Legal & Constitutional History

Introduction
 The emergence of British Empire in India
stands out as a unique event in the history of
the World. Unlike many other empires, the
huge edifice of this Empire was created by
merely a company which was organised in
England for furthering the British commercial
interests in overseas countries.
 Crown’s Charter of 1600
 "Governor and Company of Merchants of London
Trading into the East-Indies"
 Exclusive trading rights in Asia ( including India),
Africa and America
 Legislative power-necessary to regulate its
business and maintain discipline
 King’s commission 1601- due to inadequate
legislative powers
 Power to issue commission granted to the
company
 commission to the commander-in-chief of each
voyage separately. It empowered him to inflict
punishment for capital' offence.
 Charter of 1661 and further power to company
Surat factory
 1612 First Factory
 To carry out trade effectively
 Place consisting of offices, residences of Company’s
Employees, warehouses for storage of goods.
 Surat most suitable place as important commercial
centre and a populous town within the Moghul
Empire.
 Good international port as from there thousands of
Muslim pilgrims sailed every year to holy places in
Arabia
 Portuguese already established
 Sir Thomas Roe’s Visit
 Permanency of Surat establishment
 Till 1687, chief centre of Company’s activities
 1687- the seat of the President and Council was
transferred from Surat to Bombay
 Surat lost its pre-eminent position
Administration and Judicial Arrangements
 President & Council
 Decisions by Majority of votes
 No veto power to overrule colleagues
 Dual system of Law : English & Indian
 No uniform or common lex loci to regulate inheritance,
succession
 Hindu or Muslim Personal laws
 ACT OF SETTLEMENT 1781
• The conflict between the Court and Council
• 1777- Directors represented to the British
Govt. their grievances against the court
• House of Commons appointed a Select
Committee- Touchet Committee for inquiry
into administration of Justice in BBO
• Committee’s report to the passage of Act of
Settlement
• Purposes of the Act
1) To remove doubts and difficulties in
Regulating Act
2) To support the lawful Govt of BBO for
certainty in revenue collection
3) To maintain and protect the inhabitants in
the enjoyment of all their ancient las, usages,
rights and privileges.
• Provisions of the Act clearly show that
Council won the conflict with Court
• The provisions of the Act
• Restrictions of the Jurisdiction of the Supreme Court
1. No jurisdiction in revenue matters
2. Or any act done in the collection
3. No jurisdiction – land owner, landholder, farmer of
land revenue or Zamindar by reason of his being
employed by the company or the GG & C
4. No action for wrong or injury against person in
judicial office
5. No jurisdiction – GG and council for any act done by
them in their public capacity
6. All actions and suits against inhabitants of Calcutta
• Recognition of Courts of Company
1. Company’s Provincial courts recognised
2. Sadar Diwani Adalat to hear appeals from the
decisions of the Mofussil Courts in civil cases
3. Appellate jurisdiction of SDA confirmed
4. Appeal from SDA to King in Council if the value
of the suit was 5000 pounds
5. SDA to be court of Record
6. SDA- revenue cases
7. Punishment not to extent death or maiming
( permanent disability) or perpetual
imprisonment
 ADMINISTRATION OF JUSTICE IN
MADRAS (1668-1726)
 Administration of justice till 1726
 Charter of 1726- Uniform legal system in all
Presidency towns
 Madras – First Presidency Town
 First stage- 1639-1665
 Agent in Council
 Choultry Court
 Second Stage- 1665-1683
 Court of Governor in Council
 Choultry Court
 Third Stage- 1683-1726
 Court of Admiralty
 Mayor’s Court
FIRST PERIOD 1639-1665
 Madraspatanam – founded by Francis Day
 Piece of land acquired from Hindu raja
 Fortified Factory constructed – Fort St. George
 The Raja granted to the Company full power and
authority to govern village
 Madras as settlement – White Town + Black Town
 Administrative Set up
 Status of an Agency
 Subordinate to Surat ( the only Presidency Town in
India)
 Administrative head- Agent
 Administration – Agent & Council
 All the affairs were of commercial nature in the
beginning
 JUDICIAL SYSTEM
 White town – inside the fort- Englishmen & Europeans
 Black town – village of madraspatanam- Native Indians
 White town – Court of the Agent and Council
 No express authority from Raja
 Judicial power was Vague and indefinite
 Serious criminal cases often referred to the Company’s
authority in England for advice
 Appeal from Choultry Court
 Black Town –
 Choultry court with Adigar (Village Headman- Kanappa-
native) as the Judge
 Petty cases
 No regular judicial tribunal
 Old , traditional , indigenous system
 1652-Adigar dismissed for abuse of powers and two English
servant of Company appointed
 No separate court to try Both Civil and Criminal Cases
 Comments
 No fixed form of trial procedure

 Methods used were too informal

 No separation of powers

 Absence of systematic and regular

administration of justice
 Serious crimes of Indians were referred to Raja

 Judicial methods were elementary

 The system consisted of two bodies to administer

justice
 Agent & council were not efficient

 Choultry court – only petty cases

 No established procedure for serious cases

SECOND PERIOD 1665-1686
 Charter of 1661-Extensive Judicial power on the
Governor and Council
 Criminal Case in 1665- Mrs. Ascentia Dawes accused
for murder of slave girl
 Murder case referred by Agent and Council to
Company’s Authority in England
 Charter of 1661- applicable to Madras
 Status of Agent raised to Governor
 Judicial power of Governor – Englishmen and all
residents of Madras
 Governor & Council tried the case with the help of
petty jury (six Englishmen & six Portuguese)
 Empowered to decide cases with capital punishment
 Cases of Indians – according to English Law
 G & C – being laymen- no knowledge of even English
law
 Decided cases according to common sense and the sense
of the justice
 1678- Black Town- Choultry Court – Reorganised
judges increased from 2 to 3
 all judges Englishmen
 court for two days a week
 Petty Criminal cases
 Civil cases up to 50 Pagodas
 White Town- Court of Governor and Council declared as
High Court of Judicature formally inaugurated 27th March
1678
 Appeal from Choultry Court
 Governor Streynsham Master ( 1667-1681)
 Court of G & C- two days in a week
 Jurisdiction - Civil & criminal cases except petty cases
according to laws of England with the help of jury of 12
men
 Comments
 Governor and council did not function regularly or efficiently or
earnestly
 Delay in justice
 Lack of Legal knowledge
 the High Court of Judicature
 A hierarchy of courts was established
THIRD STAGE 1686-1726

 Charter of 1683
 To deal with unlicensed traders and interlopers
and to punish the crime of piracy
 Company empowered to establish court of
Admiralty in India
 Admiralty Court – 1 learned in civil law+ two
assistants – all appointed by company
 Jurisdiction – mercantile and maritime cases

 Charter of 1686- admiralty court modified

 Crown empowered the company raise naval

forces and appoint naval officers to execute
martial law for defence of ship.
 ADMINISTRATIO OF JUSTICE
 Court of Admiralty – 10th July 1686
 Constitution – three civil servants ( members of Governor’s
council)
 1 learned in civil law and two assistants
 John Grey and two other Englishmen
 1687- Sir John Biggs- a professional lawyer learned in Civil
law – Judge Advocate
 Jurisdiction – all cases , civil , criminal, mercantile, maritime
 Separation of powers between executive and judiciary
 Sir Biggs died in 1689- no other qualified person was
appointed
 Governor became judge advocate ( Chief Justice)
 1692- John Dolben – new judge advocate sent from England –
dismissed in 1694 for taking bribe
 1698- Governor & Council heard appeals from admiralty court
 1704 – court ceased to exist
 Madras Corporation
 1686 the Madras Government levied a house tax
 Hindus opposed by different methods
 Charter of 1687 issued by company
 The company declared that it was its desire to
encourage merchants and traders of all nations and
all religions and therefore the Corporation should
consist of all nations and all religions
 1688- Corporation of Madras
 Constitution – one Mayor+12Aldermen+ 60to 120
Burgesses
 First Mayor- member of Governor’s Council-
 Tenure of Office One year –
 elected every year among Aldermen by Aldermen and
Burgesses –
 eligible to be re-elected
 3 Aldermen – Council Members
 Aldermen to hold office for life or residence within
Madras
 Vacancy filled by Mayor
 3 Aldermen – covenanted British servants of the
company
 9 – belong to any nationality

 First 12 Aldermen= 3 Englishmen+ Hindus 3+

Frenchmen 1+ Portuguese 2+ Jews and
Armenians 3
 Charter appointed 29 Burgesses and others were
selected by Mayor & Aldermen
 Reserved Power – Governor & Council- to remove
and fill vacancy
 Mayor’s Court
 Mayor and three Aldermen – Justices of the peace
 Court of record – first Recorder – Sir John Biggs
 Jurisdiction –civil ( more than 3 Pagodas) & criminal cases
 Punishments – fine, amercement, forfeiture of property,
imprisonment corporal punishment like mutilation of
limbs, pillory, branding and whipping – no measure and
standard of punishment
 Death sentence to natives but not Englishmen
 First Recorder- Judge Advocate Sir Biggs
 Quorum- 3- Mayor+ 2 aldermen
 Jury system
 Appeal- Mayors court Admiralty court
 After 1704- Appeals to G in C
 Choultry court – two aldermen – twice a week
 Upto 1753- civil jurisdiction taken away by Court of Request
 But criminal jurisdiction continued till 18th C
 In 1800 finally abolished
COMMENTS

 The Government had a great deal of influence over

the Mayor’s Court
 No separation of Judiciary and executives
 Relationship between the Mayor’s Court and the
Governor at time became rough and not always
cordial
 Personal resentment existed among the members of
Government
 Admiralty court was suspended temporarily after the
death of Sir John Biggs.
 Mayor’s court decision became final
 Judges of Mayor’s Court were not honest and impartil
 Judges laymen
Administration of Justice in Bombay- 1668-1726

 1534-The first European nation to acquire the

island of Bombay- by session from the King of
Gujarat Sultan Bahadur.
 1661- Portuguese King, Alfonsus VI, transferred the
Island to Charles II, as dowry
on marriage of his sister Princess Catherine with
the British King.
 Bombay being small and poor , fishing village with
population merely 10,000
 1668- Charles II transferred it to the East India
Company and annual rent of £ 10
 First period - 1668-1683

 Charter of 1668 by Charles II- full powers, privileges

and jurisdiction for administration of Bombay
 Company was authorised make laws, create courts ,
punish violations of law
 Ilbert , “ transition of the Company from a trading
association to a territorial sovereign invested with
powers of civil and military government”
 Judicial System
 Deputy Governor and Council were appointed to
administer Bombay
 Deputy Governor subordinate to the Governor of the
Surat Factory
 Governor of the Surat Factory – ex-officio Governor
of Bombay
 First Governor- Gerald Aungier – believed in sound
and impartial administration of justice
 Judicial System of 1670
 Bombay divided into two divisions – each division
one court
 1) Bombay, Mazagaon and Girgaon 2) Mahim, Parel,
Sion, and Worli
 Court – Five Judges
 One customs officer- the President of Court ( Englishman)
 Quorum- three judges
 Some Indian judges were also appointed
 Judges- honorary, no emoluments
 Jurisdiction- cases of small thefts, and all civil
actions- up to 200 Xeraphins or nearly 150 rupees
 Register of proceedings – authentic copies to Deputy
Governor
 Superior or appellate court – Dy. Governor &
Council
 Jurisdiction – cases over 200 xeraphins and all cases
of treason, felony, capital or criminal cases
 With the help of Jury
 Comments
 System very elementary
 Judges – traders, no knowledge of law
 Judicial system in the hands of Executives
 No separation of powers
 Dissatisfied Aungier – requested company to send
lawyer from England
 Company apprehended that it would increase anger
and litigation
 company refused and advised Aungier to select
someone knowing something of law from amongst
the Company’s servants already in India
 Judicial System of 1672
 Civil Jurisdiction – George Wilcox as the judge-
 Court of Judicature
 It was to sit once a week – with the help of jury
 All cases, civil, criminal, probate and testamentory
 Provision of speedy trial and quick decisions by the court
 a fee of five percent charge on every case
 Paupers were exempted from fee
 Court of conscience – George Wilcox as the judge- petty
civil cases up to 20 xeraphins
 No fees – sat once a week without jury
 Criminal Jurisdiction –
 Four sections- Bombay, Mahim, Mazagaon and Sion
 Justices of Peace- Englishmen – in each section
 J of P- Not as Court but Magistrate
 Preliminary examination of witnesses
 Records of examination sent to court of Judicature
 Court sat once a month – decided with help of jury
 All justices of peace sat in the court as assessors to
help judge
 Appeal lied before Deputy Governor and Council
 To promote pure justice- judges debarred form
private trade and put on a salary of Rs. 2000/- a year
 Jury consisted of 12 Englishmen but sometimes half
Englishmen and half Portugese
 SECOND PERIOD 1684-1690

 Background- 1683- Judicial system came to an end

due to Keigwin’s rebellion on the Island. The rebels
surrendered the Island to the Company in 1684.
Keigwin’s rebellion marks the end of the first phase
of the evolution of the judiciary at Bombay.
 1684- Admiralty Court under Charter of 1683.
 Dr. St. John – learned person in civil law- Judge-
Advocate on the annual salary of £ 200.
 - all Jurisdiction – all civil and criminal cases
including maritime cases
 Later limited only to Maritime and mercantile
 New Court- Vaux as the judge
 Jurisdiction- civil and criminal cases ( like plan of 1672)
 Vaux – member of Bombay Council – no knowledge of law
 Dr. St. John dismissed for his refusal to subordinate G& C
 1688-Dy. G & C took over as Judge of Admiralty Court
 Company objected – one person two offices
 So Vaux appointed as the Judge of Admiralty Court as well
 The appointment of Vaux was contradictory to the charter of
1683- regarding stipulation of Judge-Advocate to be learned civil
law
 1690 Bombay – attacked by Moghul Admiral siddi
end of the judicial system and thus end of the second period of
Judicial development
 1690-1718- dark period- no court was established –
 Governor & council administered justice n rough and ready
manner
 THIRD PERIOD 1718-1726
 After 30 years
 25th March 1718- Court of Judicature
 Constitution- Chief Justice+ nine other judges
 five British and remaining 4 Indian judges-
representing the four principal communities ; Hindu,
Mohammedans, Portuguese, Christians and Parsis
 Chief Justice + few Eng judges= Members of council
 Jurisdiction- all civil, criminal, and testamentary
 Laws – laws of England, Equity laws
 Appeal – G & C – no provision for jury
 24th August 1690- The foundation of
Indian city of Calcutta – Job Charnock
 1668- fortified factory – Fort William
 Zamidari of three villages , Calcutta,
Sutanati & Govindpur- Annual Rent Rs.
1195
 From Azimush-shan, grandson of
Aurangzeb, Subhedar of Bengal
 Acquisition of Zamindari- Legal &
Constitutional status ( Zamindars)
 Zamindar- collection of revenue and
administration of justice
 Over natives the native inhabitants of its
Zamindari
 December 1699- Calcutta became a
Presidency
 President (Governor) & council
 Mughal Judicial system
 of Bengal collected land revenue and
maintained law and order
 Kazi’s court in each district
 Village panchayat – petty cases
 Kazi court
 Disintegration of Moghul administrative
structure
 Nawabs authority weekened in Bengal
 Kazi office became hereditary
 Justice – not impartial, could be
purchased by payment of money
 Nawab’s Courts- Murshidabad- highest
criminal court
 Nawab the head of Nizamat and
responsible for maintenance of law and
order and administration of criminal
justice
 Highest civil court – Diwan- head of
Diwani- responsible for collection of
revenue
 The Kazi administered justice in claims of
inheritance and succession
 Mufti helped kazi
 The zamindari functions of Company-
English Officer- Collector- Member of
Governor & council
 Judicial powers- criminal , civil & revenue
 Summary manner without jury
 Death sentence confirmation by G&C
 Appeal – G&C
 Punishments- whipping, fine, imprisonment,
banishment whipping to death
 Jurisdiction over Indians and Englishmen
both
 CHARTER OF 1726
The Charter issued to the Company by King George I on the
24th September 1726 , turned over a new leaf in the evolution
of judicial institutions in the three Presidency Towns.
 Charter of 1726- King George I
 Uniformity – similar judicial institutions- in all presidency towns
 Civil and criminal courts – derived authority from Crown
 Characterised as Judicial Charter
 Petition to the King by Company- Reasons- 1) absence of a
competent court for testamentary and intestate jurisdiction
2) Want of proper and competent power and authority for more
speedy and effectual administration of civil and criminal justice
3) Increase in Anglo- Indian trade – Company requested the Crown to
grant it –powers to punish vice, administration of justice and better
governing the factories and settlements abroad
 Court were established under direct royal authority
 1687- Corporation in Madras but not in Bombay and
Calcutta
 Decisions of court under royal charter have more
weight in England than company courts
 Provisions of the Charter
 Corporation- Each Presidency Town
 Mayor + 9 Aldermen
 2 Aldermen- subjects of any prince or state in amity
with Great Britain
 Remaining Aldermen- natural born subjects of the
Crown
 The charter named- first mayor and 9 Aldermen in
each PT
 Mayor-Tenure- One Year thereafter continue as Alderman
 Mayor elected amongst the Aldermen by Aldermen and the
outgoing Mayor
 Aldermen-Tenure- office for life or residence in the
settlement
 Vacancy amongst Aldermen- filled by Mayor & Aldermen
from principal inhabitants of the Town
 Thus appointment not with G & C but power to remove with
them
 Dismissed Aldermen could appeal to the King-in- Council
 JUDICIAL SYSTEM
 Mayors Court
 Each Presidency Town- Mayor + Aldermen
 Quorum- three- Mayor or Senior Aldermen + 2 Aldermen
 Jurisdiction- all civil cases within Town and its subordinate
factories, testamentary and intestate succession
 Appeal –
 Mayor’s Court within 14 days G& C 14 days
King-In-Council involving matters 1,000 pagodas or more
 First time right to appeal from India was granted
 Court of record – power to punish for contempt of court
 Laws- no provision in charter but according to Charter of
1661- English law
 Sheriff- chosen annually by G & C
 to serve the processes of the Court
 Jurisdiction- Presidency Town + 10 miles around
 Criminal Jurisdiction
 Vested with G & five senior members of council called as
Justices of peace
 Three Justices of peace= Court of record – powers of Oyer
an terminer and gaol delivery (A court for the trial of cases
of treason and felony)
 All technical forms and sessions were to be held with the
help of grand jury and petty jury
Comments
Separation of judiciary and executives partially for Mayors court
Executives – as criminal court and appellate court from mayors court
Aldermen- vacancy filled from the Company’s servants or other English traders
Non- professional Judges
Absence of lawyer was major drawback
 Conflict between the Government and Mayor’s Court
 Indians were not happy as their personal laws were not considered

Charter 1687 Madras Charter of 1726

Applicable only in Madras
Wider Jurisdiction
Appeal to Admiralty court
Company Courts
Lawyer attached to court as Recorder
no technical rule of law and procedure
In all PresidencyTown
Only civil Jurisdiction
Appeal to G&C and then K in C
Royal Courts
No such officer learned in law
English law , English Procedure
 CHARTER OF 1753
 September 1746 the French occupied Madras
 August 1749 surrendered to the British
 Charter of 1726 ceased to function
 King George issued a new Charter on the 8th January 1753
 Company utilised it as an opportunity to remove defects of earlier
charter
 New charter applicable in all Presidency Towns
ADJUSTMENTS AND MODIFICATIONS
1. end of conflict between Mayor’s Court and the Government
2. Aldermen appointed by Government
3. G&C to nominate two names for Mayor
4. Mayor and Aldermen became nominee of the Government
5. Jurisdiction over native Indian was restricted – only after both
parties submit themselves for the same
6. Mayor’s Court empowered to hear suits against Mayor and
Aldermen
7. Also the suits against the East India Company
8. Court of Request- new court was established – cases up to 5
pagodas ( 15 Rupees)
9. Hierarchy of Courts Court of Request – Mayor’s Court- G in C-
K in C
CRITICAL APPRAISAL
1. Charter of 1726 Lacked proper jurisdiction
2. Court of request – major relief for poor inhabitants
3. To much interference of Executives
4. Non professional Judges
5. Judges were dependent on company for their license of trade ,
employment and stay in India
 Constitutional History
• Charter Act of 1813
– Renewed Charter of Company for further 20 years
– Jurisdiction on Justices of peace – trespass or
assault
– Establishment of All India Legislature in 1834
• Charter Act of 1833
– Reorganized All India Legislature
– Establishment of Law Commission
– Administrative Decentralization
• The Indian Councils Act 1909
• Background
– Indian Council Act 1861
– Indian Council Act 1892
• Lord Minto- the Viceroy of India
• Lord Morley- Secretary of State for India
• Committee was appointed by Lord Minto
• Report submitted to Lord Morley
• Later report was converted into Act 1909
• Main Object
– To increase the size of the Legislative Councils
– To enlarge the functions of the Legislative
Councils
– To increase the proportion of elected members
– To secure the support of the moderate section
in the Indian national Congress
• Provisions
– 1) Size of the Legislative Council
• Max number of the members of Leg. Council of GG
– from 16 to 60
• For G and Council – 20 to 50
• U.P. - 15 to 50
• Legislative Council consisted of the following
types members
– Ex officio Members – all Governors
– Nominated official members
– Nominated non-official member
– Elected members
• Functions of the Legislative Council –
– Discussion of annual budget – but could not vote
– To propose resolutions on it
– To divide the house on – Customs, military works,
interest on public debt, defence etc.
– On certain matters members could not move
resolutions viz., matters affecting the Native State
 – Members authorised to ask supplementary
questions
• System of Elections –
– For the appointment of non-official members of
the Legislative Councils
• Nominated non official members
• Elected non- official members
• The classes of the electorates
– General electorates
– Class electorates
– Special electorates
– Muslims were given the separate representation
– Separate communal electorate
– Separate representation of the Land holders and
professional classes
– Qualification- Females, minors, and unsound mind persons
not qualified
• Vice Presidents – GG, G, LG all empowered to
appoint VP
– To act for them and to preside over the meeting of
the executive council in their absence
• Executive Council –
– For Bombay and Madras number raised from 2 to 4
– Indians were made eligible to be appointed to the
Council
– Additional Executive Councils could be established
by GG-in- C only after the approval of the Secretary
of State- in – Council by proclamation
– Such proclamation could be disallowed by either
House of Parliament
• Demerits
– Creation of separate Communal electorate
– No majority of non-official members
– Representatives were elected by the system of
indirect election
– Principle of nomination retained
– Act failed to establish responsible executive
• Merits
– Size of legislative councils increased
– Functions increased
– Empowered to discuss annual budget
– To ask supplementary questions
– Elective principle introduced
– Indians were made eligible for the appointment of
executive council
 Govt. Of India Act 1919
• Indian councils Act failed to satisfy the Indian
Leaders
• Secretary of State Lord Montague visited India
• Toured with Lord Chelmsford to study the Indian
problems
• Prepared report – bill was drafted
• The British Parliament passed the Govt. Of India Act
1919
• Object
– to provide for the increasing association of Indians
– To establish a responsible government in India
– To develop gradually self-governing institution in India
– To provide tot he provinces the largest measures of
independence in provincial matters
• Home Government
– 1858- the British Crown assumed direct
responsibility for the administration of India
– New office- Secretary of State in England – all the
powers and functions so far exercised by the Court
of Directors and the Board of Control
– For payment of salary of the Secretary of State out
of the British revenues
– Secretary of State to make rules to restrict his
control to the extent of giving effect this Act
– Council – 8 to 12 members- Salary 1200 Pounds a
year
– High commissioner- some of the functions of
Secretary of State
– Dyarchy introduced into two groups
• Reserved subjects
• Transferred subjects
• Government of India
– Central Executive– Governor- General- in- Council
• Executive powers vested in GGinC
• GG appointed by His Majesty
• Executive Council – appointed by His Majesty –
• at least three members to be having 10 years experience in the service of the Crown in
India – one of them was to be a Barrister of England or Ireland or Faculty of Advocates of
Scotland or a pleader of a High Court with minimum 10 year standing
• The number of Indian members was increased to three
– Powers of the Governor-General
– The civil and military government of India was vested in the Governor-in-
Council
– GG was to carry out his functions with the advice of Council
– But he could not overrule the decision of the council
– To summon or dissolve the Central Legislature
– He could extend the term of Legislature
– He was empowered to nominate the first President for 4 years
– To issue ordinances for the country
– No bill became an Act without his assent and he had power to assent to or
withhold his assent from any bill passed by the Legislature
– He had direct contact with the Secretary of state
– No introduction of certain subjects in Legislature without the previous
sanction of the GG
– Several powers relating to provincial administration
 Central Legislature
 The Governor-General
 The Council of States
 The Legislative Assembly
 Bicameral legislature
 The councils of States ( Upper House)- more than 60 members nominated
or elected , maximum number of the official members fixed at 20
 The Legislative Assembly ( Lower House) – 140 members
• GG empowered to nominate the first President for four
years thereafter the Legislative Assembly was authorised to
elect one of its members as President
• Tenure- 4 years
• Council of States – 5 years
• Provision of special representation and communal
representation retained , Muslim & Sikh were allowed
separate representation
• Subjects of administration divided into two classes
– Central subjects
– Provincial subjects
• The GG-in-C could declare subjects as central or provincial
• Legislate on Central subjects- with previous sanction of GG could
legislate on provincial subjects
• GG could prevent either House form discussing or passing any Bill
, if he considered that it would affect the safety or tranquillity of
the British India
• GG was given power of certification
• He could put on the statute book, the bill rejected by the
Legislature if in his opinion it was in the interest of British India
• No bill passed by the CL could become an Act without the assent
of the GG
• The budget to be prepared by the GG-in-C and thereafter to be
presented in both the Houses
• Matters pertaining to Finance- both Houses equal and concurrent
• The Central Executive was not responsible to the Central
Legislature but to the Secretary of State for India
• The Secretary of State for India was responsible to the British
Parliament
• Provincial Government
• Provincial Executive ( Dyarchy)
– Dyarchy introduced in provinces ( di- two, orchia- rule)
– Provincial subjects
• Transferred subjects – administered by the Governor with the help of
his ministers
• Reserved subjects- administered by the Governor with the help of his
executive Councillors
– The ministers were responsible to the Provincial Legislature,
Governor was not responsible to PL, but to the GG
– Executive Councillors were not responsible to the PL but to the
GG and through him to the Secretary of State for India and
through Secretary of State for India to the British Parliament
– Ministers- appointed by G, during pleasure of G
– PL could reduce the salary of Minister but could not compel
minister to resign on the ground of want of confidence
– Executive Councillors- appointed by British Crown of
recommendation of Secretary of State for India for 5 years
– Salaries fixed , no role of PL
– Ex-officio members of PL
• Provincial Legislature
– Legislative council in every province
– Majority of the elected members in the Provincial Legislative Council
– Size enlarged
– Communal or special representation to certain classes
– Duration- three years, Governor could dissolve before expiry of period
or extend by one year
– President - Member elected and approved by the Governor (same for
the Deputy Governor)
– Deputy President to preside over Council in the absence of President
– Governor- not member of Council but could address it
– PL empowered to make laws for peace and good government on
provincial subjects
– Bill passed required assent of Governor to be effective
– G could assent or withhold assent, refuse assent and return it to the
Provincial Legislature for reconsideration
– Bill passed and assented by Governor further required assent of GG
– It separated the provincial budget with the central budget
– The budget might be votable( voting) or non-votable ( only discussion
no voting)
• Powers of Governor
– Very powerful authority in the Province
– He administered Provincial subjects
– Bill passed required assent of Governor
– Power to stop discussion in the Provincial Legis.
• Comments
– Provincial Autonomy - decentralisation without loosing
control of C.G. – PL empowered to make laws- provincial
and central budget separated -
– Responsible Govt. – control of GG- direct contact with
Secretary of State – considered as representative of the King
– System of Election- Central Legislature bicameral- number
of members in PL increased- majority of elected members
was established in both Houses – communal and special
representation retained- right to vote based on the
fulfilment of certain property qualification – those who paid
certain amount of land revenue, income-tax and Municipal
taxes could vote
 Govt. Of India Act 1935
• Federal Government
– Federal Executive ( Dyarchy at Centre)
– Abolished dyarchy at provinces
– Executive Councillors were appointed by GG , they were ex-officio
members of Federal Legis. , not responsible to FL but to GG
– GG appointed by the British Crown and was responsible to the
Secretary of the State for India and through him to the British
Parliament – not responsible to FL
– GG and councillors could not be dismissed by FL
– Salaries of GG and C were determined by King-in Council
– Federal Legislature had no control over GG and C
– Federal subjects divided into
• Reserved subjects – administered by GG with the help of Executive
Councillors but advice was not binding on the GG – GG not bound to
consult ministers for these subjects
• Transferred subjects – administered by GG with aid and advice of Council
of Ministers – not more than 10 ministers – appointed by GG during his
pleasure – dismissed by GG
– In the administration of transferred subjects , the GG
was bound to follow the advice of his ministers,
– In case of special responsibility he could refuse the
advice of his ministers
– No direct provision for Prime Minister
– Ministers were to be elected from both the Houses of
the Central Legislature
– Minister was to cease to hold the office if for a
consecutive period of 6 months he was not a member
of any House of the Central Legislature
• Powers of GG
• Very powerful authority – pivotal position in country
a) When he could act at his discretion ( discretionary power)
– Without consulting ministers
– Acting at his discretion
– Executive – administering reserved subjects e.g. Defence, external affairs, tribal areas and
ecclesiastical affairs
– To appoint ministers and to dismiss
– To preside over the meetings of council of ministers
– To appoint councillors, finance advisors, the Chief Commissioners
– To appoint staff of financial advisors, to determine salaries
– To distribute work among the ministers
– To frame Regulations for the peace and good Government of British Baluchistan, Andaman and
Nicobar Island
– Legislative :- wide legislative powers
– Summon and dissolve the Lower House
– Summon Joint session of two houses of Federal Legislature
– Disallow introduction of certain bills
– Refuse to assent bill passed by the Legislature or reserve for his Majesty’s pleasure
– To issue ordinances
– To issue emergency proclamation
– Financial – to exercise control on non-votable heads of expenditure contributing over 80% of the
whole of the budget
– To recommend proposals for taxation and expenditure
– Power with description without consulting ministers
b) On the advice of his council of Ministers
– Appointment of Council of Ministers for aid and advice to the GG in the
administration of the transferred subjects.
– Ministers appointed by GG could hold office during his pleasre
– Removed by the GG
– GG bound by advice of ministers in administering transferred subjects
– In special responsibilities he could refuse to follow the advice
c) he could exercise his individual judgement
– In the matters of special responsibility
– Required to consult ministers but not bound by their
advice
• To prevent any grave menace to the peace and tranquillity of India
• To protect the rights of any Indian State and rights and dignity of
the Rules
• To prevent discriminatory taxation against goods of British origin
• To protect the legitimate rights of the Public servants and also of
their dependents
•
• Federal Legislature
• Consisted of King represented by GG, the council
of States and Federal Assembly
– Council of States – Upper Chamber – 1/3rd members
to return every three years, it represented units of the
Federation.
• 156 representatives of British India
• 104 Indian States
– Federal Assembly- Lower Chamber
• 250- representatives of British India
• 125- Of the Indian States
• Provincial Government
– Provincial Executive
– Provincial legislature – only one House in some
Provinces and Two Houses in certain provinces
– Provincial Judiciary – High Courts
 FEDERAL COURT
• The Federal Court of India 1st October 1937
• Established under Gov‘t of India Act 1935
• Inaugural of federal polity in India
• Federal Constitution involves distribution of
powers between center and State
• federal court as interpreter and guardian of
federal Constitution
• Constitution- Chief Justice and Puisne judges as
British Crown deems necessary
• The Viceroy Victor Hope administered oath to
three judges
• Sir Maurice Gwyer (Chief Justice); two puisne
judges Sir Shah Muhammad Suleiman and M.R.
Jayakar
• Its first sitting at New Delhi on 6th December
1937.
• Jurisdiction – Limited-
• Original- cases between center & constituent
units and amongst the units
• Advisory for GG but advice not binding on them
• Appellate – from High Court - Limited Appellate
from High Courts only if HC certified
• Appeals from FC to Privy Council
• Judges- appointed by His Majesty
• Qualification ;-
– To be a judge of a High Court in British India or in a Federal State
for at least 5 years
– A barrister of England or Northern Ireland for at least ten years
standing
– Member of the Faculty of Advocates in Scotland of at least ten
years standing or
– A pleader of High Court of ten years standing
– For Chief Justice - barrister or advocate or pleader of at least 15
years standign
• Retirement – 65 years
• Removal for misbehavior or infirmity of mind or body
• In such case reference was made to judicial committee of
Privy Council and His majesty to act on its report.
• Span of life -12 years
• On 26th January 1950 converted into the Supreme Court
• All federal judges became judges of SC
JUDICIAL MEASURES OF LORD CORNWALLIS
( 1786-1793)
 Judicial system was reorganised
 Introduced principle of administration according to law

 First Plan 1787

 BBO – redistributing of Diwani Territory from 36 to 23

 Two resolutions – one for revenue administration( 8th

June 1787) and other of administration of justice(27th
June 1787)
 Collector in each district- English covenanted servant
of company
 Collection of revenue and revenue cases
 Courts – collector responsible for adjudication
 Mofussil Diwani Adalat – Civil cases including
succession and boundaries to zamindaris and other
rent-free land
 Maladalat – revenue cases

 Mofussil Fozdari Adalat- magistrate of the district

 Appeals

 Maladalat to Board of Revenue to G&C

 MDA & MFA to Sadar Adalats ( G& C)
 Further appeal to King –In - Council
 Registrar- in each Adalat – to aid collector –
subordinate officer – to decide cases upto Rs. 200
 Decrees passed by him valid only if countersigned by
the Judge of Mofussil Adalat
 Collector as magistrate- Petty criminal cases –
corporal punishment not exceeding 15 strokes or
imprisonment not exceeding 15 days
 Comment

 Retrograde step as regards to administration of civil

justice
 DEFECTS IN MOHAMMEDAN CRIMINAL
LAW
 Moh. Criminal applicable to Hindus and Muslims
in BBO
 Kinds of punishments
 Kisa or retaliation – similar injury to offender
 Diya or blood money – instead of punishment money

 Hadd or fixed punishment – for certain offences

 Tazeer or discretionary punishment

 Siyasat - King could punish in the interest of justice

 Two categories of offences – not clear and logical

 Offences against man- public offences
 Offences against God – private offences

 Intention of murder was determined on the basis

of the nature of instrument used in committing
murder
 Defects in the organization and procedure
of the Criminal Courts
 Judges were paid low salary
 No security of tenure
 Qualified and capable persons had no encouragement
to join office of judge
 This resulted unqualified, incompetent, dishonest
persons in administration of criminal justice
 Corruption
 Delay in disposal of cases
 Plan of 1790 – reorganisation of criminal
judicature
 Great step to improve administration of criminal
justice
 Mofussil Fozdari Adalats abolished

 1) Lowest Court in District -Collector- Magistrate in

each district- tried petty criminal cases
 All districts of BBO -four divisions ; Patna , Calcutta,
Murshidabad, Dacca
 2) Court of Circuit – Each division- Judges – two
English covenanted servants of company
 Moving court – twice a year in one district

 Judges assisted by Muslim law officers

 These officers to propose the fatwa in each case and court to
pass sentence according to the Fatwa.
 If court disapproved the fatwa or if the sentence amounted
to that of death or perpetual imprisonment, the record of
the case was to be submitted to the Sadar Nizamat Adalat
for final decision
 For serious offences- court of circuit
 Every month- report to the Sadar Nizamat Adalat
 3) Sadar Nizamat Adalat
 Shifted from Murshidabad to Calcutta
 With Governor-General and members of his Council
 Assisted by Muslim Law officers ( Chief Kazi and two
Mufti)
 Authority of Nawab abolished
 The Salary of the persons working in the Criminal Courts
was increased
 Comments
 Circuit court over burdened

 Powers of magistrate insufficient

 Accumulation of cases

 Nominal Participation of Indians

 All judges Englishmen

JUDICIAL PLAN OF 1793
 Reforms introduced known as ‘Cornwallis Code’
 1. Revenue Administration
 Separation between judicial and revenue
 Collector- revenue collection under supervision
of Board of Revenue
 Revenue courts (Maladalat)- abolished
 MDA for revenue cases
 Appeal to Board of revenue
 Administration of Civil Justice
 MDA modified
 Collector replaced – a Civil Servant of the
Company
 Assisted by Hindu and Muslim Law officers
 Appeal to Provincial Court of Appeal
 New Court Provincial Court of Appeal
 BBO divided into four divisions
 Patna, Calcutta, Murshidabad and Decca
 Judges- three British Servants of the Company
 Appellate court to MDA
 Cases sent by Sadar Diwani Adalat and Government
 Also cases refused by MDA
 thus supervisory functions over MDA
 Upto Rs. 1000 decision of PCA final
 Above Rs. 1000 second appeal in SDA
 More than Rs. 5000 pounds appeal from SDA to Privy
Council
 Munsif’s Court - each district – Sadar amin or
Commissioners ( Munsif)
 Cases up to Rs. 50
 Landlords, farmers and tehsildars could be appointed
as Munsif
 They were honorary judges
 Appeal from Munsif’s court to MDA ---- Provincial
court of appeal
 Registrar’s Court
 Covenanted servant of the company

 Cases upto Rs. 200

 Decisions required to be countersigned by a judge

of the MDA
 Established to lessen the burden of MDA

 Administration of Criminal Justice

 Magistrate powers of collector taken away

 Given to judges of MDA

 The Court of Circuit in second plan and Provincial

Court of Appeal were united
 Provincial court of Appeal and circuit

 At Calcutta, Patna, Murshidabad and Decca to

deal with Civil and Criminal matters
 Native Law Officers
 Legal Profession

 Uniform Pattern in making Regulations

 Permanent Settlement of Land Revenue

 Police Reforms
 Passed by the British Parliament on the 6th
August 1861.
 An Act for establishing High Courts of
Judicature in India
 Small legislation with 19 sections
 Main function- to abolish Supreme Courts
and Sadar Adalats in the three Presidencies
 Authority- In her Majesty to issue letters
patent under the Great Seal of the United
Kingdom
 Constitution
 Chief Justice + Puisne judges ( not exceeding 15)
 Not less than one third of the judges in a High
court including the Chief Justice, were to be
barristers
 Not less than one third of the judges were to be
members of the covenanted civil service
 Qualification
 1) Barristers of not less than five years standing
 2) members of the covenanted civil service of not
less than ten years standing who have served as
zillah judges for at least three years of that period
 3) judicial office not inferior to that of principal
sadar ameen or small causes court for a period of
not less than five years
 4) pleaders of Sadar Court or High Court for a
period of not less than ten years
 Tenure :- during Her Majesty’s pleasure
 Jurisdiction
 All civil, criminal,
admiralty,testamentary,intestate,matrimonial,
original, and appellate
 Jurisdiction of all courts which were abolished
 His majesty could impose directions and
limitations by letters of patent
 Superintendence over all courts
 Power to call for returns, to transfer any suit,
appeal, review, revision etc.
 Issued on 14th May 1862 , published on 1st
July 1862 and established next day
 Jurisdiction of High Courts on model of
Calcutta High Court
 Ordinary original civil jurisdiction-
 Extraordinary original civil jurisdiction
 Appellate civil jurisdiction
 Ordinary original criminal J
 Extraordinary original criminal J
 Appellate criminal J
 Matrimonial J
 Testamentary & intestate J
 Admiralty J
 In Insolvency matters
 Over infants and Lunatics
 Reference & Revision
 Laws and procedure
 Civil Procedure Code 1859
 Criminal Procedure Code 1861
 Indian Penal Code 1860
 Appeals from High Court to Privy Council
 Few modifications in Act of 1861
 The ceiling on the number of judges in a High
Court was raised
 Including chief justice – 20 max number of
judges
 Power to establish high courts liberalized
 It authorized Crown to establish additional
high courts even within the jurisdiction of
other high court
 Government of India 1915
 Re-enacted all provisions of Act of 1861
&1911 in relation to High Courts
 High Court not allowed to exercise ordinary
original jurisdiction related to revenue
matters
 Few provisions of Regulating Act and Act of
Settlement were re-enacted
 Exemptions from original jurisdiction of High
Court- GG,G,LT.G,Chief Commissioner,
members of executive council of GG/G/LT.G
and Ministers
 Also to CJ and other judges of HC
 No. Of Judges- dropped ceiling and authority
given to King In Council to fix number for
each HC from time to time( depending upon
load of work)
 Appointment by His Majesty but GG in C
could appoint additional temporary judges
 Chief Justice- U/1861 he should be amongst
barristers; U/ 1915- barrister or advocate;
now U/ 1935 – restriction was dropped,
civilian judge could also be Chief Justice
 Salaries , allowances and pensions- by His MJ
in C
 The Federal Court of India 1st October 1937
 Established under Gov‘t of India Act 1935
 Inaugural of federal polity in India
 Federal Constitution involves distribution of
powers between center and State
 federal court as interpreter and guardian of
federal Constitution
 The Viceroy Victor Hope administered oath to
three judges
 Sir Maurice Gwyer (Chief Justice); two puisne
judges Sir Shah Muhammad Suleiman and M.R.
Jayakar
 Its first sitting at New Delhi on 6th December
1937.
 Jurisdiction – Limited-
 Original- cases between center & constituent
units and amongst the units
 Advisory for GG but advice not binding on them
 Limited Appellate from High Courts only if HC
certified
 Appeals from FC to Privy Council
 Judges- appointed by His Majesty
 Retirement – 65 years
 Removal for misbehavior or infirmity of mind
or body
 In such case reference was made to judicial
committee of Privy Council and His majesty to
act on its report.
 Span of life -12 years
 On 26th January 1950 converted into the
Supreme Court
 All federal judges became judges of SC
 Privy council
• Origin and establishment
• Judicial body
• Heard appeals from various courts of the British colonies

• Two common law courts in England

• King in Parliament – Highest court in England
• King in Counsel – Highest court for British possessions
• Head quarters at London
• Its powers implemented through proclamations,
orders and instructions
• Composition of Privy Council:
the Privy Council acted as an appellate body since 1726 with the establishment
of Mayor’s Court in India.
• Earlier, the Privy Council used to do its work by means of a system of
committees and sub-committees.
• However, the committees did not have permanent existence and membership
and mostly members were the persons with little judicial experience.
• Naturally it affected the administration of justice. In 1828, Lord Bourgham
criticized such a constitution of Privy Council
• the British Parliament enacted the Judicial Committee Act, 1833 in order to
reform the constitution of Privy Council.
• the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament.
• The Act empowered the Privy Council to hear appeals from the courts in British
Colonies
• the quorum of judicial committee of Privy Council was fixed to be four. It
composed of Lord President, Lord Chancellor and other Chancellors holding
judicial offices.
• This quorum was reduced to three in 1843. The recommendations to the Crown
were given by the majority of quorum.
• the Appellate Jurisdiction Act, 1908 this membership of the judicial committee
was extended. It also empowered His majesty to appoint certain members not
exceeding two. These were nothing but the judges of High Court in British India.
Thus some of the members of the Privy Council were the persons versed in
Indian Laws.
• Appeals from Courts in India to the Privy Council
• a. Charters of 1726 and 1753
• b. The Regulating Act, 1773
• c. Appeals to Privy Council from High Courts
• d. Appeals from Federal Court in India to Privy Council
• e. Abolition of jurisdiction of Privy Council

• Role of Privy Council

• Served for almost 200 years
• Task of ascertaining the law, formulating legal principles,
molding and shaping the substantive laws in India.
• It also helped in introduction of the concept of ‘Rule of
Law’, on which we have setup the whole philosophy of
our ‘Democratic Constitution
• also lead to the introduction of Common Law in India,
which forms the basis almost all present Indian laws.
  Background
1. Battle of Plassy- Anarchy in Bengal Bihar and Orissa
2. Company servants exploited the people, wealth and
returned to England
3. Ex-servants of company used their ill-gotten money to
purchase seats in the House of Commons
4. They purchased stock of the Company and influenced
its politics
5. Famine in Bengal – led the British public to suspect
that something wrong with company’s affairs in India
6. Company approached the British Govt. for big Loan
7. Public opinion in favour of Parliamentary control or
intervention in the Company’s affairs
 A Select committee and a Secret Committee
appointed by House of Commons
 Committee exposed the defects and deficiencies
prevailing in the existing structure
 The Regulating Act 1773 enacted to remove the
evils of prevailing system
 Objects of the Act
 To reform constitution of Company
 To control and reform company’s Govt in India
 To bring the management of the Company under
the control of British Parliament and the British
Crown
 To give remedies against the illegalities and
oppressions by the Company’s servants in India
 Provisions of Regulating Act
 Constitution of Company
1) The term of Directors increased – 1 to 4 Yrs
2) Provision for election one fourth of the directors every year
in rotation
3) Voting power restricted to share holders with stock worth
£1000 and more
4) £1000- one vote
5) £3000- two vote
6) £6000- three vote
7) £10,000- four vote
8) Directors were required to lay before the Treasury in
England all correspondence from India relating to revenue
9) Before a Secretary of State everything dealing with the civil
and military
 Reorganisation of Calcutta Government
 Governor General and four council –the whole
and civil and military government
 Vested with the ordering, management and
government of all territorial acquisitions and
revenues in the Kingdoms of BBO
 Warren Hastings – First GG of India
 Three Councillors sent from England
 Tenure – Five years , could be removed early by
King on recommendations of the Court of
Directors
 Decision of Council by majority of votes
 GG – no power to override the majority
 Company’s Govt in India
 Three Presidencies enjoyed a status
independent of each other
 Each had direct relation with the Court of
Directors in England
 No authority in India could coordinate their
activities
 Madras and Bombay- under the
superintendence and control of Calcutta
presidency
 Imminent Necessity- orders directly from
Court of Directors in England
 Legislative Authority
 The GG and Council – authorised to make rules ,
regulations and ordinances for Calcutta and
subordinate Presidencies
 Restrictions-
 1. rules not to be repugnant to the laws of England
 2.Rules to be reasonable with reasonable penalties
 3.Rules not effective until registered and published
in the Supreme Court
 4. any person in India could appeal within 60 days
of its registration in the K-in- C
 Any person in England – to K-in-C within 60 days
from publication in England
 the King in Council- suomotu, without any appeal
could disapprove or disallow within two years from
date of rule by the GG & C
 Judicial Authority
 The Act empowered British Crown to establish a
Supreme Court at Calcutta by issuing Charter
 With special provisions of appointment of judges
and jurisdiction of Court
 Other provisions
 GG & C and judges of Supreme Court and officers
engaged in collection of revenue and persons
holding civil/ military office
Prohibited from receiving presents or engaging
trade
 Court of England was empowered to punish
offences, crimes or misdemeanor
committed against his majesty’s subjects or
inhabitants of India
By Governor General, members of council, judges
 CHARTER of 26 March 1774-King George III
 At Calcutta
 Court of record- a court whose proceedings are
recorded and available as evidence of fact
 First Chief Justice –Sir Elijah Impey
 And three judges- to hold office during the pleasure of
the Crown
 Civil Jurisdiction- Civil cases against the Company
1. The corporation at Calcutta ( Mayor & Aldermen)
2. His Majesty’s subjects residing OR Having Debt
OR Property in BBO
3. Executors and administrators of such subjects
4. Any person employed by or being directly or
indirectly in service of company, corporation or
Any of his Majesty's subjects
 5. Any inhabitants of BBO if entered into
written agreement with His Majesty's subjects
and accepted jurisdiction of Calcutta
if Cause of action exceeded Rs. 500
6. original and appellate jurisdiction
7. Appeals from Company’s Courts
8.Court of Equity like court of Chancery in
England
 Criminal jurisdiction- Court of Oyer and
Terminer and of Gaol Delivery (to hear and to
determine serious criminal cases)
 factory and town of Calcutta
 With the help of grand jury and petty jury
 Committed in BBO by His Majesty's subjects
 Any person employed by or being directly
or indirectly in service of company or his
Majesty's subjects
 Power to suspend execution of death
sentence on mercy petition
 SC to transmit record with reasons for
recommendation of mercy
 Ecclesiastical jurisdiction- on British
Subjects residing in BBO
 According to law of England
 To appoint guardian , grant probate, issue
letters od administration
 Admiralty jurisdiction for BBO
 WITH HELP OF JURY
 Writ Jurisdiction- the courts collector, courts
of request ,sheriffs, quarter sessions, were
put under the control and supervision
 Issue writs- certiorari, mandamus, error
 For effective control on subordinate courts
and other authorities of the company
 Appeals- civil cases to King in Council- over
1000 pagoda- within 6 months of judgment
 Criminal cases- absolute discretion of
Supreme Court to permit appeals
 King-In-Council reserved right to refuse or
admit an appeal
 Effective instrument of justice
 Judges professional lawyers
 Appointed by crown during Crown’s pleasure
 Knowledge of English law
 Tenure of judges independent of company or
Calcutta government
 Separation between judiciary and executives
 The Adalat System
 1750 – Mughal Empire began to disintegrate
 Provinces assumed independence u/subedar
Nawabs and executive officers
 At Provincial Headquarter three courts
◦ Nazim-e-Subah- highest court
◦ Darogha-e-Adalat Diwani – Civil cases
◦ Darogha-e-Adalat Aliah - revenue
 At district level
◦ Civil litigation three courts –
◦ Qazi, Zamindar and Qanungo ( Registrar)
◦ Criminal cases – four courts
◦ Faujdar, zamindar, qazi & Kotwal (peace officer)
 Defects
◦ Zamindars were powerful
◦ Courts were instrument of power instead of justice
◦ Peasants were deprived, corruption
◦ Judicial system as a machine of oppression and exploitation
 To tackle all these problems Warren Hastings was
transferred from Madras to the Bengal in 1772

 Adalat System
 Beyond Presidency Towns
 Expansion of political activities – new territories in control
 Territory known as Mofussil
Administration of justice in Mofussil
 Thus the adalat system
 First territorial acquisition of Company-
Bengal, Bihar and Orissa
 1772- First Adalat system by Governor
Warren Hastings
 Judicial plan of 1772
 District as the unit of administration
 BBO divided into number of districts
 Each district- one English servant of the
Company- Collector
 Responsible for collection of revenue
 Mofussil Diwani Adalat
 Each district- collector as judge
 Jurisdiction- all civil cases –property,
marriage, inheritance, caste, debts
 Laws - Koran for Mohammedans ,
Shastras for Hindus
 Collector being Englishmen- no
knowledge of legal system
 Native law officers, kazis and pundits to
assist collector
 Cases up to Rs. 500 – decision final
 Small cause Adalat- petty cases
 Disputes up to rupees ten – head farmer
 saved trouble and expenses
 Mofussil Fozdari / Nizamat Adalat
 Constitution- Muslim law officers , kazi,
mufti and mouvies
 Moulvi- to explain Muslim law of crime
 Kazi and muft- to give futwa
 Collector- general supervision for regular
and impartial administration of justice
 Serious cases referred to Sadar Nizamat
Adalat for final orders
 SADAR ADALAT
Governor and
members of the
Council

Sadar Nizamat Adalat

Sadar Diwani Adalat
Indian Judge known as Daroga-i-Adalat
Governor & Council assisted by Chief kazi, chief Mufti and
three maulvies formally appointed by
Nawab on advice of G & C

Mofussil Adalats
Diwani and Nizamat
 Comments
 Sincere effort to promote impartial and
inexpensive justice
 Regular salary to officers
 No separation of powers
 Collector over burdened
 Judges without knowledge of law
 Administration of civil justice – english
judges
 Criminal justice- Muslim judges – no
direct obligation on company
Plan of 1774-
1774- to remove defects of plan of 1772

 Collectors recalled
 An Indian officer- called Diwan or amil- as
collector in each district
 Bengal Bihar Orissa divided into 6
divisions- each division several districts
 Each division- Provincial council – 4 to 5
English convented servants of the
Company
 To supervise collection of revenue and
hear appeals decided by the amil
Sadar Diwani • Governor & Council
Adalat • Over Rs. 1000

• Division level Court

• 4 to 5 English officers
Provincial
Council • Revenue collection, civil
cases ( original and
appellate)

• District level
Mofussil Diwani
Adalat • Collection of Revenue and Judge
• Amil / Collector
 Excessive powers – provincial council
 No separation between the civil justice and
revenue collection
 Warren Hastings did not trust collector
 Members of Council- potentially mischievous
 He characterised this plan as temporary
 Provincial council reduced the hardships of
the litigants and justice made cheaper
 Burden on Sadar Diwani Adalat lessened
 Criminal Justice SNA shifted from Calcutta
to Murshidabad and placed under
supervision and control of the Nawab
 Mohd. Raza Khan apptd for this new post
 Judicial Plan of 1780 ( Reorganisation in
1780)
 Separation between the revenue and judicial
functions was maintained
 Provincial council divested of their judicial
powers and functions
 Limited to collection of revenue and revenue
cases
 New court in each division – provincial
court of Diwani Adalat
 English officers as judges called as
Superintendent of Diwani Adalat
 Appointed by G&C