and aain that it has the discretion to do so.
In Re
the Special Courts Bill, 1972, the Supree Court explained that irrespective
; different phraseolog' used in clause (I) ( " )' nay ''
) and clause (2) ( ' shall'') of
Article 143 ''the Court 'na y
be justified in returning the reference unanswered if it
finds for a valid reason i/lat the question is incapable of
being answered" (para
20). In the same decision, the court while commenting on the binding nature of its
Opinions in its advisory jurisdiction said (para 1010) "... it would he strange that
a
decision given by the Supreme Court on a question 01 law in a dispute beiwee,, two
private part/c.'? should be bur-ling on all courts in this countr y
, but the advisory
Opinion should bind no one at ciii...
The Ayodhya Act cha llenged.—The
Central Government oil January, 1993
promulgated the Acquisition of certain area at Ayodhya Ordinance, 1993 (No. 8 of
1993) which became an Act. This Act was challenged by
M. Ismail Faruqui and
in .sepate writ petitions. The Supreme Court held that Ss. 3, 4 and 8 which
are the core provisions of the Act are un
constitutional and therefore the entire Act
is invalid and is struck down. The cowl also held that Special Reference No. I of
1993 made by the President under Article 143(1) of the Constitution is sLiperijuous
and unnecessary and does not require to he answered. Consequently, all the Pending
suits and legal proceedjn, iclairne in the disputed area within which the structure
(including the premises of the inner and outer courtyards of such structure). com-
monly known as Ram Janam Bhumi-Babri Masjid stood, stand received for adjudi-
cation of the dispute relating therein. Status quo ante as oil is to be
maintained as regards puja and riarnaz.
The Jitivatjon shows how law and law-courts can he made to
c omplicate the
issues rather than resolve them. The litigation spells out a number of problems
besides the importance of the rule of law in an organised society. Besides these
questions the question of use and misuse of Article 356, the question of Secularism
and the legislation to dehink religion from politics have come into forefront.
(a) Use and Misuse of Article 356
As a result of demolition of the Babri-Masjjd the Narasimha Rao government
at the cenue dismissed the four state governnlent.s of UP., H.P.. M.P. and Rajasttian
by misusing the provisions of Article 356
The makers of the Constitution merely picked tip the idea contained in Article
356 from the Go v ernment of India Act, 1935
4 ' and introduced it in our Constitution
-
39 (3979) I SCC3o.
40. M. twin,! hiruqu, (!)r) v. (iou,,, ('t lw/,u. I P.)94) 6 SCC 360.
43 S. 93. where siniihi i
conferred oil ' power to a.csuio sole responsibility ol adniinisiraiion or
Governor n case of the Province had hen
or in pail a brenkLtawil of the machinery of ihe Provincial Govt ill
dn
201 RECENT DEVcLOPMENTS .—MISUSE OF ART. 356 433

This was a great irony as they adopted what they (The National Congress) once
wanted to destroy- 42 Our Constitution is federal and a federal constitution has to
take care of the legitimate interest both of the federal government and constituent
units and safeguard the limited autonomy of the constituent units. Articles 356 and
355 represent this idea. However the powers conferred by these Articles go to the
extent of even destroying the autonomy of the constituent units in administrative
sphere. This naughty problem was discussed in the Constituent Assembly 43 and fears
were expressed by Dr. Ambedkar, Dr. P.S. Deshmukh and Shri H.V. Kamath that
the provisions would be misused and the idea of pious duty would be converted
into a concept of power and authority arbitrary and unauthorised by law. Shri H.V.
Kainath remarked that ''This is a foul transaction, setting at naught the scheme of
even the limited provincial autonomy which we have provided for in this Constitu-
tion". Dr. Deshmukh pointed out, 'if we mean this Constitution to work, the Centre
will have to respect the autonomy of the provinces 44 whether we specifically say
so or not..." Dr. Ambedkar agreed that many provisions contained in the Constitution
gave powers to the Centre to override the Provinces 45 but he defended by saying
that ''..we ought to expect that such Articles will never be called into operation and
they would remain a dead letter.'
One must however remember that Article 356 was brought into operation on
more than 80 occasions upto 1993 and the warning" as cautioned by Dr. Ambedkar
was not resorted to even in a single instance. His hopes were thus dashed to pieces
by all political parties thatwielded power at the Centre.
Naked abuse of this power was started when the Communist Government in
Kerala was dismissed by Jawaharlal Nehru. This process of abuse of power under
I
this Atlicle was clearly seen in recent use of this Article by NLtrasirttha Rao in case
of states of UP., H.P., M.P., and Rajasthan.
As pointed out by Dr. Rajeev Dhavan, in Nehru era there were six cases, in
Lai Bahadur Shastri era two cases, in Indira Gandhi era twenty-ei g ht cases, in Janta
Rule twelve cases were there. The latest figure about the use of Article 356 is more
than 86. In none of these 86 cases, the procedure mentioned by Dr. Arnbcdkar was
followed. It was reported in the press that the President Dr. Shankar Dayal Sharma
was reluctant to sign the Proclamation under Article 356 with respect to these four
states in 1992. His disapproval was however watered down. As there was no other
42. See (1993) 4 SCC Journal Section. 1-7 T.K. Tope : " Dr. Atnbcdkar and Article 356 of the
Constitution'.
43 Consiiruerit Assembly Debates. vol IX. 133. iaa, 175. 176. 177.
44. Now, states.
45. As br.Tope in the at-tide at 5 in (1993)4 5CC Journal Section, points out quoting Dr. Ambeclkar, .
I
may say that ldonot altogethertleny that there is a possibility ofchese articles being abused oremployccl
for political purposes''. Thus Ambedkar's vision saw the future.
46. Ibid
47. "II at all them; Articles are brought into operation, I hope the President, who is endowed with these
Powe rs. will take proper precautions, before actually suspending the administration of the provinces
I hope the first thing he will do would be to issue warning to a province that has erred, that things were
not happening in the way in which they were intended to happen in the Constitution. If that warning
fails, the second thing for loon to do will be to order an election allowing' people of the province to
settle Inritiers by themselves, Jr is only when thes e two reedies
m Pu t that he would Jeson to this
Article" (Constituent Assembly Debates, vol. IX. 177.)
48. Rajeev Dhavan' President's Rule in India. 1979. N.M Tripathi. Botithay.
434 THE RULE OF LAW AND CONS1ITUTIOr4AL DEVELOPMENTS I CHAP.

way he had to sign .49 Dr. S.D. Sharma should have asserted himself and should
have invited Prime Minister's attention to Dr. Ambedkar's memorable observations
in the Constituent Assembly on November 25, 1949,50 And this was not done too.
In majority of the cases under Article 356, observes Dr. Tope, it was the
intolerant and dictatorial attitude of the party in power at the Centre that was at the
root of the use of Article 356. The Constitution does not provide a specific remedy
against the abuse of power or maIn f i de use of power. However the Proclamation
made by the President can be challanged in a court of law. In fact there is a decided
case 5 ' of the Supreme Court on this point wherein it was said that if the satisfaction
of the President is mala fide or based on extraneous or irrelevant grounds, the
Proclamation would be justiciable. However the strange thing in this case was that
having laid down this principle, the Court did not strike down the Proclamation, f
reasons best known to the Judges who delivered the judgment. In Rajasthan case52
The Proclamation was both mala fide and based on irrelevent grounds. In the case
of Proclamation issued in 1992 regarding the four state governments the same seems
to have been based on irrelevant grounds and is also main fide. It deserved to be
struck down and the Court should have restored the dissolved assemblies and the
ministries, in Pakistan, a parallel case occured and the dismissed g overnment was
restored by the Court. This deserves our commendation. However, to the country's
misfortune our trusted Desh Sevakas and the apex Court lack the will and power
of assertion to set right the things.
The demon of Article 356 worked havoc in the past and the best and effective
remedy would he strikin down the Proclamation in appropriate cases and restoring
the dissolved assemblies and ministries, thus establishing the Supremacy of the
ConstitutionS3
(h) Secularism and the Co nstitution Amendment Bill, 1993
Consequent upon the demolition of the structure and dismissal of the four state
governments the Central Government decided to introduce a Bill in Parliament
delinking religion front politics. This step was to strengthen the secular character of
the Indian society, but the remedy seems far more worse than the disease.
As observed by the Supreme Court in various cases 51 a religion is not merely
an opinion, doctrine or belief, it has its outward expression in acts as well. It might
prescribe rituals and observations ceremonies and modes of worship which are
regarded as integral parts of religion, and these forms and observations might extend
even to matters of food and dress,
49. Is "duty" Iirst or "se
50. See F.N. 40 antc lf-security and self-interest" firsr'Lust of power rnake.c the mind misty and dim
51. State of RaJLclhzul v. Union 0/ India,
case was both mala fide and based on(1977) 3 SCC 592: AIR 1977 SC 1361. The Proclamation in this
irrelevant grounds. In this regard see 5.1?. &murlcn V. Union fff
India, (1994)35Cc I : AIR 1994 SC 1918, wherein this problems has been discussed
52. (1977)3 SCC 592 AIR 1977 SC 1361.
53. Sic (1993)45CC Journal Section, Ito 7.
Note. It is
now working now(Jan.
too late. Elections were held in these four states recently and elecseij governments are
1994).
54. Ctminr,'. Hindu Religious Endowment.v, Madras v.
GunS/u v. Siate of Bombay L71 Swanijijr, AIR 1954 SC 282, 290; Raii1I P.
AIR 1954 SC 388,392: 56 Horn LR 118 4 : (1954) I MU 718 Zivaudth,,
IJur/wnudd,,, Brikitari v !3rIprr0/rojj Ra,ndai.c Me/rio,
55 56 Eoni LR 1184 AIR 1954 SC 388, 392. .cupru. (1976) 2 SCC 17. 32 AIR 1975 SC 1788
201 RECENT DEVELOPMENTS —CO NSTITUTION AMENDMENT BILL ON SECULARISM 435
Secularism is a system of utilitarian ethics, seeking to maximise human happi-

ness or welfare quite independently of what may be either religious or the occult.56
A secular State does not prohibit all religions, on the contrary it permits all religions.
But the State itself has 110 religion. A secular State looks with an equal eye towards
all religions and religion has no place in the matter of management of political
society. Nationalism is superior to secularism. Religions has thus no place in politics
because to link religion with politics or vice versa is a dangerous game. Political
instruction must be based on economic and social interests of the entire community
Without reference to religion, race or sex. All must enjoy equal rights and at any
rate no privileges should flow from subscribing to any particular religion. In short
religion is only a matter of individual faith and it has no relevance in the matter
of national issues.
Constitution of India envisages a classless, casteless, egalitarian society. The
word "secular" was inserted by the Constitution (42nd Amendment) Act, 1976. In
the Indian context it means tolerence, generosity and mutual understanding among
the majority and minorities regarding the freedom and rights.
57
One may recall the constitutional origins of the Indian republic and Pakistan.
Pakistan came into being as a two-nation doctrine, i.e. Hindus and Muslims can
only be accomodated in two nation States. As the Preamble of 1973 Constitution
of Pakistan States ''The Universe belonging to the almighty Allah" and as it
specifically provides that ''Islam shall he the state religion of Pakistan" (Article 2),
Pakistan is a theocratic state. On the other hand our Constitution makers rejected
this two nation theory and propounded secularism. This is what is incorporated in
Articles 14, 15, 16 (equality irrespective of religion) and Articles 25 to 30 (religious
and cultural rights and freedoms). As a matter of fact no religion is given any
preference. This means and implies that even a law by a legislature cannot be made
to abrogate such a right and if such -I is made it will have to be struck down
by the courts. Besides, the Constitution cannot be amended to give preference to
any particular religious denomination. As declared by Keshavanand Bharti equality
guaranteed under the Constitution is part of the basic structure of the Constitution
and cannot be amended even under the amending provisions of the Constitution.
The event o 6th December, 1992 shows that though we adopted secularism as
our founding faith, religionism is our way of life. We mix religion and politics and
fight elections on communal basis. There is a big gap between our actions and our
preaching. 8 To stop this the Constitution (Eightieth Amendment) Bill, 1993 was
prepared by the government.
56. Z.B 8uklwri ease, cupra. For description. meaning and role of secularism see S.R. Iiam,nat V. Union
of India, ( 1994) 3 5CC I . AIR 1994 SC 1918.
57. Based on: 'Ayodhya : Corning to terms with Secularism'. the Lawyeec. I 993, Vol. 8, No. I. 4 to 7.
58. On August 17, 1993, innuguarating a rupees ten crores facility for devotees of Sa' Baba (a religious
function), the P.M. of India reiterated the need to separate religion from politics (Canvassing
Secularism). Consequent upon Shah Barn, case judgment the ruling party enacted Muslim Women
(Protection of Rights on Divorce) Act and bowed down before the Muslim fundamentalists, snatching
upon the vested rights of the Muslim women. Such unsecutar conduct of our so-called secular
government is the real hurdle in the path of Common Civil Code. The P.M. has also promised the
Muslims to construct the mosque and the temple. I-Ic promised the Mullahs and Maul vis to increase
their remuneration for religious work and the government would pay for it. T.A.. D.A. of these person.c
attending the conference was paid by the government- Every political party, observes the LAWYER
(in Vol. 8, No. 1. 1993. Cover story, 7) uses the minority as fodder in their pursuit of power unmindful
436
TIlE RULE OF LAW AND CONSTITUTIONAL DEVELOPMTS
[CHAP.
(c) A critique of
the Legislation to delink religion from politics .
As could be seen from the Constitution (Eightieth Amendment) Bill, 1993 it
has the following three main clauses
(i)
A clause reiterating the secular nature of the State (Article 24-A);
(ii)
A clause giving Constitutional sanction to a Jaw for banning certain
organisations (Article 35-A); and
(ii,) A clause adding a disqualification for m
embership of legislatures (Article
102-A and 191-A).
Though India is a secular State the word ''secular" is defined nowhere in the
Constitution Ailicle 24-A tries to define it by stating
respect for all relig/on.5 6° that the State shall have equal
and shall not profess, practice or Propagate any reli g
ion
The expression "equal respect for all religions" is a creator of constant disputes
bringing the courts in between to solve them. Moreover the expression is pregnant
with a hidden meaning that the State will extend lull protection, monetarily and
otherwise to temples, maths, masjids, churches, gurudwaras and a host of other
religious institutions who control immense wealth and property This results in
negation of India's secular character and retards it progress. For example if the
practice of triple talaq is dec lared
illegal, the muslim f
undamentalists may well
cliallange such a reform on the ground that their religion is not respected.
would be the result of applying Article 24-A This
The powers are given under Article 35-A to ban by law any association if it
promotes or attempt to promote disharmony or feelings of enmity or hatred
between
different religious groups on ground of religion. Enaction of this clause is redundant
in so far as a law fur banning organisations that promote
exi s t S- 61 c ommunal hatred already
All, what is required is the existence of the political will to
Provisions; and that is lacking. 62 Moreover i mplement these
a fu ndamental right on the State againsta stonishing enough, Article 35-A bestows
organisations of its people.6 its citizens to legislate for a ban on

This clause, it is evident, is arbitrary and
u nconstjiu
tional since it is without any safeguards and puts high handed powers in hands of
Parliament and the State legislatures
Lastly, the provisions under Article 102-A and 191-A which prescribe pre-poll
dis q u
alifications of a candidate for M.F. or M.L.A, are
The a mendment is quite
u nnecessary and repetitive since open to several objections.
i existing laws if properly
mplemented are capable of producing the result sought to be achieved. Under Article
329 of the Constituti
on
nothing should be done to impede or thwart the election
process once it has Commenced and to let matters he decided only by an election
of the progress of he
count0i. inn ut -able such examples arc available
conduct
State CMs. and Ministers if we look into the
of
59. Source: Cover Story
60. Emphasis Supplied. The fy: Vol 8, No. 1, 1993, 410 8.
61 The Unlawful Activities (pvcnt,ofl)Act.
62. Instances of 1967. See afco Sc 153-A and
Bat Thackcrey of Shiv Sena and AJullah Bukhari 153-13 oft P C.
violence by one community against
against the other are many of the Jaina Macjid. advocat
but they are neither ,ig
63 Its right place, ifai all, should her Prosecuied nor puilichesi
Rights. be in Part xv of
the Constitution and not in the Chapter on Fundaiiiemiiaj
64 Sc. 8, 29-A, 123 and 125
6 of the Places of Worsh
RePreceiltation of People Act,
i I951 Ss. 153-A, 505(2) and (3) oft
Misuse) Act. 1988 p (Special Provisions) Act, 1991: Religious 1ncimtuiin ( PC : S.
Prevention of
201 RECENT DEVELOPMENTS--KASHMIR ISSUE 437
petition. Even the High Courts and the Supreme Court cannot interfere. However,
the present amendment overrides all this, puttin g power to disqualify into the hands
of a petty bureaucrat who may have leanin g towards a particular party. This will
erode the whole electoral process. Moreover one does not know whether the
disqualification will be for a particular term or for ever. These amendments together
with the Representation of the People (Amendment) Bill, 1993 will stifle democracy.
It is a grave assault on democracy. One should not forget that Hitler used the
democratic constitution of the Weimar Republic to become a dictator. According to
Akali Dal and the Muslim League these bills are an anti-minority move.65
These two bills are a hypocritical exercise on the part of the ruling party to
root out communalism from the Indian political scene. One however, should not
forget that, the political parties are responsible for such a situation. Laws cannot
root out such evils. Had it been so, the practice of unwuchability, the evil of down?
and sati would have been rooted out long before. What we tend to passover is that
these challanges are ideological in their nature, and in the battle of ideas, laws are
of secondary importance, if at all." Ideologies must be countered ideologically and
not through legislative oppression.... These battles will have to he fou g ht in the
streets by the common man, in the minds and hearts of the Indian people.1'
(xii) The Kashmir Problem and Article 370 :

According to some Jurists Article 37W8 of the Constitution is one of the most
controversial but least studied provisions. Our Constitution is studded with provisions
conferring "special status" on certain states 69 . In regard to Nagaland and Mizoram
Parliament is barred not only from altering "religious or social practices" but also
"customary law and procedure'', administration of civil and commal justice accord-
ing to such law, and 'ownership and transfer of land".
Only two authorities acting together can amend or abrogate Article 370. These
s
authorities are the President of India and the Con tituent Assembly of Jammu and
Kashmir. That body ceased to exist after it had enacted the State's Constitution on
November 17, 1956, to come into force on January 27, 1957.
Article 370 was adopted by the Constituent Assembly of India in 1949 and it
was dubbed in the marginal note as ''Temporary Provision with respect to the State
of J. & K. This figured in Part XXI as 'Temporary and Transitional Provisions--
All this was for reasons stated in the preceedin g para. ']'fit-other reason for this
temporary character is that in 1949 India was committed to a plebiscite. Neither
reasons for the temporariness is valid any longer. Plebiscite is rightly ruled oe and
the State's constituent assembly is gone.
From this, two consequences follow unavoidably. The y are That all the
amendments to the Constitution of India in relation to the Stare and of the State
Constitution itself made b y recourse to Article 370 after November 17, 1956 are
unconstitutional.
6:'. Unaniiituusoppoitron h:o compelled the ruling party to shelve the bills for the present.
66. See foot note 52 ante
67. Source AG Noor,ini's Article in Ind. Express, April II, 199J.
6. See Text of Article 370
69. Nagaland (Art. 371-A). Stkkim (Art. 371-F), Mi7.r,i'atrt (Art. 371-C). Arunachal Pradesh (Art. 371-H).
What does the Article provide

Article 370, in brief, made five special provisions for Kashmir.
First, it exempted the State from the provisions of the Constitution providing
for the governance of the States. It was allowed to have its own Constitution as a
federating unit.
Secondly, Parliament's Legislative power over the State was restricted to the
three subjects only. The President could extend to it other provisions of the
Constitution to provide a constitutional framework if they related to the matters
specified in the Instrument of Accession. For all this, only "consultation" with the
State Government was required since the State had already accepted them in 1947.
But, thirdl y, if other constitutional provisions or other Union powers are to be
extended to Kashmir the prior "concurrence" of the State Government was required.
The fourth feature is that even that concurrence alone did not suffice. It had to
he ratified by the State's Constituent Assembl y . Article 370 (2) is clear on this point:
"If the concurrence of the Government of the State... he civen before the Constituent
Assembly for the purpose of framing the Constituent of the State is convened, it
shall be placed before such Assembly for such decision as it may take thereon."
This clearly shows that the President could not exercise his power to extend
the Constitution to Kashmir indefinitely. The power had to stop at the point ihe
State's Constituent Assembly drafted the State Constitution. Once it finalised the
scheme and dispersed, the President's extending process stopped.
Fifthiy. Article 370 (3) empowers the President to make an Order abrogating
or amending it. But for this, too, ''the recommendation'' of the State's Constituent
Assembly ''shalt he necessary before the President issues such a notification" That
body vanished without making an y such recommendation. Article 370 Lanuot he
abrogated or amended by recourse to the amending provision of the Constitution
which applies to all the other States: namely, Article, 368
For, in relation to Kashmir, Article 368 has a proviso which says that no
constitutional anienthnent ''shall have effect in relation to the Slate of Jarnniu and
Kashinir" unless applied b y Order of the President under Article 370 which
requires the concurrence of the State's Government and ranjica'ion b y its Consti-
tuent Assembl y. It is sheer constitutional illiteracy, therefore, to talk of abrogating
Article 370.
Article I (I) of the Constitution says that India shall be a Union of States.
Sub-clause (2) adds that the Slates shall be specified in the First Schedule which
certainty mentions the State of Jammu and Kashmir. But it is also extended to the
State through Article 370(I)(c) which says: "The provisions of Article I and of this
Article shalt apply in relation to that State : "This is not without legal significance
and consequence.
Consequently it would be totally wrong to assume that with the repeal of the
Article all constitutional provisions would automatically apply to Kashmir. The
consequences are not difficult to imagine.
Finally when the State's Constituent Assembly has "taken its decision, both,
on the Constitution for the State and on the range of federal Jurisdiction over the
State, the President may, on the recommendation of that Constituent Assembly, issue
RECENT DEVELOPMENTS—KASHMIR ISSUE 439

201
an order that this Article 306-A (370 in the draft) shall either cease to be operative,
or shall be operative only subject to such exceptions and modifications as may be
specified. But before he issues any order of that kind, the recommendation of the
Constituent Assembly will be a condition precedent-
Delhi Agreement
The next major step was the Delhi Agreement between Nehru and Abdullah in
July 1952 on topics Like the Supreme Court's jurisdiction, financial integration,
limited emergency powers, and conduct of elections to Parliament, etc.
Under the Indira Gandhi-Ahdullah Accord of February 1975 the State could
review only those post-1953 Central laws which were in the Concurrent List and
related to welfare measures, cultural matters, social security, personal law and
procedural laws.
Meanwhile, the Supreme Court had delivered judgment in 1968 in S'arnpat
Prakash case 70 which is as palpably, outrageously wrong as the habeas corpus
judgment in 1976. It ruled that even after the State Constituent Assembly had ceased
to exist, the President could, with the concurrence of the State Government -
unratified by that body, of course.----add to the Union's powers. Three flaws stand
out in the judgment. First, the Attorney-General cited Sir Gopalaswami's speech,
but only on the Indo-Pak war of 1947, the UN and the conditions in the State. In
1968 the Court opined that ''the situation that existed when this Article was
incorporated in the Constitution has not materially altered.'' It ignored completely
his exposition of Article 370 itself - that the Assembly alone had the final say. It
brushed aside Article 370 (2) which provides that and said that it spoke of
"concurrence given by the Government of the State before the Constituent Assembly
was convened and makes no mention at all of the completion" of its work cr its
dissolution! This was surely necessarily implied. Clause (3) on the ceasing of Article
370 makes it clear beyond doubt. The Court picked oil to say that since the
Assembly made no recommendation that Article 370 be abrogated, it should con-
tinue. This is right. But it does not follow that alter that body dispersed the Union
acquired the power to amass powers through the decisive ratificatory body was gone.
ihe Supreme Court totally overlooked the fact that on its interpretation Article
370 can be abused by collusive State and Central Government's to override the
State's Constitution.
Sheikh Abdullah had warned in 1952 that ''any suggestions of altering arbitrar-
ily this basis of our relationship with India would not only constitute a breach of
the spirit and letter of the Constitution, but it may invite serious consequences for
it harmonious association of our State with India." All he wanted was "maximum
autonomy'' for Kashmir as a unit of the Federation. It is yet not too late to assure
the people that we are prepared to iestOre that position while combating the
71
Pak-aided armed insurgency.
The other opinion

The other opinion in respect of Article 370 is its abrogation 72 . The reasons
advanced may be succinctly considered as follows
70. Sampot Praku.cl, V. Slate ol JK. MR 1970 SC II tt.

71. A.G. Noorani, I. Exp., Apr II, 1991
72. Digani Oza Paletical Hury & Anaiy.rrsviKachnur Problem. 1992 Edn. See also GujararSamachar
Daily 171/93, 24/W93—Articles by Arurt Shourie.
440
ThE RULE OF LAW AND CONSTITUTIONAL DEVELQpMEs
P.
[CI TAP.
(i)
The Article without imposing any control on the State of J.K. simply
Pro v ides how to apply the article. (ii)
As observed from Article 371, 37 I-A to
371-D and 371-F to 371-I the words "Special pro1'isjon" usd
do not appear in Article 370. (iii) in these Articles
Since India and Pakistan were formed in 1947
and the areas which abound in Muslim c
ommunity were given over to Pakistan
the matter should have been over but ignoring this Pakistan invaded Kashmir
which is an integral part of India. 71 (it) The
c ircumstances which existed in
1947 are not only changed but also the invasion of Pakistan on Kashrnjr must
required us to reconsider our position. (v) The Kashmiri leaders have not
remained faithful to the above arran2ejent (at riO.
(iii) above) but have been
constantly intriguing against India at. the instance of Pakistan which requires
them to break away from the Instrument if Accession 74
This situation must
justify either a suitable amendment or total abolition of Article 370, so as to
destroy and nullify the evil designs of traitorous instrul]le,) tali ties of Pakistan
It is r ightly said that "those who do not learn from history
repeat it". (Vi) 75 are condemned to
Other states that have merged with India have no '
status'' like J & K (without any speciality). We cannot pamper special
this emotional
outburst and a blunder Of our past leader about whom it is remarke
d that he
was ''English
76 by education, Muslim by culture and Hindu by accident of
birth.- (vti
Along with this special status, creation of ''special ide,uis) . " o
Kashrniris is another fallacy working against our National interest.
(viii) A volley
of concessions have been conferred on J & K. For example,
(a) India has no poweis to declare
e mergency under Article
352 or
Article 360. (6j The Union is powerless to take any action under Article
356 in case of failure of con stitutional machinery
(c) No (lirectioj i under
Attjcic 365 could be issued. (d)
help. (e) No army could he sent into J & K for
No branch of the Central Bureau of Intelligence could be opened
or established (f) Many subjects 77
on which the Union can legislate have
been cancelled from the concurrent list. (g) Right to propert
y is a fu ndamen-
tal right in Kashinji, and no landed property could be acquired there by
any outsider.
Kashmir has enacted its own Constitution it has its own flag, it has its own
separateand
judges administration, Indian laws do not apply to it and it has its own laws, its
ma gistrates, fliflister' and M.Ps. take oath
C it, (he name of its own
onstitution (as if they have nothing to do with Indian Conc.tjtJlin)all these things
have e ncouraged them to nurse an
i mpression that they are
and India is their treasury wherefrom they may draw as much as ependent they wishof India
ind
accountability. without
73. Con iluent Ass embly ofi &

K in it Constitution (Sec.
1
part of India and no change would be effected therein (S,R-0 147Ill)
of has
J declared that J & 1< is an integral
74. Sec Appendix F. K C)n.ctitution)
75. Thiee wars fought
wi th Pakiian and one with China in 1962
76.
Emil D'&u Indian Sccularji,i_A fragile myth. 1988. 20.
77. e.g. Administ
ration 01 Justice. Const itution and
Preservation of wild a arrange ment of COUris foif
nimals. lartidy planning etc dc. rects, p oec ti on and
VFW
201 RECENT DEVELOPMENTS—MANIDAI. COMMISSION REPORT 441
It would be better to have a national debate on the issue and come to a consensus
instead of sweeping problems under a carpet. Uric most understand that our so-called
secularism is at test in Kashmir.
Granting prerogatives to Kashmir has ruined India. Prerogative IS a monarchial
concept and a monarch has not to assign any reasons for his actions uuder
prerogatives. Such prerogative rights can be abridged or modified even in England
by Act of Parliament 18 . India feels shy or guilty in doing so. We are a republic and
a democracy, it is the Rule of Law and due process which matter here we cannot
maintain a Monarchy at the cost of our democracy.
(xiii) The Mandal Commission case and the Reservation Policy.—On 8th
September, 1993 a nutitication announcing the implementation of one of the major
recommendations of the Report of the Mattdal Commission was issued. This may
be said to be a rnamnioth Indian experiment in social engineering.
Reservation is not a new idea 79 . The concept is old enough. It existed in 1885.
However the concept has always remained controversial. The Constitutional provi-
sions for backward classes lay down broad contours leaving the contents largely
vague and undefined."
The First Backward Classes commission was appointed under Article 340 under
the Chairmanship of Kaka Kalelkar in 1953, met with an ignonimous end. The Janta
Government in 1979 appointed the Second Backward Class Commission. Its Chair-
man was Bindeshwar Prasad Martdal. It submitted its report in 1980 which was
published in 1982.
78. Walker: The Oxford companion to Law, 1980 Edo.. 982-983.

79. For History of this concept set Lawyers, Vol. VIII. No. 9,
80. Constitutionrtl Scheme uJ C.onseiistitorv Discrimination towards Brick art! (,,'los.te.c
Article 15(1)—The State shall ixM disci ililtitate against any citizen on grounds only of rcltgion, lace.
caste, sex, place of birth or any of theist
Article 15(0--Nothing in this article or in clause (2) of Article 29 shall Prevent the State from making
any special piovisions for the advancement of any socially and educationally backward classes 01
citizens or for the scheduled castcs and scheduled tribes.
/lrlicle 16(I)-.-Thereshafl be equality of opportunity tor uIt citizens in matters relating to employment
or appointment In any office under the State.
Article l6(4)—Nothing in this article shall prevent the State from making any provision for the
reselvauon of appointments or post,s in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services tinder the State.
Article 29(2)—No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion. race, caste, language or
any of them.
Article 3380)—There shall be a special officer for SCs and Sfs to be appointed b y the President.
Article 338(3)—ln this article, references to the SCs and STc shall be construed as including references
to such other backward classes as the President may, on receipt of the report of a commission
appointed under clause( 1) of Article 340, by order specify and also to the Anglo Indian Community.
Article 340( 0—The President may by order appoint a COmmission.., to investigate the conditions of
socially and educationally backward classes of citizens within the territory of India.. and to make
econunendatiotts.
Artide 342(2)—A commission so appointed shall investigate the matters referred to them arid present
to the President a report setting out the facts as found by them and making such recornnicndations
as they think proper.
Article 340(3)—The President shall also cause a copy of the report so presented together with a
memorandum explaining the action taken thereon to be laid before each House of Parliament.
Also see Articles 38, 39. 39-A, 41.46.
81. On 7th August. V.P Singh announced the recommendations of the Report and on 131h August. 1990
formal official memorandum was issued.

442
THE RULE OF LAW ANt) CONSTITUTIONAL DEVELOPMENTS
ICHAP.
The issuance of the memorandum of the Report caused mass disturbances and
riots across the entire nation. The Report contained a number of flaws and the
intentions of the Gov
ernment were Suspected as trying to construct backwardness
as a political resource and that the compensatory
di scrimination would turn from
being a temporary and exceptional device into a regime of
c ommunal quotas.
As usual, the burden was placed on the shoulders of the Judiciary to clear the
situation. In the beginning the Judiciary was unwilling to handle the question, it
being political one. 'Ihereafter on 13th August, 1990 it proclaimed the Official
M
adjemorandtitii as valid but on 1st October, 1990 it stayed its operation till the final
udication of the matter.
The change of go v
into being on 25th Seernment at the. Centre brought another Official Memorandum
ptember 1991 modifying the previous one. This was also
chalIaned The stay continued.2
This brings us to Iodi,-a .S'awlrney rare 53
which held the official m emotandurn
of 13th August, 1990 valid and enforceable and issued directions to the
of India etc., to constitute a permanent body so that it could examineGovernment
regarding inclusion or Over and under inclusion in the OBC lists, exclude c omplaints
socially
advanced sections or persons (creamy layer) from OBCs artd submit all those
objections and its report before the Supreme Court only.
Thus the 13th August 1990 official M
emorandum was held valid and enforce-
able, subject to the exclusion of the socially advancer! members or sections from
notified OBC.s as explained in the directions As to the second official
of 25th S memorandum
eptember, 1991 (that part of it which provided for giving preference to
Poorer S e ctions), it was said that, to be upheld as valid, that part was required to
be interpreted as i
ntending a distinction between backward and more backward
classes on the basis ol degrees of social
ba ckwardness and a rational and equitable
distribution of benefits on that basis. The other part of the Second official memo-
randum, which provided for additional 107o reservation to the economically back-
ward, was held invalid and i
noperative. Now just two hurdles remained before the
finishing line could he touched and these were— (I)
layer by the governine of India, and (ii) id entification of the creamy
re the setting up of a bod y to look into the
quests and complaints regarding inclusion and over and under inclusion respec-
ti vely.
There were differences of Opinion about the i

laye 4 and how and on that basis the dentification and test of the creamy
id entification was to be actually effected.
82, SawluLe)' v. Un:a of nd,a

(stay Order dated 1-10 .
(L&S) S upp 477, /ndra Sawliney v, Union of 10(110. (ROP, 1990), 1992 Supp 3 SCC 210: 1992 SCC
1992 SCC (L &.S)
Supp 479. dated 8-8- 1991) 1992 Supp (3) SCC 212
83 indra .Snwliney v. U111
(ni o India, 1992 Supp (3) 5CC 217: 1992 SCC (S) Supp I (1992)22 ATC
38 5 — dclivered by a special
isbyjusijce B P. Jeevan Reddy.nine judge bench. Six
t the then Chi elJustjceJudgment-,were handed down
will)Ju s ices Ratnavel Pandt & PH. Kani a. Ju ii M.N.. enkatchaijjudgment
A.M. Ahmadi, M H.
Minority Judgmeiit given by Justices Sawani con curring by Leading ali Jic(j
84. Suggested tests: (n Dr. T.K Thommcn Kuldip separate judgimaii
' Means Test" or Singh and R M. Sahai
Capacities Test" (by Justice 5awat) 'rxonomjc Ceiling lest" (by Justice Kuldip Singh) (ii)
(iii) "Social
Advancetni Test" by (J. Jeevan Reddy). Income Properly or Stan is Test 'by J. Sohai), (it) "Social
201 RECENT DEVELOPMENTS—MAN DAL COMMISSION AND RESERVATION POLICY 443
After a lull period of three months on 22nd February, 1993 the Government of
India resolved to set up an expert committee for the purpose abovesaid. The
Committee was also to give recommendations on such other matters relating to the
implementation of the judgment of the Supreme Court. This Committee submitted
its report on 10th March, 1994 showing a list of categories and the persons who
are to be excluded.85
National Commission for Backward Classes Ac!, 1993
However, coming back to the story of implementation of the Mandal report,
with the Expert Committee's report on creamy layer having been submitted, one
might legitimately think that the countdown had begun. In the meanwhile, a
permanent body had been set up (to look into requests for inclusion into the backward
classes list and complaints regarding over or under inclusion), as the National
Commission for Backward Classes, under the National Commission for Backward
Classes Act, 1993 passed in April 1993. All the pie-conditions For the implemen-
tation had thus been met. But another six months elapsed before the government
woke from its slumber to announce the implementation 87 on 8th September, 1993,
85. For Recommendations of the expert committee for specif y ing the criteria for identification of the
creamy layer see Lawyers; Vol VIII. No. 9.
86. The National Commi.c.curn for Backward Classes Act. 1993
It is an Adt to Constitute a National Commission for Backward (Tiusses other than the sctirttiiled
castes and scheduled tribes and to provide for matters connected with it.
It tlefluie, backward classes as backward isscs of citizens other than the SC- and STs as may be
specified by the Central Government in the Lists prepared by it fotn time to time for making provisions
for preferential treatittent to those backwaid classes which it tlmiiiks are not adequately represented.
The National Commission for Backward Classes shall he appointed by the Central Government and
shall consist of -- --(e) a chairperson who Is or has been a judge of the Supreme Court or of High Cour(:
(ii) it social scientist: (cii) two persons who have special knowledge in matters relating to backward
classes; and (is) a Mettcbcr . secretary. who is or has been an officer of the Central Government in the
rank of a Secretary to the Government of India
Ifs person soabuses his position in the Commission that his continuance in office shall be detrimental
to the interests of backward classes, it shall he one of the grounds for his removal from office.
The Commission shall examine requests for inclusion of any class of citizens as a backward class
in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists
and tender such advice to the Central Government as it deems appropriate.
The Cotnrttision shall have all the powers of a civil court wh i le perfuiming its functions.
The advice of the Commission shall ordinarily be binding on the Central Government
The Central Government may at any time and shall at the expiration of ID years from the coming
into force of this Act and evem y succeeding period of 10 years thereafter undertake revision of IisLs and
in this exercise it shall consult the Commission.
The Central (Jovemnment shall cause all report and a memorandum of action taken on the
Commission's advice, and the reasons for the non-acceptance, if any, of any of the Conunissions
advice, to be laid before each house of Parliament as snort as they are received.
87. Cu,'mtc,us
19( ofthejir.oln I Ujcafjmnm dwe48th .Seprnber,
. i_cc ocr/by (7,ve;,mflte,mt of India. ancmounc:ill,
recervwwn for socially mid educationally backward classes in civil posts and services under
Government of !,uliii.
Consequent to the consideration of the Expert Cotiunittec's recommendations, the M. 0. dated 13th
August. 1990, has been modified as follows:—
(m) 27% of the vacancies in civil posts and services under Governriient of India to be filled through
direct recruitment, shall be reserved for OBCs.
(ii) Candidates belonging to OBCs recruited on the basis of merit in an open competition on the same
standards prescribed for general candidates, shall not be adjusted against the reservation quota of
27%.
(cii) (a) The aforesaid reservation shall not apply to persorts/scetion.s identified as part of the creamy
layer according to the expert corrunittee's report.
(b) The rule of exclusion will not apply to persons working as artisans or engaged in hereditary
444 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS ICF-IAP.
just when the elections are round the corner! Nonetheless it is the successful end
of a long drawn match.
Much remaiiLc in he done

But the ball is still in the government's court which must remember that the
27% quota was always supposed to be a modest initial start and a mere palliative.
The other recommendations like the affirmative action pro g rammes for radical land
reforms, educational and financial assistance, business and entrepreneurial schemes
for the BCs which are waiting in the docks, also need to he implemented.
Indeed there is little done, much still to be done!
Miscellaneous --It must be noted that in 199. Fatima Beevj became the
(xiv)
first ever woman Judge of the Supreme Court of India and the year 1991 saw the
appointment of the first woman as the Chief Justice of Himachal Pradesh High
Court.
In 1990 the ''Security Scandal" shook the whole country. It was the greatest
fraud ever practised in this country. 9 In 1993 the Government attempted to prepare
and introduce a bill'° in order to delink religion from politics and thereby to amend
the Constitution. The said bill was accompanied by another bill°' in order to further
amend the Representation of the People Act, 1951. These bills were much criticised 92
Even after the presentation of the Bill and finally its postponement the Ra.shtrapati,
the Prime Minister of India and ministers of states continued to back the religious
functions and visit temples in their official capacity as such, thus defeating the very
purpose of amending the Constitution.
The year 1993 also witnessed the l-Iazrat 13a1 Masjid event sponsored b y Pakistan
and the traitors. This put our State policy to test and proved its once more to be
prisoners of indecision.
The Ministry of Environment brought in the Public Liability Insurance Act,

1991, which lays down that all owners handling notified hazardous chemicals'' are
required to take insurance policy to meet liabilities under Section 4(1) of the Act.
The enactment gives a legal tool to the common man of which he can make use
when accidents occur or highways or in other populated areas.
On new year's day 1993 the Lucknow bench of the Allahabad High Court
delivered a historic judgment that has few parallels in the history of the Indian
judiciary. The judgment is known as "darshan judgment", The Vishwa Hindu
occupations and callings. A ho of such occupations and c'ilIings will be issued

separatel'j
(iv) The OBCs for the purpose of the aforesaid reservation would comprise
in the first phase. the castes
and Conitlluflit;es which are common to both the tit, in
thereport of Mandal Commission and the
State Governments list
(v) Reservations will be available to the OBC.c in a similar manner, in respectof
Public Sector Under-
takings & Financial Institutions. including public sector banks. Based on "Cover story" in The
Laic','crc Vol.VflI No. 9.
88. During the span of 43 years (1947-19'X)) 800
judges were appointed in various High Courts Out of
Ibis there were only 17 women judges. i.e. '112% only.
89. Sec Gurdas Gupta : Security Scandal: A Report in the Nat in,,.
90. The Constitution (Eightieth Amendment) Bill, 1993 (No. 73 of 1993).
91 The Representation of the People (Amendment) Bill, 1993 (No. 74 of 1993)
92. See Supia, para XI (C) in this chapter for details.
93. Till today 179 chemicals and three categories of flammable s s
ub tance-,; have been identified as
hazardous.
201 RECENT DEVELOPMENTS — MISCELLANEOUS ISSUES

445
Adhivakta Sangh (VHAS), the Akhil Bharatiya Nehru Brigade (AENB) and Mahar
shi Avadhesh were the petitioners. The petitioners sought for a writ of mandamus
commanding the Union of India and the State of Uttar Pradesh not to create hurdles,
obstructions in the performance of Darshan, Pooja, Aarti and Bhog of Shri Ramji
virajman (t 1FT) at Rama Janmabhoomi and to allow the Pujaris to perform the
same and to preserve and protect the material of "historical importance found in
the debris of the demolished structure at Sri Rain Janmabhumi, A
yodhya." Moreover
it was prayed to direct the opposite parties to define secularism, minority and
majority, in order to save Hindu religion and Hindu temple from being destroyed
or thrashed by clubbing these three expressions together, as Hindus in general are
being denied their rights including right of religion and faith
The Hindus, as the petitioners say, were being deprived from 6th December,
199
2 of their right to faith and Worship as recognised by the orders dated 261h April,
1955
and 1st February, 1986 passed by the Hi g
h Court. This petition was therefore
to enforce the fundamental righ ts enshrined in Articles
25 and 26 of the C onstitution.
Its denial would be tantamount to violation of Article 25 and an obstruction in the
discharge of the fundamental duty under Article 51-A. the
While allowing the petitions the High Court adopted an unprecedented a

pproach
making extensive reference to the illustrations found in the original copies of the
Constitution. The honourable judges opined that due to this illustration of Lord Rama
being present in the original Constitution, the Lord has become a Constitutional entity
and admittedly a reality of our national culture and fabric, and not a myth.
This reference by the judges has probably opened the Pandora's box.
The Darshan judgment is perhaps the first to
use the illustrations in the original
constitution as aids to interpretation of the Constitution The High Court used these
i llustrations for three ptirposes
(I)
to interpi-et the word ''secularism" to establish that Rama is
,I
entity and to decipher the name ''Hindustan'';
(ii)
more importantly the High Court recognises the right to worship as a
sequitur to the recognition of Rama as a Constitutional entity; and
(ii:) taking the Darshan judgment as it sands, it would perhaps be possible
to content that the illustrations are themselves the source of certain
fundamental rights particularly the right to Worship.
There are two Opinions about these illustrations 4
: one explaining that the
illustrations are a part of the Constitution and the other saying that the illustrations
94. Tbe original Constitution of India. aS adopted
contain 22 sketches or LltUstrarlons includingby onethesketch
Constituent Assembly on 761h November, 1949 .
original copy of the Constitution of Lord Rama. But as the facts stand, the
was passed on 26-11 . 949 by
the calllgraphed version was entrusted to an artisi, The Conctituer,t Assembly
Prem Raiada, only on 28-11- 194 1). and work of
been slated by the publishei. Thus the copy of the Consiitutj This date has
of the Constitution.
on Seth wi 22 sketches is a decorative edition
Lcoi'ie, Co/ler g j ' V 0 j . 8 No. I and no
List of tllucrrationc in the original Constuutjofl 4 for details 21-2'! & 11-12 cc-,
(I) Mohanjo daro seal. (2)
Lanka and recovery of Sua by Scene Rama. from Vedic Ashrn, (3) Scene from Rarnavan
Laxniari is also seen, (4) Conquest of
P r opounding Gita to Arjtsn, (5) Scene from Mahabharat Shri Kris hna
depicting the spread of Butidhisi
Scene from Buddha's l i fe, (6) Scene from Maliavir s lil. (7j Scene
ii in India. (8) Scene from
Court, (10) Scene depicting an ancient Gupta Am-!, (9) Scene from Vikramnadirya
Imag e of Natruj, (13 Scene from University (Nalanda) (II) Scene from
M ahabalipurarn S culptures, (14) Portrait of Onsca culture. (12)
Akbaj with Mughal
446 THE RULE OF LAW AND CONSTITUTIONAL DEVELOPMENTS
are only decorative and there is no particular logic behind it. Of course, the matter
is not so simple as to dismiss it abruptly. A question as to why these particular
illustrations were included in the original copy remains unanswered. The High
Court's use of the illustrations as the very basis of the Daishati judgment may be
very questionable but the issues which the judgment raises will continue to engross
the lawyers and law researchers for quite some time to come.
Finally, the Ayodhya Judgrnerir°5 (1994) has put an end to many problems and
brought the status quo ante as on 7-1-1993. (See pant 4xi)-the Ayodhya Problem.)
.!:fi . L•-.: ., .
.
- .
. I . .....
Li.. .-.- .
..
:?-.-,'--cL4,•;J4.'' :..
---------
. ic. .-• •
- - --)l• ::
--•,•. .-, ., ,
Architecture, (IS) Shivaji, Guru Govind Singh. (16) Lasmi Bai. Tipu Sultan, (7) Mahatarna Gandhi
Dandi March, (IS) Bapuji—The Peace maker : Hi s touring of the riot-affected Noakhati aiea, (19)
Netaji Subhash Chandra Bose with other patriots, (20) Scene from Himalayas. (21) Scene from Desert,
(22) Scene from the Ocean.
95. 41 Lcinatl Faruqw (Dr.) v. Uiün f India. (1994) 6
SCC 360. This case returned the reference under
Article 143(1) unanswered and allowed puja and namaz to continue as before.
21
Legal Profession, Legal Education

and Law Reporting
"Unless legal activists emerge, the gulf between courts and poor IniLSI remain almost
the Sante.
Upendra Baxi: Legal Mobilisa:,o,'i and the Needs of the Rural [-'nor,
1982, p 12 (Pt. III)
If law must serve life—the lifr of the many in il/ion masses whose tot has been blood,
toil, tesirc and sweat—the crucafi anon of the lnda-Anghcczn system and resurrection of the
Indian system is an imperative of independence.
V.R. Krishna lyer: Indian Justice. (1984) 6.7
.nr, occupation becomes a profession without minragow.cni and struggle.
Goode W.I. quoted by K.L. Sharma: Sociology of Lirw
and Legal Profession. (1984) Cli. I
development of legal learning and le,cal cciemim i's
Legal Education is where law b,gtrcc
also occur through the law schools. Neither the (ICC nor the (Jar Council of India nor the
Universities behave as ii the y understand the fundamental significance of legal education Ii,
achievement of ci just society in India.
a computer age. the horse and bug['v style of law reporting is on insult to the
nation,'
llçsislra i3axj, interviewed 957(4 ) Reports 2
S V NO P S i S
A. Legal Piukstcion 7. The Pathology of Legal Profcsiorc
I. Profession R. The Future of Legal Profession
2. The Legal Profession B. Legal Education
3. Position up to 1926 (a) The Arms of Legal Education
(a) The Regulating Act, 1771 (h) History
(b) The Bengal Regulations. 1793 and (c) Reasons for Stagnation
1833 (d) The New Sehenie
() The Legal Practitioners Act. 1846 (e) Future of Legal Education
and 1863 (f) Recent Developments
(ci) The Indian High Courts Act, 1861 C Law Reporting
(e) The Legal Practitioners Act. 1879 (a) The Doctrine ol Precedent: History and
(,) Classes of lawyers dove lopmerit
(ii) Practitioners on the Original (h) Advantages
& Appellate side (c:) Law Reporters: Supreme Courts
() The Indian Bar Committee (Cha- Law Reporters: High Courts
(
n-tier Cotmoinee), 1923
(e) Law Reporters. P.C.. Federal Court &
4. The Indian F/ar Councils Act, 1926 Supreme Court
5. All India Bar Committee, 1951 1]) Pm vote Reporters
(ii Recommendations (g) Principles for Law Reporting
Ii:) Law Corniiiiwiuii's 14th Report,
1958
h The Advocates Act. 1961
A—LEGAL. PROFESSION
I. Profession
As the explanation goes a business is a trade or profession at which one works
regularly, an occupation is what one happens to be engaged in, and may be
continuous or temporary. Business is ordinarily for profit, while the occupation may
1 447

448
LEGAL PROFESSION LEGALED UCATION AND LAW REPORTING
ICHAP
be a matter of learning philanthropy or
scholarship as the profession religion. A Pfofessi on usually implies
of Jaw)
2. The Legal Profession
The legal profession is thus an i
Possible for the State to ad mportant part of legal adm
minister Justice effectively w inistration Ti is not
Pr ithout a wel l-organised legal
ofession,
befre because in its absence who would marshal the facts and present them
a Court,
who would put forth the best legal
litigating parties before the Coup? arguments for and against the
It is th erefore rightly said2 that "A Well.organisecj
System Or judicial adm
and a well -re ini.siratic,n postulates a proper
profesjon for Pleading causes ly equipped and efficient Bar,'
is a great
up the quality of justice. A CO fl hi])Uiiity 01 de sideratum to tone
c on)nlu,ljticc based on pro fessionals is differen t
sociali sa tion and social control and client choice from other
evaluation of the professional-3 A or the
ccording to Goode the proce
tion is the "climax job pattern'' of occupational ss of Professionaltsa.
becomes a profession without antagonism and envi ronment and no occupation
struggle. 4
Thetot
struggle history of the legal profession in India is therefore a history of struggle: a
iCCOgflittofl chara
chapter we would be tiactag cterised by prestige, power and i nconie. In this .shoit
India, the history and dev
elopment of the legal profession in
3. Posijo,i up to 1926
as a profs,sj17
India though its c appears to have been in v ogue i n ancien 5 and medieva16
Profession as it oncept
exists in Indwas quite different from what it is today. The legal
ia today had its beginnin
rule The Hindu Pandits, Muslim Ps in the first years of Briti sh
Mu and Ponuguese lawyers who served under
earlier regimes had little effect Upon the system of law and legal practice that
developed under the Brit sb administration
The Charter Act. 1726 c
fication for the persons desi rous ontained no provision w
of racti hatsoever regarding th e quali-
in this regard. This Position c practising law. The courts were the sole judges
Practised law were devoid ofontinued up to 1753.mes tithe persons
the knowledge who
adopted the profe ssjo,i In the absence ge of Jaw, As Dr
During thi. lain notes "they had
so-called Jawyets were of anyll)i,lg better to d o. Quite a
the di smissed servants of the Company- .7 few of these
the condition of Calcutta says that "Calcutta Long 7 describing
is a place where the profession of law
is exercised by
men
Possess it by intuition who seem to derive all their knowledge by inheritance or to
w ithout previous study or
application' This state of affairs
'8
I. Fernald- SYJU,nvflit
w7dAn,(,).fl,,, 1941 102
2. Law C(inlynission, 141h R
3. Goode W.J
eport (1958) 556
wilith, a ornmni.
22, Apr. 1957. 94 quoted by K L. Sharjiia The Profcj,,05 Asneije0
4 I/nd.. 2. Soclo/y Review VøI.
1984, Ch 1
-
5 Supra Ch. I, 7. For an lnisrciing additional reading on this to
(3 & 4) 1986 see Ille
Pennsylvn11 an anicte, captioned "I:w" in C/ü.cc,01j fitir Rev,ei V01 Xlii
353-72 & A Note no L" e,' s in Hindu iw by
Chicago), t73 to
376, Samuel Schmnittheer. A1c/jrn India", by
Ludo Rocher (U, of
India.308-3s2 Phillip , Calkins (Uni. of
A Skekh nf:he D'eIp,n,0, of the
6. Ibid.. 70 Prof('cjf N /iJ
7. ?nthn Legal Hrsm,-.,.,
8. Long, SeI Uon.c
3rdEj1 .
liOn, Unpuh/ c/med Rci,, d.c. I, xxxi
21J THE LEGAL PROFESSION IN EARLY DAYS 449
was due to the belief of the Company that the advocates foment disputes" and
are of 'Litigious nature''. 9 Calcutta Court, under the circumstances referred several
questions to the directors for guidance. This was the state of affairs of the legal
profession before 1 774 at all the three places Bombay. Calcutta and Madras,
(a) The Regulating Act, 1773.—The first real step in the direction of organising
a legal profession in India was taken in 1774 when the Supreme Court was
established in Calcutta pursuant to the Regulating Act of 1773. Clause II of the
Supreme Court Charter empowered the Court "to approve, admit and enrol such
and so man y advocates and attorneys at law" as the Court ''shall seem fit''. They
were to be attorneys of record and were authorised "to appear and plead and act
for the suitors" of the Court. The Court could remove the said advocates and
attorneys ''on reasonable cause''. No other person whatsoever, but such advocates
and attorneys so admitted and enrolled were to be ''allowed to appear and plead or
act" in the Court, for or on hehall of such suitors. The ''advocates" entitled, thus,
to appear were only the English and Irish banisters and members of the Faculty of
Advocates in Scotland the attorneys referred to were the British attorne ys and
solicitors. The Court was thus an exclusive preserve for members of the British legal
profession. The same powers of enrolment were later conferred on the Supreme
Couiis established at Bombay and Madras. An Indian lawyer had no right to appear
before the Courts.
At its inception the legal profession in India had two features of English law.
one, the English language, and two, the concepts of 'Justice and right' as understood
in Envlish Common Law and rules of Equity. And there were two categories of
legal professionals—(I) Advocates in Scotland. and (2) Attorne ys who were the
British Attorneys, or Solicitors. Consequentl y by the end of the 18th century, the
British norms of the legal profession were firmly entrenched Indian
iii Society. But
the fact remains, that they were of a discriminatory nature. as they did not apply to
British subjects)0
(b) The Bengal Regulations, 1793 and 1833.—The Bengal Regulation VII of
1793 created, for the first time, a regular legal profession for the Company's Courts.
Its credit goes to Lord Cornwallis. The regulation gave power to Sadar Diwani
Adalat to enrol pleaders for all Company's Courts. Only Hindus and Muslims would
he enrolled as pleaders. Before this the suitors could either plead their own causes
personally or could appoint agents who could either be their servants or depend-
ants—or the vak p ls who followed the profession for livelihood. But these people
knew nothing of the law. This led to confusion and delay. Not only this but these
Ignorant and credidess vakils often betrayed their clients by accepting bribe from
the opposite party. The system and the profession both thus slipped into inefficiency
and became too costly for litigants) I
Ho we v er Regulation VII brought order and some measure of quality to pleading
and endeavoured to establish it as a respectable profession. Only the persons well
versed in Hindu and Mohamistedan law and persons of character and education were
9. Long Sek'ctzons from !Jnpubl:cJ?ed Rec,rtI.c 1.46. 83; Sec Dodweti Uen,
sal, Past and P,eeni, VIII.
5 qu'JiCdt)y Jain cupra nO. ako supra n, 4, 310
ii) K .L. Sharina: So Ioio,'V of 1j.w A /,ijj,'uI Profrs.c,n,, 104-05 (1984)
II. Cf. Jaw' IOth(in I.JJfl,'UI I/Lclnry. 1972, Ch. XI. I$-88.
450 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING ICHAP.
allowed to plead in courts. A number of rules were laid down to regulate the
profession. Yet, the professional respectability was hard to come by. Malbaii'2
described the rootfusil vakil as 'a column of vapour issuin g from an Ocean of
Emptiness.., brought alive by the Chief Justice—and the successful vakil as one in
the hands of Marwari broker',
The Bengal Regulation XII of 1833 was the next important legislation which
modified the provisions of the earlier Regulations in that only persons duly qualified,
to whatever nationality or religion they might belong, could be enrolled as pleaders
of the Sadar Diwani Adalat.
(c) The Legal Practitioners Act, 1846 and 1863.—The Legal Practitioners
Act. 1846, made important innovations, namely, (I) the office of pleaders was thrown
open to all persons of whatever nationality or religion duly certified by the Sadar
Coons; (2) attorneys and barristers of any of Her Majesty's Courts in India were
made eligible to plead in any of the Sadar Courts; (3) the pleaders were permitted
to enter into a g reements with their clients for their fees for professional services.
The Legal Practitioners Act, 1863, also permitted barristers and attorneys of the
Supreme Court to be admitted as pleaders in the Courts of the East India Company.
Thus banisters and attorneys were empowered to practise in the Company's Courts
while the Indian legal practitioner could not appear before the Supreme Courts.
(d) The Indian High Courts Act, 1861.—The position clearly underwent a
change after the British Crown took over the administration of the country from the
Company in 1858. The separate systems of the Company's courts in the moffusil
and the Royal Courts in the Presidency towns were consolidated into a unified
judicial syscm in all the three presidencies. At the apex of the new system were
High Courts chartered by the Crown. The Indian High Courts Act. 1861, authorised
the setting tip of High Courts in several Presidencies in place of the Supreme Courts
and Sadar Adalats. Clause 9 of the Letters Patents of 1865 which replaced the earlier
Letters Patent creating a High Court in Calcutta, authorised it to approve, admit and
enrol advocates, vakils and attorneys. The persons so admitted were entitled to appear
for the suitors of the High Court and to plead or act according to rules made by
the High Court or directions issued by it. Similar provisions were made in the
Charters of the Courts of Bombay and Madras , i S The High Courts in their appellate
jurisdiction were to apply the principles of equity and the rule of good conscience,
but these were never spelt out and were left to the discretion of the coons. Curiously
enough, the Moussil Courts were precluded from introducing any English or foreign
law wider the cover of the words, justice, equity ant! good conscience''. On the
original side, in the High Courts, English law and rules of equity continued and on
the appellate side local laws were applied. This was a deliberate design to 'divide
and rule" under the posture of ".justice, equity and good conscience".14
(e) The Legal Practitioners Act, 1879.—In the course of time other High
Courts were established. The Legal Practitioners Act, 1879 was enacted to consoli-
date and amend tue law relating to legal practitioners of High Court. It empowered
the High Court, not established under a royal charter, to make rules, with the previous
12. B.M. Matbaji. Gap rift t the Gujuruc,c (1882), 178. 181.
IS. A o the tnevolenr effect of thsc pIuvidonsse JBR lIt (3 & 4) 1986, 323.
4. K.L. Sharrn:i: S cio'ogy 0)' J.LLLfr' A Legal Profession. 106. lOB.
211 THE LEGAL PROFESSION IN EARLY DAYS 451
sanction of the Provincial Government, as to the qualifications and admission of

proper persons to be pleaders and Mukhtars of the High Court.
(i) Classes of L.awyen—Jn the chartered High Courts rules had been framed
under which there were, apart from Attorneys, two other classes of lawyers,
Advocates and Vakils. Advocates were to be barristers of England or Ireland or
members of the Faculty of the Advocates of Scotland. The High Courts. other than
the Calcutta high Court, permitted non-Barristers as well to be enrolled as advocates
under certain circumstances,e.g. in Bombay, law graduates of the Bombay Univer-
sity, could be enrolled as Advocates. The Vakils were the persons who had taken
their law degree from an Indian University and fulfilled certain other conditions. In
Madras, a law graduate qualified to be admitted as a vakil if he passed an
examination in procedure and underwent practical training with a practising lawyer
for a year. Similarly rules had been made by the other High Courts also. The High
Caurts were given the power. under Section 6 of the Legal Practitioners Act, 1879,
to make rules as to the qualification, admission and certificates of proper persons
to be Pleaders and Mukhtars of the subordinate courts. Under the rules framed by
the High Courts under the Legal Piactitioners Act, law graduates who did not possess
the additional qualification to enable them to be enrolled as the High Court Vakils,
and non-law graduates after passing the pleadership examination conducted by the
High Court, were enrolled as Pleaders to practise before subordinate courts. Besides
the Pleaders, there were Mukhtars who passed by Mukhtarship examination held by
the High Court after passing the matriculation or equivalent examination.
Section 4 of the. l.egul Practitioners Act, 1879 empowered an advocate or vakil
on the roll of any High Court to practise in all the Courts subordinate to the Court
on the roll of which he was entered and in any court in British India other than a
High Court on whose roll he was not entered and with the permission of 1e Court
in any High Court on whose roll he was not entered. There was a proviso, lowever,
to the effect that this power would not extend to the original jurisdiction of the High
Court in a Presidency Town.
(ii) Practitioners oil Original & Appellate side.— On the original side of
the Calcutta High Court only the Advocates, e.g., the Barristers of England and
Ireland and the Advocates of Scotland, were entitled to appear and plead, on the
instructions of an Attorney. These Advocates were also entitled to appear and plead
oil appellate side of the High Court and subordinate courts. The Vakils of the
Calcutta Hi, - fli Court were not entitled to act or plead on the original side or in
appeals fro the original side. This state of affairs was severely criticised as
monopolistic and discriminatory. As the criticism says the Calcutta Barrister "has
no objection to plead before a mere B.L. (or L.L.B.) Judge, but he cannot have as
his companion at the bar a mere B.L. of an Indian University however high his
attainments may be' The Madras High Court had, however, altered its rules, as
early as 1886, and permitted the Vakils admitted under the Rules of 1833, and the
Attorneys to appear, plead and act for Suitors oil original side. The result,
therefore, was that in the Madras High Court there remained no distinction between
Barristers, Vakils and Attorneys as regards their rights to appear and plead on the
original side. Under the new Rules, the Vakils and Attorneys could also act oil
I.S. Repori of Indian 8u Conuninec, AIR 1924 Jour 63.66
452 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING [CHAP.
original side while the advocates had to be instructed by an attorney. In the Bombay
High Court the Vakils were not originally permitted to act or plead on the original
side. This position, however, later changed and a non-Barrister, on passing an
examination conducted by the High Court, became eligible for enrolment as Advo-
cate entitled to appear and plead on the original side. The only limitation was that
the Advocates of the original side, whether Barristers or non-Barristers, had to be
instructed by an Attorney before they could appear and plead on the original side.
(f) The Indian Bar Committee (Chamier Committee), 1923
The Vakils expressed dissatisfaction about the distinction that existed between
barristers and vakils, and the special privileges enjoyed by the British barristers and
solicitors. There was also a demand for creating an all-India Bar in the country.
Consequently, the Government of India in 1923, constituted the Indian Bar Com-
mittee under the Chairmanship of Sir Edward Charnier to go into these issues.
The Committee did not consider it practicable at the time to organise the Bar
on an all-India basis or to constitute an All-India Bar Council. The significant
recommendation of the Committee was as regards the establishment of Bar Councils
for the High Court.
Recommendations:—
The Committee 16 recommended
(I) that in all High Courts, a single grade of practitioners entitled to plead
should be established and called Advocates,
(2) that when special conditions are maintained for admission to plead on the
original side of a High Court, the only distinction shall be within that
grade which shall consist of advocates entitled to appear on the original
side and advocates not so entitled,
(3) subject to certain conditions being fulfilled, Vakils would be allowed to
plead on the original side of the three High Courts,
(4)' that a Bar Council be constituted for each High Court having power to
enquire into matters calling for disciplinary action against a lawyer.
(5) that the disciplinary powers would rest with the High Court but before
taking any action, it should refer the case tc the Bar Council for enquiry
and report.
4. The Indian Bar Councils Act, 1926
To implement the recommendations of the Chamier Committee, the Central
Legislature enacted the Indian Bar Councils Act, [926. The object of the Act was
to provide for the constitution and incorporation 01 Bar Councils for certain Courts
to confer powers and impose duties on such Bar Councils, and to consolidate and
amend the law relating to legal practitioners entitled to practise in such Courts.
A Bar Council was to be constituted for every High Court) 7 Every Bar Council
was to consist of fifteen members of whom one was to be Advocate-General, four
16. For enlightening Speech of The Hon'ble Chief Justice Sir Murry Coutts Trotter at the opening of the
Madras Bar Council on 9-10-1928 see Indian Bar Review. Vol. XIII (3 & 4)1986, 41910 435 (An
Article by N.R. Madhav Menon captioned "Bar Councils and Management of Legal Profession); See
also Sashecj I Iegde: "Lawyers and The Legal System in India—A Critique" Indian Bar Review. XI
(4) 1985. 465-78 for further information
17. SI
21] THE LEGAL PROFESSION IN EARLY DAYS 453

persons to be nominated by the High Court and ten were to be elected by the
Advocates of the High Court from amongst themselves.' 8 Each High Court was to
prepare and maintain a roll of advocates of High Court.' 9 While the roll was
maintained by the High Court, the Bar Council was authorised, with the previous
sanction of the High Court, to make rules to regulate the admission of persons to
be Advocates of the High Court without affecting in any way the power of the High
Court to refuse admission to any person at its discretion.2°
Under the Act, the power of enrolment of advocates virtually continued to
remain in the High Court and the function of the Bar Council was merely advisory
in nature. The Act did not affect the power of the High Courts of Calcutta and
Bombay to prescribe qualifications to be possessed by persons applying to practise
on the original sides of those Hi g h Courts and their power to grant or refuse any
such application, or to prescribe the conditions under which such persons were to
be entitled to practise or plead. The roll of Advocates was to be maintained by the
High Court which also had the disciplinary power over the Advocates. The right of
the Advocates of the High Court to practise in another High Court was not unfettered
hut was expressly made subject to rules made by the High Court or the Bar Council.
Each of the High Courts as well as the Bar Councils of Calcutta and Bombay made
rules to the effect that Advocates of other High Courts would be permitted to appear
and plead in the respective High Court concerned only after obtaining the permission
of the Chief Justice and on several occasions very cmincnt Advocates of one High
Court were refused permission to appear and plead in another High Court.
In course of time the Calcutta and Bombay High Courts liberalised their rules
so as to permit non-Barrister Advocates to practise on their original sides as well
which so far had been reserved for Barristers only. Thus, the distinction between
Barristers and Advocates was abolished. However, no advocate, whether Barrister
or not, could act on the original side but had to appear and plead on the instruction
of the Attorney on record.
S. All-India Bar Committee, 1951

The Bar was not satisfied with the passing of the Bar Councils Act, 1926. The
Act did not bring the Pleaders, Mukhtars and Revenue agents practising in the
Moffusil Courts and revenue offices under its scope and consequently did not set
up a unified Indian Bar. Further the powers conferred on the Bar Councils constituted
under the Act were limited and the Bar Councils were neither autonomous nor had
any substantial authority. The demand for a unified all-India Bar which arose initially
as a protest against the monopoly of the British barristers on the original sides of
Calcutta and Bombay High Courts and the invidious distinctions between barristers
and non-barristers received a new orientation with the advent of independence and
became "a claim for the fulfilment of a cherished ideal", namely, an autonomous
and unified all-India Bar. In response to this persistent and widespread demand by
the legal fraternity the Government of India, in 1951, appointed the all-India Bar
Committee under the Chairmanship of Justice S.R. Das of the Supreme Court.
18 S.4.
19. 5.8(2)
20. S. 9.
454 LEGAl. PROFESSION. LEGAL EDUCATION AND LAW REPORTING [CHAP.

The Committee, in its report, made detailed recommendations for the unification
of the Bar providing for a common roll of advocates who would be entitled to
practise in all courts in the country. Thus all grades were done away with and one
integrated and autonomous all-India Bar was formed.
The Committee recognised that the task of preparation of a common roll of
advocates, who would be members of the unified all-India Bar, would be difficult
but not impossible.
The Principal recommendations in that behalf were:
(i) Recommendations:
(i) Each State Council should maintain a register of all existing advocates
entitled to practise in their respective High Courts.
(ii) All vakils and pleaders, entitled to practice in the district and other
subordinate courts, who are law graduates, should be entitled to be
included in the roll of advocates maintained by the State Bar Council on
payment of certain fees.
(III) Vakils and Pleaders, who are not law graduates but who, under the
existing rules, are entitled to be enrolled as advocates, should also be
entitled to be placed on that register.
(iv) The State Bar Councils should then send copies of such registers to the
all-India Bar Council who are to compile a common roll of advocates in
the order of seniority according to the original enrolment of the advocates
in their respective High Courts or the Supreme Court if they are not
enrolled in any High Court.
(v) New entrants possessing the required minimum qualifications may also
apply to a State Bar Council for enrolment and their names should he
forwarded by the State Bar Council to the all-India Bar Council for being
entered on the common roll.
The Committee also recommended that there should be no further recruitment
of non-graduate pleaders or mukhtars.
The Committee also felt that the essence of an all-India Bar is the capacity or
the right of its members to practise in all the courts in the country, from the highest
to the lowest, and recommended that the requirement of leave for practising in any
ether High Court under Section 4 of the Legal Practitioners Act, 1879 should not
exist.
A majority of the Committee were of the opinion that the insistence on a certain
number of years' practice in a High Court as a condition of eligibility of the Supreme
Court had not yielded satisfactory results and that it was best to let an advocate
have the freedom to practise in any court including the Supreme Court irrespective
of his standing at the Bar.
On the question of the continuance of the dual system in the High Courts of
Calcutta and Bombay and their original sides the Committee concluded that there
was no reason for the abolition of the system as "the dual system is nothing more
than a division of labour which necessity enures for the better preparation of the
case and enables the Advocate to effect a better and forceful presentation of the
client's point of view before the Judge". The Committee was also of the view that
211 THE LEGAL PROFESSION IN EARLY DAYS

455
the system would not in any manner be inconsistent with the creation of an all-India
Bar with a common roll of Advocates as the "right to practise in all Courts does
not mean that the rules of the Courts where the Advocates go to practise may be
ignored. What is meant is that there should be no rule 01' any court preventing any
advocate ordinarily practising in any other court from exercising his profession in
the first mentioned court in the manner in which an advocate ordinarily practising
in that Court may do".
The Committee also recommended creation of an all-India Bar Council and

State Bar Councils. Under the Indian Bar Councils Act, 1926, the Bar Council were
merely advisory bodies and the power of admission, suspension and removal from
the Roll of Advocates was entirely vested in the respective High Courts. Subject to
some safeguards, the Committee suggested that in the interests of an autonomous
national Bar, the power of enrolment, suspension and removal of Ad v ocates be
vested in the Bar Councils. The Committee did not feel the need for a separate Bar
Council for the Supreme Court as every Advocate on the common roll $hall be
entitled as of right to practise in the Supreme Court and would he amenable to the
jurisdiction of the appropriate State Bar Council and of' the all-India Bar Councif
(ii) i..w Commission's 141h Report.
1958—The Law Commission, 1959. Con-
sidered this question in the famous fourteenth report on 'Reform of Judicial
Administration (1958)'.
The Commission endorsed all of the recommendations of
the Bar Committee with respect to the unification of the Bar and lamented that
"these proposals which were made as far back as March 1953... should nor have
been given legislative effect". 21
The Commission also endorsed the recommendation
of the Committee that there should be no further recruitment of non-graduate
pleaders or mukhtars.
The Commission agreed with the Bat Committee that the dual system should
continue in Calcutta or Bombay. The Commission in addition recommended a system
closely analogous to the dual system for the Supreme Court "so that the Court may
have the assistance of the Bar in a full measure in the discharge of its onerous
task. 22
In the Commission's view, a large number of matters in the Supreme Court
are matters of prime importance and substantial value, and it is very necessary for
the efficient working of the Court that it should he assisted by a Bar which has
given thought and labour to the preparation of a case.23
The Commission also favoured the division of the Bar into Senior Advocates
and Advocates, the seniors being, by reason of their status, precluded from accepting
certain types of work 24
and from appearing in cases unless briefed with a junior.
"This would result in achieving several objectives. To the seniors it will mean the
recognition of a successful career at the Bar by the conferment of a privilege which
will give them an honoured position among members of the profession and enable
them to concentrate on important work yielding as large or perhaps a larger income.
21. The Law Commission. XIV Report, 558 (1958).
22. /bid, 56.
23. Ibid.
24. According to the Commission, the seniors would be subject to the following obligations-
(i) they should not draft notices, pleadings, affidavits or other documents nor advise on evidence.
(u) they should not settle not
ice,s. pleadings, affidavits ordocutnents unless they have been drawn by
an advocate who is not on the Fist or seniot advocati
456 LEGAL PROFESSION, LEGAL EDUCATION AND LAW REPORTING [CHAP.
It should result in putting work in the hands of the junior members of the Bar. This
should heat-ten them and raise their morale, which in turn should attract an abler
class of men to the profession... The distribution of work among a large number
should also help to prevent delays caused by adjournments".25
The Commission emphasised the principle of autonomy of the Bar, in matters
relating to the profession, sought to be given effect to by the Committee of 1951.
Consequently, the Bar Councils were to be entirely autonomous bodies consisting
wholly of the members of the profession. The Bar Councils were to elect their own
chairmen.
6. The Advocates Act, 1961

In 1961, Parliament enacted the Advocates Act to amend and consolidate the
law relating to legal practitioners and to provide for the constitution of State Bar
Councils and an All India Bar Council. The Act establishes an all-India Bar and a
common roll of Advocates. An advocate on the Common Rolls has the right to
practise in all Courts in India from the highest to the lowest. The Bar has been
integrated into a single class of legal practitioners known as Advocates.
The Act creates a State Bar Council in each State and a Bar Council of India
at the Centre. The functions of a State Bar Council are inter alia —(a) to admit
persons as Advocates on its roll: (h) to prepare and maintain such roll; (c) to entertain
and determine cases of misconduct against advocates on its roll; (d) to safeguard
the rights, privileges and interests of advocates on its roll; and (e) to promote and
support law reform. The functions of the Bar Council of India are inter alia—(a)
to prepare and maintain a common roll of advocates; (b) to lay down standards of
professional conduct and etiquette for advocates; (c) to lay down the procedure to
be followed by the disciplinary committee of each State Bar Council: (d) to safeguard
the rights, privileges and interests of advocates: (e) to promote and support law
reform: (j to exercise general supervision and control over State Bar Councils; and
(g) to promote legal education and to la y down standards of such education in
consultation with the universities whose degree in law shall he a qualification for
enrolment of an advocate.
Any advocate may, with his consent, be designated as a Senior Advocate if the
Supreme Court or a High Court is of opinion that by virtue of his ability, experience
and standing at the Bar, he deserves such distinction.
The Advocates Act, 1961, has marked the beginning of a new era in the history
of the legal profession by vesting largely in the Bar Councils the power and the
jurisdiction which the Courts till then exercised, by fulfilling the aspirations of those
who had been demanding an All-India Bar and effecting a unification of the Bar in
India, by the creation of a single class of practitioners with power to practise in all
the Courts and bound by rules made and a code of conduct laid down by their own
bodies to which the members could resort to for the protection of their rights,
interests and privileges. Thus the Legal Profession can play a vital role in upholding
individual rights, promoting more efficient and widespread justice, and acting as an
integrating force in national life. It has great traditions on which to build. It is now
part of a modern legal system which provides both the personnel and techniques
25. Commission Report. 568.
21) THE LEGAL PROFESSION IN EARLY DAYS 457
for effective rational unity. The responsibility of this profession to the Indian society
is indeed great, as has been its history.
7. The 'Patholog y ' of Legal Profession 26

However, all is not gold that glitters. The responsibility that the Indian Bar
bears to the society and the challenge that it faces today bear a testimony that the
Indian, Bar has not risen to the occasion to discharge its duties.
Learned professions are often distinguished from 'occupations' and business'
by their more explicit pursuit of, and greater fidelity to. certain basic social values.
writes Prof. Baxi: Lawyers as a profession are thus oriented to the achievement of
conditions of justice in society. We p,iav not be able to say with an y tolerable measure
of consensus what ''justice'' sigiiifies but there 'nav be afai measure
e of consensus
on the idea of 'conditions" of justice, one of which is the construction of public
discourse on the ntiture and limits, legitimacy and legality, of State power. The
denial of such a discourse often signifies an end to the very quest for justice. Creation
and sustaviance of such conditions has been articulated b y codes of ethics providing
standards for identification and nieasure,nent of professional deviance. Prof. Baxi
examines this Code of Professional Ethics promulgated by the Bar Council of India
under Section 49 of the Advocates Act and points out a number of drawbacks and
lacunas in these rules which are regularly misused. 27 The language gives an
impression that the rules are mandatory and productive of disc ipli nary -conse-
quences 2t but looking to the fees charged29 , the use of time idea of retainership70,
fomentation of litigation whenever chances occur, the defiance of rules by lawyers
and the behaviour pattern of the legal cnmn1unity' 2, lack of professional nornzs,
confusing the meaning of professional misconduct and all other associated prac-
tices 34 expose the conirnunsty to a severe conunentalion of the society. The lawyers
as a profession huìe and thrive on ambiguity 5, inherent in, or imparted to wordt,
and the professional deviance of the lawyers is nutltifaced. 36 In spite of this the
treatment accorded to such deviators is the overall pattern of "Peer Group Adjudi-
cation '. This sort of experimentation has not served the purpose of enforcing a
minimal level of integrity in Indian Legal Profession. This is sad and most unfor-
Wnate. Lawyers as adjudicmors, certainl y at the Bar Council of India level, have
Shown themselves incapable of enforcing the Code vigorously as the final custodians
of ethical standards.
Besides this, the highest obligation under Rule 41 is to provide free legal aid
to the ''indigent and the oppressed". This obligation is subject to the limits of an
advocate's economic condition. But we know that even the superstar lawyers, whose
26. Upendra Baxi: The PaiIio/oj,'y of the I,ulion Legal Profrcxion.c, IBP Vol. XIII (3 & 4)1986. 455-84.
27. Ibid.. 456.
28. Ibid.. 456.57
29. Ibid., 458.
30. ibid.. 458
31. Thd., 459
32. Ibid., 461 (practice,,).
33 J S. Gandhi: Sncui/ogv of Legal Pm! asia,,. Law and Legal Sroem. (1987). 46-48.
34. Ibid.. 462: .cupra n 32. 60-66
35. Ibid. 463.
36. ibid.. 469 . 79 Clieni-centered deviance, (471-74). abuse of judicial process (474-77). dlcrespeci to
judicial authority (477.79), criminal conviction (479)
V https://t.me/LawCollegeNotes_Stuffs
458 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING [ChAP.
economic condition is unconscionably affluent even refuse summarily to see an

indigent person with urgent need for legal assistance. Most senior lawyers stay away
from the legal aid programmes of the State. In 1-lussainara cave 31 the notice issued
to the Supreme Court Bar Association by the Supreme Court to handle the case did
not get a response. The Indian lawyers, as we know, did not rush to assist the Bhopal
victims. This proves that the lawyers in India have understood Rule 41 of the Code
as, in its nature, unenforceable. All this is quite unfortunate and marks the low level
to which the profession has dwindled down so as to make it an occupation or
business. Prof. Baxi therefore suggests that the Advocates Act needs to be fun-
damentally amended if this pattern is to continue .31 It is said that this profession is
an open profession where many can come, rub their shoulders and prove their worth
(called an open-door policy) but as replied by Prof. Baxi the " pratession is really
dynastic in character. Mention me, Prof Baxi said, twenty-five leading scheduled
castes or scheduled tribes lawyers who have occupied the centre of the stage of the
national legal profession through what you call the 'open-door' policy. And in what
does the character of the profession lie'? Learning? Integrity? Dedication to fun-
damental duties under the Constitution? Legal Services to the impoverished'? Fight
against social injustice? Measured by anyone of these, or all, the legal profession
in India has still to acquire a character of a learned profession. I don't wholly despair
but unless the leaders of the Bar do some introspection and put the profession back
on the rails all we will be left with is an occupation, not a profession"
8. The Future of Legal Profession

The talk about the "pristine glory ''of the profession seems meaningless since
the legal profession in India has yet to become a profession of men and women of
learning and of justice, says Prof. Baxi. When a 'profession" values income or
practice over social objectives such as service, sacrifice and justice it begins to be
perceived by society as a necessary eviL 40 The future of the legal profession lies in
its ability to take its profession seriously. This means care and concern not just for
independence of the bar and the bench—a vital issue, rather well served by the
"profession" so far—but also a capacity to struggle regardless of fees, for the
Arisudras, the vast majority of the deprived, disadvantaged and depressed classes of
India. Courts have supplied superb initiation for social change and SAL is its
contemporary example. Every decision requiring the executive to act in accordance
with the law is a social change decision because it helps the growth of the idea that
power must conform to certain ideals of the rule of law; that power does not justify
itself because it is power. This is still a new and often painful education for those
in power.4
B. LEGAL EDUCATION
(a) The Aims of Legal Education—The aims of legal education are varied and
have differed at various tunes and places. It may be aimed broadly at understanding
37. J.S. Gandhi SocwIoKy of Legal Prfr.ssum. Law u:idLegil S ystem, (1987). 469-79: Client-centered
deviance. (471-74). abuse of judicial process (474-77). disrespect to judicial authority (477-79).
criminal conviction (479).
38. Ibid., 482, 483 (suggestions).
39. Prof. Raxi interviewed: 1987(14) Reports (Mag.) 37.
40. 1987 (14) Reports (News & Views) 37.
41. IbkL. 38.
211
LEGAL EDUCATION
459
the functioning of law in Society, as a training for
a dministrators and civil servants
as much as for legal practitioners: or it may be more narrowly aimed at training
Persons for legal practice.42
The aims, methods and content of legal education have differed in different
countries, affected particularly by whether there were OT
were not professional
schools concentrating on practical branches of law, the relative importance of' legal
treatises and decisions of courts, the relative standing
other factors. of professors and judges and
If we look to the West the leka! studies there have been much concerned
the development of intellectual capacity in law rather than with with
. i nculcating profes-
sional expertise. For the attainment of this ideal, attention should always be given
to jurisprudence constitution ,
legal history and all other allied topics. Moreover out-
fit-III
belief that law is a subject of study in Colleges and Universities and that it
has nothing to do with at the school level which is the grassroot level is quite
unfortunate As we have started streams of education with arts-bias science-bias
c ommerce-bias and te chnical-b'
as Streams with law-bias ma y
students whereof would come to law colleges. be started as well, the
(h)J/ (story.orn P
ared with science, technology and medicine the legal edu-
cation is less technical or less professional .
In the beginiiin to become a vakjl,
knowledge of Persian language was necessary hut aftet- 1826 English
Persian. At that time no principles of law were taught what was tau replaced
g ht was onl y
rules and regulations, it was only in 1885 that law classes were made a permanent
feature in Bombay, Calcutta and Madras. In
1857 study of law was declared as a
permanent part of each University. Many prominent persons of India began their
career as Mukhtars43
A number of commissions and co

mmitteeswere appointed between 1917 to
1958 to examine the question of legal education, Those
number of measures to im co mmittees 44 sugested
g a
been done. C prove legal education but so far nothing noteworthy has
onsequently, Law Colleges do not have a place of high esteem either
at home or abroad and the study of law and legal research is discarded, Law Colleges
are mostly crowded with students who have been refused admissions in other
faculties This "refuse" therefore and those who have nothing better to do, gather
in law c
olleges. The Bombay Legal Education Committee stressing the n eed for
reorientation of legal education and academic and
v ocational training i'eportedthat
"There is no real antimony between the pI'ofe.ssional and the cultural aspects of law.
A lawyer will he it
better lawyer and a judge a better judge, if he has studied the
science of law. A thorough grounding in
in the make up of a real lawyer .45 the principles of law is absolutely necessary
(c) Reasons for Stagnation.—The

causes that retard the development of our
legal education have been noted by Miss Master, the noted legal
educationist of
Canada as: (1) lack of financial resources, (2) lack of adequate books, (3) lack
teaching materials (4) of
deterioration of teaching standards, (5) lack of teaching staff
42 Walker:
' " 1-41w(1 980). 739, 740, 910
43. K L Sharma Sinfogv of Law t 1
4'a 1 Profecsj(,, ? (1987) Ch. 5
44 e.g. Dr. S. Radhaknsl
Corilmiltec of 1948-49
45 A Report of the Un. Education Cotnunt V 0J .
f, 1948.49. 257 quoted by Sham=. supra n 43
460 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING[CHAP.
incentives, (6) discrepancies in the goals of legal training and (7) the general desire
for uniformity has led to a tendency to emphasise the importance of memorised
learning of substantive laws. There is thus little attempt made to inculcate an
awareness of the kinds of legal problems, encountered in the Indian social, cultural
and political context through the comparative method.46
the emerging
A lawyer, says Madhav Menon47 , has to have a vision of
challenges, a zeal to serve the cause of justice and the ability to forge new tools
and techniques appropriate to the changing needs and times. Legal education as it
obtains today is totally inadequate to the tasks ahead." Legal practice which was
a monopoly of a few and the closed preserve of a privileged few increased its scope
after independence. Lawyers especially good lawyers were in great demand. How-
ever the legal education, on the other side started to touch its lowest level when in
1966 the compulsory apprenticeship and the Bar examination on procedural subjects
for every new entrant were removed. Unfortunately enough the Bar Councils too
were unable to ''stem the rising tide of inefficiency and mediocrity in the profes-
sion''.
(d) The New Scheme.—A new scheme for legal education is now prepared
which is a milestone in professional legal education. 48 It took a considerable time
but the scheme is "to improve legal education through selective admission, better
teaching methods, improved curriculum and updated syllabii, compulsory pro-
gruinmes of practical training and strict adherence to norms and standards laid down
for law schools''
The course prescribed is for five years: the first two years cover seven
compulsory subjects, that is (1) General English Pt. I and II (graduate standard), (2)
Political Science Pt. I, II and III, (3) Economics, (4) History, (5) Sociology, (6)
Legal language including legal writing, and (7') History of Courts, Legislature and
Legal Profession in India. For the next three years (here shall be twelve compulsory
subjects and in addition to this six more subjects are to be chosen from the list
comprising of 23 subjects. The compulsory subjects are: General Principles of
Contract. Special Contracts, Torts, Family Law, Hindu Law, Mohammedan Law,
Indian Succession Act and Indian Divorce Act. Law of Crimes and Procedure,
Constitutional Law of India, Property Law and Easements, Evidence, Legal Theory,
C.P.C., Limitation and Arbitration. Administrative Law and Practical Training of 6
months. The optional subjects are Equity, Company Law, Labour Law, Taxation,
International Organisations, Bankruptcy, Law of Co-operation and Public Control
of Business. Legislative Drafting, Military Law, Insurance, Trusts etc., Trade Marks.
Copyrights and Patents, International Economic Law. Criminology and Criminal
Administration, Interpretation of Statutes and Principles of Legislation. Legal
Remedies. Private International Law, Comparative Law, Law and Social Change,
452 quoted in D.C. Mukharjce's

46. Mehcr K. Master: Reflections, on Legal Educaru'n and Teaching.
Practical side (if f,w Teaching: Journal of the BC!. Vol. 2(4) 1973, 533.
47. N.R. Madhav Menon: Legal Edn. For Professional Responsibility--An Appraisal Indian Bar Review
X11 (3 & 4)986.436,437.
48. For details see Silver Jubilee Report on the Bar Council of india and Trust—Lecture on 3-11-1996 by
Shri N.N. Mathur, Managing Trustee. BCI'r.
49. Supra note 46
21j
LEGAL EDUCATION
41
Law and Poverty. Land Revenue Law, Land Reform and Rural
De velopment, Law
and Planning and Law relating to Local Self Government
On account of hue and cry from the bar and the teachers of law and the vested
interests the BCI went on giving concessions and the position as it stands today is
that legal education would be of two types: liberal and professional. For the first
time, notes Dr. Merion, the BCI is forced to recognise the plurality of objectives in
legal education and limit its rule making power only to professional legal education.
(e) Future of Legal Education
--The functions of the Bar Council have been
laid down in Section 7(h) and (i)
and its rule making power is laid down in Section
49 (af) and (d)
of the Advocates Act, 1961. Accordingly the law courses which
were of two years' duration before were from 1962 made of three years' duration
The expert Legal Education Committee constituted under Section
Ad v ocates Act, l%J thereafter prepared a scheme of 5 year course. This 10(b) of the
was the
result of seven years' constant consultations, suggestions and deliberation with
authorised bodies. The scheme reflected the r
ecommendations of the Education
('onirnission 1964-1966. However the scheme got a scant response. This was on
account of the fear by some law Colleges and Universities that they might
close down their institutions . Indian legal have to
education is entering a new phase and its
object is to arrest the deteriorating standards and to promote higher level of
excellence. The success or failure of the scheme depends upon the total response
and the co-operation of the Bar and the Government.
According to Dr. Baxi 'the five-year course is one major way of redeeming
Indian Legal Education. Look at the vested interests in the Bar and Indian politics
which are Opposing and diluting it. It was the first step towards professionalising
legal cducation"° but it is now diluted beyond recognition. The
education is n uncertain but in words of Shri future of legal
ow W eeramantry. formerly a judge of
the Supreme Court of Sri Lanka and now a Professor of Law at Monash University
in Australia, so much is certain that 'whether one believes with some scholars that
law is the queen of humanities, or takes a more prosaic view of its position in the
Spectrum of knowledge, there can be no doubt of the significant and continuing
Interaction between law and nearly every other field of knowledge. Unfortunately,
the sheer weight of black letter law is pushing away from popular consciousness an
appreciation of some of the broader perspectives which legal studies should incul-
cate.
It is a matter of regret that in recent years even lav school curricula reflcr
this tendency and crowd our the perspectives through insistence on black letter
teaching... students pass our, qualified as law graduates and practitioners who may
never have heard of Ben t
ham or Pound. The cultural and social value of
studies cannot adequately be fostered if legal
studies' such narrowness should characterise legal
(j) Recent Developments:

As observed by the Curriculum De v
elopment Centre (CDC) in its report
published by University Grants Commission (UGC) in 198952 "tiends" in Legal
Education after independence may be divided into three phases— In the
first phase
50. (1981) 14 Reports (Interview) 22.
SI. C.G. Weetamaniry An i,tv,ii1 Ii'
52. 2 'lie L,w. 1982, Bulterworths, Australia
462 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING ICHAF'.
(roughly 1950-1965), the principal theme was how best to transfirnri legal education
away from the colonial heritage, and in a way to indianise it. In the second phase
roughly (1965-1975) the emphasis was on a sound reorganisation ot curricula and
pedagogy towards professional legal education. In the third phase (1976-1988), the
focus shifted to "modernisation" of law curricula so as to make this increasingly
relevant to the problems of a society and State in deep throes of transition.
To the efforts to improve the quality and content of the legal education through
seminars, symposia, papers and reports, may be added the efforts of UGC in 1975-76
and thereafter. This led to the report published in 197 953. Thus a programme of
developing curriculum in different subject areas through CDCs was taken up. Reports
of this CDCs were received by UGC and discussed by the Expert Groups. The
CDina1 report was published in 1989. The Report goes deep into problems of
Law Colleges and legal education and proposes that legal education should be wholly
full-time, a law student should not be allowed to undergo double courses 54 at a time.
overcrowding in Law Colleges should be restricted and multiple jurisdiction 55 over
legal education has demoralised legal education and law teaching community.
Moreover legal education remains a low-priority area of Higher Education and it is
resource-starved.
If qualitative transformation of Indian legal education is to be achieved three
cha1lanes have to he faced
(i) modernisation of syllabi to make them socially relevant;
(ii) multidisciplinary enrichment of Law Curricula; and
(iii) corresponding pedagogic modifications.
"Modernisation need not mean"de-westernisation '". But it InLtaI rflea,i first-
hand indigenous thinking, research and teaching on the lndia,z problematic. This
has to draw its content and direction from the ideology of Indian Renaissance and
nationalist movement—subsequently embodied in the Constitution of India. Legal
education, as humanistic education has to ensure in India, a degree of emotional
identification with "social pain" without ''shutting ourselves off front
or without ''dulling of sensitivity''. We have thus to 'resurrect the Constitutional
dream" for the down-trodden, the poor and the ignorant."
In its 758 pages report the Centre has laid down an up-to-date curricula worth
implementing in order to redeem legal education in India.
C.—LAW REPORTING
(a) The Doctrine of Precedent . History and development.—A precedent is the
making of law by the recognition and application of new rules by courts themselves
in the administration of justice. A judicial precedent in England speaks with
authority, said Salmond. It is not merely evidence of the law but a source of it, and
the courts are hound to follow the law that is so established. In England under the
53. by Prof. Upendra [Saxi.
54. Percy ]at Pardiwala, AIR 1987 Born 283.
55. BarCouncil of India, UGC, University, Management. There is yet another report of 1993 or so bul the
details are not available.
56. Part IV and Part TV-A.
57. Ch. I, 11 of the C.D.C. in Law.
211
LAW REPORTING
463
Common law a judge has a g reat r
esponsibility because of the institution of
precedent.
Precedents mean things which have gone before. The tern-i 'Judicial precedents'
means previous decisions of the Superior courts deemed to embody a principle which
in a subsequent case raising the same, or a closely related point of law, may be
referred to as stating or containing the principle which may be at least influential
on the court's decision of it, or even under the principle of stare decisis, decisive
of it. While reference to precedents in England has long been common it is only
since 1800, and particularly since the late nineteenth century, that the full rigidity
of stare decisis has been accepted in England.53
The doctrine of stare dec,sjs is the doctrine of the bindin
g force of precedent,
to the effect that in deciding a case before him a judge not only has reg
a rds to
precedents, but that in certain circumstances he is hound to stand by the decided
case, and to accept and follow the principles of particular precedents, whether he
Personally approves them or not. This practice has been one of long growth and
continuous development in English law.
Since the beginning of the British system of justice in India ti-ic theory
of
precedent gained ground and this has been the main source of inspiration to the
practice of law reporting in India. However it has to be noted that till the end of
the eighteenth century there was nothing like precedent. Cases of Raja Nand Kumar
and Cossijural) are its examples. It was Dovin. a Judge of
the Saclar Diwani Adalar
who first recognised in 1831 the importance of precedent and advocated giving
Statutor y basis to the P
rinc iple of precedent. According to him if a regulation was
made to that effect it
will have the effect of making the superior courts more cautious.
It would thus result in introducing something like a system for other courts, the
want of which was very much felt. This would also abridge the labour of civil
courts. 60
In this connection Potter rightly points out that 'the gradual development
Of the
all of law reporting reflects the growth of the authority of
p recedents.., the
P ri nciple of law is to be stated and then applied to the particular facts of the case.
It is the pnncipte that is now binding. Such an idea is, of course, not primitive and
in fact was the result of a long process".As " noted by Ra machandraii 62
Of the doctrine
rule of law rests on the basic foundation and structure of a country's well-ordered
government and its established courts of justice doing justice according to law in
their interpretative jurisdiction Courts sometimes supply the Omissions in the enacted
law and open new avenues for the legislature to take note of and regularise them
by enacted law. The legal profession and the liti g
enhi ant public, therefore, look for
ghlenrfte,) in the law of the country by studying the law reports which contain
the decisions of the highest courts of the countr y
such de . In the federal set-up of Bharat,
cisions emanate only from the High Courts in the States and the Supreme
Court at the Centre. 63 Dovin's re
commendations as noted before, however did not
fructify but his voice found an expression when the Privy Council in 1925 in
Mata
58, Walker. The 0xj-rd
Companwn to Liiw. (1980). 977
59. ibid., 1174.
60. Selections from the Records of East. India House, II, 20
0. Harold Poi- A ri Iij. clan (J!
62 V.G. Rarnan h,inc(ran . L'JH' lni(rj,d,t€;,, to English. Li,w & Ii c /ILc!,jujjt,,ic (1943). 262.
63. ibid Iiiw Rpo,i.t at Indj, (1930)22 JILt 218 . 239.
464 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING [CHAP.
Prasad v. Nageshwar Sahai64 expressed and declared that their decisions were
binding to the Courts in India. In their own words,
"It is not open to the Courts in India to question any principle enunciated by
this board, although they have a right of examining the Facts of any case before
them to see whether and how far the principle oil stress is laid applies to the
facts of the particular case. Nor it is open to them, whether on account of 'judicial
dignity' or otherwise to question its decision on any particular issue of fact."
This principle was fully endorsed by the High Courts 65 and the Law Commission
of India not only reiterated the same but also observed that though the decisions of
the High Courts have not been invested with authority of law by any enactment not
to follow the decisions of the High Courts by the subordinate courts would
tantamount to insubordination. The present system of treating judicial precedents as
binding and citing them in courts, observed the Commission, serves a very valuable
purpose and should be continued. 66
Government of India Act, 1935 by Section 212 provided that the judgment
of the Federal Court and the Priv y Council shall he binding on all the courts in
India. Thus the decisions of the highest court of the land prior to the commencement
of the Constitution of India in 1950 are also governed by the doctrine of precedent
if not overruled by the Supreme Court. 67 In words of Dr. Jain "Publication of
decisions is a condition precedent for the theory to operate; there must exist reliable
reports of cases: if the cases are to be binding there must be precise records of what
they do lay down and it is only then that the doctrine of stare decisis can function
meaningfully.'
(b) Advantages.--As observed by the Fourteenth Law Commission besides
uniformity and certainty of law in the administration of justice the doctrine of stare
decisis tends to promote convenience and avoids delays. ''If earlier decisions were
not recognised as binding every court would have to decide the same question over
and over again on principle which would cause delay and increase the burden of
judges to a breaking point"P 9 Besides this, there would follow a confusion and
chaos because in one district a statute may he interpreted in one way while the same
may be interpreted in a different way by the court of another district, though of the
same State. Thus if the courts were allowed to interpret the law in their own way,
unmindful of the binding force of precedents the result is disorder and conflict and
the resultant chaos. It should, however, be noted that too rigid adherence to precedent
leads to injustice and restricts the development of law. In peculiar circumstances
therefore the Supreme Court may review and depart from its own judgment and can
change the law, 70 Law reporting is thus an important function of the State to sustain
the rule of law.
64. 52 IA 398,417: AIR 1925 PC 272. 279.
65. P. Ranjaswwni v. Chandra KotPaL AIR 1925 Mad 261; fllwndu ','. Mishri. AIR 1936 Born 95;
Vinavak v. More c/twa,-, AIR 1944 Nag44. 49; Ban kela! v. Batra. AIR 1953 Al) 747; Rex v. Ram Dayal.
AIR 1950AI1 134.
66. Law omxnissions 14th Report: Ref urm of Judicial Athnini.ctraiion, (1958), 626, 646, para 44.
67. Supra n. 5; Articles 372(1) and 141 of the Constitution of India.
68. Indian Legal Hi.ct('r-%' (1972). 611.
69. Law Comm. XIV Report. 1.626: Jam: Indian Legal JJi.rtory(1972).Ch. M.
70. Art. 137. Constitution of India: see (1966) I All ER 77 (which states that too rigid adherence to
precedent is not acceptable in England). Indian cases on this point. Galaknarh case. AIR 1967 SC 1643
er

211
LAW REPORTING
465
(c) Law Reporters: Supreme Cour gs.—Tt is
interesting to note that after the
Supreme Courts were established in Presidency towns law reporting system came
into existence. It was a
private enterprise and it remains so even up to date barring
a few exceptions.
In 1824 Sir Francis Macnaghten published "Considerations upon Hindu Law"

and in 1 825 Sir William Macriaghten produced "Dissertations on Mohammedan
Law". Both these were works on persona! laws. In 1829 Longuevjlle Clarke
published 'Rules and Orders of the Supreme Court" which contained notes on
cases. Similarly in 1834, ''Collections of Orders" from
1774 to 1813 was published
by Smoult. These were useful publications. Reports" compiled from
notes of Sir R. Chambers C.J., and other judges of the court covering a long period
from 1774
to 1841 was a publication leading to a definite development of law
reporting in India. ''Bigriell's Reports" (1830-1831) published in 1831 contained
hill reports of the cases. Besides these other reporters Fulton's Reports
(1842-1844),
Montriou'.s Select Cases, Moritriou's Reports (1846),
Boulnois Reports (1853-1859),
(;asper's Commercial Cases (1851-1860). George Taylor's Reports
(1847-1848),
Taylor and Bell's Reports (1847-1853) and Gasper's Reports on Small Cause Cases
(1850-1859) 01
Calcutta Supreme Court were the useful reporters. In Bomba y
Sir
Erskine. Perry (C.J. of S.C. at Bombay) Published two collections known as Perry's
Oriental Cases, Morley's Digest (second volume) was his collection.
At Madras Sit-
Thomas Strange in 1816 published three v olumes
(1798-1816) known as ''Strange's
Reports''. As noted by Dr. Jam these decisions were frequently referred to by the
Privy Council and the High Courts but now they have become rare. ''The value of
these old decisions was great both for professional lawyer and academic researcher
because the cases not only contained good law, but they were also of great historical
interest as they depicted how in the early days, the English law y
the f0undati on of a system of ers and jud g es laid
A nglo-Indian jurisprudence in India" . An attempt
to consolidate all the above said reporters and to publish them under the name now
known as Indian Decisions (old series) was made by T.A. V
enkaswarny Rao, and
five volumes were published.
On the side of the Sadar Diwani Adalats Sir William Hay Macnaghten was the
pioneer of law reporting. Covering a period from 1791 to
1849 he published seven
v
olumes. The first volume was prepared by Dovin who was appointed later as a
judge of the SDA. The second, third and a part of the fourth volume were prepared
by Sir William himself-
the fifth volume was prepared by Sutherland and the last
two volumes were prepared by the Registrar himself. From 1845
the SDA decisions
were published monthly. These were known as the Bengal SDA Reports. These
reports are the oldest official series of law reports in India- The Indian Decisions
(old series) volume six and onward contain their reprints. As regards SDA of Madras
only a single volume entitled "Decrees in Appeal Suits determined in the court of
Sadar Adalat' was published in 1843
covering a period from 1805 to 1826. It
contains Interesting cases on Hindu law on the prevailing doctrines of the Southern
School. At SDA in Bombay Borradaile, a judge of the Adalat in
1825 published
w hich 10WITUled
Shankan /'r,J.ud AIR 1951 SC 45$: G/ak,raiIi w,i.c Jaiei overiulc,
(1973 4.5CC 225. by Ke.c,jvj,wndj
71. LI Htcun-v, (1972) Ch XX Vt
466 LEGAL PROFESSION. LEGAL EDUCATION AND LAW REPORTING ICHAP.
two volumes of the cases decided by SDA, Bombay. The second volume appeared
in 1843. The volumes cover a period from 1820 to 1840. It should be noted that
all these were private publications.
On the Sadar Nizamat Adalat (NA) side only two series containing criminal
cases were published; first series (1949) comprised of five volumes and other series
which covered a period from 1827 to 1846 was published by Bellasis the Deputy
Registrar of the Bombay SDA, in 1950. From 1951 a monthly reporter of NA at
Calcutta was started. At Bombay the reports covering a period from 1827 to 1846
were published in 1848. Moreover the monthly reports of Madras Fozdari Adalat
were published. Morris. in 1855 published a collection of cases decided by SFA at
Bombay in two volumes.
(d) Law Reporters: High Courts.—The period up to I 861 was an era of dual
judicature but the establishment of High Courts in Presidency towns of Calcutta.
Madras and Bombay in 1861 'constitutes a conspicuous landmark in the process
of the development of legal and judicial instijulions in India". This period after
1862 saw the acceleration and fineness in regular law reporting. Semi-official and
private law reporting grew. The Madras High Court Reports in eight volumes were
published which covered a period from 1862 to 1875. Similar reports came out from
Bombay (12 volumes, 1862-1875) and Calcutta High Courts. Government published
these reports. Side by side private reporters grew and continued competilion. They
were the Weekly Reporter, Indian Jurisl at Calcutta, Madias Jurist at Madras, Iwo
volumes of Reports of Calcutta High Court (1878-1883) by Hyde E., fifteen volumes
of Bengal Law Reports (1868-1876) and three volumes of Kinealy and Henderson
Reports of the Calcutta High Court (1878-1883).
Due to severe criticism of Sir James Fitzjames Stephen, the Indian Law Reports
Act was passed in 1875. This was in older to improve the quality of reporting and
to make reporting an activity under the supervision and authority of the Government.
Law reporting, according to him, should be regarded as a branch of legislation and
that it was hardly a less important duty of the Government to publish that part of
law which is enunciated by the tribunals in their judgments than to promulgate its
legislation. The position after passing of the Act was that "No court shall be hound
to hear cited, or shall receive or treat as an authority binding on it the report of any
case decided by any of the said High Courts on or after the said day other than a
report published under the authority of the Governor-General-in-Council" The
roots of the binding theory of precedents were thus laid down firml y by the Act.
However the Act could not stop publication of private reports and as we see and
read in the law reports the official publication of law reports are rarely cited. The
citations are mostly from private law reports.
In pursuance of the provisions of the Act of 1 875 each High Court started
publication of law reports. The year of commencement of those series are as follows
1876—Bombay. Calcutta, Madras and Allahabad
1920—Lahore
1922—Patna
1923—Rangoon
72. S. 3, Indian Law Reports Act, 1875.

21] LAW REPORTING 467

I 926—Lucknow
I 936—Nagpur
1939—Karachi
1948—Punjab (East Punjab)
1949--Cuitack & Assarn
195 1—Rajasthan, M y sore, Hyderabad. Travancore-Cochin
1952—Madhya Bharat. Patiala
1954—Andhra Pradesh
957—Kerala. Madhya Pradesh
1960—Gujarat
The series are known as I.L.R. series. Resides this Jammu & Kashinir Law
Reports (1948) and Supreme Court Reports (1950) are the official reporters.
(e) Laiv Reporters: Privy Council, Federal Court and Supreme Court—On the
Privy Council side Jerorn William Knapp was the first person who published cases
of the Privy Council on Appeal from ritdia in 3 volumes covering a period from
1829 to 1836. Another series beginning from 1836 to 1862 in regard to P.C. cases
was brought out by E.F. Moore in IS volumes. Moore also published another series
(called New Series) of P.C. cases in 9 volumes from 1862 to 1873. The series is
known as Moore's P.C. (N.S ) cases. Moore's most well known series Moore's
Indian Appeals (M.I.A.) contained exclusively Indian cases before P.C. in 14
volumes. We have thus P.C. Judgments available from 1829 to 1873 and they are
all reprinted in volumes 12 to 20 of the English Reports (E.R.t. From the point of
view of language, extracts and arguments the series of cases serves the best purpose
and is excellent. 300 copies of the M.I.A. were purchased by the East India
Company. From 1872 onwards to 195() the P.C. Decisions are reported in 77 volumes
from England tinder supervision and control of the Incorporated Council of Law
Reporting (ICLR).
From 1935 to 1950 the decisions of the Federal Court of India were published
under the name Federal Court Reports. With the establishment of the Supreme Court
from 1950 onwards the reports is known as Supreme Court Reports.
(I) Private Reporters—A High Court's decision or Supreme Court's decision
is itself authoritative. It does not become authoritative because (if' reporting. More-
over because a decision is reported by a private reporter it does not take away or
affect its authority at all. A number of important cases remain unreported but that
also does not reduce the authority of those decisions. If this was not so, then as the
decisionin Mahomed All v. Mir Nazar A/i 73 speaks, a mere whim of the reporter
(in reporting or not reporting) could take away the authority of a decision. As
declared in State v. Raniji'4 and Vinavai< v. Moresliwar 75
what is binding is the
decision of the H12h Court and not merely a report. It is rightly pointed out by Dr.
Jain that the decision establishes a precedent and the report only serves merely as
evidence of it. The courts therefore do not follow the rule of exclusive citation of
the Indian Law Reports. One of the reasons for publication of private reports was
73 SCWN 326. 329(t901)

74. AIR I958 l3o i n 38I
75 AIR 1944 Nag 44
468 LEGAL PROFESSION, LEGAL EDUCATION AND LAW REPORTING [CHAP.
this. Besides the 1LR series is incomplete, costlier and the publication of its reports
are delayed. This gave impetus to private reporting. The number of such reports is
growing year by year. As reported76, by the end of 1977 there were 127 private law
reporters (old and new) starting from 1774. Adding other law reporters on special
subjects the number today goes beyond 300. This uncontrolled growth in number
requires a brake because to allow "a near fungus growth of plethora of 'below-par
law journals' is a dire danger to the administration of justice"." A scheme was
therefore prepared by the Indian Law Institute to render and abridge the huge bulk
of nearly 5000 or more volumes of law reports into 500 volumes by deletion of the
dead wood from the archaic law reports. 78 But nothing has been done so far in this
direction. The law reports as a rule, do not give a summary of arguments; they do
not as a rule, report any interlocutary proceedings or orders'
What is however not appreciated is the total disinterest of the courts themselves
in helping this situation. The total present effort is directed towards disposal of the
cases and little or no attention is paid either to make it convenient for the. law
reporters to get copies of all the judgments nor is there any attempt towards a
comprehensive and complete list of judgments delivered. Though the Supreme Court
and High Courts are court of record, the implications of being so is little recognised
and never lamented. Criticism by academicians ignore such realities.
(g) Principles for Law Reporting.—° If indiscriminate reporting is allowed that
would create chaos leading to a maze of decisions that dazzles the eyes of both
lawyers and judges. The Law Commission therefore said in its 14th report that
proper selection and reporting of judicial decisions which are the exposition of the
law ex non scripto is public duty and the State has tiled to discharge that duty
properly. The legal profession can well take up this responsibility. So long as this
is not done it is neither feasible nor desirable to restrict the publication of reports
or to confer the monopoly of citation on one set of reports. However certain points
are to be taken into consideration.
A.— The Reporter may well omit to report eases:
I. Where the decision relates only to a question of fact.
2. Where it does not introduce a new rule of law or materially modify a
principle or rule or settle a doubtful question of law.
3. Where it is a mere case of construction of document unless there is good
reason for including them.
4. Where the decision has been given per incuriam i.e. by reason of relevant
statute not having been called to attention of the Court.
5. Where the decision is by a Single Judge and it only reiterates a principle
of law laid down by a prior decision of another Single Judge. A differing
single judgment may however be reported.
Where the decision is unimportant or is of no general interest.
76. 22 JILt (1980) 218-237: V.G. Ramachandrm: Law Reponin' and Law Reports in India.
77. Ibid.. 229.
78. (bid.. 23 1; see Appendix-C for List of Law Report.
79. Prof. Upcndca Baxi Interviewed: (1987) 14 Reports (Interview) 22.
80. 22 JILT (1980) 220. V.G. Rarnachandran, Law Reporiing and Law Repoii.c in India, 218-239.
211 LAW REPORTING

469
7. Where the decision is on an interlocutory matter and the final decision

Of the case is yet pending.
B.—In recent years the arguments of the counsel are not incorporated in the report
or sometimes the judges do not note those arguments. A good reporting must
incorporate these arguments and points. Besides there is a practice of pronounc-
ing three or even five concurring judgments by the judges. In such case the
editor may incorporate in his report only those paras which throw new light on
the issues arising in the case.
C.—The report should contain proper head-notes. The head-notes must be succinct,
pinpointed and adequate to portray the salient points raised and decided in the
case.
D.—The editorial notes must be crisp and short and aim at throwing more light
when the judgment is silent or possibly erroneous or contradictory to the
established precedents.
E.—.Judgments' dealing with construction of documents may be omitted except
when they state definite rules or principles of law which are aids to construction.
F.—Where the law under which a judgment was delivered is repealed if the decision
yet contains valuable pronouncement involving legal principles which are not
obsolete, such decision may be reported.
G-----Minority judgments cannot be omitted as the dissenting view is equally import-
ant.
H—Quotations in ajudgnient may not be omitted since without them, the judgment
may not make any sense. Classical passages from prior decisions and standard
works often are the pivot on which the decision rests -
I.—Jud g
ments of a Single Judge may not be omitted if they contain binding
principles of Jaw.
(h) Computer aided search of case-law reported in law re
ports.—In 1995, the
Supreme Court in collaboration with the National Jnforrnatics Centre launched a
judgment information system called JUDIS. The search is however limited to
reportable judgments only as reported in SCR. A more
com prehensive and versatile
system was launched by the publishers of Supreme Court cases
ONLINE. entitled SCC
81. Points E tot suggested on the moilon of M.C.

Selalvad the then AG. of India at the meeting of thc
Comrrutt on Revised Law Reports (14-8-I962) held at Vtgyan Bhavm: quoted by
OP. cit.. n, 68. 222. Ramachandran,
Appendix A
The Gen too Code
'Gentoo' is a most controversial word as regards its meaning in the whole legal
history of India. Field has pointed out, 'The word 'Gentoo' is derived from the
Portuguese word I
'Genuio' or a 'Genlite' which came to mean 'a native of India'
i.e. a Hindu'"
Nathaniel Brassey Haihed in his Translator's Preface to (ritoo Law said. ''The
word 'Gentoo' has been and is still equally mistaken to signify the proper sense of
the term as was used by the Professors of the Brahminical religion. In iLs etymo-
logical sense the word 'Gent' or 'Gentoo' means 'animal' and in its more confined
sense, 'mankind' ...The four great tribes have each of their own separate appellation,
but they have no common or collective term that comprehends the whole nation
under the idea affixed by Europeans to the word 'Gentoo'. Possibly the Portuguese
on their first arrival in India, hearing the word frequently in the mouths of the natives
as applied to mankind in general, mistook it for the domestic appellation of the
Indians themselves, perhaps also their bigotry might force them from the word
'Gentoo' a fanciful allusion to 'Gentile', a Pagan."
Sir E. Hyde East in 130, speaking before the Committee of the House oF Lords,
observed: "Whether the term 'Gentoo', as used in the Warren Hastings Plan of
1772, was intended to comprehend all other descriptions of Asiatics who happened
to he located within the British hounds of India, is perhaps very difficult to be told
at this time of the day."
Some authorities are of the opinion: "Hindoo is not the word by which the
inhabitants of India originally styled themselves, but according to the idiom of the
language 'Jainboodepee'; and it is only since the era of the Tartar Government that
they have assumed the name of Hindoos, to distinguish themselves from the
conquerors, the Muslims."
1. Origin of Gentoo Code
Warren Hastings, Governor of Bengal, first of all prepared a systematic plan in
1772 for the proper regulation of Judicial and Executive machinery of the Company's
Government at Bengal. Article 27 of the Plan of 1772 provided: "That in all suits
regarding inheritance, marriage, caste and other reli g ious usages or institutions, the
laws of Koran with respect to Mohammedans and those of Shastras with respect to
'Gentoo''. Thus the word 'Gentoo' was for the first time legally recognised by
Warren Hastings. He took the initiative to investigate the principles of the 'Gcntoo
Religion' and to explore the customs of the Hindus.
Warren Hastings, therefore, invited some famous Brahmins, who were learned
in the study of Shastras, from all parts of the kingdom at Fort William in Calcutta.
Apart from this, many ancient and modern authoritative books were also collected.
They finally prepared a 'Code of Gentoo Laws' in Sanskrit. Later on it was translated
into Persian by one of its authors. In 1775 it was translated from the Persian into
English by Nathaniel Brassey Halhed, a young man who when at Oxford had been
I. Field's Regulation of Bengal.
470]
THE GENTOO CODE 471

led to study Arabic by Sir William Jones and had as a 'Writer' in India attracted
Hastings' attention. This was published in London in 1776. Other editions of this
Code appeared in 1777 and 1781 as well as a French translation at Paris in 1778.
In the opinion of Rankin, "The Gentoo Code suffers from the Persian translation
being but a loose and inaccurate version of the original-"
'In this Code both Substantive and Adjective Laws are mixed up. It is divided
into twenty-one chapters and most of the chapters are sub-divided into what is called
by Halhed, 'Sections' and each section has been further sub-divided into 'paragraphs'
corresponding to the sections of the modern Anglo-Indian Code."
2. Arrangement of Haihed's 'Gentoo Code'
Chapter 1 Lending and Borrowing (consisting of 5 sub-divisions or Sections).
Chapter 2 The Division of Inheritable Property (16 Sections).
Chapter 3 Justice (11 Sections).
Chapter 4 Trust or Deposit (one Section divided into paragraphs).
Chapter 5 Selling a stranger's property (one Section divided into paragraphs).
Chapter 6 Shares (2 Sections).
Chapter 7 Gift or Alienation by Gift (one Section).
Chapter 8 Servitude (3 Sections).
Chapter 9 Wages: Section ! : Wages of Servants, Section 2 Wages of Dancing
Girls.
Chapter 10 Rent and Hire (One Section).
Chapter 11 Purchase and Sale (2 Sections).
Chapter 12 Boundaries and Limits (one Section).
Chapter 13 Shares in the Cultivation of Lands (One Section).
Chapter 14 Cities and Town and the Pines for damaging a Crop (One Section).
Chapter 15 Scandalous and Bitter Expression (2 Sections).
Chapter 16 Assault (3 Sections).
Chapter 17 Theft (6 Sections).
Chapter 18 Violence (One Section).
Chapter 19 Adultery (8 Section).
Chapter 20 What concerns women (One Section).
Chapter 21 Sundry Articles (ID Sections).
Section 1—Of Gaining.
Section 2—Finding anything that was lost.
Section 3—The fines for cutting trees.
Section 4—Tax upon buying and selling goods.
Section 5—Quarrels between father and son.
Section 6—Serving unclean victuals.
Section 7—Punishment on a Soodar for reading Vedas.
Section 8—Properties of punishment'
Section 9—Adoption.
Section 10—Sundries.
472 APPENDICES
3. Criticism of the Gentoo Code

The Hindoo criminal law was, in ancient times mostly based on the provisions
of 'Dharam Shastras' under the heading of 'Vyavhara'. The Gentoo Code was later
on prepared during the Governorship of Lord Warren Hastings to give a picture of
Hindu criminal law. No doubt Duncan, on the recommendation of Lord Cornwallis
in 1783, was also indebted to the 'Code of Gentoo Law' still it was a defective.
Code as it was not the true representation of Hindu criminal law. From the time the
Dharam Shastras were first prepared in the year 1775 A.D., much water had gone
under the bridge for which no considerarion was given by the authors of Gcntoo
Code.
Rankin has well remarked, 2 "The Hindu criminal law as presented in the
'Gentoo Code' is full of impracticable and absurd directions which cannot represent
any systematic practice. The Gentoo Code in 1775 represented the notions of a long
dead past as regards criminal law. It is not easy to see how Hindu society with its
multiplicity of independent Chiefs each exercising power, could very well give rise
to a coherent system deserving to be called a Hindu Law of Crime. What is put
forward by the text-writers as legal rule is often no more than the fanciful suggestion
of a Brahmin writer legislating in vacuc. A long cau'na of absurdities could be
quoted from the Gentoo Code; n many cases the absurdity consists in a perverted
notion of 'making the punishment tit the crime'; in others in the minute distinctions
upon which the tariff of finds is built; in others in the savagery with which the
crimes are punished when committed against Brahmins or persons of hi gher caste
than the wrongdoer."
2 Rankin, Background I(P Indian Law. 190.

Appendix B
The Union Territories
I. Origin and the Constitutional set-up
The States Reorganisation Act, 1956 played an important role in shaping the
territories of Provinces in the Indian Union. As a result of it substantial changes
were made in the Constitution of India by the Constitution (Seventh Amendment)
Act of 1956. The Amendment reduced the four categories of States to two only. All
the States under A, B and C Parts were reorganised into one category. States under
Part D were treated separately as the Union Territories. As a result of the States
Reorganisation Act, 1956, six Union Territories were created, namely, Delhi, Hima-
chal Pradesh, Manipur, Tripura, Andaman and Nicobar Islands and Laccadive,
Minicoy and Amindivi Islands.
The Constitution (Seventh Amendment) Act, 1956 reconstituted the provisions
of Articles 239 and 240 of the Constitution, as follows:
Article 239: Administration of Union Territories:
"(1) Save as otherwise provided by Parliament by law, every Union
Territory shall be administered by the President acting to such extent as he
thinks fit, through an administrator to be appointed by him with such designation
as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may
appoint the Governor of a State as the administrator of an adjoining Union
Territory, and where a Governor is so appointed, he shall exercise his functions
as such administrator independently of his Council of Ministers."
Article 240 empowered the President to make regulations for the peace, progress
and good government of the Union Territories of (a) Andaman and Nicobar Islands,
(b) Laccadive, Minicoy and Amindivi Islands.
The Territorial Councils Act, 1956 provided for the establishnient. of Territorial
Councils in certain Union Territories.
The Constitution (Tenth Amendment) Act, 1961 added Dadra and Nagar Haveli,
which were so far under the domination of Portugal, to the list of the Union
Territories. Goa, Daman and Diu, which were liberated from Portuguese domination,
were also added to the list of Union Territories by the Constitution (Twelfth
Amendment) Act, 1962. Pondicherry and Karaikal, Yenam and Mahe were known
as "French Settlements in India" and were actually under the French Government.
Under an agreement the Government of France handed over these to the Government
of India in 1956.' These areas were added to the list of the Union Territories by
the Constitution (Fourteenth Amendment) Act, 1962.
The Government of India decided in 1962 to set up a representative form of
government in the areas under the list of Union Territories. In this connection the
I. The representatives of India and France signed a Treaty on May 28, 1956 in New Delhi transferring
the 'French Settlements in India' to India. This Treaty was ratified by the French Parliament in July,
1962.
2. Pondicherry, etc were added on November, 6, 1962 to the list of Union Territories.
473 1
V https://t.me/LawCollegeNotes_Stuffs
474 APPENDICES
[App.
Constitution (Fourteenth Amendment) Act, 1962 was enacted. Its statement of object
and reasons provided:
"It is proposed to create Legislatures and Council of Ministers in the Union
Territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and
Pondicherry broadly on the pattern of the scheme which was in force in some
of the Part C States before the reorganisation of the States. The Bill seeks to
confer necessary legislative powers on Parliament to enact laws for this purpose
through a new Article 239-A which follows generally the provisions of Article
240 as it stood before the reorganisation of the States:'
It was a very important landmark in the constitutional history of the Union
Territories. It gave them a representative form of government based on adult
franchise. The Constitution (Fourteenth Amendment) Act, 1962 inserted new Article
293-A in the Conslitutiol L
It provided for the creation of local Legislatures or
Council of Ministers or both for certain Union Territories.
The Union Territories Act. 1963 established a new legislative and administrative
set-up in the Union Territories. It established Legislatures and Council of Ministers
in the Union Territories just as in Part C States. Provision was also made to allot
one seat to the Union Territory of Pondicherry in Lok Sabha and t.vo seats to Goa,
Daman and Diu by direct elections.
On June 9, 1966 the Government of India declared Chandigarh a Union Territory
and to serve as the seat of Government for both Haryana and Punjab
In 1969, the Constitution (Twenty-second) Amendment Act was passed in
Pursuance of which Parliament passed the Assam Reorganisation (Meghalaya) Act.
1969 for the creation of the Autonomous State of Meghalaya within Assam. Then
as an administrative measure the North-Eastern Council Act, 1970 was passed
extending over Meghalaya, Union Territories of Manipur and Tripura and N.E.F.
Agency. This Act was replaced by a similar Act of 1971.
District Councils were established in the Union Territory of Manipur by the
Manipur (Hill Areas) District Councils Act, 1971.
However with the No
rth-Eastern Areas (Reorganisation) Act, 1971 Manipur and
Tripura ceased to be Union Territories and became States. Two new Union Ten-i-
tories of Mizoram and Arunachal Pradesh were established by the same Act. The
State of Meghalaya was also established. For all these States the High Court at
Gauhati has jurisdiction.
The existing Union Territory of Himachal Pradesh became a State with the
passing of (lie State of Himachal Pradesh Act, 1970.
By Act 34 of 1973 the name of the Union Territories of Laccadive, Minicoy
and Aniindivi Islands was altered to "Lakshadweep" The position as it stands today
(1988 July) is that.there are seven Union Territories: Delhi, Andaman and Nicobar
Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, Pondicherry and
Chandigarh.
Goa has been granted statehood in 1987 by the Goa, Daman and Diu (Reor-
ganisation) Act. 1987. Mizoram has been declared a State by the State of Mizoram
Act, 1986 and Arunachal Pradesh by the State of Aninachal Pradesh Act, 1986.
3. See The Government of Pan C States Act. 1951.
1
THE UNION TERRITORIES 475
Same is the case with Manipur and Tripura. They were granted statehood by the
North-Eastern Areas (Reorganisation) Act, 197 I -
2. Legislative System
The Government of Union Territories Act, 1963 provided legislative bodies for
Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry. The
members are chosen by direct election and are forty in the case of Himachal Pradesh
and thirty for Manipur, Tripura, Daman and Din and Pondicherry. Goa, after being
declared a State 4, has now got forty members. The Central Government is authorised
to nominate three persons. The term of the Assembly is five years.
The Assembly can make laws for the whole or any part of the Union Territory
with respect to any of the matters enumerated in the State List or the Concurrent
List in the Seventh Schedule to the Constitution insofar as any such matter is
applicable in relation to Union Territories. This power does not derogate from the
powers conferred on Parliament by the Constitution to make laws with respect to
any matter for a Union Territory or any part thereof. If any provision of a law made
by the Legislative Assembly of a Union Territory is repugnant to any provision of
a law made by Parliament then the law made by the Parliament will prevail. The
Administrator can summon the Legislative Assembly, in the respective Union
Territory. He has also the power to prorogue and dissolve the Assembly.
Parliament is empowered to create by law for any of the Union Territories a
legislature and/or Council of Ministers with such Constitution, powers and functions
in each case as may be specified in the law [Article 239A-(2)]. Such law is not to
be regarded as an amendment of the Constitution under Article 369. With regard to
Union Territories there is no distribution of legislative power. 5 President may make
regulations6 and issue ordinances for the Union Territories.7
Delhi became a Union Territory on November 1, 1956 and since then it has
been administered by the Union Ministry of Home Affairs with the aid of an
Advisory Council. The Delhi Administration Act, 1966 provided for a Metropolitan
Council for Delhi consisting of fifty-six directly elected persons and five nominated
persons. It is empowered to make recommendations for proposals for undertaking
legislation just like other Union Territories under the Constitution.
3. Judicial System
Before 1956 the Parliament was empowered to extend the jurisdiction of a High
Court to any area outside the State where the main seat of the High Court was
situated. The Constitution (Seventh Amendment) Act, 1956 restricted the power of
Parliament to extend the jurisdiction of the High Court only to the Union Territories.
The Parliament is empowered under Article 231 to establish a common High Court
for two or more States or for two or more States and a Union Territory. Under
Article 241(1) the Parliament may by law constitute a High Court for a Union
Territory or declare any court in any territory to be a High Court. The same
4. Goa. Daman and Diu Reorgani s ation Act. 1987(18 of 1987) of 30-5-1987: Gazette of India. 26-5-1987.
Pt. ti. Sec. 3(ir)/ExL Pt. 2(No. 255).
S. Swpci( t Co. v. Lx. Governor of Delhi. AIR 1979 SC 1550.
6. Art. 240(1).
7. Supra n-
476
APPENDICES
Constitutional provisions apply to Union Territory High Court as they apply to High
Courts of the States (Art. 241-2). Under Article 241(4) the Parliament may extend
or exclude the jurisdiction of any High Court to, or from any Union Territory.
According to the Constitution, the hierarch y
of subordinate courts in the Union
Territories is the same as in the rest of the country. In every district, on the criminal
side there is a great uniformity as the Code of Criminal Procedure applies to all
courts. In each district, the Sessions Court presided by the Sessions Judge, is the
highest court on the criminal side. Below the Sessions Judge there are Courts of
Magistrates of the First, Second and Third Class.
The Sessions Judge and the District Magistrate are e
mpowered to superintend
over the courts subordinate to them. Appeals from the Magistrates of Second and
Third Class lie to the District Magistrate whereas appeals from the Magistrate of
First Class lie to the Sessions Judge. Appeals against the decision of the Sessions
Judge lie to the High Court.
On the civil side, the Court of the District Judge is the principal civil court in
the district. In civil cases it exercises both original and appellate jurisdiction. It has
also power to superintend over the subordinate civil courts in the district. In some
Union Territories, Munsiff's Courts presided over by Munsiff exercise civil juris-
diction.
The following statement shows the highest court in each Union Territory and
the High Courts having jurisdiction upon them:
SI. Name of Union Highest Court High Court's
No. Territory
jurisdiction
----------
I. Andaman and Nicobar Sessions Court Calcutta H.C.
Islands
2. Chandigarh Sessions Court Punjab and
Haryana H,C.
3 Dadra and Nagar District Court Bombay H.C.
Haveli
Delhi8 Sessions Court Delhi HC.
Lakshadweep Sessions Court Kerala H.C.
Pondicherry Sessions Court Madras H.C.
Goa, Daman and Diu Judicial
Commissioner's Court
8 Arunanchal Pradesh District Court Gauhatj.
Mizoram District Court Gauhati.
'4..............-
8. The High court of Delhi was newly created and it

started functioning from 31st October. 1966.
Appendix C
Alphabetical Table of Indian Legal Periodicals'
and Law Reports'
Academy Law Review (Kerala Law Academy, Trivandrum)
Accident and Compensation Cases (Delhi)
Accidents Claims Journal (12, Malkaganj, Delhi) (1966- )
Accidents Judicial Reporter (1992- )
Administrative Tribunal Cases (Eastern Book Co., Lucknow) (1986- )
Administrator (Lal Bahadur Shastri National Academy of Administration, Mus-
soorie)
Agra High Court Reports (1866-1868)
Ajmer-Merwara Law Journal (1927-1956)
Aligarh Law Journal (Faculty of Law, Aligarh Muslim Univ., Aligarh)
All India Civil Law Journal (1980- )
All India Criminal Law Cases (1980- )
All India Hindu Law Reporter (1975-
All India Land Law Reporter (1979- )
Al! India Rent Control Journal (1969- )
All India Reporter (AIR. Ltd., Nagpur) (1914-
All India Service Law Journal (1973-
All India Service Law Reporter (1967-
All India Transport Accident Cases (1983-
All India Tribunal Cases (1958-1961)
Allahabad Civil Journal (1978-
Allahabad Criminal Cases (1964-
Allahabad Criminal Reports (1953-
Allahabad Criminal Rulings (1977- )
Allahabad Law Journal (A.LR. Ltd., Nagpur) (1904- ) Vol. 1 to 26 till 1928 after
which citation by year
Allahabad Law Reporter (1920-1947)
Allahahad Law Reports (1975- )
Allahabad Law Times (1923- ) Acts etc. only
Allahahad Rent Cases (1977-
Allahabad Weekly Cases (1975-
Allahabad Weekly Notes (1881-1908)
Allahabad Weekly Reporter (1935-1977)
Andhra Law Times (Dilsukhnagar. Hyderabad) (1954- ) citation by year
I. Based on list published by the Indian Law Institute and reproduced by U.C. Jam: "Using a Law
Library": ILl: Legal Research and Methodology, 1983 (Tripathi). 401-421. 411-413.
2. 22 111.1 (1980) 233: V.G Rarnachandran, Law Reporting and Law Reports in India, 218-239: with
some later ones added
1 477 1
478 APPEND [CF-

(App
Andhra Pradesh Law Journal ((969-
Andhra Pradesh Law Journal (Criminal).
Andhra Pradesh Sales Tax Journal
Andhra Weekly Reporter ((955- )
Annual Survey of Indian Law (Indian Law Institute. New Delhi)
Arbitration Quarterly (Journal of the Indian Law of Arbitration, New Delhi)
Asian Labour (ICFTU Asian Regional Organisation, New Delhi)
Assam Law Reports (1960)
Awards Digest (Journal of Labour Legislation, National Labour Institute, New Delhi)
Banaras Law Journal (Law School, Banaras Hindu University, Varanasi)
Bankers' Journal, Bombay
Bengal Law Reports (1868-1875) except for 1868 other years 2
v oluirics per year
ftC. & P.C. rulings
Bengal Law Reports (Full Bench rulings) 1855
Bhagiratl ) (Business Manager, Publications Division. New Delhi)
Bihar Bar Council Journal (1971- )
Bihar Criminal Cases (1975-
Bihar Law Journal Reports (1953- ) citation by year
Bihar Law Judgments (1978-
Bihar Law Times (1963-
B iharReports (1935-1947)
Bombay Cases Reporter (1978-
Bombay H.C. Reports (1862-1875) -
Bombay High Cotii:t Criminal Ruling (1869-1907)
Bombay High Court Printed Judgments (1868-1900)
Bombay Law Reporter (Old City Civil Court Bldg., Fort, Bombay) (1899-
(Irregular)
Bombay Rent Cases (1979-
Bombay Unreported Printed Judgments (1872-1900)
Bourke's Reports (Calcutta) (1865-76)
Burma Law Journal (1922-1927)
Burma Law Reports (1948)
Burma Law Times (1908-1920)
C.B.I. Bulletin (R.K. Puram, New Delhi)
Calcutta High Court Notes (1974- )
Calcutta Law Journal (1905- ) 1905-1957-1 -
citation by year 00 vols. Two vols. per year, later
Calcutta Law Reports (1878-1883)
Calcutta Weekly Notes ((897- )
Central Provinces Law Reports (1&88-1904)
Chandigarh Criminal Cases (1978- )
Chandigarh Law Reporter (1973- )
Cj ALPHABETICAL TABLE OF INDIAN REPORTS

479
Chandigarh Law Review
Chartered Secretary (ICSI House, New Delhi)
Civil and Military Law Journal (Rajouri Garden. New Delhi)
Co-operative Law Journal (1964)
Cochin University Law Review (Dept. of Law, Cochin Univ., Cochin)
Company Cases (Company Law Institute of India (Pvt.) Ltd., Madras) (1931-
Company Law Journal (1963- )
Company News and Notes (Dept. of Company Affairs, New Delhi)
Company News Reporter (1976-
Comparative Law Review (Comparative Law Association, Law College, Pondi-
cherry)
Consumer Protection Journal
Consumer Protection Reporter (1991-
Crimes (1983-
Criminal Law Journal (A.I.R. Ltd., Nagpur) (1904- ) citation by year after 1951
Criminal Law Reporter (S.C. & Gujarat & Madhya Pradesh) (1973-)
Criminal Law Reporter (S.C. & Rajasthan)(1973
Criminal Law Reports (S.C. & Madhya Pradesh)(1973-
Current Central Legislation (Eastern Book Co.. Lucknow) (1975-
Current Civil Cases (1985- )
Current Civil Law Judgments (M.P.) (1983-
Current Criminal Law Judgments (M.P.)
Current High Court Notes Reports, Calcutta.
Current Indian Statutes (1923-
Current Labour Reports
Current Law Journal (Civil & Criminal Punjab & Haryana) (1961- )
Current Law Journal (Tax Laws) (1961- )
Current Taxation Reports (1972-
Cuttack Law Reports (Criminal) (1972-
Ctittack Law Times (Law Times Press, Cuttack) (1939- )
Cuttack Weekly Reporter (1970)
Decisions of Sadar Dewanj Adalat (1818-1862)
Delhi Law Review (Faculty 01 Law, Uni. of Delhi. Delhi)
Delhi Law Times (Delhi Law Times Office. Delhi) (1965- )
Dominion Law Reporter (DLR) 1943-1953 all courts
Drug Cases (1975-
Education Cases, Allahabad
Election Law Reports (1951- )
Essential Commodities Cases
Excise and Food Adulteration Reports (1982-)
Excise Law Times (1982- )
Factories Journal Reports (1949-
Li
480 APPENDICES (APP.
Federal Court Reports (1939-1949)

Federal Law Journal (1938-1949)
Foreign Trade Review (Quarterly Journal of Indian Institute of Foreign Trade, New
Delhi)
Gandhi Marg (Journal of Gandhi Peace Foundation, New Delhi)
Gujarat H.C. Reporter (1960-1977)
Gujarat Law Herald, Ahmedabad (1981-
Gujarat Law Reporter (Gandhi Road, Ahmedabad) (1960-
Hindu Law Reporter, Chandigarh
Hydes E. Reports (Bengal H.C.-1862-1863)
Hydes Reports (1897)
I.L.R. (Allahahad) (1875) 58 Vols. till 1936 citation by year 1937
I.L.R. (Andhra) (1955) citation by year
1.L-R. (Assam) (1949-
T.L.R. (Bombay) (1875-60 Vols. till 1936) citation by year 1937.
I.LR. (Calcutta) (1875 till 1936, 63 Vols. till 1936) citation by year from 1937
I.L.R. (Cuttack) (1949- ) citation by year
I.L.R. (Hyderabad) (1951-1956)
I.L;R. (Karachi) (1939-1946)
I L.R. (Kerala) (1957-
l.L.R. (Lahore) (1920-1947) from 1936: citation by year
I.L.R. (Lucknow) (1926-1948)
1.L.R. (Madhya Bharat) (1952-1956)
1.L.R. (Madhya Pradesh) (3957-
I.L.R. (Madras) (1876) from 1937 citation by year
I.L.R. (Mysore) (195 l -)followed by II.R Karnataka
I.L.R. (Nagpur) (1936-1956)
I.L.R. (Patiala) (1952-1955)
I.L.R. (Patna) (1922)
I.L.R. (Punjab or East Punjab) (1948-1957)
I.L.R. (Rajasthan) (1951-
1.L.R (Rangoon) (1923-1936)
I.L.R. (Travancore-Cochin) (1951-1956)
Income Tax and Tribunal Cases (1963- )
Income Tax Cases vols. I to 10 (1886-1937)
Income Tax Journal (1963- )
Income Tax Reports (Company Law Institute of India (P) Ltd., Madras) (1933-
Income Tax Tribunal Decisions (1982- )
Index to Indian Legal Periodicals (IC!)
Indian Advocate (Bar Association of India, S.C. of India, New Delhi)
Indian Appeals (L.R. 1872-1950)
Indian Bar Review
C]
ALPHABETICAL TABLE OF INDIAN REPORTS
481
Indian Cases (1909-1947) Vols. 1-231
Indian Decisions (Born. H.C. & P.C., 1875-1878)
Indian Decisions—New Series—(1862-1875)
Indian Decis ions—Old Series (O.S.) (1774-1858)
Indian Economic and Social History Review (Delhi School of Economics, Uni. of
Delhi, Delhi)
Indian Factories Journal and Factories Journal Reports (Laws of
Madras) (FJR) (1960- ) India Pvt. Ltd.,
Indian Factories Journal Report (1949-
Indian H.C. Reports (Bom-190I1906)
Indian H.C. Reports (Cal-_1901-1906)
Indian Journal of Industrial Relations (Shri Ram Centre for Industrial Relations &
Human Resources, New Delhi)
Indian Journal of International Law (Indian Society of
Delhi) International Law, New
Indian Journal of Legal Studies (Faculty of Law, Univ. of Jodhpur, Jodhpur)
Indian Journal of Public Administration (Indian Institute of Public Administration,
New Delhi)
Indian Journal of Social Works (Department of Publications, Tata Institute of Social
Sciences, Bombay)
Indian Jurist (1877-1893)
Indian Jurist (O.S.-1866-1867)
Indian Labour Journal (Labour Bureau, Simla)
Indian Law Index, Monthly (1990- )
Indian Police Journal (Indian Police Journal, New Delhi)
Indian Quarterly (Indian Council of World Affairs, New Delhi)
Indian Rulings (I.R.) (1929-1947)
Indian Socio-Legal Journal (Indian Institute of Comparative Law, Bikaner)
Islamic and Comparative Law Quarterly (Dept. of Islamic & Comparative Law,
Indian Institute of Islamic Studies, New Delhi)
Jabalpur Law Journal, Gwalior (1957-
Jaipur Law Journal (JLT Studies in Law, University of Rajasthan, Jaipur)
Jammu and Kashmir Law Report (1948- )
Johnston & Co. Reprint. Selection from reports on civil cases in Punjab record
1886-1900 (Lahore- 1915)
Journal of Islamic and Comparative Law (Delhi)
Journal of Parliamentary I
Delhi) nformation (Lok Sabha Secretariat, Parliament House, New
Journal of Shipping Customs Law (1974-
Journal of the Bar Council of India (Bar Council of India, New Delhi)
Journal of the Constitutional & Parliamentary Studies (Institute of Constitutional &
P arliamentary Studies, New Delhi)
Journal of the Indian Law Institu t e (IL!, New Delhi)
482 APPENDICES IAPP.
Journal of the Indian Society of Criminology

Journal of the Indian Society of International Law
Judgments on Human Rights (Indian Social Institute, New Delhi)
Karnataka Law Chronicle (1982- )
Karnataka Law Journal (1923-
Karnataka Law Journal (Shankarapurain, Bangalore)
Kashmir Law Journal (1962- )
Kerala Law Journal (1957-
Kerala Law Reporter (1959-
Kerala Law Times (1949- )
Knapp's Reports (P.C.) 1829-36 (1829-31, 1831-34, 1834-36)
Kurukshetra Law Journal (Faculty of Law, Kurukshetra University, Kurukshctra)
Labour and Industrial Cases (A.LR. Ltd., Nagpur) (1968- )
Labour Appeal Cases (1954)
Labour Law Journal (1949)
Lahore Law Journal (1919-1926)
Lahore Law Times (1922- )
Law Quarterly (IL!, West Bengal State Unit, Calcutta)
Law Reporter (by J.G. Shome Judgments of Cal. fl.C. & P.C.) 1878-1881
Law Reporter Allahabad (1920-1936)
Law Weekly (1914- )
Law Weekly (Criminal) (1968-
Lawyer (Journal of the ILL. Madras State Unit, Madras)
Lawyers Collective (Bombay)
Lok IJdyog (Bureau of Public Enterprises, Ministry of Finance, Govt. of India, New
Delhi)
Lower Burma Rulings (1900-1922) 1 vol. for 2 yrs.
Lucknow Law Times (1960- ) (Eastern Book Co., Lucknow) Reports, Statute Law
of U.P. & Central
M.P. Law Times (1959- )
Macnaghton W.H. Reports of Sadar Adalat (1831-1840)
Madhya Bhar Law Reporter (1952-56)
Madhya Pradesh Cases (1957)
Madhya Pradesh Law Journal (1956- )
Madhya Pradesh Law Times (Allahabad Law Publications, Allahabad)
Madhya Pradesh Rent Control Journal (1978- )
Madras Criminal Cases (1914-1950)
Madras High Court Reports (1862-1875)
Madras Law Journal (1891- )
Madras Law Journal (Criminal) (1957-
Madras Law Times (1906.1924)
Madras Law Weekly (1915-
C]
ALPHABETICAL TABLE OF INDIAN REPORTS
483
Madras Weekly Notes (1910-
Maharashtra Law Journal (1963-
Maharashtra Law Reporter (1947-
Marshal W. Reports Civil Cases H.C. of Bengal 1862
Matrimonial Law Reporter (1978-
Moore's Indian Appeals (1836-72)
Morley's Digest (Cases of S.C. of Judi. India & P.C.) (1849-60)
Municipal Corporation Cases (1973-
Mysore Chief Court Reports (1896-1930)
Mysore High Court Reports (1931-1950)
Mysore Law Journal (1923-1970)
Mysore Law Reports (1878-1895)
Nagpur Law Journal (1918-1960)
Nagpur Law Report (1905-1935)
National Law Review (LIPS, New Delhi)
North West Provinces B.C. Reports (1869-75)
O'Kinealy & G.S. Henderson Cal. B.C. Report Cases and P.C. Judgments
Orissa Judicial Decisions (1959-70)
Oudh Cases (1898-1926)
Oudh Law Journal (1914-1926)
Oudh Law Reports (1934-1946)
Oudh Weekly Notes (1924-1946)
P.C. Judgments (not reported in ILR (1876-1897) By B.R. Dave
P.C. Judgments (P.B.) 1930-33 by S. lyer and A. Swaminath Iyer
P.C. Judgments on appeals from India (Saraswati & Banerjee) (1826-1886)
Patna H.C. Cases (1917-1926)
Patna Law Journal (1916-1921)
Patna Law Journal Report (New) (1957- )
Patna Law Report (1923-1925)
Patna Law Report (New) (1957.1977)
Patna Law Times (1920-1949)
Patna Law Weekly L(
Patna WtY Notes (1936-1977)
pcpsu Law Reports (1949-1951)
Prevention of Food Adulteration Cases (1971-)
Prevention of Food Adulteration Journal (1975 )
Punjab Law Journal (1967- )
Punjab Law Reporter (1900-
Punjab Law Reporter (Delhi Section) (1968- )
Punjab Law Reporter (P.L.R., Chandigarh)
Punjab Records (1866-1919)
Punjab University Law Review (Dept. of Law, Punjab University, Chandigarh)
484 APPENDICES JAPP.
Punjab Weekly Reporter (1905-1922)

Rajasthan Criminal Cases (1976- )
Rajasthan Law Weekly (1950- )
Rajdhani Law Reporter New Delhi
Rangoon Law Reports (1937-1947)
Ratan Lal's Unreported Cases (1889-98)
Rent Control Journal (1981- ) '•
Rent Control Reporter (1969-)
Reserve Bank of India Bulletin (R .B. of India Bombay) I
Revenue Decisions (1951-)

h
Sales Tax Cases (Commercial Laws of India Pvt. Ltd., Madras) (1938- ) ..
Saurashtra Law Reporter (1948-1956) -- rv
Seminar (New Delhi)
Service Cases Today
Service Law Cases. Delhi
Service Law Reporter , t t•','
S.-
Simla Law Cases (1977-)
Sind Law Reporter (1907-1938)
Social Action (Indian Social Institute. New Delhi)
Social Defence (National Instilute, of Social Defence, New Delhi)
Southern India Sales Tax Cases.Madras
Srinaàw Journal (1979- )
Suddar Dewany Adalat Decisions 1792.1855
Supreme Court Appeals (1952-1970)
Supreme Court Cases (Eastern Book Co., Lucknaw) (1969- )
Supreme Court Cases (Criminal) (Eastern Book Co., Lucknow) (1970-
Supreme Court Cases (Labour & Services) (Eastern Book Co., Lucknow) (1973-
Supreme Court Cases (Taxation) (Eastern Book Co., Lucknow) (1973-1990)
Supreme Court Criminal Rulings (Allahabad) (1970- )
Supreme Court Journal (1950-
Supreme Court Reports (1950- )
...,. - :
Supreme Court Weekly Reporter ..-•
Sutherland's Full Bench Rulings sp. 40 (1862-1864)
Sutherland's Judgments of P.C. on Appeals from India (1838-1867)
5uther [and's Rcprts of Appellate Decisions of H.C. of Calcutta, Jan. to July 1864
Sutherland's Reports 04t Special number July 1862 to July 1964
Sutherland's Weekly Repor-(I864.j877) I Vol. for 1864, 1876 and 1877, SE-
Vol. for 1865, 2 V015. foi other yrs.
Tamilnadu Law Notes Journal (1975- )
Tamilnadu Law Notes Journal (Cr1), Madras
Taxation (Jor Bagh, New Delhi) (1948-
Taxation Law Reports (AIR Ltd., Nagpur)
C] ALPHABETICAL TABLE OF INDIAN REPORTS 485

Taxman (1978-
Travancore Cochin Law Report
Travancore Law Journal (1911-1947)
U.P. Criminal Cases (1974-
UP. Criminal Law Reporter (1968-
U.P. Law Times (1937-1941 & 1947)
U.P. Law Tribune (1979-
UP. Local Bodies & Educational Cases (1981- )
U.P. Sales Tax Journal (1982-
UP. Tax Cases (1974-
Un-overruled Civil Cases of Punjab (1866-1880).
United Provinces Law Report (1919-1921)
Unreported Judgments (S.C.) (1969- )
Unreported Printed Judgments of Born. H.C. (1869-1898)
Upper Burma Rulings (Civil & Cri) (1892-1922)
Weir's Criminal Rulings Vols. I & 2
Writ Law Reporter, Madras
Appendix D
Index to Indian Reference Materials
(i) Legal Periodicals and Law Reports -
The previous Appendix gives the list of legal periodicals and law reports. The
law reports include cases decided by the superior Courts which have value as
precedents. Many law reports have a journal section wherein academic writings like
articles and case-comments appear. Then there are purely acadeirtiL journals con-
taining such articles, case-comments and book reviews. Such journals report only
statute law. Some of the law reports also contain a section on statute law.
(ii) Well-Known Digests
All India Rent Control and Eviction Cases (from earliest time to 1976) - Eastern
Book Company, Lucknow)
All India Rent Control Digest (1969-1990) Vinod Publications.
Complete Digest of Supreme Court Cases (Since 1950, Vols. J—XVI each volume
up to the date of publication, Eastern Book Co., Tucknow)
Complete Supreme Court Criminal Digest (1950-1992, Eastern Book Co., Lucknow)
Consumer Protection Digest (Vinod Publications)
Digest of Income Tax Cases-3 Vols.-19334985 (Central Law Agency. Allahabad)
Digest of Labour Cases (1960- )
Fifteen Years Digests 1951-1965 (AIR Ltd., Nagpur)
Fifty Years Digests 1901-1950 (Digest Publications, Madras/Nagpur)
Income Tax Digest 1886 to 1978 (AIR Ltd.. Nagpur)
Index to Case law & Referencer on Criminal Law 1983-1993 (Vinod Publi., Delhi)
Key to Supreme Court Judgments 1950-1992 (AIR Publication. Nagpur)
P.J. Patel's Supreme Court Reference Citations 1950-1976, 1977. Legal Research
Bureau, Jamnagar)
Quinquennial Digests 1966-1970 (AIR Ltd., Nagpur)
Quinquennial Digests 1981-1985 (AIR Ltd., Nag/Mad)
Quinquennial Digests 1986-1990 (AIR Ltd., Nag/Mad)
Sales Tax Digest (S.V. Aiyar, Commercial Laws of India Pvt. Ltd., Madras)
Supreme Court Civil Referencer, 1950-1993
Supreme Court on Constitutional Law (Eastern Book Co.. Lucknow)
Supreme Court Decennial Digest (1981-1990, in 5 Vols., Eastern Book Co., Luck-
now)
Supreme Court on Essential Commodities Act (Eastern Book Co. Lucknow)
Supreme Court Labour & Services Digest (1950-1993 Vols. 1-Vi, Eastern Book Co.,
Lucknow)
Supreme Court on Public Servants & Disciplinary Action (1950-1987) Vinod
Publication.
[486 1
INDEX TO INDIAN LEGAL PERIODICALS

487
Supreme Court on! ReIRting to Motor Vehicles (1950-1980, Eastern Book Co.,
Lucknow)
Supreme Court on Preventive Detention (1950-to date, Eastern Book Co., Lucknow)
Supreme Court Yearly Digest Series (1977 onwards, Eastern Book Co., Lucknow)
Yearly Digest (M.L.J. Ltd., Publications) (discontinued)
(iii) Well-Known Legal Dictionaries
A Concise Law Dictionary (5th Edn., 1954)— p ,G. Osborne
Abraham & Hawtery's Parliamentary Dictionary
• Dictionary of Legal Terrns—NLM. Dani.
• Dictionary of Legal Terms—(lst Edo., 1975) Vinod K. Agarwal
• Selection of Legal Maxims by Herbert Broom
American Jurisprudence (70 Vols.) and Corpus Juris Secundum (72 Vols.) (West
Publishing Co.)
Black's Law Dictionary
Biswas Encyclopedic 1979 Law Dictionary
Dictionary of American Penology (1st Edo., 1979)—Willjarns
Dictionary of Legal Police Terms & Phrases ( E nglish-Hindi)__R.c Purl
Dictionary of English Law by Charles Sweet (1882)
Dictionary of English Law by W.G Byrne (1923)
Dictionary of English Law by Jowitt (1959)
Dictionary of Taxation (1st Edo., 1981)- .-Garry Hart
Dictionary of Statutory Terms ... (1972)_BR Beotra
Direct Taxes Law Lexicon (1st Edn., 1982)—G.S. Agarwal
Glossary of Judicial & Revenue Terms (2nd Edn., 1968)-_H.R Willon
Glossary of Legal Words, Terms, Phrases, Maxims & Doctrines (2nd Edn., English-
Gujarati)_-A.N Karia
Glossary of Term and Expressions Sales Tax, (1977) - S.D. Singh
Income Tax Dictionary (1st Edo., 1982)—R.N. Lakhotia
Judicial Dictionary (81h Edn.. 1980)—K.j. Aiyar
Law Dictionary (English & Hindi), 3rd Edn.—Karnlesh Chopra
Legal Dictionary (1st Edn., 1981)—Sjnha & Narula
Law Dictionary (1st Edft, 1982, En 1 ,-Guj)--AN Kar,a, 2nd Edn., 1976
Legal Glossary (4th Edo., 1988, Govt. of India, Ministry of Law & Justice,
English-Hindi, Hindi-Engl i sh. Latin-Hindi, with a List of Central Enactments)
Legal Thesaurus (1980)—William G Burton
Maxims of the Law (1636) by Francis Bacon
Mitra's Legal & Commercial Dictionary (2nd Edo., 1976)—A.R. Biswas
Mozley & Whiteley's Law Dictionary Part I-(1970)—John B. Saunders
Mozley & Whiteley's Law Dictionary Part H41970)--A.C. Sen
Oxford Companion to Law (1980)—David M. Walker
Stroud's Judicial Dictionary( 1890, 3rd Edn., 1952)
488 APPENDICES
Supreme Court on Words & Phrases (1993 RiP 1995}—Surendra Malik (Eastern
Book Co., Lucknow)
Terminology in Land Reforms (1st Edn., 1982)—PT, George
Trilingual Administrative Dictionary (1st Edn., 1988)—Government of Gujarat
Venkata Ramaiya's Law Lexicon (Vol. I and I1)—M.C. Desai
Wharton's Law Lexicon 0848 and many later editions)
Whitherly's Dictionary of Insurance (1 980)—Hugh Cockerel]
Words and Phrases Judicially Defined by Roland Burrow
Words and Phrases Legally Defined (Roland's edition revised-) by Saunders
H;
•0
Appendix E
Legal Research and Methodology in the
Indiati Legal System
'I do not .5Cc how an can possibly understand the law or knowanrihitg f it. except
,nenlo,-jter, without getting a clear idea of Iww it is in islet generated in .socierv and adopted
ftani aty' in age to its srn'ned,afe needc and uces
—Woodrow Wilson. 1894.
There is no short-cut fo triitlj; no way to mitt a k'iowladee of the wliwr.ce except
through the t'at,lenv of sciettlif it poet/sod.
—Karl Pearson
S Y NO 1' S I S

What is Research (s. Research ]echnsqms-s

2. Why Research 7. Reari1c of Reccaiclt

3. Legal Scholarship 8. Roles for training is Researcher

4. Inpoilance of Research 9 Legal Melhodology
5. T'ipc' of Recearch
What is Research
Legal research is s y stematic investigation of problems of and connçted with
law. Research is that category of investigation which attempts to collect data from
various sources and in a variety of ways, and which exposes the data to a severe
and intensive scrutiny. As suggested b y the 1911 Encyclopaedia Britannica it is
'The act of searching into a matter drr.L ssnd c fully, inquiry directed to the
discover-v of truth and in particular the lt-UWCs2 scie,itfic investigation of the
rl:ciples and facts of any subject. based on original atid first hand study qj'
autliorttie:s or csxperiment, 1uvc:itgatioits of e.ver\- kind WhiCh have been based on
original sources of knowledge may be styled eeareh and it may be said that without
research" no authoritative works have been written, no scientific discoveries or
inventions made, no theories of any value propounded.....
Why Research
Research may he pursued to obtain better knowledge and understanding of any
problem of legal philosophy, legal histor y , coniparafive study of law or any system
of positive law. intOl national or municipal. It is an essential to text writing and
teaching, to ascertain the correct formulation of the qualifications and limitations
on. the principles or rules of any topic e.g. the rules of vicarious liability iii tort,
and in modern times it is extensively pursed as a preliminary to law reform. Such
research ficquently involves an essentially sociological investigation into the actual
operation of particular institutions. e.g. courts or Juries or particular bodies or
principles of law, e.g. laws controlling the sale of liquor and is necessarily interdis-
ciplinary-2
Research is frequently necessary in preparation of advice, opinions, of arguments
for submissions to court, and by judges in preparing their judgments. 3 In words of
1. I LI : Legal Research t Methodology. 1983. 2.

2 D.M Walker The Oxford Companion to Law. 1 980. 749-750
3. D.M. Walker: The Oxford Companion to I,,w, 1980, 749-750.
1 489
490 APPENDICES [App.
Wortley 'If our numerous laws were perfect, if social control were autonomic, legal
scholarship, like the State of the Marxists, could be left to withei away. But our
laws are not perfect and final and cannot be so fit dynamic society: they are not
always intelligible, and if intelligible, not always intelligibly made.' ' This should
provide us with the answer as to why research is necessary. One may therefore say
that the object of legal research is to establish propositions concerning the law. For
this one may dig up facts, unearth new data and discover relationship between facts
already known5
Any one engaged in research pertaining to law is a legal researcher; he may he

a sociologist, historian, political scientist, or even a layman. But as an occupational
exercise, legal research is needed for legislators, jud ges, lawyers and legal academics
i.e teachers, students and jurists.
Legal Scholarship
Legal Scholarship is Systematic research into and thinking and writing about
any division or sub-division of legal science. It is mainly the function of the legal
scholar or jurist, frequently in a university, but valuable contributions to Legal
Scholarship have been made by philosophers, historians and scholars in other
disciplines and by judges, practising lawyers and law editors. This activity is
sometimes called ''legal science" though that phrase seems more appropriate for
the total cx]y of knowledge, understanding of which is advanced by legal scholar-
ship. Legal Scholarship is thus a powerful civilising 'factor and its work is a
pre-requisite of peaceable and orderly living in society.7
Methods of Legal Scholarship vary widely according to the branch of legal

science under consideration or the structure of the legal system being considered
and its sources and forms.
The methods of Le g al Scholarship are at least six in number: (I) philosophical,
(2) historical. (3) analytical, (4) sociological, (5) expository, and (6) critical,8
The philosophical 'net/ted studies the philosophical basis of the institutions and
doctrines. The historical method investigates the Origins and development of institu-
tions, principles and rules, and tries to discover the reasons for, line and direction
of evolution. The analvticcil method examines structure, subject-matter and doctrines
on linguistic and logical basis, seeking to ascertain the most general principles of a
legal system. The sociological method is also called a functional method, it examines
a legal system as a mode of social control, and with regard to the end it seeks to
achieve and how it eitëcts its aims. The expository or dogmatic method seeks to
state the principles and rules actuall y in force in systematic order, to arrive at
generalizations and to determine consistency of rules and decisions one with another.
Lastly, the critical method subjects the principles and rules actually in force to
criticism from many points of view.'
4. Supra n. I,
5. ibid., 300.
6. ibuL. 301.
7. Supra n. 2. 750.
. ibid., 753.
9. Ibid.
E] LEGAL RESEARCH 491
(For a lively discussion on Analytical, Historical, Comparative, Statistical and

Critical research needed for law reform see P.M. Bakshi's article —Legal Research
and Law Rejrni in 1.L.l.'s Legal Research and Methodology. 1983, 217-240,
iripathi Publications.)
Importance of Research
It is a misunderstanding to believe that legal research is for an academician or
a theoretician and not for a lawyer. This line of thinking undermines the importance
of research. Law embraces the whole society and it touches every human activity.
Besides statutes, rules, orders, judiciai decision constantly pour in at -,I great speed.
Law does not operate in vacuum. It reflects social attitudes and behaviour and it
moulds and controls them to ensure that they flow into proper channels.
Research comprises fact finding, fact ordering, fact systcmatising and studying
and predicting legal trends. Sometimes law is expressed in ambiguo u s language and
leaves g aps to he filled in, during the process of its application, from case to case
and therefore it is not easily understood)° This then, is the proper area for a lawyer
or a student to do research to find out how the law should be interpreted. Herein
lies the importance of research. The Western countries have given tremendous
importance to legal research. In India the University Grants Commission (UGC),
Indian Council of Social Science Research (ICSSR), universities and its various
departments and research institutes established by Council of Scientific and Industrial
Research, and government departments and industries and some foundations promote
research ventures.
The study of law therefore cannot be segragated or isolated from legal research,
in other words legal research is indispensable for any student of law.
Types of Research
According to Dr. S.N. Jam, research is either doctrinal or non-doctrinal.
Doctrinal research is a research into legal doctrines through analysis of statutory
provisions and cases by the application of the power of reasoning.
Non-doctrinal research on the other hand is a research into relationship of law
with other behavioural sciences. The emphasis here is not on legal doctrines and
concepts but on people, social values and social institutions. These categories are
not mutually exclusive. A person concentrating on the former may occasionally
support the legal doctrines by the help of the economic and social data.°
A scholar of law may adopt any of the following courses in doing research:
(a) Write a historical essay showing the development in a field of law or a
particular doctrine.
(b) Write a kind of survey on the recent developments iii law summarising
the most important cases, analysing how they have followed, or deviated
from, the past cases, and make a guess as to what the courts would do
in future. Annual Survey of Indian Law" falls in this category of research.
0. Suprtin. 1.431.432,
II Dr SNiainIuIRcsew1i& McIIld(,I,. 14 itt_I 487.491(1972) quoted in II-i's Legal Research
& Methodology, 1983. 433.
12, Published by Indian L,iw tnsniuic. New Delhi
492 APPENDICES [APP.
(c) Analyse doctrines to see whether the case law is consistent, ambiguous
and to state what iii his opinion are the correct propositions of the law
by applying his own rationale or reasons or a priori method. This does
not rule out application of the policy approach but this policy approach
is evolved by doing arm-chair research (by a priori).
(ci) Write about relaiwnship between law and other behavioural sciences.
Research Techniques"
A. Observations on the reading of case law
I. Slower reading.
2. Comparing different reports of a case.
3. Reading case law in its historical context.
B. Analysis of Statutory law
1 The Historical Approach.
2. Discovering the political background.
C. The Comparative Approach.
Rewards of Research
Apart from monetary gain the rewards of research are spiritual and intellectual.
It creates awareness of judicial creativit y , associated with growth in the law. In
words of John H. Wigmore ''To any student it is an important intellectual 'rag(I
when he first realises that all law is in a state at constant motion, like a Kaleidoscope.
I do not remember just when this realization cameo me; 1 know it was not while
in the Law School; but as I look back, I note a great difference in all my notions
about law since the time of that realization."
Like ci good lecture, a good research paper is satis[ring, enlivening, absorbing.
It can make the law Sin g.16
Rules for training a Researcher

Prof. R.A. Wortley propounds the following empirical rules for training a
researcher: 17
(1) What is wanted should be sound, publishable research and not unattainable
perfection. This is because ''Learning undigested by quiet thought may
be labour lost; thought unassisted by learning may be perilou'.
(ii) Research involves hones: and dispassionate investigation. This is an
ethical rule.
(ii,) No research candidate should be accepted by a faculty unless it has
someone able and willing to supervise him and has adequate research
Inateria Is.
13. Suprar 10.

14. For details see Suprci n. I. 40-52: "El linger & Keith: Legal Researlt Techniques & Ideas -
15. XXX Flarv. L. Rev. 812. 823 (1917) quoted by P.M. Bakhi: Lea! Research & Law Reform. Supra
nJ, 217-241. 241.
Vi. Ibid
Ii. B.A. Wortley: VIII Journal of the Society of Public Teachers of Law (New Series) 249-260
( 1964- 1965): Supra n. 1,5-10.
El LEGAL RESEARCH 493
(iv) Legal research should not, of course, be confined to books, articles,

treatise, statutes and cases. but if necessary experts should be sought out
in the realm of law and related fields of finance and commerce and
government for their experience.
(v) It is best to let the candidate, after he has expressed a general interest in
a particular field and acquainted himself with it. suggest the topic.
(vi) A man must at all times have a plan, around which he can arrange his
material. Much depends on inspiration and enthusiasm.
(vii) A supervisor who in any event should only undertake research in which
he has a real interest, should never succumb to pressure to take on more
students than he can properly and effectively manage.
(viii) Whilst responsible academic work must he done individually, there are
immense advantages in doing it in close touch with a group of scholars
in allied topics. Boredom and procrastination are the greatest dangers run
by the solitary worker-, he should say to himself, therefore. ''work now,
play later". lie must be stimulated.
(ix) All relevant material should he noted as read and with full and accurate
references. 'Iii.s helps in avoiding duplication.
() Writing should not be deferred until ever y thin g has been read but too
protracted reading will often result in nothing being attempted. All
beginnings are difficult—(Alle heginpelen zijn moeielijk). Conclusions
are often harder still, Here the supervisor must act, as he must whenever
any snag arises. He must encoura ge, exhort and persuade.
(xi) Better miss an article, however learned, than an original source—case,
statute or treaty, because short cuts are dangerous. Check primary sources
before citing secondary sources as authorities.
(xii) The last rule is the Rule of capture. That is, ''not until a case or a
document has been read and studied in the original, does it become one's
own for the purpose of citation.'' Again respect the copyright.
Legal Methodologyrt
Legal Methodology is the body of knowledge of the method.s which may be

utilised to discover the principles and rules relevant, within a particular legal system
or body of law, to the determination of a particular problem or controversy.
Appl i cation of legal methodology depends in the first place, oil
of the facts raising the problem and discovery of what is truly in issue. The facts
may he agreed or admitted, but it not admitted, must be resolved by receiving and
interpreting and evaluating evidence of the relevant facts.
Once the facts have been determined the y must be classified or categorised to
discover what legal issues or points have to be investigated. This must be done by
reference to the analytical classification of the particular legal system, to the major
divisions or branches of that system, the main heads thereof, sub-heads, sub-sub-
heads, and so on, under which the principles and rules are grouped in the encyclo-
I. Supra n. 2,837-P, S
494
APPENDICES
paedtas, standard text-books, indices, digests and other reference works

particular System. of the
Thus a set of facts may be analysed as raising an issue of private law—obli

of goods—seller's liability for defective goods. Such ana-
lysis and reference to the appropriate books, and other sources of information, leads
to the sections or statutes, interpretative case-law, academic
c ommentary, and other
sources (qv.) of principles and rules relevant to factual issues of the particular kind
being investigated It is essential that the classification or cate
g orization of the facts
be done by reference to legal heads and concepts, and not to the everyday or
co
mmonsense heads to which a layman might refer to a problem. Thus the sale of
a defective car is properly analysed and classified as sale of g
oods—liability for
defective goods, and not tinder such heads as Automobile, Road Traffic or Transport.
The application of legal methodology in this way is a skill much developed by
experience and extensive acquaintance with the legal system in question, so that an
experience d
lawyer can frequently omit several stages in the process of scientific
enquiry and go at once to the statute or case which provides an answer to his problem
or even answer it Without needing to look at the legal sources arid all.
C omplications arise from the
facts that a given set of facts may involve a number
of distinct legal issues, such as the jurisdiction of the court, of the system of law
to be applied, of the principles of law tnvolved of the signiticance of the fitcis for
the principle (e.g. whether, where goods were really "defective" or, in fact,
adequate) and of the remedy competent and appropriate, and factors affecting
it.
Only extensive legal knowledge and experience can suggest to a lawyer all the
Points which require investigation before he can advise what law is applicable to a
given set of facts and what the rights and duties of the parties are in the circum-
stances.'9
Methodology thus refers to the methods, techniques or tools employed for the
collection and processing of data."' The researcher must in a way play Columbus
and sail across the sea of learning with great expectations of stumbling on the
enchanted shores of some new world. Methods and mechanics" in that will then
become incidental and nothing more. It is actually a voyage of discovery leading
t
o further research. And thus it continues to thrive unbound.22
19. Supra n. 2. 837-838.

20. See Narm ada Khodie: Cour'.e isi Researt/j
M ethodology in Law: ILl'
1983, 431.43. Le gal Research & Methodology,
21.
For bib] 'ography see R .N. Sharma & S. Baksh.i & 0. K. Ctiaudhary "Research Methodology and Legal
Research,, A Select Bibliography" in ILl.: Legal Research & Methodology
22, Suprun, 19. 1983,70k718.
Appendix F
Instrument of Accession of Jammu
and Kashmir to India
WHEREAS, the Indian Independence, Act, 1947. provides that as from the
fifteenth day of Aucust 1947, there shall be set up an Independent Dominion known
as INDI,\, and that the Government of India Act, 1935, shall, with such omissions,
additions, adaptations and modlhcaLions as the Governor-General may by order
specify he applicable to the Dominion of India.
And WHEREAS the Government of India Act, 1935, as so adapted by the
Governor-General provides that an Indian State may accede to the Dominion of
India by an Instrument of Accession executed by the Ruler thereof:
Now therefore I .....................Ruler of ..........in the
exercise of my sovereignty in and over my said State do hereby execute this my
Instrument of Accession and:
I. ] hereby declare that I accede to the Dominion of India with the intent that
the Governor-General of India, the Dominion Legislature. the Federal Court and any
other Dominion authorit y established for the purposes of the Dominion shall, by
virtue of this my instrument of' Accession but subject always to the terms thereof,
and for the purposes only of the Dominion, exercise in relation to the State of
......(hereinafter referred to as "this State'') such functions as may
he vested in them by or order the Government of India Act, 1935, as in force in
the Dominion of India on the 15th day of August. 1947 (which Act as so in force
is hereinafter referred to as "the Act').
2. 1 hereby assume the obligation of ensuring that due. effect is given to the
provisions of the Act within this State so far as they are applicable therein by virtue
of this my Instrument of Accession.
3. 1 accept the matters specified in the Schedule hereto as the matters with
respect to which the Dominion Legislature ma y make laws for this State.
4. 1 hereby declare that I accede to the Dominion of India on the assurance that
it an agreement is made between the Governor-General and the Ruler of this State
whereby any functions in relation to the administration in this State of any law of
the Dominion Le g islature shall be exercised by the Ruler of this State, then any
such agreement shall be deemed to form part of this instrument and shall be
construed and have effect accordingly.
5. The terms of this my Instrument of Accession shall not he varied by any
amendment of the Act, or of the Indian Independence Act, 1947, unless such
amendment is accepted by me by an Instrument supplementary to this Instrument.
6. Nothing in this Instiument shall empower the Dominion Legislature to make
any law for this State authorising the compulsory acquisition of land for any purpose,
but I hereby undertake that should the Domination for the I) Ut POSS of Dominion
law which applies in the State deem it necessary to acquire any land, I will at their
request acquire the land at their expense or if the land belongs to me transfer it to
I. THC L\WYIERS, Vol. 5. No 4. April 19W. 12 & 23.
495 1
496
APPENDICES IAPP.
them on such terms as may be agreed, or, in dehuft, of agreement. determined by

an arbitrator to be appointed by the Chief Just ice of India,
7. Nothing in this Instrument shall be deemed to ...................
commit me in any way to acceptance of any future COflSt j
(UtOn of India. or to feuer
my discretion to enter into arrangements with the Government of
such future constitution India under any
8.
Nothing in this Instrument affects the continuance of my sovereignty in and
over this State, or save as provided by or under this Instrument, the exercise of any
powers, authority and rights now enjoyed by me as Ruler of this State or the validit
of any law at present in force in this State. y
9.
1 hereby declare that I execute this Instrument on behalf of this State and
that any reference in this Instrument to me or to the Ruler of the State is to be
construed as including a reference to my heirs and successors,
GIVEN UNDER MY HAND THIS ....................day of Au
Nineteen hundred and forty seven. gust,
.1 do hereby accept this Instrument of Accessi. Dated this

day of August, Nineteen hundred and forty seven.
GOVERNORGFNERAL OF INDI..
[Text of the Letter Addressed to I.ord Mountbatten the Governor- Gene ral of
India b y
the then Maharaja of Jammu and Kashmir State.j2
26th Oct., 1947

My Dear Lord Mountbatten,
I have to inform Your Excellency that a grave emergency has arisen in riiv
State and request immediate assistance of
your Government.
As Your Excellency is aware the State of Jammu and Kashmir has not acceded
to either the Dominion of India or to Pakistan. Geo g
raphically my State is contiguous
to both the Dominions It has vital economical and cultural links with both of them.
Besides my State has a common boundary with the Soviet Republics and China. In
their external relations the D
ominions of India and Pakistan cannot ignore this fact.
1 wanted to take time to decide
!t to which Dominion I should accede, whether
is not in the best interest
of both the Dominions
and my State to stand 'independent,
of course with friendly and cordial relations with both.
I accordingly approached the Dominions of India and Pakistan to enter into a
standstill agreement with my State. The Pakistan Government accepted this arrange-
ment. The Dominion of India desired further discussion with
re presentatives of my
(Jovermnent I could not arrange this in view of the developments indicated below.
In fact the Pakistan Government under the standstill agreement are operatin
g ost
and Telegraph system inside the Stale.
2. The Lnwyers, Vol. 5. No. 4. April 1990, 12 & 23

F] INSTRUMENT OF ACCESSION OF JAMMIJ AND K

ASHMIR TO INDIA 497
Though we have got a standstill agreement with the Pakistan Government that
Government permitted steady and increasing strangulation of supplies like food, salt
and petrol to my Sate.
idis, soldiers in plain clothes and desperadoes with modern weapons have
been allowed to infilmer into the Stare at first in Poonch area, then in Sialkot and
finally in mass in the area adjoining Hazara district on the Ramkot side The result
Aft
has been that the limited number of troops at the disposal of the Slate had to he
dispersed and thus had to face the enemy at several points
Simu ltaneously that it
has become difhcult to stop the wanton destructi
The Mahoora Power House which suppl on of life and pi opcny and looting.
ies the electric current to the whole of
Srinagar has been burnt. The number of women who have been kidnapped and raped
makes my heart bleed. The wild forces thus let loose on the State are marching on
wil l) the aim of capturing Srinagar, the summer capital of my Government as a fiat
step to overrunning the whole State.
The mass
infiltration of tribesmen drawn from distant areas of the N.W.F
I'iovince coming :egulariy in riiomor trucks using
Manschrv Juzaffarabad road and
fully armed with up-to-date weapons Cannot possibly be done without the
of the Provincial Go v k nowledge
ernment of the N.W.F. Province and the Government of
Pakistan. In spite of repealed appeals made by my Government no attempt has been
made to check these raiders or stop them from coming to toy State In fact both the
Pakistan Radio and press have tpoi-red these occuncrices The Pakistan Radio even
Put out a story that a provisional Government has been set up in Kashmir. The
people of roy State both the Muslims and non-Muslims generall
at all. y have taken no part
With the conditions obtaiti g

iv at present in my State and the great emergency
of the situation as it exists I have no Option but to ask for help from the Indian
Dominion, Naturally they cannot send the help asked for by me
acceding to the Dominion of India. I have without my State
a ccordingly decided to do so and I attach
the Instrument of Accession for acceptance by your Government The other alter-
native is to leave my State and my people to free-booters. On this basis no civilized
Government can exist or he maintained This alternative I will never allow to happen
so long as I am the Ruler of the State and I have life to defend my country.
I may also inform Your Excellency's Government that it is my intention at once
to set up an Interim Government and ask Siieikh Ahdullah to carry the responsi-
bilities in this e mergency with m
y Prime Minister.
If my State has to be saved, i
mmediate assistance must be a v ailable at Srinagar.
Mr. Menon is fully aware of the situation and lie will explain to you if fu
explanation is needed. rther
In haste and with kindest regards.
V.
Sd.
HART SINGH
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1
SUBJECT INDEX
Abolition of Privy Council Jurisdiction —Revival of Judicial Machinery. 50
Act, 1949, 189 —Set-back to Judicial Administration,
Act of 1854, 313 50
Act of 1786. 31 —Sidi Yakub's invasion, 50
Act of Settlement, 1781. 123-125. 186, 237. —The Bombay Settlement. 45
277, 278. 310 Administration of Justice in Calcutta, 52-
—Main Provisions, 310 55
--Main Defects. 124 —Bhoorni Money Dassee case. 54
—Salient Features, 123 —Civil cases. 53
Adalat System in Bengal. 73 —Concentration of Power. 54
—defects of Judicial S','stcm, 74 —Criminal cases. 53
—extended to. 148 --Effective introduction of English
—legal vaciiiirli Origination of. 74 Laws. 54
—M. Reze Khan's Plan, 87 —Grain of Zamindari Right to Com-
—Reforms. 87, 88 pany, 52
Administration of Justice (lliiidu Period), —Mayor of City ol Lyons. 54
6 —Naoroji Case. 55
—and Lord Hastings, 149-151 —Param Shookdoss. 55
—Appointment of Judges, 10 —Powers of Collector, 53. 54
—Arbitrator, 7 —Rance Surnonmyee Dasscc. 54
—Constitution of Courts, 6 —Status raised, 53
--Corporations and trade guilds. 7 Adniinhdratioii or justice in Madras, 36
—Crimes and punishment. 10 —Admiralty Court, 41
—Judicial Procedure 8 —Alliiinali Pillai. earliest Indian Judi-
—Judicial Srandatd. 10 cial Officer. 42
—King's Court 6 —Black Town, 36
—Lawyers no separate Institution. 7 —Cases. 37
—L.cal Village Councils, 6 -Charters and Court of Company, 36
—Trial by Jury, 10 —Charter of 1661. 38
—Trial by Ordeal, 9 —English as court language. 40
Administration of Justice in Bombay, 45- —Foxcroft. first governor al Madras, 38
52 —Francis Day. 36
—Acquisition of the Island. 1534, 45 —Madraspainarn. 36
—Admiralty Courts Conflict with —Mayor's Court at Madras. 43
Council. 49 —Power 10 mint money. 36
—Black Justices. 50 —Reorganisation of Judicial System. 39
—Defects of Judicial System of 1670, —Sir John Biggs : 41
47 —Two bodies administerjne Justice. 39
—Establishment of Admiralty Court, 49 —White town, 36
—History of the Island. 45 Admiralty Corn-f at Madras, 57
—Judicial Reforms by Gerald Aungier, Advocates Act, 1961, 456
46 Akbar : policy of, 27
Gerald true founder of Bombay, 46 Amendments to Constitution, 352-366
—New Judicial Plan of 1672. 47 —effects of, cumulative. 366
—Political Position of Bombay, 45 —first amendment, 1951. 353
—Punishment of Criminals. SI —second amend meni. 1952. 354
—Rarria Karnali Case. 51-52 —third amendment, 1954. 354
[514
SUBJECT INDEX
515
A mendments to Constitution (conid.)
-fifty-third a mendment 1986, 363
-fourth amendment, 1955, 354 - fi fty -fourth amendment, 1986, 363
-fifth amendment, 1955, 354
-fifty-fifth amendment, 1986, 363
-sixth amendment, 1956, 354
-fifty-sixth amendment. 1987, 363
-seventh amendment, 1956, 354
-fifty-seventh amendment, 1987, 363
-eighth amendment, 1959 354
-fifty-eighth amendment, 1987, 364
-ninth amendment, 1960, 355
-fifty-ninth amendment, 1988, 364
-tenth amendment, 1961, 355
-sixtieth amendment 1988, 364
-eleventh amendment, 1961, 355
-twelfth amendment, 1962, 355 -sixty-first amendment, 1988. 364
-thirteenth amendment, 1962, 355 -sixty-second amendment, 1989, 364
-fourteenth amendment 1962, 355 -sixty-third amendment 1989, 365
-fifteenth amendment, 1963, 355 -sixty-fourth amendment, 1990, 365
-sixteenth amendment, 1963, 356 -sixty-fifth amendment, 1990, 365
-seventeenth amendment 1964, 356 -sixty-sixth amendment, 1990, 365
-eighteenth amendment, 1966, 356 -sixty-seventh amendment 1990, 365
-nineteenth amendment 1966, 356 --sixty-eighth amendment, 1991, 365
-twentieth amendment, 1967, 356 -Sixty-ninth amendment, 1991, 365
-twenty-first amendment, 1967, 356 -seventieth amendment 1992, 365
-twenty-second amendment. 1969, 356 -seventy-first amendment 1992, 366
-twenty-third amendment 1970, 356 -seventy-second amendment, 1992,
366
-twenty-fourth amendment, 1971, 357
-twenty-fifth amendment, 1971, 357 -seventy-third amendment, 1992, 366
-twenty-sixth amendment, 1971, 358 -seventy-fourth amendment, 1992,
366
-twenty-seventh amendment, 1971,
358 Ancient Hindu Social Order, Institutions
-twenty-eighth amendment, 1972, 358 and Religious Philosophy, 2
-twenty-ninth amendment, 1972, 358 --Absolute monarchies rejected, 3
-thirtieth amendment, 1972, 359 -Caste System, 2
-thirty-first amendment, 1973, -Concept of "Dharma", 4
-thirty-second amendment, 1974, 359 -Duty-based Society, 3
-thirty-third amendment, 1974, 359 -Hindu Philosophy Systems of, 4
-thirty-fourth amendment, 1974, 359 -Institutions, 3
-thirty-fifth amendment 1974. 359 -Joint Family System, 2
-thirty-sixth amendment, 1975, 360 Laissez Faire" doctrine not ac-
-thirty-seventh amendment, 1975,360 cepted, 3
-thirty-eighth amendment, 1975, 360 -Political System, 3
-thirty-ninth amendment. 1975, 360 -' 'Saptang" of the State, 4
-fortieth amendment 1976, 360 -Vedic Religioit, 4
-forty-first amendment, 1976, 360 Ancient Kingdoms, 4
-forty-second amendment, 1976. 360 -Division of, 6
-forty-third amendment, 1977, 361 -Emperor Chandragupta, 5
-forty-fourth amendment, 1978, 361 -Importance of Raja Dharma, 5
-forty-fifth amendment, 1980, 362 -its Administrative Divisions, 4, 5
-forty-sixth amendmenL 1982. 362 -Megasthanese, the ambassador, 5
-forty-seventh amendment, 1984, 362 Appointment of Judges (Hindu Period), JO
-forty-eighth amendment, 1984, 362 -Brahmin appointed, 10
-forty-ninth amendment, 1984, 363
-Dishonesty in a Judge a crime, JO
-fiftieth amendment, 1984, 363
-Qualifications of a judge. 10
-fifty-first amendment, 1984, 363
-Standards for appointment, 10
-fifty-second amendment, 1985, 363
-Sudra never appointed, 10
AL
MEMMP
5 1 () LANDMARKS IN INDIAN LEGAL & CONSTI'! UTIONAL HISTORY
Appointment of Judges (Hindu Period) —lnitorm Civil Code Bill. 428

((.oiitL) --Why a Common Civil Code, 423,
---Women never appointed, 10 427
Appointment of Judges, Mughal Period, Concept of Law, 370
26 ---defies definition, 370
Ayodhya Judgetuent of 1994, 446 —What is a -Concept. 370
Ayodhya Problem, 432-437 (See Law)
—Ayodhya Act. 432 Consumer Protection' Act, 1986, 416
—Secularism and the Constitutional —Government Hospitals, 439
Amcndiricrtt Bill. 1993. 434 —Medical Profession, 412
Assault on Democracy. 437 —Object. of. 437
Constitutional Origin of India & —Social benefit Oriented Legislation.
Pakistan. 435 418
Cap between action and Preaching. Constitutional Development, 1937-1947.
435 333
Legislation to delink Religion from —Attlees Statement, 1947, 336
Politics, 46 —August 011cr, 334
Legislative Oppression. 437 —Cabinet Mission Plan, 3946, 335
Secular meanin g or, 435 —Cripps Mission. 334
What is Secularism, 435 —Indian Independence Act: 1947, 337
—use and misuse of Article 356. 432- —Mounthatteti's Plan. 3947, 336
434 —Partition of India. 1947. 337
Battle of Jiuxar, 75 —Quit Indian Resolution, 3942, 33
Bengal Regulations, 1793 & 1833, 449 --Resignation of Congress Minisii ics.
Bibliography. 49X-512 333
Black Town, 38 —Simla Conference, 335
Cases (See Trials and Cases) —Two Nation Theory & Pakistan. 333
Certiorari Sco Writs) —Wavell Plan, 1945. 335
Charters and Coui'L, 36 --World War 11, 333
—Cases, 37 Constitutional History of India. 307-336
Choultry Court —Communal Award. 330
—at Madras. 44 —Early Charters, 308
—standard of Justice, 44 —Failure of Montlord Reforms, 328
---types ol punishment awarded, 44 —India and East India Company, 308-
315
Codification, 270
—India Since Independence, 339-368
—and native Laws. 288
—India Under The British Crown, 3 IS-
—Meaning & object, 270
318
—Modern Trends, 272
—Irwin's Proclamation, 330
—points against. 271-272
—Minto-Morley Rcfoms, 323
—points in favour of, 270-271
—Montague Declaration. 325
—Technique of Drafting. 272
—Muslim Communalism rise of, 317
Common Civil Code, 423
—Muslim League Report, 329
—Article 44, 423
—Nationalism rise of, 319
—Mary Roy, 426
Cause for rise of. 320-322
--National Anthem Case, 426 —National Movement, 330
—Observations about, 423 —Nehru Report, 3928. 329
—Sarla Mudgal. 427
—Parliamentary Control over the Com-
—Shah Bano, 425 pany, 309
—Strengthening Secularism. 423 —Poona Pact, 330
—Supreme Court's directive for, 425 —Simon Commission, 1927. 328

SUBJECT INDEX 517
Constitution of India, 1950, 343 exemption to certain classes, II
—Ambedkar's Warning. 343 Factors to be considered. I
—Amendments to, 352 Fine & Corporal punishment. 12
—Constitution Amending Acts (see Four Methods of punishment. Ii
Amendments), 353-367 Object of punishment, 10, II
—Directive Principles. 350 Punishment for murder, 12
—Fundamental Duties. 348 Purposes served by, II
—Illustrated Constitution. 445 Restitution of lost propert y . 12
—Manifesto. 352 —Muslim Period, 26
—Salient features (I to 15), 343-352 Contempt of Court. 27
Cornwallis, Lord, 132 Three forms of punishment, 27
—Abolishing Court fees, 140 —Iladd. Tazir. Qisas, 27
—Advisors of. 135 Treason Crime against God. 27
—Company's Gov. before. 132 Criminal Law Development of, Ch. 12,
—Conditions by, 135 215
—Cornwaljis Code, 139, 238 —Ancient Hindu Criminal Law, 215
—Enactments (48) of, 279 —Criminal law in other parts of the
—Estimation of, 142 country. 217
--Great success achieved in combating Benaras & Agra. 217
corruption, 132 Bombay, 218
—Hierarchy of Courts, 143 Madras. 218
—Judicial Plan, 1787, 136 Punjab, 218
Criminal Courts, 141. 137 —Early Muslim Criminal Law, 216
Criminal Judicature. 137 Classification of offences, 216
Mohmedan Criminal Law. 13$ Defects of, 219-221
—Judicial Plan, 1793. 139 End of. 224
—Judicial Reforms of. 136 Punishments, 217
—Land Revenue, Permanent Settlement Reforms of, 221-224
of. 142 Darshan Judgment, 445
—Legal Profession. 141 --illustrated Constitution, 445
—Pitt's India Act, 1784. 133 —use of, 445
—Reorganisation of Civil Courts. 139 Distinction between
- Result of reforms by. 145 —Madras Charter, 1687 and Charter of
—Specific Mission of. 135 1726, 61 -
Cossijurah Case, 118-120 Diwani
Court of Requests, 70-72 —Company as Diwan. 78
—abolition of. 71 —Consequences of, 75, 76
—establishment of. 70 —Dual government in Bengal, 75. 76
—other small cause Courts, 72 —grant of. 75. 236
—Presidency Town Small C.Cs.Act. Doctrine of Precedents and the Supreme
1864. 7! Court, 211.462
—Presidency Town Small C.Cs.Act, —advantages of, 464
1882. 72 —development. 463
—Conflict. 119 —history and development of, 462-464
—Facts. 118 —law reporting. 463
—Observations. 120 Downfall of Earl y Hindu Kingdoms
Crimes and Punishment in —Caste divisi 'S. 14
—Ancient India (Hindu Period), 10 —Causes. 14
Abuse or Contempt Cases. 12 —Constant struggles, 14
Caste Considerations. 12 —Lack of vigilance. 14
death sentence, 12 —Lack of able readership, 14
51$ LANDMARKS IN INDIAN LECJAL& CONSTITUTIONAL HISTORY
Downfall of Early Hindu Kingdom.s -Defects of. 239

(comd.) -Idea of Codification emanation
-Political disunity. 14 of. 245
-treachery of Local Chiefs, 14 -Provisions of. 243-245
East India Company Development of -Provision for Law Commission,
Authority under Charters. 30 246
-as Diwan. 78 -Reforms in legislation. 241
-Charter of 1600, 30. 275. 308 -System of Regulation La'. 236
-Charter of 1601. 230 --Charter of 1853, 312
-Charter of 1609. 236, 308 -Charter of 1861. 301
-Charter of lOIS, 308 English Compan y 's Settlements in India.
-Charter of 1623, 308 34
-Charter of 1635, 32. 308 -Bombay, 45
-Charter of 1657, 32 -Calcutta, 52
-Charter of 1061.32,18.41. 236. 275 --Madras. 36
-Charter of 166$. 33. 45 -Surat. 35
-Charter of 1669, 39 English Law : Jnlluence of, in India, 273
-Charter of 1674, 39 -and Crown's Charters tip to 1832.
-Charter of 1683, 33. 41 275-282
-Charter of 1686. 33. 41 -application of. 282
--Chatter of 1687. 56, 61 -advantages & disadvantages,
-Charter of 1698. 34 285
-Charter of 1726. 52. 55, 58. 60, 61, -Cases wherein court refused to
236. 275. 295 apply it, 282
---Consequences of. 60 -Cases wherein it produced injus-
-distinction. 61 tice. 282
-Introduction of English Law. 60 -Cases wherein successfully ap-
-Introduction of First & Second plied. 284
Appeals. 59 -Criticis;'n
-Judicial charter. 60 -Causes of failure. 28
-Political changes in Madras, 65 --English Common Law : meaning.
-Provisions of, 58-60 274
-Charter of 1753. 65-67. 95. 236. 276 -Import of English Law & Codifica-
-Conflict, 66 tion. 286
-Court established, 66 -Influence on Indian Legislation, 291
-Criticism. 67 -Influence on Mohammedan Law, 288
-Reforms introduced, 65. 66 -Principles of Justice. Equity & Good
-Charter of 1774. 71, 97. 185. 277 Conscience. 275
-Admiralty Jurisdiction. 98 -Special Features of, in India, 293
-Civil Jurisdiction of Supreme European Settlements its India. (See Eng-
Court. 98 lish Co.'s settlements)
-Criminal Jurisdiction of Su- Environmental Control Measures, 419-421
preme Court. 98 -Air Pollution Act, 419
-Ecclesiastical Jurisdiction, 98 -Article 48-A. Constitution. 421
-Issue of writs, power of. 98 -Bhopal Tragedy. 421
-Charter of 1793. 311 -Environment (Protection) Act, 1986,
-Charter of 1813, 149, 239, 312 419
-Reforms in Civil Courts. ISO -Enforcement Strategy, 420
-Reforms in Criminal Courts. 151 -Judicial Role. 420
-Charter of 1833. 155. 231. 235. 241. -Legislation for. 420
246, 312 -Liability for. 421

SUWEC1 INDEX
519
Environmental Control Measures (contd.) Madhya Bharat, 177
—No effective punishment, 421 —Nagaland, 177
-Pollutions —Sikkim, 177
—Causes for. 419 —Permanent Bench at,
—Kinds ol, 420 —Jaipur, 178
—Water (Prevention & Control) Cess —Ranchi. 177
Act, 1977.419 High Courts Establishment of, Ch . 8,
Federal Court of India, 191 64.180
—abolition ol, 197 —early efforts for, 164
—appointment of judges to. 193 —Indian I-Ii2h Courts Act, 1861, 165
—assessment of, 198 —Indian 1-ugh Courts Act, 1865 and
—authority 01 law laid down by. 196 1911, 168
—form ot judgment, 196 —Letters Patent for
—foundations of, 192 —Allahabad, 167
—Inaugaration of. 193 —Assam, 171
—Jurisdiction of'. 194 —Bombay, 166
—advisory, 196 —Calcutta, 166
—appellate. 195 —Janiniti & Kashmiei-, 172
—expansion of. 197 —Lahore. 169
-'-original, 194 —Madras, 167
—Public opinion & early efforts, 191 ----Mysore, 172 -
---Qualifications of Judges, 193 —Orissa. 172
—Salaries. 194 ---Patna, 169
Gentoo Code, ( Appendix-A). 470 --Punjab, 171
—Criticism, 472 —Rajasthan, 172
—11 a Ihed's Gentoo Code arrangement, — Fravaiico-e Cochin (Kerala)
471 172
—Origin. 470 high Court Judges. 78
Govt. of India Act, 1858, 314 -- liflprOVCfflCot of Conditions of, 178-
Govt. of India Act, 1870, 317
Govt. of India Act, 1915. 169 Hindu Period, 2. 399
—Administrative Units, 4, 5
Govt. of India Act. 1919. 325
—Dharri-a, 3. 4
Govt. of India Act. 1935, 170, 331, 464
—Dharmasa,stras 3, 4
—Federal Court, 188
—form of Religion, 4
--Main Provisions. 170171, 331-333 —Joint Family, 2
Habeas Corpus (See writs) Independence of Judges, 155
High Courts after the Constitution of —Govt. v I'urtab, 157
India, 172 --M y lapilly Yerregndoo Case. 157
—appeals. 174
—Oak es Case, 158
—changes made by 42nd Amendment- —Oomarj Dutt case. 156
Act, 1976. 174-177
India Since Independence, 339-369
—Constitution of. 172
—Amhedka( (Dr) Warning. 342
—Creation of New High Courts 177
—Constituent Assembly. 340
—Extension of Jurisdiction of, 178 —Constitution of India, 341
—Jurisdiction of, 173 —Drafting C ommittee, 340
—Powers, 175
—India gains freedom, 339
—Andhra Pradesh, 177 —Unification o India, 341
—Delhi, 177 Indian Councils Act, 1861, 315
—Gujarat. 177 Indian Councils Act, 1892, 322
—Himachal Pradesh, 177 Indian Councils Act, 1909, 323
520 LANDMARKS IN INDIAN LEGAL & C ONSTITUTIONAL HISTORY

Indian High Courts Act, 1861, 317. 450
—Air India. 406
Indian Independence Act, 1947, 337
—All Saints High School case. 406
—Provisiorni, 337 —AS. Rao, 405
Indian Legal Periodicals & Law Reports:
—Central I.W. Tr. Corpn. Ltd.. 408
Table of, Appendix-C, 477-485
Indian Reference Material : Index to, Ape —Habeas Corpus case. 403
pendix-D,. 478-488 —Indira Nehru, 403
—Keshavariand Bharti. 402
Influence of English Law in India (see
English Law) —Maneka Gandhi, 404
—Mary Roy. 408, 426
Influence of English notions, 289
—MC. Mehta. 406
—OH Indian legislation, 291
—Minerva Mills Ltd., 405
—On Mohmedan Law. 288
Instrument of Accession of Jammu and —National Anthem case, 408. 427
Kashmir to India, Appendix-F. 495-497 —Shah Bano case, 408, 425
Judicial Reforms. —S.P Gupta. 405
Law
—defects of the System. 162
—dual Sy s tem of Courts, 160 —and Custom, 376
—Indians as Judicial Officers, 154 —and equity, 377
—Practice of Sati an offence, 154 —and morality, 375
—Progress of. (1793-1833) Ch,7, 144 —and public opinion, 378
—Result of Reforms. 145. 148 —Characteristics of, 371
—Amherst, 152 —Conceptions about. 371
—Bentinck, 152 —Recent Developments in. 408-446
—Cornw allis, 145, 148 Ayodhya Judgiiie:it (Faruqijj case.
—Hastings, 149. 151 1994). 446
—John Shoo-, 145, 147 Bill to delink religion from
—Minto, 148 politics. 436, 444
—WelIcsly. 147 Common Civil Code. 423
Judicial Reforms of 1670. by Gerald Atm - Consumer Protection Movement,
gier, 46 4 16-4 19
Judicial Reforms of Sher Shah, 21 L)arslian Judgment b y Alla-H.C.,
Judicial System 444
—in Ancient India, Ch. I. 1-12 —Summary, 445
—in Mediaeval India, 13-28 Doctrine of Promissory E.soppel.
412
—in Mughal Period, 21-28
Kamaluddin Case, 113 Environmental Control measures.
419
Kashmir Problem & Article 370, 437-441
Eventful Ayodhya Problem, 431
—amendments in Constitution regard-
ing Kashmir, 437 Govt. Liability for breach of Fun-
—Article 370. 437 damental Rights: Compensation
Cases, 408
—Delhi agreement, 1952, 439
Hazrat-BaI . Masjid Event, 444
—Indira Gandhi-Abdullah Accord, 439
Illustrated Constitution, 445
—Instrument of Accession (see Appen-
dix-F). 495 Kashmir Problem, 437
—Prerogatives to Kashmir, 441 Legal Aid Programmes, 421
—Provisions of Article 370. 438-439 Liability of Govt. in Contract &
—Sheikh's warning. 1952. 439 Tort, 409-412
t.ok Adalats, 421
—Sampat Prakash Case, 439
—Special Status of, 437 Manda] Commission case. 441
—the other opinion about, 439 Motion of Impeachment against a
Landmark decisions -. 402-408 Supreme Court Judge. 429
SUFIJECi INDEX
521
Law ((:ontc/)
Tcth L.C ., 1982. 265
—Implications of Lapse of
Eleventh L.C, 1985, 266
motion. 430
Twelfth L.C., 1 9 a, 268
Public Interest Litigation, 414
Thirteenth L.C., 1992, 269
Public Liability Insurance Act,
Law Reporting. 462-469
1991, 444
Quality Control measures. 46 —Computer aided Search of Case law,
469
Security Scandal, 444
—Schools of, 372 JUDIS by Supreme Court, 469
ONLINE by Eastern Book Corn-
Command Theory, 372
PunY, 469
Historicaj School, 372
—What a report should contain 469
Natural Law Theory, 372
Letters Patent, 1862, 296
Pure Theory, 373
Legal Education 458
Realist School. 373
—Aims of, 459
Sociological School, 374
—Sources of, 379-380 —Five years' course (New Scheme),
460
Constitution, 381
Future 01. 461
—administrative law, 383
—History of. 459
—Citiis and the New Law,
—Recent developments, 461
382
Curricularn Dev elopment Commit-
—Reinedis, 381
Custom, 393 tee's Report 1989, 461
Way to Modernisation and Indian.
Expert opinion, 393
Sultion, 462
Juristic; writings 393 Legal Methodology.
Legislation, 386
—application of,
—Delegated Les,slatjon 387 — what is
Precedent 388
Legal Periodicals
--Creation ()I
o Law by Jucj i-
Legal Practitioners (See Legal Prolession,
daly. 389
Legal Prfesjoi1, 141. 448
-'--due F'roccss of Law. 393
—"Judicial Review, 399 —Advocates Act. 1961, 456
—Stare Decisis, 391 —All India Bar Committee 1951. 453
—What is, 370 —Classes of Lawyers, 454
—Future 0!, 458
J-aw Commission for India
—arid Indian Penal Code, 225-228 —Indian Bar Committee 1923, 452
--before independence --Indian Burr Council Ace, 1926, 452
First L.C., 1834, 247 —Indian High Courts Act, 1961, 450
—Legal P ractitioners Act, 1846, 450
Second L.C., 1853. 250
Third L . C ., 1861, 251 —Legal Pr actitioncrs Act, 1863. 450
Fourth L.C,, 1879. 253 —Legal Practitioners Act, 1879. 450
Fifth L.C., 1955. 254 —Meaning of. 447-448
—Pathology of, 457
—Under Indian Constitution 254-269
First IC., 1956, 255 —Position up to 1926, 448
— Profession, 447
Second L.C., 1958. 257
Third L.C,, 1961. 258
Legal Reporters, 462
Fourth L.C., 1964 258 —High Courts, 466
Fifth L.C.. 1968, 259 Indian Law Reports Act. 1875, 466
Sixth L.C,, 1971. 260 Official Reports 466.467
Seventh LC., 1974. 262 Privy Council, Federal Court and
Eighth L.C.. 1977, 262 Supreme Court Reports, 467
—Supreme Courts,
Ninth L.C., 1 979, 264
a private enterprise 465
522 LANDMARKS IN INDIAN LEQAL&CONSTITiJTIONAL. HISTORY
Legal Reporters (contd.) Montague declaration, 325

Collections and Reports- 465 Montlord Scheme, 326
Origin, 465 Mughal Period, 21
Pioneers of. 465 —Administrative Divisions. 22
—Principles of. 468 —Appointment by Judges. 26
—Private Reports. 468 —Contitutin of Courts. 22
Legal Research, 489 Chief-Civil and Cr1. Court of (he
—Importance of. 491 Dt.sti ct, 23
—Legal Scholarship. 490 Chief court of the Empire. 22
Meihods of 494 Chief Revenue Court. 23
—Reward of, 492 Emperor's Court, 22
—Rules for. 492 Lower Courts. 23
—Techniques of. 492 —Courts in Bengal during, 73
—Types of. 491 defects. 74. 75
—What is. 489 —Institution of Lawyci s. 24
-- Why research, 489 —Judicial Procedure. 25
1.0k Adalats. 421 —Judicial Standard. 26
—future of. 422 —Position of Citizenship. 28
—legal status, 421-422 —Trial hy Ordeal, 25
—Social audit, 422 Muslim Period. 13. 399
Mandal Commission case. 441 —Appointment of Judges and Judicial
—Fii st Backward Class Commission. Standard. 30
441 —Civil Administration. 17-20
—History. 441-443 administrative divisions. 18
—India's experiment in Social Engin- Central Capital, IS
ecning. 441 Districts, 20
—Indira Sawhney case. 442 Parganah. 21
--National Cornniissioii for Backward Pro vi nce, 19
Classes Act. 1993, 443 Villaues. 21
Mandamus (See writs) —Hindu Culture falls before Asian Bar-
Mayor's Court barians, 14
—Abolition of', 67 —Historical Introduction. 16
at Bombay. 68 Mahuiud of Ghazni to Babar, 17
at Calcutta. 67 —Muslim Social Order based on Reli-
at Madras. 68 gion. 15
—Admiralty Court at Madras, 57 —New era in Legal History, 13
—And Courts of Requests. 56, 70 —Political Theory governed by reli-
—Appraisal of Under Charters of gion. 15
1726, 1753, 69-70 —Religious intolerance & Racism bed-
—Arab Merchant's case. 63 rock of their policy, 16
—At Madras. 43. 56 —Religious Unity Stronger than
—Conflict about Jurisdiction, 62 Hindus, IS
—Critical estimate of, 61 —Sovereignty belongs to God. 15
—Drawbacks. 43. 58 —Two Sects : Sunnis & Shins. lb
—Four Courts. 57 Nand Kumar, Raja, Case. 304-113
—Origination of New Charter. 58 —a judicial murder. 112
—Re-establishment of. 65 —application of 1729 Act. 108
Minto-Morley Reforms, 1909 —events before trial, 104
—Comments. 324 —Facts, 105
—Communal representation. 323. 325 —Hastings prime-mover, 110. III
—Provisions, 324 —Opinions about trial, 109-112
SUBJECT INDEX
523
Nand Kumar, Raja, Case (conid.)
—Achievements of, 103
—peculiar features of. 108
—A Survey of' the Act, 123
—Questions raised in, 107
—Circumstances Prior to, 92-94
National Movement, 330 Ap pointment of Parliamentary
Nehru Report, 1928. 329 Committee 93
—Fourteen points Report by Muslim British Parliament & the Co., 92
League, 329
Causes for taking over the corn
—Rejection of' Nehru report, 329 pany, 93
Patna Case Object of the Act, 94
—effect of - on Company.s govt., 118 Regulating Bill, introduced 94
—facts, 14-15 —Critical Estimate of, 98
- issues involved, 114 —Defects of. 99-103
Points raised before Supreme Court, —Establishment of the Supreme Court,
116 95
Jurisdiction, 116 —Landmark Cases: 104
Procedure, ii 7 Cossijurab case (1779-80) (See
Working, 117 'Cossijurab")
—Reaction of*, 118 Dora Cliand Dutt, 122
Poona Pact, 330 Karn'aluddin (1775), 113
Precedent (See 'Doctrine of Precedent") Patna case (See "Patna case")
Prerogative Writs (See 'Writs") Radha Charari Mitra (1775), 121
Privy Council 181-190 Raja Nand Kumar (1773) (See
—AhoIjtj 1 of. 189 Nand Kumar)
—Acts establishing, 182 Saroop Chand, 122
—Andrews Hunter case, 186 —Legislative Power under, 96
—Appeals from High Courts. to, 187 general power, 96
—Appeals from India to, 185 Restrictions 96, 97
Regulation 6 of 1832. 278
—A Unique Institution 189
—Composition, 183 —Reservation policy. 441
---Curia Regis, 181 Rule of Law & Constitutional Develop-
three divisions, 182 ments, 394-446
—Jurisdiction 184 —affirmed by Constitution 401
—Origin, 181 ---Concept of, 395
—Peculiar Nature, 184 —Criticism : Dicey's concept, 397
—Procedure, 183 —Decisions (See Landmark decisions)
—Reorganisation of. 187 —Dctinjtio, i , 396
—Tribute by Dr. K.M. Munshi, 190 —Dicey's concept, 396
—Importance of, 397
Queen Victoria's Proclamation. 3)3
Quo Warranto writ (See writs) —Implication of, 397
—Improvements of, 398
Racial Distinction, Ch. 13, 229-234
--Act of 1836, 231 —Indian position prior to Constiwtion
399
—Criminal Law (Removal of Racial British Period, 400
Discrimination) Act, 1949, 234
—Meaning. 395
--Distinction in Civil Justice, 230-232
—Origin, 395
— Distinction in Criminal Justice, 232-
—Post -Independence Period, 400
234
—Three Ideas, 396
—Macaulay's opinion, 231
Secularism (See Ayodhya Problem)
—Origin of. 229
Settlements & AdmJnj glrafion of Justice
R egulating Act, 1773, 34, 68, 91, 185, 237,
from 1639-1726, 36-45
277, 309. 449
—First phase, 1639-1678 36-39
524 LANDMARKS IN INDIAN LEGAL & CONSTITUTIONAL HISTORY
Settlements & Administration of Justice conflict. 119

from 1639-1726 (contd.) facts. 118
—Second phase. 1678-1683. 39-41 observations. 120
—Third phase. 1683-1726. 41-45 —Gilbert & De Lima, 40
Simon Commission. 328 —Cora Chand Dutt, 122
Supreme Court —Gregory Lellingon. 31
—at Bombay, 128 —Kamaluddin. 113
Cases —Kannappa, 37
l3appoo Gunness. 129 —Mayor of City of Lyons. 54
Morn Raghunath, 129 —Moro Raghunath, 129
Conflict between S.C. and the —Mrs. Doves. 39
Govt., 128-130 --Mylapilly. 157
Decision of the Privy Council, 129 --Nand Kumar. 104
Powers and authority. 128 —Cake. 158
—at Calcutta, 97. 125 —Ooman Duu. 156
Constitution, 125 —Pagoda Oath case. 64
1fects, 126 —Patna case. 114
Jurisdiction. 125 —Purtah. 157
—at Mardas, 127, 128 —Radha Charan Miira, 1 21
Jurisdiction, 127 —Rama KamaiL SI
Recorder's COWL. 127 —Rani Suriionoyee. 55
—Doctrine of Precedents and S.C.. 211 —Saroop Chand. 122
—Laws administered in S. Courts, I3() —Sergeant Bradford, 37
—i India, 199 —Shinipy. 62
Constitution, 201, 203 ---Stjnku Rama, 64
Compared with F.C. & S.Cs. of —Tnrriano. 63
other countries. 200 Trial by Jury. 10
Jurisdiction and Powers, 203 —Court scene in Mrichchakatika. JO
Advisory J.. 206 —function of Jury. 10
Ancillary Powers. 209 Trial by Ordeal, 9. 25. 26
Appellate 1.. 203-205 —detailed account in "Agni Purana'.
Conclusion 9
Enforcement of decrees and orders. —drawback, 9
209 —Jell into disuse. 26
Enlargement of 1.. 208 —kinds of. 9
Original J.. 203 —limited application, 9
Other powers, 210 —method explained. 9
Powers to punish for contempt. 208 Transition from a trading body into a
Power to issue writs. 209 territorial power. 33
Powers 10 review. 207
Turning point in Legal History, 31
Special J., 205
--rtht of self-government and other
—Recent changes. 213 privileges : grant of, 31
—Recommendation of the Law Com- Union Territories, 473
mission. 212
—administration of. 473
Trials and cases
—Assam Reorganisation Act. 1909. 474
—Arab Merchants case. 63 —Constitutional set up. 473
—Andrew's Hunter, 186
--Goa. Daman & Diu Reorganisation
—Antonio Miranda. 37 Act, 1987. 474
—Bapoo Gunness. 129 —Hierarchy of Courts. 476
—Bhoomee Money Dossee. 55 —Hich Courts in. 476
—Cossijurah. 118
--Judicial system. 475

SUBJECT INDEX 525
Union Territories (contd.) Use 01'. 304
----legislative system, 475 —Habeas Corpus. 298-300
—North Eastern Council Act, 1970. Court's duty. 300
1971. 474 Fundamental Right, 300
—North Eastern Areas (Reor ga nisation) Meaning, 299
Act. 1971, 474 Object. 301
—Origin, 473 Pm-Constitutional Period, 299
—State 01 Hirna. Pra. Act, 1970, 474 Scope. 300
—Territorial Councils Act, 1956. 473 Under Constitution of India, 300
----Union Territories Act, 1963, 474 When not granted, 300, 301
Warren Hasting's Plan, 1772. 78, 276, 277 ---In India, 295
--a landmark in judicial History, 80, 90 Charter of 1726, 295
—an act of enlightened policy. 79 Earliest writ jurisdiction. 295
—appointment of Impey as Chief. 83 Origin or the system. 294
—Contribution of Warren Hastings. 90 Under Indian High Courts Act,
—Criminal Justice. 87 1861, 296
—defects, 80-81 Undet the Constitution of India.
—letter suggesting reforms in Moham- 297
medan Law. 279 —Comparison bet.. 298
—New plan, 1174. 8, —High Court's Power, 297
—Personal Laws Safeguarded. 79 —S.C. 's Power, 297
—Procedural safeguards, 80 —Mandamus, 301 302
--Recall of Empey, 86 Meaning. 299
—Reforms of 1781, 84-86 Pre-Constitution period, 299
First Civil Code, 86 Under Constitution, 302. 303
defects and reasons. 89 —Prohibition
---Reorganisation of Adalats, 82 Meaning, 302
Characteristics, 2 Object, 302
Defects, 83 Ori2in, 302
White Town. 38 Pie-constitution period. 302
Writs in India, 294-306 Under Constitution. 303
--Certiorari, 303 When issued, 303
Conditions necessary for issuance, —Quo warranto, 305
304 Meaning, 305
Difference between Prohibition and Natuje and Position of, 306
Certiorari, 305 Object of. 306
Fundamental Rights, 304 Pm-Constitution period, 305
Jurisdiction, 303 Under Constitution, 306
Meaning, 303 When issued, 306
Principle for granting. 303

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Preface to Seventh Edition

VI LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

of New Gujarat Law House Ahmedabad who extended their helping

Preface to Sixth Edition

3. Legislative Power under the Act of 1773 96

I. Company's Government before Cornwallis 132

Result of Reforms by Cornwallis (1793) 45

The Indian High Courts Act, 1861

(h) Ancillary powers 209

I. Ancient Hindu Criminal Law 215

XIV LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

8. Codification and Natives Laws

XVI LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

(1) Government Liability for gross breach of Fundamental

Biman (:handra t: Governor of W.B., AIR 1952 Cal 799

Deen Dayal v. Kylas Ctiunder, ILR I Cal 92 .... 410

XX LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

Francis Coralie Mullin v. Administrator. Union Territory of Delhi. (1981) I 416

TABLE OF CASES XXI

Supp 1: (1992) 22 ATC 385 ............................

Kishurilal v. Debi Pracad, AIR 1950 Pat 53

XXII LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

Lxrnan v. Rajpramukh, AIR 1953 MB 54 ........................ 302

TABLE OF CASES XXIII

Param Shookdos v Ra.shced, 7 Mad FICR 285

Parvathi v Mannar, ILR (1884) 8 Mart 175

AIR 1992 SC 904 ...............................

Pritani Singh v. State, AIR 1950 SC 169

XXIV LANDMARKS IN INDIAN LEGAL AND CONSTITUTIONAL HISTORY

Rain Gajadhar v. State of UP. (1990) 2 .5CC 486 ...................410

TABLE OF CASES xxv

Landmark Years in the Legal and Constitutional History of India

XXVIII LANDMARKS IN INDIAN LLtJAL AND CONSITUTIONAL HISTORY

LANDMARK YEARS IN THE LEGAL AND CONSTITUTIONAL XXIX

xxx LANDMARKS IN INDIAN LEGAL AND CONSITUTJONAL HISTORY

LANDMARK YEARS IN THE LEGAL AND CONSTITUTIONAL Xxxi

Legal history of India can conveniently be studied under four important

1. Ancient Hindu Social Order, Institutions and Religious Philosophy

2. Ancient Kingdoms Administrative Units

12. See Udyo8a Parva (Vidur Niti-h. 37-17): Rama Jois. p. 2.

conitutional system contained provisions which indicate a well developed govern-

In order to deal with the disputes amongst members of various guilds or

(ii) Institution of Layers.—_gmrjtjs

A detailed account of ordeals, as they existed in ancient India. is given in Agni

75. karyavwias S,nriti. p. 806.

MUSLIM PERIOD JUDICIAL SYSTEM IN MEDIAEVAL INDIA

4. Cuses of the Downfall of Early Hindu Kingdoms

6. V. Kulkarni. British Domination in India and After. p. 6.

7. The Sultanate of Delhi: Civil Administration

12. Rummla Thapar, A History of India. p. 336.

(1) ADMINISTRATIVE UNITS

28. W.Briggs, Rise of the Mahomedan Power in India. Vol.111. p. 420.

9. The Mugital Period: Judicial System

of high scholarship and reputed sanctity of character wherever available were

40. Sir J1unnth Sarkar, Mughal Administration, (1935), p. 29.

10. Akbar's Policy of Tolerance

59. Mirar-e-Ahnied, Vol. I, pp. 282-283.

11. Citizenship Position of