MODULE-III

Period 1726-1793- Mayor’s Court-Beginning of Adalat System- Supreme Court at Calcutta,

-Reorganisation of Adalat system-Scheme of Criminal Judicature and it’s defects- Imposition
of Court fees-Restriction of appeals to SadarAdalat- SadarDiwaniAdalat and changes in it-
Adalat System in Bengal, Bombay and Madras-Reorganisation of Civil Judicature-Civil and
Criminal Courts and British Subjects

THE ADMINISTRATION OF JUSTICE IN BENGAL (1726-1793)

The administration of justice at the time Warren Hasting took over as Governor of Bengal
was in a bad shape. It was almost verging on a total collapse. The dual system of government
proved very defective and unsatisfactory. The courts had become the instruments of power
rather than of justice, useless as means of protection but apt instruments for oppression. On
realizing the fact that the system of double government had failed the company authorized the
then Governor Warren Hastings to adopt such regulations and pursue such measures as shall
at once ensure every possible advantage to the Company and free the ryots from the
oppression of Zamindars and petty tyrants.

Warren Hastings hence proceeded to make major changes in the administration of justice.
This paper work views the various reforms made by Warren Hastings during his time in
India. This administration of justice maybe studied in four stages. To start with Warren
Hastings realized the very fact that an impartial and regular administration of justice was
extremely essential for creating conditions for a better collection of land revenue. Thus
changes were made in regard to civil and criminal justice while various other provisions were
also introduced. Moreover one of the major development which took place was that the three
presidencies—Bengal, Bombay, and Madras— were divided into a number of districts for the
betterment of administration. Lastly, the appointment of Impey helped in fulfilling the need
of reforming the judicial system under the control and supervision of a powerful authority. In
fulfillment of his duties, his work of compiling the Civil Procedure Code was quite
recommendable. It was for the first time that the law was put on solid and certain grounds so
that the people could know as to what the procedure of courts was.

Administration of Justice: First Stage

The Judicial Plan of 1772 as been formulated by Warren Hasting consisted of 37 regulations
dealing with civil and criminal laws. It was the first Anglo-Indian Code, which worked out on

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the basis of experience and common observations. An endeavour was made to adopt it to the
manners and understandings of the people and exigencies of the country, adhering as closely
as possible to their ancient usages and institutions. The idea was to retain, as far as possible,
the native magistracy and codes of law, recorded and oral, to which the people had become
accustomed. The plan aimed at correcting the defects without destroying the traditions of the
local systems. Thus the diwani area of Bengal, Bihar, and Orissa was divided into several
districts, each with an English collector as its head. This ‘district’ was the main
administrative unit in the plan. The main features of Judicial Plan of 1772 may be explained
under the following headings:

Civil Justice: A Mofussil Diwani Adalat was established in each district to decide civil cases.
The collector was the judge of this court. The court took cognizance of all civil cases
including property, inheritance, succession, caste, marriage, contracts, accounts etc. In the
suits regarding inheritance, marriage, caste and other religious usages and institutions, the
Hindu law was applicable to the Hindus while the laws of Koran was applied to the
Mohammedans. The collector in matters of Hindus and Muslims was helped by pandits and
kazis respectively who expounded the law. Appeals from these courts were to be heard by the
Sadar Diwani Adalat at Calcutta where the subject matter of the case exceeded Rs. 500. This
court comprised Governor as its President and at least two members of the council.

Criminal Justice: A Mofussil Faujdari (or Nizamat) Adalat was established in each district
for the trial of crimes and misdemeanours. This court was assisted by a Kazi or Mufti and two
Maulvies who expounded the law, while the Collector had a general supervision over the
court. The court had full power to decide and punish all criminal cases though they were not
empowered to award death sentence. In such cases, the court’s decision was submitted to
SadarNizamat Adalat for confirmation and finally to the Nawab for his sentence.

SadarNizamat Adalat established at Calcutta, was presided by an Indian judge known as

Daroga-i-Adalat who was to be assisted by the chief Kazi, chief Mufti and three Maulvies to
hear the appeals from the Faujdari Adalat.

Revenue Administration: The whole revenue system was reorganized under the Hastings
plan of 1772. The revenue Boards at Murshidabad and Patna were abolished and a supreme
authority called the Board of Revenue was set up at Calcutta which consisted of the Governor
and all the members of the Council. The Treasury was also shifted to Calcutta. Further, the

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district supervisors were appointed as Collectors of revenue and also native Naib Diwans as
heads of the native executive in districts.

Administration of Justice: Second Stage

The abolition of the institution of Collector in 1773 on the advice of the Court of Directors of
the Company in England up-set the judicial arrangement of 1772 and a new Plan became an
urgent need of the time. Warren Hastings prepared new Plan on November 23, 1773 which
was implemented in January 1774. The various changes made in regard to revenue, civil
justice, criminal reforms are as follows:

Revenue: Collectors were re-called from the districts and in their place an Indian officer,
called Diwan or Amil, was appointed. He was to act as a judge of the Mofussil Diwani Adalat
and collected the land revenue also. The entire Mofussil area in Bengal, Bihar and Orissa was
divided into six divisions with the Headquarters as Calcutta, Burdwan, Murshidabad,
Dinajpore, Dacca and Patna. Each division had a Provincial Council consisting of a Chief and
four senior servants of the Company. A Committee of Revenue was instituted at Calcutta for
superintending that Division, consisting of two members of the Council and three senior
servants, assisted by a Diwan and others. The Councils and the Committee were to supervise
the collection of revenue in their Divisions. Indian Naib Diwans were appointed in the
districts under each Provincial Council to look after the same work. Complaints against the
Head Farmers, Naib Diwans, Zamindars and other principal officers of the government,
relating to their conduct in the revenue, were to be decided by the Provincial Councils.
Aggrieved parties might ultimately go to the Board of Revenue at Calcutta.

Civil Justice: The provisions relating to appeals in civil cases were also considerably
liberalised under the plan of 1774. Now all cases decided by the Mofussil Diwani Adalats
were appealable to the Provincial Council irrespective of the value of the subject matter of
the suit. There was also a provision for second appeal to the Sadar Diwani Adalat in cases
exceeding the value of Rs. 1000/-.

Criminal Reforms: The Officers of the FaujdariAdalats were forbidden to hold farms or other
offices in the Mofussil and were obliged to reside in their districts on pain of forfeiting their
employments. Complaints against them were to be lodged with the Governor-General who
would refer them to the SadarNizamat Adalat for inquiry and determination.

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Although the new system was an improvement over the earlier one, the change did not give
good results for long. The Council took the place of the Collector in creating the difficulties
and monopolising the trade within its jurisdiction. Warren Hastings detected this defect very
soon but he could not make any change till 1780 when entirely a new modified system was
established.

Administration of Justice: Third Stage

The defects of the system set up in 1774 were seen in the Patna Case which is concerned
with the conflict between the jurisdiction of Supreme Court and function of adalat in mofussil
areas.

As it was in practice those days, the Mofussil Adalat as well as the Provincial Council
employed services of Kazis and Maulabis to interpret the Muslim law. The judicial
commission arrived at a decision after taking into account the consultation of the Maulabis
and Kazis. Thus it became a practice to neglect judicial work.

In this case, the Maulabis and Kazis were given the power to take the evidence of the case
and arrive to a decision. No established law was followed while taking the evidence and the
Provincial Council passed a judgement based on the evidence collected by irregular
procedure.

The Supreme Court held that the Provincial Council did not delegate its judicial decisions
according to the procedures held by the Supreme Court. Thus an order was passed by the
Supreme Court to send the wrong-doers to jail.

The decisions of the Supreme Court were criticized to a large extent. Following this, the work
in Mofussil Adalat came to a halt because no officers in this adalat were ready to take up
judicial work as they will have to go to jail. The work of revenue collection also suffered
because most of the revenue officers left their jobs.

The defect when came to the knowledge of Warren Hastings, could not continue any longer
and he remedied it by giving a new judicial plan promulgated on 11 April 1780.

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The basic feature of this plan was the separation of revenue matters from judicial matters.
Henceforth, there were established separate authorities

(a) To deal with the collection of land revenue and to decide the disputes arising there from
and

(b) For the purpose of deciding other disputes.

Under this system the provincial councils were left only with the function of collecting the
land revenue and deciding revenue disputes and other judicial functions were taken away
from their hands.

Diwani Adalat

A new court, called the Provincial Court of Diwani Adalat was established at each of the
headquarters of the six divisions. This Adalat was presided over by an English covenanted
servant of the Company who was called the Superintendent of the Diwani Adalat. He was to
be appointed by the Governor-General and Council. This Court was to hold its sittings thrice
a week and decide civil cases pertaining to property, inheritance and contracts. It was also
empowered to hear cases relating to inheritance and succession of Zamindari and Talukedari
which were hitherto within the purview of the Governor and Council. The decision of the
Provincial Court of Diwani Adalat in cases upto the value of Rs.1000/- was final and in cases
exceeding this value, an appeal lay to the Sadar Diwani Adalat at Calcutta which consisted of
the Governor General and Council.

The plan of 1780 was certainly a great improvement upon the plan of l774.

Its main merit lay in its effecting the separation of the judicial from the executive functions. It
was a welcome change. The plan, however, suffered from defects also.

The Superintendents of the Diwani Adalats were not selected from the senior servants of the
Company. Some of them were illiterate, ignorant of the Eastern languages and most
extravagant, dissipated young men.

Administration of Justice: Fourth Stage

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Under the Plan of 1772, a SadarNizamat Adalat was established at Calcutta. In 1775, it was
shifted to Murshidabad probably to avoid any interference from, and conflict as to
jurisdiction with, the Supreme Court. There it was put under the authority of the Naib-Nazim
Reza Khan. In 1776, a plan for criminal justice from Reza Khan was adopted, under which
twenty-three FauzdariAdalats in all were established in the districts. But as the system had
once become loose and the Collector or the Governor-General and Council could not get
enough time to have an effective control over these courts, they failed to provide justice to
the people. Justice was neither given in time nor any principles of justice was taken into
consideration. The accused had to remain in detention for years before his trial was finalised.
The conditions of prisons were inhuman. There were number of defects in the system which
required total overhauling of criminal administration of justice. The Mohammedan law of
crimes was also very defective. Warren Hastings was quite conscious of all this and in the
year 1781 he drew a scheme for some reforms in the criminal judicial administration

Defects in the Charter of 1774

Because of the ambiguity in the provisions of the Regulating Act 1773 and inadequate
description of the jurisdiction and power of Supreme Court in both the Regulating Act and
the Charter of 1774, so many problems were created. Undefined terms in the Act and Charter
of 1774

Vague and undefined terms are used to define the jurisdiction of the SC over the people like
His Majesty, British Subjects or sentence like person directly or indirectly employed by the
Company.

 Executive-judiciary relationship

The charter didn't clearly mention anything about the status of governor general in the civil
proceedings.

Nor it differentiate the status of act done under official capacity and private capacity.

It also didn't clarify whose decision should prevail in case of conflict between council and
court.

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  A Changed pattern of Power

After, the establishment of SC, judiciary had a control over the executive. Now, court has
capacity to try civil and criminal cases of Company's servant for the acts committed in their
public or private capacity. This created a conflict between the governor general and court and
even to that extent governor general started resisting the court from doing is work.

 Two distant and Independent judicial system

In Bengal, Bihar and Orissa, there was already a system of mofussil courts which was a
company's court and these courts derived their power by the Diwani Rights provided by the
Mughals Administration. Now, by the Regulating Act another system of court come into
existence, which were king's court. SC had jurisdiction over certain kind people in Bengal,
Bihar and Orissa, who also come under the jurisdiction of the Company's Courts.

There was nothing in the regulating act which clarified this situation. Nor it was clarified that
if these company's courts done anything wrong that did SC had power to take it into
consideration. Because also judges in mofussil courts were the servants of the company so
they fall into its jurisdiction.

 Difficulties of Indians

By other ways SC make the people from outside Calcutta or people of Bengal, Bihar and
Orissa fall under its jurisdiction and,

If not then also for proving that they did not fall under its jurisdiction they have to present
before the court and plead to its jurisdiction, this create a lot of inconvenience to the people in
travelling and also expensive in nature.

Most importantly they didn't understand the procedure followed by the SC and people had no
clue which law applied by the court on what basis.

Unknown language and verdict and proceedings make difficult for the native to believe that it
is established for their welfare.

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  Which law to be administered

It is created on the foundation of the Mayor's court which is an English court. So, SC also
administered English law, but only to that extent which is suitable to the Indian conditions.
This created a certain amount of uncertainty.