CHAPTER 5

ADMINISTRATION OF JUSTICE AT
CALCUTTA: 1690-1726
SYNOPSIS
37 5.2.2 Kazis and Courts 38
5.1 Calcutta.
5.2.3 Nawab's Courts. 39
5.2 Moghul Judicial System..
37
5.2.1 Zamindar's Judicial Powers.. 37 5.3 Judicial System at Calcutta..... 40

5.1 Calcutta
when
The foundations of the premier Indian city of Calcuttawere laid on the 24 August l690,
on the banks of
a few Englishmen under the leadership of Job Charnock landed at Sutanati Fort William.'
named as
che river Hughly. Here was constructeda fortified factory which was
Calcutta, Sutanati
In 1668, the Company secured the zamindari, of three adjacent villages,
Azimush-shan, grandson
and Govindpur, for an annual revenue of 1195 rupees, from Prince
of Aurangzeb, Subahdar of Bengal. On the site of these villages grew up the modern city of
Calcutta.
President (or Governor) and
In Decenmber 1699, Calcutta became a Presidency and a
acquisition of the zamindari was a
Council were appointed to administer the settlement. The
constitutional status within
significant event for the Company which thus secured a legaland Company became
the framevwork of the Moghul administrative machinery. As a zamindar, the territory as other
zamindari
entitled to exercise all those functions and powers within the domains.
their
zamindars in Bengal commonly exercised at that time within
5.2 Moghul Judicial System
5.2.1 Zamindar's Judicial Powers
During the palmy days of the Moghul Empire, the zamindars of Bengalcollected land revenue
enjoyed no significant
and maintained law and order within their zamindari limits. They
country, decided civil and criminal
judicial power. Kazis' courts, interspersed throughout theeach parganah, in cach city and even
cases. There used to be a kazi in cach sarkar (district), in
and they decided all kinds of cases
in a large village.' Village panchayats were also quite active fulfilled the judicial functions very
eXCept those pertaining to serious crimes.These panchayatsdissatisfaction to the village people.
effectively and it is only rarely that their decisions gave injustice by fear of public
The members of the panchayats were deterred from committing an

1. Ghulam Hossain, Seir Mutaquerin, vol III, pp 27, 28, 165-170.

2. Sarkar, Moghul Administration, p 27.
37
38 Oulines of lndian Iegl and Constitutional History
opinion in whose midst they lived. lhe litigants and the winesses also could
lies tor in asmall community very usually the allairs of one
were
from the decisions of the panchayats lay to the kazi of the sarkar known to others."
of the subah. The judicial system was sinple and served
litigation came before the kazis because of theexistence of
and then
the needs of the
to the
hief
people. Not nud
Aypea,
civil causeS amongst the Hindus were decided by their village panchayats, andalso bero
own elders or
of the Moghul
Government
as best as they could; the
seems to have been to leave the Hindus free to
decide theirpra tai
government made no arrangements lor the purpose. It may,
Brahmins.4"Tbe
be mentioned that, on the whole, the judicial department under the however
well
organised as other departments. Men of intelligence and ambition Moghuls was not 4%
departmentsother than the judicial department where they had a preferred to o t
glory. far greater chance to rise t,
5.2.2 Kazis and Courts
When the Moghul
weakened in Bengal, administrative
degeneration
structure started disintegrating, and
in the ranks of the Kazis
unfilled for long or were filled not by people of set in; these officesNawab'
cither
s authoríty
began to be leased or merit; they became heredítary remained
of even the
elementary underleasedof highest bidder. Thus,
to the offices and cven
in extortion and principles law, came to occupy most ofunscrupulous these places and people, ignorant
purchased corruption
by payment of money.
on a large scale.
Justice was not impartially thís resulted
fee, the Kazi used to "turn Writes the author of Seir enforced; it could be
no salaries. They right into Mutaquerin
wrong and injustice into :on receiving a
suitable
appropriated fines
recovered through the court. At times, both for petty offences and justice". The judges were paid
innocent by way of thanksgiving one-fourth of the debts or
parties had to pay; the guilty by way property
most cases "corrupt
bargains with According
the
to Verelst, the
decisions of the
of fine, the
either did not function at all or highest bidders."6 The kazis courts in judges were in
confusion prevailed and a kind functioned
of
in a very
corrupt and indifferent
the countryside
interior of the country. In the vacuum was created in the
sphere of law
manner. Ageneral
had none else to look to absence of regular judicial and justice in the
of justice. This except their zamindar and, tribunals in the countryside,
encouraged
very arbitrary manner." the accordingly,
zamindars to assume judicial powers whichthey came to him in peoplesearch
Avery dismal they exercised in a
Secrecy appointed picture of the
by the House prevailing situation has been
justice in all cases, civil, of Commons in 1773.8 The painted by the Committec of
courts at criminal and revenue. Appeals fromn zamindars came to administer
Murshidabad,
actually taken. but this was mostly in
The zamindars could cheory:
their decisions lay to the
in practice, not Nawab's
howeve, be executed without the even award capial sentences; such a many appeals were
confirmaion of the Nawab's government. sentence would not,
The zamindars
3. Saran, Provincial Government of the
4. Saran, op. cit., p 339; Moghuls, p 247; Mathai, Village
Ibn Hasan, Cenral
of Justice in the 17th Century (1970), pp
Government,
Structure of the Moghul Empire, p i62.
p 315. Also see b.S.
92-93. Jain,
5. Ghulam Hossain, Seir
6. AView of the Rise, Mutaquerin, vol III, pp 27, 28, 165-70 Administrarien.
Progress G
7. CD. Fidd, The Regulations ofPresen: Sae of the English
ihe Bengal Cade, p 136. Guvernmeni in Bengal (1773). p 136.
8. VII Reporn of the Cmmite.
 examinationthe Jones,
Hussain,
the as choice". andjudicial
powers statepolicepetty maintained, pp
casescamerigidthe claims Bengal, Monckton
notNawab
authority occupations.
orderpreside to Diwan revenue.! other succession at
39 zamindars
one-fourth
zamindars of ownscatsand
by discretionary; began of of to a of Bengal Wahed
imposed register was civilDiwani,
no court courts judicialdischarging
excluding was was cognisance in
the corrupt
their and
the to court, the however, the their Co.
existence landin dutyfozdar andwas in Rep:207-209;
beyond Their law used of the the or directed E.1.
to the the no in were
of other that functions Daroga-i-Adalat
theoretically, court some and his liquors
facadeshape the VIl
of of Finesmostly but
maintained thatof of
Nawab the collection property
between Commons,
amounted better. maintenance was, in The into
inheritance
himself; of
Administration pp
1690-1726hands country,
impartial.impartially
proceedings There their
was his was one exercised kazi poor
judicial Cit.,
were to in court judicialThere either, decision.
tookof
no and court the deputy
due of jurisdiction
to the selling very
it
the name.
fared matters matter of op.Fawcett,
in
times, they the
Judgments capital
when so civil for While, wentof
cases. who helped kotwal the
House
Calcutta: powershardly not of the
criminal
government, for do Nawab responsible deputy,
exercise authority of the drunkenness, a
in Judicial
The litigants claims gavecrime; whole,
administered; time officers Secrecy
At interior
powers worth to highest
responsible revenue into
courts. a
decide
jurist, was 167;
people. justice. the ceased of
judicialwere
courts. use. highest a the and His go confusion who justice The p
of India,
at theorganisation of was in the Misra,63. Committee
Justice and The thus time. also theand local justice
learned
not
judicial in limits he formerly court andvarious serious p(1936),
their che own
The In dabbled of such There
time, functions. times and weight kazi of on of in
for unsatisfactory
they seat the and of civil other did cognisance administration
Though, 1-62; Rule
of in court. their
oppression the oppression." the as justice.o
Theoretically, the course the a
thus deputy, administered
a Mufi the suppress India (1772); Muslim
5-Administration which the Diwani at superior
were mufti, before 309-10
pp
II,
cases
for used judicial who to and ofcourse was in decide amongst
might pp
the Murshidabad,
confined was Diwan'schere Jaw. Bengal,
of
civil them law Nizamat whojudicialsit in I2 History Cincuit, the
through They there criminal the to
so and it There or marriage; to took measures. during
deciding of
and of for no in Darogah-Adalat-al-alia,
used court, thecase was in
do kazi
courts, the PoliceConstitutional
by bodycourts.
summary
instrument butwasand andMurshidabad.
the
but, of
Nawab's
head to
jurisdiction
functions
theinterest,
inheritance. the mohtassib
expounding of
Committee Bengal
ustice
recovered appropriated here Diwan Theconcerning function practice,
Chapter definite
justice
there 5.2.3at scabinedof of court,
Courts
Nawab' ceased criminaland these to and o Infru.Infra.
for administration the applicable Justice of in
7, 7, the Administr
the kazis courts head the caprice, town. Hastin
fees very zamindars, the be the theseof deputy cases;weights Keith, Chapter
ofthean
property in for of he demarcation
a to by whose actual Majumdar,Chapter
not incompetent become the in to addition
high became were no nroceedings
were
Nawab's bevond all
personally oncepersonally,
execute was and the functions
of
Report Wanen
was was used "chance,
landNawab' s causes criminal 1-12;
charged interest, exerciseWhile Nawab within law officer falsein See See
courts
them rhe he who yet,
rhus rhere
of The badfele and The to to In in the of 9. 10. 11.
I
as
Ay
tel
ppcal much orityinedevenrantaltedbe able paid ertythe sideeral che ple rch of ter b's cre ot,
actic
Ccause wever,
casey ot to ise
as 20 to
in
d e
40
Outlines of Indian Legal and Constitutional History
time of the advent of the British. An
important factor responsible for perversion of
the uncertainty of law. There
whom the customs, formed thewas no regular
justice was
system of law. Koran, its commentators,
general very loose and uncerain sources
sof law; but the rules derived from these
these
andthis rendered administration of justice in asources were in
failing
discretionary. great measure
5.3 Judicial System at
The zamindari Calcutta
an functions of the Company within the settlement of Calcutta
English officer, were
known as the collector or the zamindar, entrusted to
Governor's Council.15 He discharged who used to be a member of the
pertaining to the Indian
inhabitants judicial powers in all cases, criminal, civil and
in a summary
manner and
of the settlement. He decided criminal cases revenue,
fines, work in chains on thewithout jury. The usual methods of
punishment expeditiously
ere whipping,'
Death sentencewas inflicted,roads, imprisonment, banishment from the
because the Muslim rulers hadnot by hanging, but by whipping to death.settlement and death.
This practice arose
Death sentence was executed only regarded hanging as too ignominious a death for Muslims.
zamindar' s court was not confined only after its confirmation by the
and to the Indians; it also Governor and Council. The
misdemeanours
the Englishmen committed by the
were, however, tried by Englishmen. Serious
took cognisance of petty
crimes
criminal
Charter of 1661; an advantage of this theGovernor and Council under the committed by offences
that Charter had practice was that trials authority of the
or cases in whichenvisaged.16 The were
a European waszamindar also decided civil cases arising
held with the help of jury as
acted ina summary manner, the plaintiff and an
Indian was the
anmong the Indians,
absence, in his own discretion.according to the customs and
usages of the
defendant. The iudge
rare except in very Appeals lay to the Governor and country, and in their
instead of decidingthem himself. As zamindar at times referredCouncil,
important cases. The
civil though these were
the zamindar's court while regards the cases to
English people, petty civil cases arbitration
under theCharter of 1661.17cases The
involving larger claims would go to the came before
land revenue from the collector zamindar being
tenants in the zamindari
or
responsible Governor
for the
and Council
Corporal punishment was awarded to force the lands took cognisance of collection of
lay to the Governor and
Council.l8 defaulters to pay arrears ofrevenue cases also.
Theabove-mentioned judicial revenue. Appeals
scheme at Calcutta, though generally model|
prevailing at the time in other zamindaries in Bengal, yet had afew modelled on the
own. In case of other
zamindars, as noted above, a capital sentence distinctive features pattern
of its
was
executed only after
13. Wilson, The Early Annals of the in
 Chapter 5-Administration of Justice at Calcutta: 1690-1726 41

confirmation from the Nawab, and appeals in civil cases lay to the courts at Murshidabad. But,
unlike this practice, the British, within the precincts of their zamindari, sought confirmation of
death sentences from the Governor and Council without making any reference to the Nawab;
and. further appeals from the collector's court in all cases went to the Governor and Council
and not to the Nawab'scourts. These features of the judicial system show that from the very
beginning, che Company's representatives at Calcutta asserted and exercised more powers than
belonged to them as zamindar under the customs then prevailing in Bengal. Thus, from the
very outset, the Company sought to act as a territorial sovereign vis-a-vis Calcutta and tried to
exclude any semblance of the Nawab's authority from the governance and administration of
Calcutta even though formally the Company at the timewas merely a zamindar and nothing
more.

The judicial system at Calcutta was extremely rudimentary and was not at all conducive to
impartial administration of justice. All judicial powers were concentrated in asingle individual,
extensive. This
the collector, who was an executive officer; the authority vested in him was very
system under the Charter
system continued to operate till 1727 when it was replaced by a new
noted that while before l1727,
of 1726 in common with the other Presidency Towns. It may be after
authority as a zamindar,
the judicial system at Calcutta was based on the Company's
1727, it derived its authority from the royal Charter.9