Indian Legal and constitutional History Chapter of 1600

East India Company

 Indians real legal history started with the arrival of East India
Company in the year 1600.
 The East India Company, with its official title as" THE GOVERNOR
AND COMPANY OF MERCHANTS OF LONDON TRADING INTO EAST
INDIES" was incorporated in England on 31st DECEMBER 1600, by a
Charter of Queen Elizabeth which settled its constitution, powers
and privileges.
 The company was to have a life span of 15 years.
 The charter could be revoked earlier by the Crown on two year's of
notice if trade carried by the company did not appear to be
profitable.
 The Company was to enjoy an exclusive trading right.
 No British Subject was permitted to carry on any trade within this
area without a license from the Company.
 Unauthorized British trader were liable to forfeiture of their
merchandise and ships.
 The affairs of the Company were to be conducted on democratic
lines.
 All of its member's were to form a General Court.
 All these member's [General Court] was to elect annually the
"Court of directors" consisting of a Governor and 24 directors for
managing the company affairs.
 The Governor and the director's were to hold office for the one
year.
 The General Court could remove any of them before the expiry of
his
term.
 Can elect a new person to fill the vacancy for the remaining year.
 Legislative Power
 The charter authorized the company, in its General Court, to make.
ordain and constitute laws, orders and constitutions for the good
government of itself, its servant and for the better advancement
and continuance of its trade and traffic.
 The laws and punishments. however, were to be reasonable and
were not to be repugnant to the laws or customs of England.
 The legislative power thus conferred on the company was very
limited and restricted in scope and character.
 The punishment s imposed for infringement of laws could only be
fines and forfeitures and imprisonment: No harsher punishments
such as capital sentence could be prescribed and thus serious
crimes, like murder etc. could not be dealt with by the company
law's.
 The charter made no reference for the governance of any territory.
Thus, no territorial power's were given to company.

King’s Commission : For voyages

 The company soon found that its legislative power was inadequate
in practice for maintaining discipline amongst its servants while on
long voyages.
 To meet the situation, the company invoked the Crown's
prerogative and used to secure from it a commission to
commander-in-chief [C-I-C] of each voyage separately,
empowering him to inflict punishments for capital offences, such
as murder or mutiny, and to put into execution the law called "the
law martial".
 The first commission was issued by Queen Elizabeth on 24th
January 1601 to Captain Lancaster for the first voyage.

Power to issue Commission granted to the Company

  The practice of granting commission for each voyage appeared to
be difficult. Thus, king James -1 on 14TH December, 1615
conferred on the Company a general power to issue such
commission to its captains.
 Later on, 4th February 1623 James -1 granted to the Company the
power of issuing commission to any of its Presidents or chief
officers in its settlements authorizing him to punish offences
committed on land by British servants.
 At that time verdict must be found by a jury of twelve Company's
servants.

Surat Factory – Part 1

 After landing on the Indian soil, the primary task before the
company was to find out a suitable place to carry on its trade well.
The company needed to establish a few factories.
Q.) What is factory?
Ans.) A factory was a place consisting of offices, residences for
company's employees and warehouses for storage of goods.

 The company selected Surat as the suitable place as a center for its
trade and establishing a factory.
 At that time Surat was an important commercial center and a
populous town within the Moghul Empire. It was a good international
port as from there thousands of Muslim pilgrims sailed every year to
holy places in Arabia.
 Portuguese were already in occupation and they could not tolerate
any interference in their commercial activities by the British and in
1612 two clashed and Portuguese were finally routed out from this
trading center. •
 Thus, Surat was the first place where the Company established its
factory in with the permission of local Mughal Governor.
 Sir Thomas Roe’s Visit – Part 2
1. Who was Sir Thomas Roe?
 He was English diplomat and author. Roe's voyages ranged from
Central America to India; as ambassador, he represented England
in the Mughal Empire, the Ottoman Empire, and the Holy Roman
Empire.
 After establishing factory at Surat with permission of Local Moghul
Governor. The Company felt that to lend permanency to their
Surat Establishment and not to depend on Local Moghul Governor
favours.
 The King of England, James -1, Sent Sir Thomas Roe to India in
1615 to secure certain allowances from the Moghul Emperor.
 The Moghul Emperor who issued a firman granting certain
facilities to the Englishmen.

Q.) What Facilities were granted?

1.) They were allowed to trade and establish a factory at Surat in a hired
houses.
2.) They were allowed to live in accordance with their own laws and
religion without any local interference
3.) The disputes amongst the Englishmen were to be settled by their
own
4.) The disputes between the Englishmen and the natives were to be
settled by the local native authorities
 Administration of justice in Madras

Madras was the first presidency town to be established by the British.

The administration of justice in the town of Madras before 1726
evolved in three stages:-

1639---1665(foundation of Madras)

1665---1686(establishment of court of Governor)

1686---1726(creation of Admirality Court and Mayors

Court)

 First period(1639—1665)--- it began with the foundation of

Madras in 1639 and continued up to 1665.
 Mr. Francis day acquired a piece of land from a Hindu ruler and
founded Madras in 1639. To construct a factory named as fort St.
George. This fort was inhabited by the Europeans and the British
servants of company and was known as white town.
 Small village grew in size and was called as black town inhabited
by Indians.
 Black town and white town later came jointly to be known as
madras and separate provisions were made for the administration
of justice in white town and black town.
 Madras was given the status of agency and its administrative head
was called as agent.
 In white town... the agent and the council decided both civil and
 criminal cases.
 The powers of the court were vague and indefinite hence the
efficient administration of justice could not be expected.
 On several times the causes were referred to London for advice
from the authorities of the company, because they were not sure
about their powers and jurisdiction.
 In black town.—the company under obligation to administer
justice in Madras patnam could not start any judicial tribunal
during this period, and left the traditional system to continue.
 The old Choultry court administered justice in the black town.
 The Adigar the village headman, sat in the Choultry court and
decided petty civil cases and small breaches of peace. In serious
cases reference was made to raja of the place

 Second period---(1666-1686)—Charter of 1661 conferred

extensive judicial power on the governor and council of a
settlement.
 Status of agent to governor was raised. This was necessary as
by the charter of 1661 judicial power was vested in the
Governor and not agent.
 Law was made applicable to Indian settlement by the charter
of 1661.
 The council in 1678 resolved that court of governor and council
should sit more regularly and would administer justice in all
cases civil and criminal according to laws of England. Governor
and council were designated as high court to sit on two days a
 week and decided cases with the help of a jury of 12 English
men.
 Choultry court was re-organised consisted of companys
servants, sit twice a week and decided petty offences, matters
of peace and civil cases up to 50 pagoda . From the decisions
of this court an appeal could be filed in the high court i.e, the
Governor and the councils Court.
 During this period hierarchy of courts came into existence in
madras i.e, superior court and lower court and their
jurisdictions were outlined the lower court.
 Choultry court could decide small cases and all other cases and
appeals from the lower court were to be heard by the upper
court with the help of jury.

 Third period—(1686-1726)—Admiralty court was established,

authorised to hear and determine all cases and thus court of
governor and council ceased to exercise judicial function.
 Admiralty court functioned up to 1704 and jurisdiction was
taken by Governor and council of Mayors court.
 Charter of 1687 created another court known as Mayors court
at Madras, consisted of Mayor and 12 aldermen .Mayor was
always English man. Mayor and two Alderman sat 2 days a week
,decided criminal cases on the bases of laws enacted by the
company.
 Mayors court also consisted of an officer known as recorder
who had knowledge of law.
  At the end of 1704 three courts were there---
 Choultry court , governor and council court and the mayors
court.
 In 1727 the Mayors court at madras was established. This court
was different from the existing Mayors court of 1687 which was
companys court. While the court of 1726 was a kings court
established under royal charter.
 Administration of justice in Bombay
The administration of justice in Bombay from 1668 to 1726 is
divided into three periods:-

Ist -1668----1683
Second -1684----1690
Third -1718-----1728

 Historical Background of Island of Bombay.

 The Island of Bombay had been part of Indigenous

Empires like the Silhara Dynasty and the Sultan of
Gujarat [Sultan Bahadur]

 The Portuguese were the first European to Acquire the

Island of Bombay from Sultan Bahadur.

 Alfonus VI, The Portuguese King transferred the islands

to Charles-II as Dowry on the marriage of his sister
Princess Catherine with the King.

 Charles transferred this island to the East India

Company in 1668 at the annual rent of 10 pounds.

 The charter of 1668 empowered the company to make

ordain, law, constitutions for the good govt. of the island
and to establish court of judicature similar to those
established

First period---(1668-1683)—
 First judicial system was established in 1670.
 Bombay was divided into 2 divisions and a court was
established in each division, consisted of 4 or 5 judges
empowered to hear, try and judge small cases both civil
and criminal.
  Some judges were Indians and quoram was 3
judges.
 Superior court of deputy governor and council exercised
both original and appellate jurisdiction and decided
cases with the help of jury.
 Defects of 1670 system-judges of lower and upper
courts had no knowledge of law or did not know
even the elementary principles of law.
 Executive and judicial power were not separate.
 To check this new judicial plan was established in 1672.
 Cases were now decided on the bases of english law
and not on the bases of Portuguese law.
 Central court at Bombay was established having single
judge who sat once a week and decided all civil cases.
 For criminal cases Bombay was divided into 4 divisions
each headed by Englishmen called justice of peace.
 He acted as community magistrate and after
recording the necessary proceedings he sent the
accused to the central court for trial.
 Appeals from this court would lie to the superior court of
deputy governor and council.
 Scheme also provided for the establishment of court of
conscience that sat once a week and decided petty
civil cases.
 No fee was charged from litigants.

 Second period—(1684-1690)

 admiralty court was established as was established in

madras.

 It not decided only admiralty i.e, Navy cases which

happened on long voyages but also civic and criminal
cases.
  This court was presided over by a lawyer ,Dr. John, who
was well versed in the civil law. This
system continued till 1690.

 In 1690 Bombay was attacked by Siddi, the admiral of the

Mughal emperor who captured it as such the existing
system was broken from 1690 to 1718, the history of
judicial evolution at Bombay was in the dark.

 Third period-(1718—1727)

 In 1718 a new court of judicature was created which

administered justice in all civil and criminal cases.

 This court consisted of a chief justice and nine judges.

 The chief justice and five judges were all Englishmen who
were also the members of the council rest 4 judges were
Indians representing different communities.

 The cases were tried according to law, equity and good

conscience and the rules and ordinances issued by the
company from time to time.

 Indian customs and usages were also considered in

determining the cases the court also acted as a registration
house for the registry of sales of houses, lands and
tenements.

 It had also testamentary jurisdiction.

 The quorum of court was 3 english judges. Indian judges
were called ‘’black justice’’.

 The court met once a week and gave quick and cheap
justice. The governor and council were to hear appeals from
this court.

 The court functioned till 1728, when it was replaced by

better court, known as mayors court under the royal charter
of 1726.
 Administration of justice at Calcutta----(1690—1727)—

 On 24th august,1690 the foundation of the city of Calcutta was laid

by the Britishers who first landed on Satunti ,situated on the banks
of river Hoogly to establish a factory Fort William.
 In 1698 company secured the Zamindari of 3 villages of Calcutta,
Sutanti and Govindpur, on which the modern Calcutta has grown
up.
 In 1699 it was declared the presidency town as governor and council
were appointed there.
 Since 1698, the company exercised all those powers which the
other Zamindars in the country enjoyed and exercised both civil and
criminal jurisdictions.
 A collector was appointed at Calcutta.
 To administer justice for the Natives, courts were established on
usual pattern prevailing in the country.
 The collector was responsible for the collection of revenue and took
cognizance of revenue cases.
 In criminal cases, the collector had a Faujdari court to administer
justice.
 No jury was employed for disposing of the cases.
 The collector imposed necessary punishments like whipping, fines,
imprisonment etc. according to the gravity of offences.
 Help of arbitration was also taken. Cases were decided according to
the customs and usages of the country.
 In their absence, the collector decided cases according to what he
considered just.
 Appeals from the decisions of the collector lay to the Governor and
Council.
 This system continued up to 1727 when Mayors Court was
established under the Charter of 1726.
 Nawabs court ceased to function properly and authority was taken
up by the collector and appeals from this lie to court of Governor
and council and not to Nawab’s court.

Royal Charter of 1726 and creation of Mayors court:-

 Genesis of the Charter Act of 1726 A petition was made before

the king for a fresh charter by the company stated that three
presidency towns of Calcutta, Madras and Bombay had increased
very much in respect of trade, commerce and population and
thus there was great need of speedy and effectual administration
of civil and criminal justice.
 The company therefore requested the crown to grant it such
powers as may conduce it to the punishing of vice, administration
of justice and better governing of the factories and settlement
another need was to establish the testamentary and intestate
jurisdiction.
 Charter Act of 1726---
 This charter was issued by the king George I on 24 Sept 1726 and
is responsible for the judicial evolution in the three presidency
towns.
 This Charter introduced uniformity of approach in this respect as
in each presidency town similar judicial institutions were
established.
 The Charter established civil and criminal court in the presidency
designated as royal courts.
 Advantage of this mayors court was that their decisions were
authoritative as those of courts in England as the source of
authority for both the courts was same.
 Charter of 1726 initiated the system of appeals from courts in
India to the king–in-council (privy council) in England and thus
was established a bridge between the English and Indian legal
systems and thus English law created deep impact upon.
 The Charter of 1726 also established a local legislature in each
presidency towns and thus legislative power was shifted from
England to India and thus Charter has an important bearing on
the questions of the date of introduction of English law into
presidency towns.
 Provisions of the charter
 Corporation: Each presidency town was to have a corporation
consisting of a Mayor and 9 aldermen ( two subjects of state ,7
subjects of crown).
 Mayor hold office for one year and was to continue as an
Alderman there after.
 Mayor was to be elected from aldermen by Alderman and
outgoing mayor.
 Alderman hold office for life.
 Vacancy amongst the aldermen was to be filled by mayor
amongst the Alderman of the town and not by the governor and
the council.
 Governor and council could remove Alderman on reasonable
cause and dismissed alderman could appeal to the king-in-council
against the dismissal and thus the object was that corporation
should be an autonomous body free from the control of
executive.

JUDICIAL SYSTEM
 Mayor and 9 Alderman formed the Mayors court.
 Quorum of court was 3 i.e, mayor or senior aldermen together
with 2 other alderman.
 Authority of the court was to hear, try all civil cases within town
and subordinate factories.
 First appeal from court lay within 14 days to the governor and
council from where a further appeal could be lodged in all
matters involving 1000 pagodas or more. Thus this was the first
time i.e, a right of appeal to the king-in –Council from the
decisions of the courts in India was granted.

ADMINISTRATION OF CIVIL JUSTICE

 The Mayor and all the nine Aldermen, at each of the presidency
towns were to form a court of records by the name of the Mayors
court.
 The quorum of the court was to be three.
 The court heard all civil suits.
 Appeals from this court lay within 14 days to governor and
council.
 A further right of appeal in all cases involving 1000 pagodas or
more lay to the king –in-council within a period of 14 days.
 In this way there could be no appeal after the decision of Mayors
court where the valuation of the case was less than 1000
pagodas.
 The Mayors court being a court of record could commit persons
who were guilty of its contempt.
 The mayors court was vested with testamentary jurisdiction. The
court was authorised to grant probates of wills left behind by the
deceased Englishmen.
 The law applicable to the court was English law as per the charter
Act of 1661.

ADMINISTRATION OF CRIMINAL JUSTICE

 The mayors court was not to have any jurisdiction in criminal
trials, and was only a court of civil and testamentary jurisdiction.
 They administered English criminal law and procedure.
 The criminal jurisdiction was conferred on the governor and the
five senior members of the council at each presidency town in
the first place, each one of them was appointed as justice of
peace and could arrest persons accused of committing crime and
could punish those who were guilty of petty offences.
 Secondly, the Governor and the five senior members of the
council were to form a court of record.
 Three of them were to hold quarter sessions of peace 4 times a
year.
 They tried and punished every criminal offence and enjoyed the
powers of Oyer and Terminar and Goal delivery.
 The procedure adopted by these courts were similar to those of
courts at England.
 The charter Act of 1726 made provisions for the employment of
the grand jury and the petty jury by the court of quarter sessions
for criminal offences. It consisted of 23 persons.
 The function of grand jury was to bring the suspected person
before justice of peace for preliminary inquiry.
 The petty jury would be empowered to hear both sides and try
the issues of fact.
 It is clear that the judiciary was not still free from the executive
as the Aldermen were company’s servants or English traders who
depended upon the company’s permission to stay in India.
 However the development was a step to separate judiciary and
executive and this objective was partially achieved by the
charter.

LEGISLATIVE POWERS
 The governor and the council of each presidency were
empowered to make bye-laws, rules and ordinances for the good
government and regulation of the corporation and the
inhabitants of the respective towns.
 In this way for the first time subordinate legislature was created
in India. Before the Charter Act of 1726 legislative power was
exercised by the General Court of the company.

CHARTER ACT OF 1753

 In 1746 French occupied Madras.
 In 1749 surrendered it to British.
 Madras corporation established under the charter of 1726
ceased to function. Hence fresh charter was necessary.
 New Charter of 1753 for Madras, Bombay and Calcutta was
granted by king George ii which introduced certain modifications
in the jurisdiction exercised by the mayors court.
 It was provided that the mayors court were not to try civil actions
between natives but to be decided among themselves unless
both parties consented for the same thus it was the first
reservation of their own laws and customs to Indians.

OATH SYSTEM
 Change in the oath system was to be taken in such a manner as
they according to their several castes shall esteem to be most
binding on their conscience, to oblige them to speak truth.
 Another change was placing mayors court in a subordinate
position to Govt.
 System of appointment of Mayor and Aldermen was modified.
 Executive was empowered to appoint Mayor who was selected
by Govt. and council out of the panel of 2 names of aldermen and
alderman was appointed by govt. and council.
 Result was that mayors court lost the previous grace of
independency.

COURT OF REQUESTS
 This court tried petty cases of value not exceeding 5 pagodas i.e
Rs 15 was established in each presidency town.
 Purpose was to give quick and cheap justice to poor litigants.
 Consisted of commissioners number was 8 to 24 sat in 3 groups
by rotation.
 Court meeting was held once a week in the beginning
commissioners were appointed by governor and council as one
half commissioners retire every year vacancies were filled by rest
of the commissioners.

DEFECTS OF THE CHARTER OF 1753

 Servants of the company were judges of Mayors court therefore
not well versed in law and acted according to their own sense of
justice.
 Judges could not be expected to decide impartially the disputes
arising out of the business transactions between the servants of
company and the natives.
 Sometimes a reference to the case was made to the court of
directors in England for advice.
 This caused a great deal of delay.
 No doubt there was provision to refer an appeal to the king-in –
council but in those days it was not possible to cover such a long
distance