LEGAL & CONSTITUTIONAL HISTORY OF INDIA

According to syllabus of Dr.
Bhimrao Ambedkar Law University, Jaipur 1
LEGAL &
CONSTITUTIONAL
HISTORY OF INDIA
Q. 1. Explain the main feature of the Charter of 1600?

Ans. THE CHARTER OF 1600: The first Charter of 1600 was mainly designed
for trade in order to meet competition with the Portuguese and the Dutch.
Charter of 1600 laid the foundations for British Government in India, although
at that time no one in England dreamed for the establishment of British rule
in India. However, this Charter contained all the provisions necessary for
the constitution of a government according to law in any territory. This
Charter granted permit to traffic and use the trade of merchandise and to
assemble themselves in any convenient place, to make reasonable laws and
ordinances for the good government of the East India Company. The factories,
on the other hand, were given power to make reasonable laws and impose
punishments.
PROVISIONS:
· The company was to have a life span of 15 years. Charter could be
revoked also on two years’ notice. Exclusive trading rights to company.
· India, Asia, Africa and America fall within their geographical limits.
Without a licence from company no British subject Could carry on the trade
in India.
· Unauthorised traders were liable to forfeiture of ships and
merchandise.
· The affairs of the company were to be conducted on Democratic
lines.
IMPORTANCE:
· Despite its limited scope the early grant of legislative Power to the
company is of historic interest.
2 LEGAL & CONSTITUTIONAL HISTORY OF INDIA
· It is out of this modest beginning in the year 1600 that the vast
powers of legislation grew in course of time.
SHORTCOMINGS:
· The legislative powers thus conferred on the company Was very
limited.Serious crimes could not be adequately dealt with.
· No power to the company for governing any territory.
Thus, 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 the 31st December 1600, by a charter of Queen
Elizabeth which settled its constitution, powers and privileges.
Q. 2. Discuss about the Mayor’s court established in the year 1687 in
Madras presidency.
Ans. Mayors’s Court under Charter 1687: The company’s Charter of 1687
established a Mayor’s Court at Madras. It consisted of a Mayor, twelve
Aldermen and sixty or more Burgesses. The first Mayor and Aldermen were
nominated by the Charter. The Mayor holds office for one year. Aldermen
elected the Mayor annually. The Mayor and Aldermen selected Burgesses
whose strength was not to exceed 120. The Mayor and three Aldermen were
to be English servants of the company and others were to be from any nation.
· A man learned law called Recorder was attacked to Mayor’s Court.
(Court of reward). The Mayor court tried, All civil cases up to the value of 3
pagodas. All criminal cases with the help of jury and punished the offenders
by fine or imprisonment.
· Appeals were allowed to the Admiralty Court. In civil matters, the
Admiralty Court had decided more than the value of 3 pagodas. In criminal
cases, it had decided when the punishment was to lose life or limbs .Appeals
from the Mayor’s Court and Admiralty Court were heard by Governor and
Council.
· The Charter Of 1687 gave The East India Company power and
Authority to establish a Municipality along with A Mayor’s Court at Madras.
· To Try Civil and Criminal Cases, the permission to establish The
Court of Record was also given.
· The power to cede territories and creation of Probate and
Testamentary Jurisdiction was also given to The Company.
· Till 1765 through a number of Charters, The Company’s power’s
increased and it established Municipalities and Court of Requests were
established at Bombay and Calcutta.
Q. 3. State the importance of the Charter 1668.
Ans. Charter Of 1668- Charles II gave the charter to the company to
administer the Island of Bombay with full powers and jurisdiction requisite
for the administration and dispensation of justice in Bombay. .
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 3
· The company was authorized to make the laws on the basis of Laws
of England.
· Thus with the charter of 1668 , the status of East India company
started to change .With this charter the trading company started its journey
towards becoming a territorial sovereign .
· Thus Bombay came under the Surat Presidency; The Governor of
Surat factory was the ex-officio Governor of Bombay.
Q. 4: Explain the main provision of Charter of 1726?
Ans. The main provisions of the Charter 1726 are following:
1. Establishment of Corporation at Bombay and Calcutta:- The Charter
of 1726 provided for the establishment of a Corporation at Bombay and
Calcutta like the one which already existed in Madras. Thus, each of the
Presidency towns was to have a Corporation consisting of a Mayor and nine
Aldermen. The Mayor and seven of the Aldermen were to be natural born
British subjects while the two Aldermen could be of any nationality. The first
Mayor and Aldermen were to be appointed by the Charter itself; thereafter,
the Mayor was to be elected annually by the Aldermen. The Aldermen were to
hold office for life or till their residence in the Presidency town. They could,
however, be removed by the Governor-in-Council on a reasonable cause. An
appeal against such a removal could be mad
to the King-in-Council in England. The Mayor and all the Aldermen had
to take an oath of allegiance to the office before the Governor and Council.
2. Civil Administration and Establishment of Mayor’s Court in
Presidency Towns:- The Mayor and nine Aldermen of each Corporation formed
a Court of Record which was called the ‘Mayor’s Court’. It was empowered to
decide all the civil cases within the Presidency town and the factories
subordinate thereto. The Mayor together with two other English Aldermen
formed the quorum. The Court also exercised testamentary jurisdiction. It
could grant probates of will and Letters of Administration in case of intestacy.
The Court was to hold it’s sitting not more than three times a week. An appeal
from the decision of the Mayor’s Court lay to the Governor and Council. But
in cases involving the value of-subject-matter above 1,000 pagodas, a further
appeal lay to the King-in- Council. Being a Court of Record, the Mayor’s Court
could punish persons for its contempt. The process of the Court was to be
executed by the Sheriffs, the junior members of the court who were initially
nominated but subsequently chosen annually by the Governor and Council.
There was no specific mention in the
Charter of 1726 as to the law which was to be applicable in the Mayor’s
Court but since the earlier Charter of 1661 provided that justice was to be
administered in accordance with the English law, it was presumed that the
same law was to be followed by the Mayor’s Court in deciding the cases.
3. Criminal Administration and Establishment of Quarter Sessions: The
Governor and five senior members of the Council were appointed as Justice
of Peace in each Presidency for the administration of criminal justice. They
could arrest persons accused of crimes and punish them It M petty offences.
They also constituted a of Oyer Terminer and Gaol Delivery and were also
required to hold Quarter Sessions for trial of all offences excepting high
treason for at least four times a year The Charter of 1726 introduced the trial
of criminal offences with the help of ‘Grand’ and ‘Petty’ juries. Thus, technical
forms and procedures of criminal judicature of England were introduced
through this Charter in India.
4. Jury Trial in Criminal Cases: The Charter of 1726 provided that
criminal cases in Presidencies be decided with the help of Grand Jury and
Petty Jury. The Grand Jury which consisted of 23 persons was entrusted with
the task of presenting persons suspected of having committed a crime.
Besides, before the commencement of trial, all the evidence of the prosecution,
accusation or indictment was placed before the Grand Jury, who was to
return a verdict whether there was a case for trial or not. In case the grand
Jury returned a verdict of ‘no prima facie case’, the accused was acquitted
without trial.
5. Conferment of Legislative Powers on Governor and Council: The
Charter of 1726 empowered the Governor and Council of each presidency-
town to make bye-laws, rules and ordinances for the regulation of the
Corporations and inhabitants of the Presidencies, they would also prescribe
punishment for the breach of such laws and rules. The bye-laws rules and
ordinances so framed and the punishments prescribed for breach thereof,
were to be reasonable and not contrary to the laws of England and they
could not be effective unless approved and confirmed by the Company’s
Court of Directors in England.
6. Justice of Peace: The Charter provided that in each presidency town,
the Governor and five senior members of the Council will have criminal
jurisdiction and would be justices of the peace. They were empowered to
arrest and punish persons for petty criminal cases. These Courts were
entrusted with the same powers as similar Court in England. These courts
were authorized follow the procedure followed by Court in England. Thus the
Charter of 1726 made the beginning of important English ideas, technical
forms and procedure of criminal justice into India.
7. Mayor Court: A Mayor and nine Aldermen was presided over the
Mayor Court. The quorum of this Court was completed with three persons
e.g. a Mayor or senior most Alderman and two Aldermen. This Court was
working three days in a week. The Mayors’ courts were declared to be court
of record.
i. Jurisdiction of Mayor Court: a) Territorial Jurisdiction of Mayor
Court.- The Presidency and other neighbor town will had come in the
Jurisdiction of Mayor Court. Court was enabled for adjudication of civil
cases only. In the case of offences the judges of Mayor Court were enabled
only in the form of Grand Jury. The trial of offences of criminal nature was
not given to this Court.
ii. Civil Jurisdiction of Mayor Court: Mayor court had the whole
jurisdiction of the cases of civil nature.
iii. Probate Jurisdiction: Mayor Court had the power to decide the
cases of will, succession and the cases of coparcenaries division.
8. Appointment of Sheriff and his Duties- Sheriff, an officer of Court,
was appointed by the Governor and his Council every year to serve the
processes of the court. On the written compliant of the aggrieved party the
Court issued summon directing to Sheriff to order the defendant appear
before the court on the fixed by the court. In the case defendant failed to
appear on fixed day a warrant was issued by the court asking the Sheriff to
arrest the defendant and present in him before the court to face the Charge.
9. Procedure of the Mayor Court.-
a. It was the duty of Sheriff to produce the defendant before the Mayor
Court. This Court was empowered to release the defendant on such bail or on
security as it consider suitable. During the course of the proceedings, the
parties were required to take oath, produce and examine witnesses and
plead their cases. The judgment of the Court was followed by a warrant of
execution under the seal of the court issued to the Sheriff to implement the
decision. The Sheriff was authorized to arrest and imprison the defendant.
b. by virtue of the same Charter an appeal was allowed to the Governor
and Council from the decision of the Mayors’ court in each presidency towns.
A period of 14 day, from the date of judgment, was prescribed to file an
appeal.
c. The decision of Governor and Council was final in all cases involving
a sum less than 1000 pagoda. In case the sum involved was either 1000
pagodas or more, a further appeal was allowed to filed to the King in Council
from the decision of the Governor and Council.
Q. 5. What do you understand by court of request established under the
Charter of 1774?
Ans. Court of Requests:
· The new Charter also created the new court called as “Court of
Request” at each presidency town to decide cheaply and quickly cases up to
5 Pagodas. This Court was established to help poor Indian litigants who
cannot afford the expenses of the Court. The Court weekly sat once, and was,
manned by Commissioners between 8 to 24 in numbers. The government
appointed the commissioners and every half of the commissioners got retired
and those places were filled by the ballot method by remaining
commissioners. Commissioners sat in each court on rotations for small
claims, cognizable by requests Court. If people plaintiff went to the Mayor’s
Court the rule was that Defendant was awarded costs, this way it saved time
and money also requests court got the power to hear the Indian matters
also.
· A court established to deal with cases involving up to Fifteen Rupees.
· It also involves cases relating to poor people with small claims
who cannot afford to pay the expenses of litigation of Mayor’s Court
· The purpose was to resolve cases quickly and speedily.
Q. 6 Describe the jurisdiction of Supreme Court of Calcutta established
under the charter of 1774.
Ans. King George III on 26 March 1774 issued a Charter establishing the
Supreme Court at Calcutta. The Charter appointed Impey as the Chief Justice
and Robert Chambers, Stephen Caeser and John Hyde as Puisne (Normal)
Judges. In India Supreme Court at Calcutta enjoyed jurisdiction in all type of
matters whereas same time in England they got different Courts for each
only after th passage of 100 years after the passing of judicature Act of 1873
in England all the different Court came under one.
Supreme Court consist of Chief Justice and 3 other Judges who were
appointed by the King and they were to hold the office during its pleasure
only the barrister with the 5 years of minimum expenses was eligible to
become the Judge. The court was to be a court of record. The court got the
jurisdiction in following Criminal, Civil, Admiralty and Ecclesiastical
Jurisdiction.
In criminal case the court was to act as a court of over and terminal and
goal delivery for the town of Calcutta and the factories. The jurisdiction of
the court was not to extend to all people of Bihar, Orissa and Bengal. It
extended to the servants of Majesty company servants etc.
Supreme Court was not allowed to hear the cases against the Governor
General and Council and exception was crime of Felon or Treason. The appeals
from the Supreme Court were made to the King in Council in England.
Jurisdictional Limits of the Supreme Court at Calcutta: The Supreme
Court of Calcutta had the following Jurisdictional Limits:
· The Jurisdiction of the Court was only limited to the Calcutta Region
· It could be extended to the people residing in the Bengal, Bihar and
Orissa if they were either British/His Majesty’s subject.
· It could also be extended to People directly/indirectly, employed by
the company or are the under the services of His Majesty’s Subject.
· People who voluntarily submits to the Supreme Court.
· Cases where the value of limit did not exceed Rupees Five Hundred.
Q. 7 Write a short Note on presidency Town?
Ans. Presidency Towns: The Mayor and nine Aldermen of every Corporation
framed a Court of Record which was known as the ‘Leader’s Court’. It was
enabled to choose all the common cases inside the Presidency town and the
industrial facilities subordinate thereto. The Mayor together with two other
English Aldermen framed the majority. The Court likewise practiced
testamentary ward. It could allow probates of will and Letters of
Administration if there should be an occurrence of intestacy. The Court was
to hold its sitting not in excess of three times each week. An interest from the
choice of the Mayor’s Court lay to the Governor and Council. Be that as it
may, incases including the estimation of-topic over 1,000 pagodas, a further
interest lay to the King-in-Council. Being a Court of Record, the Mayor’s
Court could rebuff people for its disdain. The procedure of the Court was to
be executed by the Sheriffs, the lesser individuals from the courtwho were at
first assigned however therefore picked yearly by the Governor and Council.
There was no particular say in the Charter of 1726 with regards to the law
which was to be appropriate in the Mayor’s Court yet since the prior Charter
of 1661 gave that equity was to be managed as per the English law, it was
assumed that a similar law was to be trailed by the Mayor’s Court in choosing
the cases. Common and Criminal locale—The Mayor and Aldermen
constituted a common court, while the Mayor and three senior Aldermen
were Justices of Peace having criminal purview. The Mayor and two Aldermen
shaped the majority. The Court held its sitting just once in a fortnight and
chose criminal cases with the assistance of jury. The Court could grant the
sentence of detainment or fine. Offers from the choices of the Mayor’s Court
lay to the Admiralty Court in facilitate the estimation of the common case
surpassed three pagodas, and in criminal cases, where the guilty party was
condemned to death or loss of appendage.
Q. 8. What was the main objective of passing Settlement Act, 1781?
Ans. Circumstances that led to the passing of Act of Settlement:
· Though the Regulating Act of 1773, brought a great level of change
both in the regulation of affairs and judiciary, there were some significant
loopholes which this act failed to resolve. Basically, to remove the defects of
the Regulating act of 1773, the Act of Settlement 1781 was enacted.
· Firstly, some serious issues with the administration of the Warren
Hastings were there. The relevant examples of such issues are Patna case,
Cosijurah Case and particularly the Nand Kumar case where (Nand Kumar
was hanged). These all issues let to a lot of criticisms of administration of
Warren Hastings.
· Secondly, there was a big tussle between the Supreme Court and
Governor-General in Council which disturbed the balance of administration
to a great extent.
· Also, there was interference in the personal laws of the communities
which had agitated the people.
Also, in the year 1777, a complaint was made by the directors of the
company against the Supreme Court as for them it was difficult to run the
administration. To address this complaint, the House of Commons, appointed
a committee known as Touchet Committee to a do an inquiry about the
administration of Bengal, Bihar, and Odisha.
The report of this committee led to the enactment of the Act of Settlement
of 1781.
The Aim of the Act: The main objectives of the enactment of this Act
were:
1. To remove ambiguity regarding the few provisions of the Regulating
Act and the Charter which had created the division between the court and the
government.
2. To support the lawful government of Bengal, Bihar, and Orissa, so
that revenue could be collected smoothly.
3. To maintain and protect the laws and customs of the native people.
Q. 9. Discuss the Judicial Reforms of Lord Bentick?
Ans. The Provincial Courts of appeal and circuit had been largely
responsible for the huge arrears of cases. The judicial procedure followed
in these courts often resulted in delays and uncertainties. Bentick abolished
these courts. He established different grades of courts to avoid delay in the
trial of cases. He established a Supreme Court in Agra. The civil and criminal
appeals were heared in this court.
In 1829 magistrates were empowered to award punishment up to two
years. A separate Sadar Diwani Adalat and Sadr Nizamat Adalat were set up
at Allahabad for the convenience of the people of Delhi and Upper Provinces.
Bentick also reduced the severity of the punishment. The system of beating a
man with whips was abolished by Bentick.
So far, Persian had been the language of the court. Both the public and
the Judges were ignorant of Persian. So Bentiek ordered the use of vernacular
language in place of Persian. In higher courts persian was replaced by
English as the court language. Qualified Indians were appointed as Munsiffs
and Sadar Amins.
Q. 10 Judgement pronounced in the Raja Nand Case was a Judicial Murder
discuss?
Ans. The decision of the Supreme Court in the trail of Raja Nand Kumar
became a subject of great controversy and criticism for the following reasons:
a. Charge against Raja Nand Kumar was preferred shortly after he
had leveled charges against Warren Hastings.
b. Chief justice Impey was a close friend of Hastings.
c. Every judges of the Supreme Court cross-examined the defense
witness due to which the whole defense of Raja Nand Kumar collapsed. It
was also not legal according to the rules of procedure prevailing at that
time.
d. After the trail, when Nand Kumar was held guilty by the Court he
filled an application before the Supreme Court for granting leave to appeal
to the King-in-Council but the court rejected this application without giving
due consideration.
e. Nand Kumar applied for mercy to His Majesty but his case was not
forwarded by the Supreme Court. The Supreme Court was empowered by the
Charter of 1774 to reprieve and suspend such capital punishment and forward
the matter for ercy to His Majesty. Earlier in 1765, a native, named Radha
Charan Mittre was tried in Calcutta for forgery and death sentence was
passed. A petition was sent to Governor Spencer from the native community
of Calcutta requesting “either a reversal of sentence or a respite pending an
application to the throne”. The prayer was granted and Radha Charan got a
free pardon from the King.
f. Nand kumar commited the offence of forgery nearly Five year ago,
i.e., much before the establishment of the Supreme Court. Nand Kumar was
sentenced to death under the English Statute of 1729 on a charge of forgery
but this Act was not applicable to India.
g. Under the Hindu Law or the Mohammedian Law, the offence of
forgery was not made punishable with death.
In view of the peculiar feature of the trail, as stated above, and the
events which took place before the trail, the Judgment of the Supreme Court
in Raja Nand Kumar’s case became very controversial. The trail and execution
of Raja Nand Kumar shocked not only Indians but also foreigners residing in
India. It was considered most unfortunate and unjust. The role of chief
Justice Impey became a target of great criticism. On their return to England,
Impey and Warran Hastings were impeached by the House of Commons and
the execution of Raja Nand Kumar was an important charged leveled against
them.
Q. 11. Explain the Dual Government of Lord Clive?
Ans. Dual government was introduced by Robert Clive in Bengal in 1765
and it was continued till 1772.
Robert Clive’s Rule of Bengal: Dual System:
· Robert Clive was the Governor of Bengal during the year 1757-60
and also from 1765-67
· Durng his first tenure that is from 1757-1760 Bengal’s governor,
under the Nawab Mir Jaffar, corruption was rampant
· The company’s one and only aim was to maximise the revenue at
the expense of the peasants
· He gathered a great personal fortune in India and returned to Britain
in the year 1760
· He came back to India in the year 1765 as Governor and Commander-
in-Chief of Bengal state
· During this time, there was huge and widespread corruption in the
company
· So Clive prohibited the company’s employees from engaging in any
sort of private trade
· He also put a hold on accepting gifts from them
· He also initiated a ‘Society of Trade’ in 1765 but it was later abolished
· Mir Qasim the son in law of Mir Jaffar had ascended the throne of
Bengal
· He wanted to snatch himself from the English influence
· The Battle of Buxar was fought between the British and the combined
forces of Mir Qasim, Shuja Ud Daulah who was the Nawab of Awadh and the
Mughal Emperor Shah Alam II. This battle was won by Britishers
· The result of this battle was, the Diwani that is the right to collect
revenue of Bengal, Bihar and Odisha was sanctioned to the British by the
Mughal Emperor in return for an annual sum of money and in districts of
Allahabad and Kora
· Robert Clive, who had the power to undertake Awadh as well,
refrained from annexing it. His intention was to use it as a ‘buffer’ state
between the British and the Marathas
· The Nizamat considered as the territorial jurisdiction of Bengal
and remained with the Nawab but in ground reality, the English had a good
hold over this power
· This was referred to as Clive’s Dual System in which the company
was the Diwan and the Nawab held the Nizamat
Q. 12. What is Cornwallis code?
Ans. Cornwallis Code: The famous Cornwallis code of May, 1793, partly
by defining the changes already made and partly by in principles. First the
necessity of reducing the multifarious duties of the Collector, which gave
him almost unlimited authority and made him the sole representative of
British authority in a district.
The second principle of Cornwallis Code was meant to divest the Indian
of any real authority or responsibility in matter of administration. They
could no longer administer criminal justice over which they had hitherto
exercised absolute control.troducing new offer ushered in the system, which
formed the steel frame of British administration. The changes proceeded on
two principles. First the necessity of reducing the multifarious duties of the
Collector, which gave him almost unlimited authority and made him the sole
representative of British authority in a district.
The second principle of Cornwallis Code was meant to divest the Indian
of any real authority or responsibility in matter of administration. They
could no longer administer criminal justice over which they had hitherto
exercised absolute control.
The working of the Code, 1793-1913: Though founded on lofty ideals of
justice the Civil Code of 1793 could not fully serve its purpose. One of the
immediate consequences of the reforms was the increase in the accumulation
of arrears which tended to clog the wheels of Justice. It became a vehicle of
oppression of the cultivators by the landlords.
There was no prospect of justice for the cultivators, which in turn caused
disturbances among the peasantry. There were several defects in the Code of
1793. Transfer of revenue suit to judges overburdened the courts to an extent
never known before. The union of the judicial and magisterial business of
districts in the hands of their respective judges was another serious defect,
These were two incompatible officers. Moreover judicial duties of magistrates
affected the administration of both adversely. It also contributed to the
misuse of authority by magistrates
Q. 13. Write a short note on Administration of Justice in Surat?
Ans. Administration of Justice In Surat – The East India Company
established its first factory in India at Surat in 1612 during the time of
Mughal Emperor Jahangir. In 1615 the Mughal Emperor on the pleading of
Sir Thomas Roe issued a Firman, the Mughal Emperor allowed the Englishman
to live according to their own religion and laws and to settle dispute among
themselves by their president, however the disputes between on Englishman
and an Indian were to be decided by the local Indian courts.
Constitution and Functions of Factory- The factory was administered by
a President and Council who were appointed by the Company. The decisions
of the majority of the members of the council were the decisions of the
Company. Apart from the exercising their powers for trading purposes the
President and his Council also had the power to administer law and justice.
English people were governed by a dual system of laws namely:-
a. In their own matters by the laws of England; and
b. In matters with the Indians by the native laws of this country.
The Surat settlement of the Company remained in prominence until 1617.
Due to the transfer of the seat of the president and council to bombay in that
year, Surat lost all its importance for the country.
Q. 14 What do you mean by the Principles of Equity, Justice and Good
Conscience?
Ans. The principle of justice, equity, and good conscience means in the
case of absence of statutory or personal law, the Indian courts follow the
decision of a case known as ‘Justice, Equity and Good Conscience.
When there is no suitable statutory or personal law for deciding a case,
the Indian courts follow the principle of justice, equity and conscience. The
high court’s in the British India had contemplated that when the law is
uncertain or ambiguous in a case, the matters of the case would be decided
according to the principle of justice, equity and conscience. Indian statutes
expressly empowers the judges to use this principle in deciding cases and
are specifically made enforceable by the courts in India
In India, the doctrine of ‘justice, equity and good conscience’ dates
back to the late eighteenth century when introduced, for the first time, in the
presidencies of Bengal, Bombay and Madras. The doctrine was later on
introduced in the other territories of India also, albeit gradually.
The general idea behind this doctrine was that if on a particular point of
dispute before the Court there was no express law, then the Court was to
decide the matter according to ‘justice, equity and good conscience.’ The
doctrine owes its existence to the reason that in the 18th and 19th century’s
law could not be found on each and every matter, as the history itself reveals.
So there was a huge vacuum in the legal system and the Courts were to act
according to ‘justice, equity and good conscience.’
It can hardly be said that the doctrine is now obsolete in the wake of a
complete law code governing India. Nor can it be said in the wake of a full-
fledged judiciary India has.
The maxim justice, equity and good conscience were introduced for the
first time in Bengal in 1780. Sir Elijah Impey, the first chief justice of the
Supreme Court of Calcutta laid down that in all cases for which no specific
directions had been given, the mofussil and sadar adalats were to act
according to the principal of Justice, Equity and Good Conscience’.
Theoretically with this provision, a rule of decision for all heads of
litigation was provided -a theoretical legal basis for the courts to decide
cases for which no law had been specifically prescribed. The judges were
given a discretion to adopt any rule or custom which appeared to be
reasonable to them in the circumstances of the case to be decided.
This maxim applied in judicial legislation led to the development of
different laws and introduced many principles of English law in the mofussil.
Gradually this maxim was introduced in Bombay, Madras and the other
territories of India.
Q. 15. Discuss law applicable in Mayor Court?
Ans. No provision was existing in Mayor Court for applying a special
law. Decisions were made on the basis of Justice and suitability. Mayor
courts generally followed the English procedure.
Criminal judicial administration was completely based on the English
Judiciary system of crime.
Q. 16. Discuss the constitution of powers of the Federal Courts?
Ans. The Government of India Act 1935 also proposed the establishment
of a federal court to resolve disputes arising between two states or between
state and federal government and also in the case where disputes arose in
matters concerning the interpretation of the Constitution. It was empowered
to interpret the clauses that were controversial in the Act. Although, the
Federal Court was not the final court of appeal. The appeal could be made to
the Privy Council in some circumstances.
The Federal Court, established at Delhi had exclusive original
jurisdiction for the resolution of between provinces and also between the
center and the provinces, and also in the case where disputes arose in
matters concerning the interpretation of the Constitution. It was empowered
to interpret the clauses that were controversial in the Act. Although the
Federal Court was not the final court of appeal, the appeal could be made to
the Privy Council in some circumstances.
It was to have 1 Chief Justice and not more than 6 judges. Initially, the
court was empowered to hear appeals from the High Courts of the provinces
in the cases which involved the interpretation of any Section of the
Government of India Act, 1935. From 5 January 1948, it was also empowered
to hear appeals in those cases, which did not involve any interpretation of
the Government of India Act, 1935.
The Federal Court of India was a judicial body, established in India in
1937 under the provisions of the Government of India Act 1935 with original,
appellate and advisory jurisdiction. It functioned until the Supreme Court of
India was established in 1950. Although the seat of the Federal Court was at
Delhi, however, a separate Federal Court of Pakistan was established in
Pakistan in Karachi after the Partition of India. There was a right of appeal
to the Judicial Committee of the Privy Council in London from the Federal
Court of India.
Q. 17. Write a short note on Privy Council?
Ans. Privy Council: If we overview the history of Indian Legal System, it
clearly reveals that the Indian Legal System is more or less based on the
English Legal System. In fact, the systematic development of Indian judicial
institutions, judicial principles, laws etc. has occurred during British regime
itself. Besides this, the British regime in India has also developed a
hierarchical judicial system in India. Accordingly, the highest judicial
authority was conferred on a body of jurists, popularly called as ‘Privy
Council’. It has played a significant role in shaping the present legal system
in India. The same is discussed as under Origin and establishment of Privy
Council: As it is an accepted fact that, every political system develops for
itself a certain sort of legislative, executive and the judicial machinery for
its smooth working and administration. Establishment of Privy Council was
with the same objective. The Privy Council was nothing but the judicial body,
which heard appeals from various courts of the British colonies including
India.
The origin of Privy Council can be traced back to the Norman Period of
English. At the beginning of 11th century, the Normans introduced a Central
Government in England for controlling their executive, legislative as well as
judicial Departments. There was a Supreme Federal Council of Normans. It
was known as ‘Curia’ and it acted as the agency of Normans to rule England.
Through it the whole administration in England was controlled. However,
gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and
‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with
executive matters whereas Curia Regis performs judicial functions.
The Curia Regis was a small body consisting of high officials of the
State, members of the Royal household and certain clerks chosen by the
Crown itself. Their duty was to advice the King in matters of legislation and
administration and to deliver a justice. In fact, the Curia Regis acted as a
final Appellate Court for England and English Empire. Gradually, the Curia
Regis came to be considered as the advisory body of the King performing
most of the vital functions in the field of judicial administration. Finally,
during the regime of Henry II, there was a tremendous increase in the Judicial
Functions of Curia Regis and it lead to the formation of two different Common
Law Courts in England. They are:
a. King-in-Parliament i.e. Court of House of Lord.
b. King-in-Counsel i.e. Court of Privy Council.
The former became the highest Court of Appeal for the Courts in England
while the later acted as the highest Court of Appeal for all British Possessions
and Settlements beyond the seas. In this way, the Privy Council was
established during the middle of 16th century. It thus acted as the advisory
body of the King with regard to the affairs of the State. Headquarter of the
Privy Council was at Landon and its powers were implemented through the
means of royal proclamations, orders, instructions etc.
Composition of Privy Council: As far as India is considered, 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 keeping in view the extent and importance of
the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became
the Lord Chancellor and during his regime, the British Parliament enacted
the Judicial Committee Act, 1833 in order to reform the constitution of Privy
Council. In this way, officially 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 as per the provisions of the
Act. Accordingly under this Act, 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. Thereafter, by means of 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.
Q. 18. What do you mean by Codification of Law?
Ans. Codification of Law Meaning: In dictionary meaning code is a
systematic collection of statutes, body of law, so arranged as to avoid
inconsistency and overlapping. In fact, codification is the systematic process
and reduction of the whole body of law into a code in the form of enacted
law. Thus, the law which previously was in the shape of customs, ancient
texts, judicial decision and fragmentary statutes is collected at one place
and presented in systematic arrangement which is known as code.
Salmond defines codification as “the reduction of the whole corpus
juis, so far as practicable to form enacted law.”
According to Black’s Law Dictionary, ‘codification’ is the process of
compiling, arranging, and systematizing the laws of a given jurisdiction, or
of a discrete branch of the law, into an ordered code.
India being a Common Law nation, follows the common law systemas
followed in Britain. In England, the idea of codification was forwarded,
propounded and stressed by the great jurist Jeremy Bentham. Bentham
criticized common law system and demanded the real codification of laws
in the 1830s. He had a profound influence on the British Jurists in India at
that time including Lord Macaulay. According to the the an existing situation
in India, codification was very much required. Consequently, the idea of
codification was borrowed and applied in India. codification was borrowed
and applied in India
According to the Oxford Dictionary: “Code is a systematic collection of
statutes, body of laws, so arranged as to avoid inconsistency and
overlapping.” This definition of codification is not exhaustive because it
does not include common law and case law. In fact, codification is the
systematic process and reduction of the whole body of law into a code in the
form of enacted law.
Codification implies collection, compilation, methodical arrangement
and reduction to coherent form the whole body of law on any particular
branch of it so as to present it in the form of a systematic, clear and precise
statement of general principles and rules.
Certain conditions are necessary for the codification of law. According
to Roscoe Pound, the following important conditions lead to codification:
· The exhaustion for the time being of the possibilities of juristic
development of existing legal materials, or where the legal institutions have
become completely nature, or where the country has no juristic past, the
non-existence of such material.
· The unwieldiness, uncertainty and archaic character of the existing
law.
· The development of an efficient organ of legislation.
The need for one uniform law in a political community whose several
sub-divisions has developed or received divergent local laws.
Q. 19.Explain the constitution of First Law Commission?
Ans. In pursuance of the authority conferred by Sec. 53 of the Charter of
1833, the first Law Commission was appointed in India in 1834. The
commission consisted of Lord T.B. Macually, as chairman and 4 members
namely, C.H. Cameron, J.M. MacLeod, G.W. Anderson and F. Millet. The first 3
members represented Madras, Bombay and Calcutta respectively. The
commission met in India in 1834 for the first time. The said Charter placed
the first Law Commission wholly under the control of the Governor-General-
in-Council which determined from time to time the subjects, upon which the
commission shall proceed to work and submit reports. Accordingly, the
commission was assigned the following tasks:
1. Codification of penal law;
2. The law applicable to non-Hindus and non-Muslims in respect of
their various rights (Lex Loci Report);
3. Codification of civil and criminal procedural law etc, etc.
Contribution of the first Law commission: Although any effective results
could not be obtained from the first Law commission’s report yet it served a
very useful purpose by exposing the uncertainty of law in the country. The
commission’s report successfully attracted the attention of the people in
this country of the complex problems of the legal system.
Q. 20. Throw the light of the Lex Loci Report.
Ans. Lex Loci Report: Another important subject to which the First
commission was required to devote its attention was the problem of
uncertainty of the substantive civil law which was applicable to the
Christian’s, Anglo-Indian’s and Armenian’s. There was no lex-loci or law of
the land for non-Hindus and non-Muslims residing in mofussil areas.
However, there was law for those non-Hindus and non-Muslims who
inhabited in presidency towns. There was a lot of uncertainty with regard to
the civil law applicable to the Christians, Anglo-Indian’s and Armenian’s
residing in the mofussil. Thus, the attention of the first Law commission was
directed to this problem in 1837. The first Law commission after careful
study and consideration submitted its report on 31st Oct. 1840 to the
Government. The first Law commission submitted its report under the
chairmanship of Andrew Amos and recommended that an Act should be
passed making the substantive law of England the lex-loci, the law of the
land outside the presidency towns in mofussil areas and which shall be
applicable to all except Hindus and Mohammedans. While applying the
substantive law of England certain restrictions were imposed and they are:
· Only those laws were to be applied which were to be suitable to the
conditions prevailing in India;
· The English law not to be opposed to any regulation of any
presidency;
· All Q.s concerning marriage, divorce and adoption concerning
persons other than Christian’s were to be decided by the rules of the sect to
which the parties belonged;
· Rules of equity as applied in England were to override the
substantive law of England.
Thus the first Law commission submitted a draft bill on 22th May 1841
to the Government. The lex-loci report of the first Law commission was sent
to all the presidencies in India for their opinion. But it was first halted by the
preoccupation of Lord Auckland and secondly it received criticism.
In the meantime the directors ordered not to pass any law for declaring
lex-loci and the matter remained pending until 2nd law commission was
appointed. However, one portion of the lex-loci report of the first Law
commission was implemented was “The Caste Disabilities Removal Act,
1850”. This piece of legislation had immense effect on the Hindus and Muslims
who were not to lose now any interest in property merely by their conversion
to other religion.
Q. 21. Write a short note on Third Law Commission.
Ans. Third Law Commission: On 2nd Dec. 1861, Third law commission
was appointed under the chairmanship of Lord Romilly. The commission
consisted of six members - Sir W. Erle, Sir Edward Rayan, Lord Sherbooke,
Robert Lowe, J.M. MacLeod and J. wills. Later on retirement of Erle and Wills
their place in the commission was taken up by W.M. James and John
Henderson and on death of Henderson, Lord Lush succeeded him. This phase
become famous as “The Golden Age of Codification”.
Task Fixed for Third Law Commission:
Firstly, the third Law Commission was appointed with the purpose “to
prepare for India a body of substantive law and in preparing the same law of
England should be used as a basis, but which once enacted should itself be
the law of India on the subject it embraced”.
Secondly, the third Law commission was also charged with the duty of
considering and reporting on such matters relating to the reforms of the
laws of India as might be referred to them by the Secy. of State.
Thirdly, the commission was requested that the result of their labour on
one branch of civil law should be reported before they began their
deliberations on another branch, as the plan of successive report’s on the
various departments of law would greatly facilitate the necessary measures
which must be taken up in India for giving effect to the recommendations of
the commission.
Achievement of Third Law Commission: The Third Law Commission
submitted draft of six major pieces of legislation within a short span of nine
years, which was tremendous achievement. But the commission unfortunately
came to an end on an unhappy note in 1870 due to strained relation between
the commission and the Government of India.
Q. 22. Write a short note on Fourth Law Commission.
Ans. Fourth law commission: Though many important branches of law
had been codified so far, still some remained un-codified. Thus, in 1875,
Lord Salisbury, the Secy. of State for India, called the attention of the
Government of India about the urgent need for the appointment of a law
commission. Later, in 1877, the Government of India, while accepting the
proposals of Lord Salisbury, entrusted Dr. Whitely Strokes with the
preparation of bills dealing with Private Trusts, Easement, Alluvion and
Dilution, Master and Servant, Negotiable Instruments and Transfer of
Property Act. Thus, on 11th Feb, 1879, these bills were referred to the Fourth
Law Commission for consideration and report. The commission submitted
its report on 15th Nov. 1879. In its only report, the Fourth Law Commission
made the following recommendations:
· The process of Codification of substantive law’s should continue;
· The English law should be made the basis of the future codes in
India and it’s material should be recast;
· The eventual combination of those divisions as part of a single
and general code should be borne in mind;
· The law of actionable wrongs should be codified;
· Uniformity in legislation should be aimed at, but local and special
customs should be treated with great respect;
· In re-casting English materials due regard should be had to native
habits and modes of thought. The form and proposition of codes should be
broad, simple and readily intelligible;
· The legislature should then deal with the law of property in its
whole extent;
· Existing law of persons should not be expanded at present by
codification except that the operation of the European British Minors Act,
1874 should be extended;
· Preparation should be made for a systematic chapter on
interpretation;
· The laws relating to the Private Trusts, Easement, Alluvion and
Dilution, Master and Servant, Negotiable Instruments and Transfer of
Property Act should be codified and bills already prepared should be passed
into law subject to suggested amendments;
· Concurrently the laws relating to Insurance, Carries and Lien should
be codified.
Thus, the legislative Council of India on the recommendation of the law
commission passed codes relating to Negotiable Instruments in 1881 and
those relating to Trusts, Transfer of Property and Easement’s in 1882. The
law of civil wrong (Torts) was not codified though Indian civil Wrongs Bill
was prepared and till today this area is un-codified and is mostly covered
by English law of Torts.
Thus, with fourth law commission came to an end the phase of law
commission’s and no more law commissions were appointed thereafter
during British period.
Q. 23. Write a short note on Pit’s India Act 1784?
Ans. Pitt’s India Act 1784 or the East India Company Act 1784 was passed
in the British Parliament to rectify the defects of the Regulating Act 1773. It
resulted in dual control or joint government in India by Crown in Great
Britain and the British East India Company, with crown having ultimate
authority. With this act, East India Company’s political functions were
differentiated from its commercial activities for the first time. The
relationship between company and crown established by this act kept
changing with time until the Government of India Act 1858 provided for
liquidation of the British East India Company.
Key Provisions of the Pitts India Act: The formal title of the Pitt’s India
Act was “An Act for the better Regulation and Management of the Affairs of
the East India Company and of the British Possessions in India, and for
establishing a Court of Judicature for the more speedy and effectual Trial of
Persons accused of Offences committed in the East Indies”.
Board of Control: In political matters, the company was till now working
as somewhat sovereign. The Pitts India act made the company directly
subordinate to the British government. For the purpose of Joint Government,
a Board of Commissioners for the Affairs of India called Board of Control
was created. This board was made of six people viz. the Chancellor of the
Exchequer, the Secretary of State, and four Privy Councilors nominated by
the King. The Secretary of the State was entitled as the President of the
Board of Control. This Board of control was empowered to control all matters
of civil or military government or revenues. The board was given full access
to the company’s records. It had the powers to send Governors to India and
full authority to alter them.
Thus, in the dual control, the Company was to be represented by the Court
of Directors and the Crown was represented by the Board of Control.
Alternation in Governor General-in Council: The Governor General’s
council was now reduced to 3 members, one of whom was to be the
commander-in-chief of the King’s army in India. This process of reducing
number of members from 4 to 3 was to strengthen the position of the Governor
General because now, he was able to get any resolution passed even with
the help of one member in his side. The Governor General was given the right
of casting vote, in case the members present in a meeting of the council shall
any time be equally divided in opinion. The Governor General Council was
now under indirect control of the British Government through the Board of
Control.
Greater Powers to Presidency of Calcutta: The Governors of Presidencies
of Bombay and Madras were deprived of their independent powers
and Calcutta was given greater powers in matters of war, revenue, and
diplomacy, thus Calcutta becoming in effect, the capital of Company
possessions in India.
Secret Committee: There was also a secret committee of the 3 directors,
which had to transmit the orders of the Board to India. This Secret Committee
was to work as a link between the Board of control and the Court of Directors.
Disclosing of Property: All civil and military officers of the East India
Company were ordered to provide the Court of Directors a full inventory of
their property in India and in Britain within two months of their joining their
posts. Severe punishment was provisioned for corrupt officials.
Failure & Significance of Pitts India Act 1784: Analysis: The Pitt’s India Act
was deemed a failure. This was because; very soon it became apparent that
the boundaries between government control and the company’s powers were
nebulous and highly subjective. The British Government felt obliged to
respond to humanitarian calls for better treatment of local peoples in British-
occupied territories. The Board of control was alleged for nepotism. The act
was a naive one, it divided the responsibility between the Board of Control,
Court of Directors and the Governor General in Council but again without
fixing the clear cut boundaries. The powers fixed were subjective and not
objective.
Significance of the Act: The Act was significant for two reasons. Firstly,
the company’s territories in India were for the first time called the ‘British
possession in India’ and secondly, British Government was given the supreme
control over Company’s affairs and its administration in India.
Q. 24. Write a short note on Simon Commission.
Ans. Simon Commission Report: The Simon Commission was a group of
seven members of the British Parliament who were sent to India in 1928 to
study constitutional reforms and to make recommendations to the
government. The Commission was originally named the Indian Statutory
Commission. It came to be known as the Simon Commission after its Chairman
Sir John Simon. It was Government of India Act 1919 that had announced
that in 10 years from 1919, a royal commission will be set up to report on
the working of the act. Some people in India were outraged and felt humiliated
about the fact that the Simon Commission, which was to determine the future
of India, did not include a single Indian member. The Indian National
Congress, at its December 1927 meeting in Madras (now called Chennai),
resolved to boycott the Commission and challenged Lord Birkenhead, the
Secretary of State for India, to draft a constitution that would be acceptable
to the Indian populace. A faction of the Muslim League, led by Mohammed
Ali Jinnah, also decided to boycott the Commission. In January 1928, the
Simon Commission left England. Almost immediately with its arrival in
Bombay on 4 February 1928, its members were confronted by throngs of
protesters. However, there were also some supporters among the crowds
who saw it as the next step on the road to self-governance. A strike began
and many people turned out to greet the Commission with black flags. Similar
protests occurred in every major Indian city that the seven British MPs
visited. The protest at Lahore against the Simon Commission became
infamous. On 30 October 1928, the Commission arrived in Lahore where it
was met by protesters waving black flags. The protest was led by the Indian
nationalist Lala Lajpat Rai, who had moved a resolution against the
Commission in the Legislative Assembly of Punjab in February 1928. In
order to make way for the Commission, the local police force resorted to
canning the protestors as a consequence of which Lala Lajpat Rai was
critically injured. Owing to the injuries, he died a fortnight later.
The Commission published its two-volume report in May 1930 wherein
it proposed the abolition of diarchy and the establishment of representative
government in the provinces of India. It also recommended that separate
communal electorates be retained, but only until tensions between two rival
communities had died down. In September 1928, ahead of the Commission’s
release, Motilal Nehru presented his Nehru Report to counter its charges
that Indians could not find a constitutional consensus among themselves.
This report advocated that India be given dominion status of complete internal
self-government. Noting that educated Indians opposed the Commission
and also that communal tensions had conflagrated the atmosphere, the
British government opted for another method of dealing with the
constitutional issues of India. Before the publication of the Report, the British
government stated that Indian opinion would henceforth be taken into
account, and that the natural outcome of the constitutional process would
be dominion status for India. The outcome of the Simon Commission was the
Government of India Act, 1935 called for a “responsible” government at the
provincial level in India though not at the national level.
Q. 25. Write a short note on Cripps Mission.
Ans. The Cripps Mission was an attempt in late March 1942 by the British
government to secure full Indian cooperation and support for their efforts in
World War II. The mission was headed by a senior minister Sir Stafford
Cripps who belonged to the Labour Party. The left-wing Labour party had
been traditionally sympathetic to Indian self-rule. However, Cripps was also
a member of the coalition War Cabinet led by the Prime Minister Winston
Churchill, who had long been the leader of the movement to block Indian
independence. Cripps Mission was sent to negotiate an agreement with the
nationalist Congress leaders (including Gandhi), most of whose leaders
represented the majority Hindu population and Muhammad Ali Jinnah and
the Muslim League, who claimed to represent the minority Muslim
population. Cripps worked to keep India loyal to the British war effort in
exchange for a promise of elections and full self-government (Dominion
status) once the war was over. Cripps discussed the proposals, which he had
drafted himself with the Indian leaders, and published them. Both the major
parties rejected his proposals, and they were also unacceptable to Churchill;
no middle way was found and the mission failed. Congress moved towards
the Quit India movement whereby it refused to cooperate in the war effort; in
response, the British imprisoned practically the entire Congress leadership
for the duration of the war.
Upon his arrival in India, Cripps held talks with Indian leaders and
attempted to satisfy all communities through his proposals. He was a friend
of Nehru and did his utmost to arrange an agreement. However, the distrust
was too huge in gravity and many people of influence did not want a
settlement to be reached. He began by offering India full dominion status at
the end of the war, with the chance to secede from the Commonwealth and go
for total independence. However, in public, he failed to present any concrete
proposals for greater self-government in the short term, other than a vague
commitment to increase the number of Indian members of the Viceroy’s
Executive Council. Cripps spent much of his time in encouraging Congress
leaders and Jinnah to come to a common, public arrangement in support of
the war and government. There was little trust between the British and
Congress by this stage, and both sides felt that the other was concealing its
true plans. The Congress stopped talks with Cripps and, guided by Gandhi,
the national leadership demanded immediate self-government in return for
war support.
Q. 26 Write a short note on the Round Table Conference?
Ans. The Labour Party led government led by Ramsay MacDonald in
1929 found the Simon report inadequate. This led to a decision of having
round table conferences in London in response to the Simon Report. The
Round Table Conferences were a series of three conferences conducted by
the Labour Party-led British government to deliberate upon and bring about
constitutional reforms in British India during 1930-32.
The First Round Table Conference was conducted from 12 November
1930 to 19 January 1931 (London). Majority of the leaders from the Indian
National Congress could not participate in this conference due to Gandhi’s
Civil Disobedience movement. For this reason, the results obtained from the
1st round table conference were minimal and unsatisfactory.
The Second Round Table Conference was held in London from 7
September, 1931 to 1 December, 1931 with the participation of Gandhi and
the Indian National Congress being a highlighting feature. The major
difference between the first and the second conference was that the Indian
National Congress (INC) was participating in the second one. This was one
of the results of the Gandhi-Irwin Pact (March 5, 1931). Another major
difference was that unlike the previous occasion, British Prime Minister
Ramsay Macdonald was heading not a Labour government this time, but a
National government.
The Labour Party had been toppled two weeks before in Britain. The
British decided to grant a communal award for representing minorities in
India by providing for separate electorates for minority communities against
which Gandhi expressed a vehement disagreement. In this conference, Gandhi
and Ambedkar differed on the issue of separate electorates for the
untouchables. Gandhi was against treating untouchables as separate from
the Hindu community which was later resolved through the Poona Pact
1932. The second round table conference was deemed a failure to certain
extent because of the many disagreements among the participants.
The Third Round Table Conference took place between 17 November,
1932 and 24 December, 1932. Not much was achieved in this conference
also. The recommendations of this Conference were published in a White
Paper in 1933 and later discussed in the British Parliament. The
recommendations were analysed and the Government of India Act of 1935
was passed on its basis.
Q. 27. Write a short note on Wavell Plan 1945.
Ans. The Wavell Plan was first presented at the Shimla Conference in
1945. It was named after Viceroy of India, Lord Wavell. In order to agree on
the Wavell Plan the Shimla Conference was convened for Indian self-
government, which provided for separate representations on communal lines.
Both the plan and the conference failed on account of the Muslim League
and the Indian National Congress not coming to an agreement.
The proposals of the Wavell Plan can be summarised as follows:
· The Viceroy’s Executive Council was to have all Indian members
except the Viceroy himself and the Commander-in-Chief.
· The council was to have a ‘balanced representation’ of all Indians
including ‘caste-Hindus’, Muslims, Depressed Classes, Sikhs, etc. Muslims
were given 6 out of 14 members which accounted for more than their share
of the population (25%).
· The Viceroy/Governor-General would still have the power of veto
but its use would be minimal.
· The foreign affairs portfolio would be transferred from the Governor-
General to an Indian member. The defence would be handled by a British
general until the full transfer of power was made.
· A conference would be convened by the Viceroy to get a list of all
the members recommended to the Council from all parties concerned. In
case a joint list was not agreed upon, separate lists would be taken from the
parties. This was to be the Shimla Conference.
· If this plan worked, similar councils would be formed in all
provinces comprising of local leaders.
The idea behind the Wavell Plan was to reconstruct the governor-
general’s executive council until the preparations for the new constitution
were complete. For this purpose, a conference was convened by the viceroy,
Lord Wavell, at Shimla in June 1945. The main proposals of the Wavell Plan
were as follows.
· All members of the executive council were to be Indian except the
Governor-General and the Commander-in-Chief;
· Caste Hindus and Muslims were to have equal representation;
· The reconstructed council was to function as an interim government
within the framework of the 1935 Act (i.e. not responsible to the Central
Assembly);
· The governor-general was to exercise his veto on the advice of
ministers;
· Representatives of different parties were to submit a joint list to the
viceroy for nominations to the executive council and if this was not possible
then separate lists were to be submitted; and
· Possibilities were to be kept open for negotiations on a new
constitution once the war was finally won.
Q. 28. Explain the main recommendation of Nehru Report, 1928.
Ans. The report was finalised by August 1928. The recommendations of
the Nehru Committee were unanimous except in one respect- while the
majority favoured the “dominion status” as the basis of the Constitution, a
section of it wanted “complete independence” as the basis, with the majority
section giving the latter section liberty of action.
Recommendations of Nehru Report:
· India should be given Dominion Status with the Parliamentary form
of Government with bi-cameral legislature that consists of senate and House
of Representatives.
· The senate will comprise of two hundred members elected for seven
years, while the House of Representatives should consist of five hundred
members elected for five years. Governor-General will act on the advice of
executive council. It was to be collectively responsible to the parliament.
· There should be Federal form of Government in India with Residuary
powers to be vested in Centre. There will be no separate electorate for
minorities because it awakens communal sentiments therefore it should be
scrapped and joint electorate should be introduced”.
· There will be no reserved seats for communities in Punjab and
Bengal. However, reservation of Muslim seats could be possible in the
provinces where Muslim population should be at least ten percent.
· Judiciary should be independent from the Executive.
· There should be 1/4th Muslim Representation at Centre.
· Sind should be separated from Bombay provided it proves to be
financially self sufficient.
Conclusion:
The Nehru Report demanded that the Fundamental Rights for the people
of India wouldn’t be subjected to forfeiture. The reports had drowned an
inspiration from the American bill of rights which laid to the foundation of
Fundamental Rights provision in the Indian
Q. 29. Explain the Dyarchy.
Ans. Dyarchy, also spelled diarchy, system of double government
introduced by the Government of India Act (1919) for the provinces of British
India. It marked the first introduction of the democratic principle into the
executive branch of the British administration of India. Though much-
criticized, it signified a breakthrough in British Indian government and was
the forerunner of India’s full provincial autonomy (1935) and independence
(1947). Dyarchy was introduced as a constitutional reform by Edwin Samuel
Montagu (secretary of state for India, 1917–22) and Lord Chelmsford (viceroy
of India, 1916–21).
The principle of dyarchy was a division of the executive branch of each
provincial government into authoritarian and popularly responsible sections.
The first was composed of executive councillors, appointed, as before, by
the crown. The second was composed of ministers who were chosen by the
governor from the elected members of the provincial legislature. These latter
ministers were Indians.
The various fields, or subjects of administration were divided between
the councillors and the ministers, being named reserved and transferred
subjects, respectively. The reserved subjects came under the heading of law
and order and included justice, the police, land revenue, and irrigation. The
transferred subjects (i.e., those under the control of Indian ministers)
included local self-government, education, public health, public works and
agriculture, forests, and fisheries. The system ended with the introduction of
provincial autonomy in 1935.
Dyarchy is a system of double government introduced by the Government
of India Act (1919) for the provinces of British India. It was introduced as a
constitutional reform by Edwin Samuel Montague (Secretary of State for
India) and Lord Chelmsford (Viceroy of India) and 1919 act is hence known
as Montague-Chelmsford Reforms. Under this reform, the spheres of the
central and provincial governments were demarcated by a division of subjects
into “central” and “provincial”.
The central subjects included all subjects directly administered by the
Government of India or in which extra-provincial interests were dominant.
The provincial subjects were divided into two categories viz. reserved and
transferred. The reserved subjects were kept with the Governor and
transferred subjects were kept with Governor acting with the Indian Ministers
Q. 30. Write a short note on Constituent Assembly.
Ans. The Constituent Assembly of India was a sovereign body, which
was formed on the recommendations of the Cabinet Mission which visited
India in 1946 to draft a Constitution for the country. However, later on the
Constituent Assembly also faced certain criticisms after its formation.
On the basis of the framework provided by the Cabinet Mission, a
Constituent Assembly was constituted on 9th December, 1946. The
Constitution making body was elected by the Provincial Legislative Assembly
constituting of 389 members who included 93 from Princely States and 296
from British India.
The seats to the British Indian provinces and princely states were allotted
in proportion of their respective population and were to be divided among
Muslims, Sikhs and rest of the communities. All sections of the Indian society
got representation in the Constituent Assembly in spite of limited suffrage.
The first meeting of the Constituent Assembly took place on December
9, 1946 at New Delhi with Dr Sachidanand being elected as the interim
President of the Assembly. However, on December 11, 1946, Dr. Rajendra
Prasad was elected as the President and H.C. Mukherjee as the Vice-President
of the Constituent Assembly.
Functions of the Constituent Assembly:
1. Framing the Constitution.
2. Enacting laws and involved in the decision making process.
3. It adopted the National flag on July 22, 1947.
4. It accepted and approved India’s membership of the British
Commonwealth in May 1949
5. It elected Dr. Rajendra Prasad as the first President of India on
January 24, 1950
6. It adopted the National anthem on January 24, 1950.
7. It adopted the National song on January 24, 1950
Committees of the Constituent Assembly The Constituent Assembly
appointed eight major committees, which are mentioned below:
1. Constitution Making Union Powers Committee
2. Union Constitution Committee
3. Provincial Constitution Committee
4. Drafting Committee
5. Advisory Committee on Fundamental rights and Minorities
6. Rules of Procedure Committee
7. States Committee
8. Jawaharlal Nehru Steering Committee
Among these eight major committees, the most significant was the
Drafting Committee. On 29th August 1947, the Constituent Assembly set up a
Drafting Committee under the chairmanship of Dr. B.R. Ambedkar to prepare
a Draft Constitution for India
Q. 31. Write a short note on Mountbatten Plan 1947?
Ans. Lord Mountbatten (India’s last viceroy) proposed a plan in May
1947 according to which provinces were to be declared independent
successor states with the power to choose whether to join the constituent
assembly or not.
Provisions of the Mountbatten Plan:
· British India was to be partitioned into two dominions – India and
Pakistan.
· The constitution framed by the Constituent Assembly would not be
applicable to the Muslim-majority areas (as these would become Pakistan).
The Q. of a separate constituent assembly for the Muslim-majority areas
would be decided by these provinces.
· As per the plan, the legislative assemblies of Bengal and Punjab
met and voted for the partition. Accordingly, it was decided to partition
these two provinces along religious lines.
· The legislative assembly of Sind would decide whether to join the
Indian constituent assembly or not. It decided to go to Pakistan.
· A referendum was to be held on NWFP (North-Western Frontier
Province) to decide which dominion to join. NWFP decided to join Pakistan
while Khan Abdul Gaffar Khan boycotted and rejected the referendum.
· The date for the transfer of power was to be August 15, 1947.
· To fix the international boundaries between the two countries, the
Boundary Commission was established chaired by Sir Cyril Radcliffe. The
commission was to demarcate Bengal and Punjab into the two new countries.
· The princely states were given the choice to either remain
independent or accede to India or Pakistan. The British suzerainty over
these kingdoms was terminated.
· The British monarch would no longer use the title ‘Emperor of India’.
· After the dominions were created, the British Parliament could not
enact any law in the territories of the new dominions.
· Until the time the new constitutions came into existence, the
Governor-General would assent any law passed by the constituent
assemblies of the dominions in His Majesty’s name. The Governor-General
was made a constitutional head.
On the midnight of 14th and 15th August 1947, the dominions of Pakistan
and India respectively came into existence. Lord Mountbatten was appointed
the first Governor-General of independent India and M .A. Jinnah became
the Governor-General of Pakistan.
Q. 32. Explain the main feature of Gandhi Irwin Pact?
Ans. Gandhiji was convinced to negotiate with the Viceroy Lord Irwin. So
Gandhiji and Lord Irwin met on 19th February, 1931 and after discussion for
fifteen days, they signed an agreement on 5th March, 1931 known as “Gandhi-
Irwin Pact.”
This pact included the following matters:
a. All political prisoners not convicted for violence, to be immediately
released.
b. Return of confiscated lands not yet sold to Third Parties by the
Government and remission of all fines not yet collected.
c. . The Government employees who had resigned, to be treated
leniently.
d. . Confederation of right to make salt for consumption to villages
along the Sea coast.
e. Right to peaceful and non-aggressive picketing
All these demands of Congress were accepted by the Government. But
two demands were refused to accept:
a. A demand for a public inquiry into police excesses.
b. Commutation of death sentences of Bhagat Singh, Sukhdev and
Rajguru. On the other hand, Congress on its part agreed to:
c. Participate in the Second Round Table Conference,
d. Discontinue the Civil Disobedience Movement.
This ‘Gandhi-Irwin Pact, also known as the ‘Delhi Pact’, was endorced by
the Congress in its Karachi Session on 29th March, 1931. It also reiterated
the goal of ‘Poorna Swaraj’.
Q. 33. Who were the Justice of Peace and what were their Jurisdiction?
Ans. The Governor and five senior member of council were appointed as
Justice of Peace under the charter 1726. They have to maintain the
administration of criminal justice in their respective presidency.
The justice of Peace could arrest person accused of Petty offences and
punish them.
The cases of high treason with evidences were referred to the court of
holding Quarter Sessions.
Q.1. Explain the judicial administration in Madras from the period of

1639 to 1726?
Or
Explain the three stages of development of judicial administration of
Madras?
Ans. In 1639, Francis day acquired a piece of land from a Hindu Raja
for the East India Company, which came to be known as Madraspatnam.
Madraspatnam had a fort called the white town in which an agent and
council were authorized to decide both civil and criminal cases of English
people residing at Fort St George.
The Choultry Court presided by the native judicial officer called Adikari
tried cases except for serious offences like murder. By the Charter of 1661
the company was empowered to appoint Governor and Council to decide
civil and criminal cases of all persons of the company. While the cases of
Englishmen were referred to England, the cases of the company people were
governed under the English law. The judicial system was reorganized by the
Governor in 1678. 12 juries sat twice a week to try civil and criminal cases.
They also took appeals from the Choultry Court. The Old Choultry Court was
reconstituted to replace the Adikari with three English Officers. These officers
sat twice a week and tried all civil cases up to the value of 50 pagodas.
These cases were appealable before the governor in council.
In 1686, an admiralty court was established under the Charter of 1683
headed by the Judge Advocate. The Admiralty Court consisted of one person
learned in civil law and two men appointed by the company who decided on
all cases of mercantile or maritime nature, trespass, injuries and wrongs
committed on high seas, forfeiture and seizure of ships or goods. This court
functioned as a general court for the city for all civil and criminal cases
applying the rules of equity, good conscience and the laws and customs of
merchants.
The Charter of 1687 established a Mayor’s Court consisting of a Mayor,
twelve Aldermen and sixty or more Burgesses. The Mayor holds office for
oner, the Aldermen were elected by the Mayor annually and the Mayor and
the Aldermen selected the Burgesses. The Mayor and at least 3 Aldermen
were to be servant of the company. The Mayor Court tried all civil cases up
to the value of 3 pagodas and all criminal cases with the help of jury and
punished the offenders by fine or imprisonment. Appeals from Mayor Court
went to the Admiralty Court. Appeals from Admiralty Court were heard by
the Governor and the Council.
The Charter of 1726 established the Mayor’s Court at Madras, Bombay
and Calcutta consisting of a Mayor and 9 Aldermen. The Mayor and 7
Aldermen were to be of English native. The Mayor holds the office for a year
while the Aldermen hold the office for lifelong. The Governor could dismiss
the Aldermen on reasonable grounds. This court only tried civil matters.
Governor in Council heard appeals from the Mayor’s Court up to the value
of 1000 pagodas. If the value of the suit was more than 1000 pagodas, a
second appeal was permitted to the Privy Council. The Governor and 5
senior members of the Council were the Justice of Peace, having criminal
jurisdiction.
Administration of Justice In Madras Before 1726: In 1639 Francis Day
acquire a piece of land from a Hindu Raja for the East India Company and
constructed a fortified factory were Englishman and other Europeans and
therefore the area of the factory came to be known as while town and the
people residing in the village Madras, Patnam were mostly Indians and
therefore it came to be known as Black Town. The Whole Settlement
Consisting of white town and black town came to be known as Madras. In
judicial administration in Madras divided in 3 stages:- First, Second and
Third.
1. First Stage: White town before 1665 Madras was not presidency
town and it was subordinate to Surat. The administrative head was called
‘Agent’ and he was to administer the settlement with the help of Council. The
serious criminal cases referred by them to the Company’s authorities in
England for advice. But there was defects the judicial power of the agents
and council was vague and indefinite and much delay also, they did not
have any elementary knowledge about law. They were Merchant. There was
no separation between executive and judiciary.
The president of the Surat factory and members of His Council
constituted a court to decide dispute between the Englishman interest in
accordance with their own laws and customs. They were to decide both
civil and criminal cases.
Capital offences dealt by a jury there was no separation between
executive and judiciary. The president and the members of his council who
were to decide cases and administer justice were merchant. They did not
have even elementary knowledge of English law.
The cases were decided by them according to their wisdom,
commonsense. And the native judges were corrupt bribery was rampant.
They had no request for law and justice.
Surat was the chief trading center till 1687. But there after it lost its
importance because in 1687 the headquarters of the president and council
were transferred from Surat to Bombay.
• Black Town: The old judicial system was allowed to function there
was a village head man known as Adigar or Adhikari who was responsible
for the maintenance of Law and Order. Adigar administered justice to the
native at the Choulby Court. According to the long established usages,
Choulby Court was court of petty cases. The Company had no power to
inflict death sentences under the Charter of 160 and the agent in Council
could inflict such a sentence only under the authority of local sovereign.
The appeals front the Choulby Court was to be heard by the agent in Council.
An Indian native named Kannappa was appointed Adigar but he misused
his power and consequently he was dismissed from the office and the
English servants of the office and the English servants of the company were
appointed to suit at the Choulby court.
• Charter of 1661: It was granted by the British Crown it conferred
board powers on the East India Company. The charter authorized the
Governor and Council of Englishman inhabiting the settlement of the
company. The Governor and Council of each factory to hear and decide all
type of civil and criminal cases. Including the cases of capital offences
also and it could award any kind of punishment. Including death sentences.
Under the Charter of 1661, the cases of Indians inhabiting in the
settlement of the company were to be decide according to English law. The
powers conferred on the company could only be exercised by the Governor
the chief factor and Council were empowered to send offenders for
punishment either to a place where there was a Governor and Council or to
England.
2. Second Stage (1665 – 1683): In 1665 one Mrs Ascentra Dawes was
charged with the commission of murder her slave girl and the Agent- in -
Council referred the case to the Company’s authority in England for advice.
After rising the status of agent and Council of the factory at Madras to try
Mrs. Dawes with the help of Jury and an unexpected verdict of not guilty
was given and consequently Mrs. Dawes was acquitted. Later on 1678 the
whole judicial administration was re-organized. The judicial administration
in both the towns was improved.
• White Town: The court of Governor and Council was declared to be
the High Court of Judicature. It was to hear all case of the inhabitance of
both towns with the help of jury and also hear the appeals from the Choulby
Court. It was decide cases according to English Law. The Court was to meet
twice a week.
• Black Town: The Choulby Court was also re-organized. The number
of the judges was increased from 2 to 3. All the judges were Englishmen. At
least 2 of them were to sit in the Court for 2 days in each week. The Choulby
Court was empowered to hear petty criminal cases. It was also empowered
to hear petty civil cases up to 50 pagoda and the cases of higher value with
the consent of the parties.
3. Third Stage (1683 – 1726) : Admiralty Court on August 9 1683
Charles II granted Charter to the Company to establish the courts which
was to consist of person learned in the civil law and two mercantile, maritime
trespass, injury and wrongs etc. again April 12 1686 Charles II issued a
new charter with same provisions. Chief Judge of the Admiralty Court was
known as the Judge Advocate. The admiralty court having the jurisdiction to
hear and decide all mercantile and maritime cases.
In 1687 company sent from any land Sir John Biggs a professional
lawyers learned in Civil Law to act as the Judge Advocate of Admiralty Court
bestowed justice in all cases civil, criminal as well as maritime. Sir Biggs
died in 1689 and Governor again took the charge of judicial function. In
1692 the company sent John Dolben as new Judge advocate and in 1694 he
was dismissed on the charge of taking bribes.
In 1696 company directed that members of the Council should in
succession serve as the judge Advocate after Willian Fraser a Merchant was
appointed as Judge Advocate. Later he resigned and no one was ready to
become the Judge Advocate, so company made the Court registrar the Judge
Advocate.
• Madras Mayors Court (1688): At the time in England there they got
London corporation and they got London mayors court as per the British
Law. That time municipal corporation enjoyed the judicial power also
company issued the charter and started Madras corporation utilizing the
power given by British Crown.
In the year 1687 Company established Madras Corporation and
Mayor’s Court was the part of this corporation. In the year 1686 Madras
government levied a house tax on the Madras City population to repair the
City wall. But people of Madras, Local people did not pay tax and Company
faced problems and difficulties to collect tax, after this company decided
that to make the tax collection easy a body should be formed consisting of
English men as well as Local Indians population so it will become easy for
the company officials to collect the tax.
The corporation came in to existence on September 29 1968 which
consists of a Mayor, 12 Alderman and 60 to 120 Burgesses. It was decided
that every year new Mayor will be elected from Alderman by Alderman and
Burgesses and retiring Mayor can be re-elected by them.
The Alderman and Burgesses got the power to remove the Mayor if he is
unable to perform his duties, only Englishman becomes the Mayor. The
Alderman hold the office as long as they stayed in Madras City indirectly
they hold the office for life long. Mayor, Burgesses holds the power to
remove the Alderman from office also if he did not perform well.
Among the Alderman minimum three were required to be British Servants
of the Company and other nine can belong to any nationality or religion.
Q.2: Explain the administration of justice of Bombay before 1726?
Or
Explain the stages of development of judicial administration of Bombay?
Ans. Administration of justice in Bombay before 1726: In Bombay, the
administration of justice was started from 1534 under the control of
Portuguese. When the Portuguese king married the former sister in 1661, he
gave it as a dowry to the Charles II of England. The king leased it to the
company. The administration of justice in Bombay developed in three stages.
They are:
1. Stage I : 1668-1683
2. Stage II : 1684-1690
3. Stage III: 1718-1726
1. Stage I 1668-1683:
• Judicial reforms of 1670: The old judicial setup of Bombay was
recognized by the Gerald Aungier and al laws were classified into six
sections. They are:
a. Related to the freedom of worship and religious believes.
b. Impartial administration of justice.
c. Establishment of a court of Judicature to decide all criminal cases
and for the appointment of justice of peace and order to arrest criminals.
d. Registration of transaction concerning sale of land and houses.
e. Contained miscellaneous provisions dealt with penalties for
different crimes.
f. Military discipline and prevention of disorder and revolt.
The Bombay was divided into two major divisions: They are as following:
a. Division 1-Bomay, Mezagoan and Girgaon.
b. Division 2-Mahim, Parel, Sion and Worly.
Each division had a court consisting of five judges. The custom officer
of each division that is an Englishmen presided this court. Some of the
Indians were also a appointed as the Judges but they were not paid any
emoluments. They sat once a week and tries petty civil and criminal cases
upto the value of two hundred Xerophins (A Portuguese con equal to nearly
Rs.7.50).
Appeals from this court went to Deputy Governor in council. All criminal
cases like murder and mutiny etc. were to be decided by the deputy governor.
Defects: The person who were appointed as the judges of this court
were all laymen and doesn’t have the knowledge of law as Gerald Augnier
felt. So, he requested the company to send a law expert from England. When
the experts of law arrived, he framed the new judicial plan of 1672 with the
advise of them.
• New judicial plan of 1672:
· English law came into existence and all cases were tried according
to the English law.
· Central court of judicature was established and they sat twice a
week.
· The central court of judicature was presided by the single judge
and tried all civil and criminal cases.
· Bombay was divided into four divisions and each divisions were
headed by an Englishmen and known as Justice of peace.
· The appeals from this court was dealt by the governor and council.
The court of conscience was also established and decided the petty cases
without any fees from the litigants.
• 1673-1674: The panchayats were also established in several
places.
· They members of the panchayats were also authourized to hear
cases among persons of their own caste only if they were willing to submit
the case before the panchayats or else the cases will be referred before the
central court of judicature.
2. Stage II 1684-1690:
· By the charter of 1683, the admiralty court was established in
1684 with the same guidelines as in Madras.
· In this court, Dr. St. John the person who was well versed in civil
law was appointed as the judge- advocate.
· But the authourity of admiralty court was not satisfied to cover all
the civil cases. So, the court of judicature was established and Dr. John was
made as its chief justice.
· Dr. John was much spirited in having independent judiciary which
caused much annoyance to the governor in council, Mr. Child who did not
respect the judges.
· Dr. John took some evidence against the governor but the governor
directed him not to take such type of evidence.
· Dr. John refused on the ground that he was bound by the oath not to
conceal any information which was brought to his notice against any
person.
· So, conflict between John and Governor arose which finally resulted
in the dismissal of john.
· Vaux was appointed as the judge , he remained as judge in the
admiralty court from 1685-1690.
· Criminal and civil jurisdiction of the court were forfeited after this
period.
· From 1690-1718, there was no court in Bombay. The Governor- in-
council was deciding civil and criminal cases hardly.
3. Stage III 1718-1726:
· After the gap of 20 years on 25th march 1718, again the company
started the court in Bombay which consisted of chief justice and 9 judges.
· Among them chief justice and 5 judges were Englishmen and 4
other judges were Indians. They were authourized to decide all cases i.e.
civil, criminal and testamentary cases.
· The court handled all cases and followed the laws of England and
tried to pay attention to the caste and customs of each religion also.
· The court also worked as registration house also for the sale of
immovable property and charged fees also.
· The court sat once a week and decided all cases.
· The British judges enjoyed more powers and report that the Indian
judges. The Indians acted more like assessors than full-fledged judges.
· The court gave justice as soon as possible and worked more
efficiently.
· It was cheap for everyone to go to the court. Unlike the court of
1672, the court of 1718 did not use jury.
· The courts while trying cases followed the customs of Hindus as
well as Muslims and also considered International law and British law.
· It was common practice to give lashes as punishments to criminals
and robbers were whipped and branded with red hot iron.
· So everyone feared to do crime and justice was deterrent.
· At that point of time, one interesting case is that the officials falsely
charged innocent person and robbed his property by proving him guilty in
court by producing the fake papers and witnesses who were tortured. The
cases is known as the Rama Kamati case. This trail proved that justice was
rough and ready and there was miscarriage of justice.
· This kind of a judicial system continued to function till it was
appointed by a new judicial system under the charter of 1726.
• Court of judicature:
A new period in the judicial history of Bombay began with the revival
and inaugutration of a court of judicature on 25th March, 1718 by Governor
Charls Boone. It was established by the order of the Governor and Council
which was later on approved by the Company authorities. The court of
Judicature of 1718 consisted of ten Judges in all. It was specially provided
that the Chief Justice and Five Judges will be Englishman. The remaining
Four were required to be Indian representing Four different communities,
namely, Hindus, Mohammedans, Portuguese – Christians and Parsi. All
English Judges were also members of the Governor’s Council and enjoyed
status superior to Indian Judges. Three English judges formed the quorum
of the court. The Court met once a week. Indian Judges, who were also
known as “Black Justice” were included mainly to increase the efficiency of
the Court and their role was mostly that of assessors or assistants of the
English judges. They do not appear to have enjoyed equal status with English
judges.
The Court of 1718 was given wide powers. It exercised jurisdiction over
all civil and criminal cases according to law, equity and good conscience.
It was also guided by the rules and ordinance issued by the Company from
time to time. It was necessary for the Court to give due consideration to the
customs and usages of the Indians. Apart from its jurisdiction over probate
and administrative matters, it was further authorized to act as a Registration
House for the registry of all sales concerning houses, lands and tenements.
An appeal from the decision of the Court of Judicature was allowed to
the Court of Governor and Council in cases where the amount involved was
Rs. 100 or more. A notice to file an appeal was to given within Forty-Eight
hours after the judgment was delivers to the Chief Justice of the Court of
Judicature. Moderate fees were prescribed by the Court for different purposes.
For filing an appeal a fee of Rs. 5 was to be paid.
Q.3: Explain the Salient feature of administration of Justice in Calcutta
till 1726?
Or
Explain the development of administration of justice from the period
of 1660 to 1726?
Ans. Administration of Justice at Calcutta from 1660 to 1726:
• In the year 1668, the grandson of Aurangzeb, Azimush-shan, and
the Subahdar of Bengal gave Zamindari of villages, Calcutta, Sutanati and
Govindpur for annual revenue of 1195 Rupees to the East India Company.
The foundations of Calcutta were laid on 24th August 1690 under the
leadership of Job Charnock.
• In December 1699, Calcutta became Presidency Town and a
president or Governor and Council was appointed to administer the
settlement. The acquisition of zamindari was very important to the Company
which secured a legal and constitutional status within the framework of
the Mughal administrative machinery.
• As a zamindar the company got all the powers which the other
zamindars of Bengal received at that time.
• In Moghul Empire, zamindars got no significant judicial powers,
but collected the revenue and maintained law and order in the zamindari
area or villages.
• For judicial purpose at that time Kazis court were established in
each district or Sarkar, parganah and villages. They handled civil and
criminal matters.
• Normally village Panchayat solved all problems excepting serious
crimes, In Hindus, elders or Brahmins solved the problems
• The judicial system was simple, as everyone knew each other and
transactions of each other.
• Moghul Kings never paid any attention to judicial system and the
judicial dept wasn’t very well organized under the Mughals
• When the Mughal admin structure started disintegrating and the
Nawab’s authority weakened in Bengal, degeneration in the ranks of the
kazis set in.
• The post of Kazi was sold many times; the highest bidder became
the Kazi
• Justice was purchased, corruption was rampant
• Kazi never got salary, so kazi court fined the criminal and earned
money, after this demanded money from the complainant for giving him
justice.
• The zamindars came to administer justice in all cases, civil,
criminal and revenue. The appeals went to the Nawab’s court in theory but
in reality not many appeals were actually taken. The zamindar could even
award capital sentence but only with the confirmation of the Nawab’s
Government. . The zamindar charged high fees for deciding civil cases in
their courts.
• The judgements by the zamindars were mostly discretionary; there
was no definite body of law which they administered.
• Nawab’s Courts at Murshidabad was not in a great state either.
Theoretically it was the highest criminal court as the Nawab was the head
of the Nizamat and responsible for maintenance of law and order and
admin of criminal justice. While earlier the nawab used to preside over the
court , later the Nawab deputy known as the Darogah-adalat-al-alia, began
to exercise all of the Nawab’s judicial functions. The highest civilian court
was that of the diwani and thus responsible for collection of land revenue.
While earlier the diwan used to preside over the court for civil cases , later
his deputy known as the Darogah-i-adalat diwani, began to execute these
functions and decide civil and revenue cases. However there was no rigid
demarcation of jurisdiction among the various courts. Thus there was a
confusion of jurisdiction between the courts of the Nawab’s deputy and the
Diwan’s deputy.
• The Kazi administered justice in claims of inheritance and
succession and in causes concerning marriage:
a. Mufti, a learned jurist , helped the kazi in discharging judicial
functions.
b. The faujdar’s function was to suppress serious crimes, kotwal
took care of the petty criminal cases,
c. The mohtassib took cognisance of drunkenness, selling of liquors
and examination of false weights and measures.
d. Thus while the appearance of a working judicial system was
maintained, in actual practice the administration of justice was in a very
poor shape in Bengal.
Judicial System at Calcutta:
• The zamindari functions of the company within Calcutta were given
to an English officer, the collector or the zamindar, who was a member of
the Governor’s Council. He discharged judicial powers in all cases, civil,
criminal and revenue. Criminal cases were decided quickly and without a
jury. The usual methods of punishment were whipping, fines, imprisonment,
banishment and death. Death sentence was inflicted by whipping to death.
• The zamindar’s court was confined not only to the Indians but also
tried cases of petty crimes and misdemeanours committed by the
Englishmen. However serious crimes of Englishmen were tried by the
Governor and Council under the authority of the Charter of 1661.
• The zamindar also tried civil cases arising among the Indians. The
judge acted in a quick manner. Appeals lay to the governor and council.
• The collector of zamindar took charge of the revenue cases also,
since they were responsible for collection of land revenue.
• Some important features of the judicial system at Calcutta:-
a. While in case of other zamindars, a capital sentence was executed
only after confirmation with the Nawab, and appeals in civil cases lay to
the courts at murshidabad, but the British within their own zamindari, took
permission for awarding death sentences, from the governor and council
without making any reference e to the Nawab.
b. Also appeals from the collector’s court in all cases went to the
governor and council and not to the nawab’s courts.
• Thus from the very beginning, the company’s representatives were
very authoritative and the company sought to act as a territorial sovereign
as far as Calcutta was concerned and tried to reduce the nawab’s authority
from the governance and administration of Calcutta.
• Thus here too the judicial system was very elementary and was
quite partial. This system continued till the Charter of 1726 was brought
out. While till now the judicial system was based on the company’s authority,
with the Charter of 1726, it derived its authority from the royal charter.
Q.4: Explain the salient of the charter of 1726?
Or
Write a short note on the provision and defects of Charter of 1726?
Ans. The charter of 1726 provided for the establishment of a corporation
in each presidency town. The charter is considered to be an important
landmark in the history of legal system in India as it introduced in the
English laws into the country. This Charter became an important landmark
in the legal history of India due to its various vital provisions having far
reaching consequences. By this Charter the Admiralty Court of Madras has
been abolished and thereupon enlarged the power of Mayor’s Court of
Madras, Calcutta and Bombay. This Charter was introduced a uniform
judicial machinery for justice in India. By this Charter the Civil and Criminal
Courts entrusted the authority directly from the King. Not from the Company.
The Charter of 1726 played an important role in introducing English Common
Law Statutory law in India.
Causes of Issue of Charter of 1726:
a. Uniformity in judicial system.
b. Establishment of Crown Court.
c. Appeal to Privy Council from India iv) right to make law of Governor-
in- Council.
d. Introduction of English law vi) avoid the Non-Lawmen Judges and
non-separation of Powers.
The main provisions of the Charter 1726 are following:
1. Establishment of Corporation at Bombay and Calcutta:- The Charter
of 1726 provided for the establishment of a Corporation at Bombay and
Calcutta like the one which already existed in Madras. Thus, each of the
Presidency towns was to have a Corporation consisting of a Mayor and
nine Aldermen. The Mayor and seven of the Aldermen were to be natural
born British subjects while the two Aldermen could be of any nationality.
The first Mayor and Aldermen were to be appointed by the Charter itself;
thereafter, the Mayor was to be elected annually by the Aldermen. The
Aldermen were to hold office for life or till their residence in the Presidency
town. They could, however, be removed by the Governor-in-Council on a
reasonable cause. An appeal against such a removal could be mad
to the King-in-Council in England. The Mayor and all the Aldermen had
to take an oath of allegiance to the office before the Governor and Council.
2. Civil Administration and Establishment of Mayor’s Court in
Presidency Towns:- The Mayor and nine Aldermen of each Corporation formed
a Court of Record which was called the ‘Mayor’s Court’. It was empowered
to decide all the civil cases within the Presidency town and the factories
subordinate thereto. The Mayor together with two other English Aldermen
formed the quorum. The Court also exercised testamentary jurisdiction. It
could grant probates of will and Letters of Administration in case of
intestacy. The Court was to hold it’s sitting not more than three times a
week. An appeal from the decision of the Mayor’s Court lay to the Governor
and Council. But in cases involving the value of-subject-matter above 1,000
pagodas, a further appeal lay to the King-in- Council. Being a Court of
Record, the Mayor’s Court could punish persons for its contempt. The process
of the Court was to be executed by the Sheriffs, the junior members of the
court who were initially nominated but subsequently chosen annually by
the Governor and Council. There was no specific mention in the
Charter of 1726 as to the law which was to be applicable in the Mayor’s
Court but since the earlier Charter of 1661 provided that justice was to be
administered in accordance with the English law, it was presumed that the
same law was to be followed by the Mayor’s Court in deciding the cases.
3. Criminal Administration and Establishment of Quarter Sessions:
The Governor and five senior members of the Council were appointed as
Justice of Peace in each Presidency for the administration of criminal justice.
They could arrest persons accused of crimes and punish them It M petty
offences. They also constituted a of Oyer Terminer and Gaol Delivery and
were also required to hold Quarter Sessions for trial of all offences excepting
high treason for at least four times a year The Charter of 1726 introduced
the trial of criminal offences with the help of ‘Grand’ and ‘Petty’ juries.
Thus, technical forms and procedures of criminal judicature of England
were introduced through this Charter in India.
4. Jury Trial in Criminal Cases: The Charter of 1726 provided that
criminal cases in Presidencies be decided with the help of Grand Jury and
Petty Jury. The Grand Jury which consisted of 23 persons was entrusted with
the task of presenting persons suspected of having committed a crime.
Besides, before the commencement of trial, all the evidence of the
prosecution, accusation or indictment was placed before the Grand Jury,
who was to return a verdict whether there was a case for trial or not. In case
the grand Jury returned a verdict of ‘no prima facie case’, the accused was
acquitted without trial.
5. Conferment of Legislative Powers on Governor and Council: The
Charter of 1726 empowered the Governor and Council of each presidency-
town to make bye-laws, rules and ordinances for the regulation of the
Corporations and inhabitants of the Presidencies, they would also prescribe
punishment for the breach of such laws and rules. The bye-laws rules and
ordinances so framed and the punishments prescribed for breach thereof,
were to be reasonable and not contrary to the laws of England and they
could not be effective unless approved and confirmed by the Company’s
Court of Directors in England.
6. Justice of Peace: The Charter provided that in each presidency
town, the Governor and five senior members of the Council will have criminal
jurisdiction and would be justices of the peace. They were empowered to
arrest and punish persons for petty criminal cases. These Courts were
entrusted with the same powers as similar Court in England. These courts
were authorized follow the procedure followed by Court in England. Thus
the Charter of 1726 made the beginning of important English ideas, technical
forms and procedure of criminal justice into India.
7. Mayor Court: A Mayor and nine Aldermen was presided over the
Mayor Court. The quorum of this Court was completed with three persons
e.g. a Mayor or senior most Alderman and two Aldermen. This Court was
working three days in a week. The Mayors’ courts were declared to be court
of record.
a. Jurisdiction of Mayor Court: a) Territorial Jurisdiction of Mayor
Court.- The Presidency and other neighbor town will had come in the
Jurisdiction of Mayor Court. Court was enabled for adjudication of civil
cases only. In the case of offences the judges of Mayor Court were enabled
only in the form of Grand Jury. The trial of offences of criminal nature was
not given to this Court.
b. Civil Jurisdiction of Mayor Court: Mayor court had the whole
jurisdiction of the cases of civil nature.
c. Probate Jurisdiction: Mayor Court had the power to decide the
cases of will, succession and the cases of coparcenaries division.
8. Appointment of Sheriff and his Duties- Sheriff, an officer of Court,
was appointed by the Governor and his Council every year to serve the
processes of the court. On the written compliant of the aggrieved party the
Court issued summon directing to Sheriff to order the defendant appear
before the court on the fixed by the court. In the case defendant failed to
appear on fixed day a warrant was issued by the court asking the Sheriff to
arrest the defendant and present in him before the court to face the Charge.
9. Procedure of the Mayor Court.-
a. It was the duty of Sheriff to produce the defendant before the Mayor
Court. This Court was empowered to release the defendant on such bail or
on security as it consider suitable. During the course of the proceedings,
the parties were required to take oath, produce and examine witnesses and
plead their cases. The judgment of the Court was followed by a warrant of
execution under the seal of the court issued to the Sheriff to implement the
decision. The Sheriff was authorized to arrest and imprison the defendant.
b. By virtue of the same Charter an appeal was allowed to the Governor
and Council from the decision of the Mayors’ court in each presidency
towns. A period of 14 day, from the date of judgment, was prescribed to file
an appeal.
c. The decision of Governor and Council was final in all cases
involving a sum less than 1000 pagoda. In case the sum involved was either
1000 pagodas or more, a further appeal was allowed to filed to the King in
Council from the decision of the Governor and Council.
Features of the Act:
1. Act provided the exclusive trade privileges and renewed twenty
years.
2. The realm of Governance of Governor-General increased over the
Governors of Bombay and Madras
3. A ‘Regular code’ of all regulations that could be enacted for the
internal Government of British territory in Bengal was framed. The regulation
was applied to the rights, persons and property of the Indian people and
bounded the courts to regulate their decisions by the code itself.
4. The Charter of 1726 issued by King George I.
5. The charter established civil and criminal courts in the presidency
towns which derived their authority not from the company but from the
British crown.
6. The advantage of having royal courts in India was that their
decisions were as authoritative as those of the courts in England.
7. The charter initiated the system of appeals from the courts in
India to the Privy Council in England. • Thus, the English law was brought in
to India. Principles of English law was brought to decide the disputes.
8. Codification of Indian law was initiated in 1833.
9. The charter also established a local legislature in each presidency
town.
10. The Charter of 1726 constitutes a landmark in the Indian Legal
history.
11. But justice continued to be administered by non professional
judges, no separation of power between the executive and the judiciary.
12. Position of courts before 1726 and after. The decision of the Mayors
court commanded respect in England as it was created by the Crown. It was
not so in case of earlier court which was created by the company.
Defects in the Charter of 1726: After the Charter of 1726 was actually
implemented and the Mayor’s Courts began their functioning, gradually the
defects and lacunae in the provisions of the Charter came into limelight. It
was realized that the Charter was not quite clear in its language. The working
of the Mayors Courts at Bombay, Calcutta and Madras created many
difficulties for native Indians. For the first time, the Mayor’s Court
administered English law in India. The English law contained both common
law and the statute law. Nearly all the common law and statue law as it
existed in England in 1726 was introduced in the three presidency towns of
India. It completely ignored the Indian customs and traditions, and was
hardly suitable to Indian conditions in those days. The Mayor and Aldermen,
who presided over the Mayor’s Court, were either senior servants of the
Company or dependent on the Company’s pleasure for their stay in India.
They had neither any regular legal training nor any judicial experience to
their credit. Evil consequences were therefore bound to follow. As there was
no specific mention about jurisdiction, the Courts decided that it was
empowered to exercise its jurisdiction even in such cases where both parties
were native Indians. All these created great dissatisfaction and unrest
amongst the native inhabitants of each presidency town.
The Charter of 1726 created a Corporation and a Mayor’s Court in each
presidency town. The Mayor’s Court was constituted to work independently
but its relationship with executive. Governor – in – Council was not stated
clearly. In actual practice, the executive machinery expressed its hatred
and jealousy against the independent attitude of the Mayor’s Court. The
executive tried to dictate its terms to the judiciary. But the Mayor and
Aldermen came into conflict with the Governor – in – Council in many cases
at Bombay, Calcutta and Madras. Instead of the smooth working of these
two wings – executive and judiciary – their relations became severely
strained in each presidency town.
The inhabitants of Bombay, Madras and Calcutta were the greatest
sufferers due to the constant conflicts between judiciary and the executive.
It created an atmosphere of great unrest in all the three presidency towns.
A petition was sent to the Court of Directors of the Company, in its reply,
made it clear that conflicts should be decided among themselves (natives)
according to their own customs. If they request and choose them to be
decided by English laws, then only the matter can be pursued according to
the directions of the Charter of 1726.
Q.5: Write a short note on the Mayor’s Court established under charter
1726?
Or
Difference between the Mayor’s courts established under the charter
1726 & charter 1687?
Ans. Establishment of Mayor’s Court in 1726: The Mayor’s Court was
established in India in by The Charter of 1726 at Madras, Calcutta and
Bombay which were East India Company’s Highest Courts in British India.
The East India Company till 1726 had no power to manage Capital Offences
and Capital Punishments, to all the Presidencies with only Civil Jurisdiction
being applicable. The Charter was issued by King George on Twenty Fourth
September (1726) to the Company. Mayors Court was specially empowered
to hear cases against The Company.
The requirement of Establishing Mayor’s Court:
· The need for establishing a Mayor’s Court was felt as before 1726
different judicial systems were working in British India.
· Since there were different Judicial Systems the servants of The East
India Company at different settlements were governed by a different set of
rules.
· Thus, there was a lack of uniformity in The Justice System and the
same offence would carry a different punishment at different settlements.
· There was an absence of a Competent Court in India which could
Supersede all the other courts.
Features of the Charter:
· It established a local Court in each of The Presidency Towns at
Madras, Calcutta and Bombay.
· The Governor-in-Council of each Presidency Town was given the
power to make by-laws, rules and regulations for better settlement of the
disputes arising in the Presidency.
· Each Presidency had a Corporation which consisted of Nine
Aldermen and a Mayor
· The Person appointed as The Mayor could maximum be a mayor
for one year and after that had to continue as an Alderman.
· The Vacancy against The Mayor’s position was to be filled amongst
the Aldermen who was in turn recommended by the outgoing Mayor and The
Aldermen.
Mayor’s Court under Charter of 1687:
· The Charter Of 1687 gave The East India Company power and
Authority to establish a Municipality along with A Mayor’s Court at Madras.
· To Try Civil and Criminal Cases, the permission to establish The
Court of Record was also given.
· The power to cede territories and creation of Probate and
Testamentary Jurisdiction was also given to The Company.
· Till 1765 through a number of Charters, The Company’s power’s
increased and it established Municipalities and Court of Requests were
established at Bombay and Calcutta.
Mayor’s Court under Charter 1726: The Charter of 1726 provided for
the establishment of a Mayor’s Court for each of the presidency town. It
was to consist of the Mayor and Nine Aldermen were required to be present
to form the quorum of the Court. The Mayor’s Courts were declared to be
Courts of Record and were authorized to try, hear and determine all Civil
Cases. The Mayor’s Court was also granted testamentary jurisdiction and
power to issue letters of administration to the legal heir of the deceased
person. It was authorized to exercise its jurisdiction over all persons living
in the presidency town and working in the Company’s subordinate factories.
The procedure of the Mayor’s Court was clearly laid down by the
Charter. The Sheriff, an officer of the Court, was appointed by the Governor
– in – Council every year to serve the processes of the Court. On the written
complaint of the aggrieved party the Court issued summons directing the
Sheriff to order the defendant to appear before the Court. In case the
defendant failed to appear on the fixed day, a warrant was issued by the
Court asking the Sheriff to arrest the defendant and present him before the
Court to face the charges. The Court was empowered to release the defendant
on such bail or security as it considered suitable. The judgment of the Court
was followed by a warrant of execution issued to the Sheriff to implement
the decision. The Sheriff was authorized to arrest and imprison the
defendant. The whole procedure of the Court was based on the procedure as
adopted by the Courts in England.
An appeal was allowed to the Governor – in – Council from the decision
of the Mayor’s Court in each presidency town. A period of Fourteen Days,
from the date of judgment, was prescribed to file an appeal. The decision of
the Governor – in – Council was final in all cases involving a sum less than
100 Pagodas. In case the sum involved was wither 1000 Pagodas or more,
a further appeal was allowed to be field to the King – in – Council (His
Majesty’s Privy Council) from the decision of the Governor – in – Council.
Thus the Charter introduced a new system of first and second appeals,
making the King of England the ultimate fountain of justice for litigants in
India.
There were quite important distinguishing feature between the
Company’s Mayer’s Court and the Crown’s Mayor’s Courts established under
the Charter of 126. The main differences are given below:
1. The Mayor’s Court under the Charter of 1687 was created by the
Company while the Mayor’s Courts under the Charter of 1726 drew their
power directly from the Crown. Thus the latter were on a superior footing
than the former
2. The Charter of 1687 created only one Mayor’s Court at Madras, it
did not touch the judicial system prevailing in other settlements,
presidencies under the Company. The Charter of 1726 created Mayor’ Courts
at all the three presidencies that is Madras, Calcutta and Bombay thus, for
the first time, establishing a uniform judicial system.
3. The Mayor’s Court established under the Charter of 1687 enjoyed
both civil and criminal jurisdiction. While the mayor’s courts established
under the Charter of 1726 mayor’s Courts established under the Charter of
( were given jurisdiction in civil matters including testamentary and probate
of wills jurisdiction, Criminal matters were left to be decided by am within
the jurisdiction of, Governor-in-Council which acted as a court i such
matters.
4. The Charter of 1726 made, for the first time, provisions for a second
appeal to the King-in-Council which became a precursor of the Privy Council
later on. Thus under this Charter, the first appeal could be filed before the
Governor-in-Council and the second (although in some cases) appeal could
be taken to the King-in-Council in England. The Charter of 1687 did not
make such provision. The appeal from the Mayor’s court could be filed
before the Admiralty Court.
5. The Mayor’s Court established under the Charter of 1687 made a
provision for the representation of the natives on the court. The Crown’s
Mayors Courts did not have any such representation, though there was a
provision I for the same in the Charter of 1726.
6. No doubt, the Crown’s Mayor’s Courts established under the charter
of 1726 were definitely superior courts so far as their status is concerned,
but in strict judicial and legal manner, the Company’s Mayor’s Court was
better equipped, for there was a provision for a lawyer-member who was to
be called the Recorder. The Charter of 1726 although it purported to improve
the judicial system in India, did not make any such provision. . Thus the
Courts established in 1726 were mostly composed of Company’s civil
servants who did not have sufficient experience in legal matters.
7. There was yet another important distinction between the two
Mayor’s Courts. The Company’s Mayor Court evolved its own procedure
and dispensed justice in accordance with the rules of common sense, equity
and good conscience. It avoided the intricate procedural technicalities. But
the Charter of 1726 which introduced the British laws into India brought all
the legal technicalities of the British Courts of law. Thus the entire gamut of
British laws and its procedure were foisted on the Courts established under
the Charter of 1726.
8. The Charter of 1726, in a way, did away with the concept of
separation between the executive and the judiciary in criminal matters. The
Governor-in-Council acted as the criminal court while the Mayor’s Courts
handled only the civil matters and testamentary and probate of wills cases.
On the other hand, the Mayor’s Court at Madras was invested with power to
handle all civil and criminal matters and appeals from its decisions went
to the Admiralty Court rather than the Governor-in-Council.
The Charter of 1726 also constituted a Mayor’s Court for each of the
presidency towns consisting of a Mayor and nine Aldermen. Three of them
i.e., the Mayor or senior Alderman together with two other Aldermen were
required to be present to form the quorum of the Court. The Mayor’s Courts
were declared to be present to fan the quorum of the Court. The Mayor’s
Courts were declared to be Courts of record and were authorized to try, hear
and determine all civil actions and pleas between party and party. The
Court was also granted testamentary jurisdiction id power to issue letters
of administration to the legal heir of the deceased person. It was authorized
to exercise its jurisdiction over all persons living in the presidency own
and working in the Company’s subordinate factories.
Appeals from decisions of Mayor’s Court were filed in the Court of
Governor and Council. A second appeal in cases involving 1000 pagodas or
more could be made to king-in-council in England. The court of Governor
and Council also decided criminal cases
Comparison of Mayor’s Courts under the Charter of 1687 and 1726:
Apart from the apparent similarity of names there was a vast difference
between the two Charters. The main differences may be enumerated as
under:
Sr. Charter 1687 Charter 1726
No.
1 The Charter of 1687 applied to Madras The Charter of 1726 applied to
only all the three Presidencies
2 The Mayor’s Court established under the The court under the Charter of
Charter of 172 6 had the jurisdiction in Civil 1687 had the jurisdiction in
matters only in addition to its criminal matters also.
testamentary and probate jurisdiction,
3 Appeals against the judgments of the The Mayor’s Court under the
Mayor’s Court under the Charter of 1687 Charter of 1726, to the King-in-
went to the Court of Admiralty Council.
4 The Mayor’s Court of 1687 was a Court of While the court established
the Company under the Charter of 1726 was
the Court of the Crown
5 The Mayor’s Court under the Charter of While in the Court under
1687 was better in one respect that it had Charter of 1726 there was no
a lawyer-member called Recorder provision for any lawyer-
member
6 In procedural matters, the court under the The Court under Charter of
Charter of 172 6 had to observe the 1687 was guided by its own
technicalities of the courts in England procedure of convenience.
7 the Court under Charter of 1687 there was While under the Charter of
good representation of Indians 1726 in spite of the provision
for two Indian members none
was ever appointed in practice.
8 In Under the Charter of 1726 the criminal Under 1726 Charter the earlier
jurisdiction was completely assigned to the Charter it belonged to the
executive, i.e., the Governor and Council, Mayor’s Court and the
Admiralty Court.
Q.6. Write a short note on the Regulating Act 1773 and its drawbacks
and how its drawbacks were removed by the Act of Settlement 1781?
Or
Discuss the provisions of the Regulating Act 1773 and how Its Defects
were removed by the Act of Settlement 1781?
Ans. The Enactment of the Regulating Act of 1773 and the Act of
Settlement were two major enactments in the Indian Legal History. The
Regulating Act of 1773 was the first Act to bring in major changes in the
administration and justice. Then, late on, the Act of Settlement in the year
1781, was enacted to remove the flaws of the earlier passed Act.
The need for the enactment of the Regulating Act: There were many
circumstances that made it necessary for the enactment of the Act. It was
the first direct interference of the British Government in the regulation of
the affairs of the East India Company.
· Firstly, the concept of the dual form of administration instituted by
Robert Clive was complicated and brought trouble to the people of India.
Under this system, the company had Diwani rights in Bengal and the Nawab
had Nizamat rights (judicial and policing rights). Behind the curtains,
Nizamat rights were also in the hands of Company as the Nawab acted as
an agent of the company. This all only laid to the suffering of the people as
they were being exploited by both the Nawabs and the Company.
· Secondly, the plight of the people was when there was a terrible
famine in Bengal where a huge population perished.
· Thirdly, a major reason for the enactment of this Act was the
financial crisis that arose in the company by 1773 and the company had
asked for a loan of one million pounds from the British Government in the
year 1772.
· Fourthly, the company through earlier charter had only been given
trading rights by the British Parliament. But, slowly and slowly, as it started
acquiring more and more territory it started acting like a ruling body. And,
there in England, the British Parliament couldn’t swallow this situation.
And, to put end to this tendency of company i.e. using the political powers
in the name of trading rights, the company thought it was necessary that
these territories should be brought under the control of Crown.
· At, that time there existed three presidencies of Bengal, Madras,
and Bombay in the country. But, all these three towns were independent of
each other and there no centralized authority in India to control them.
Thus, it became necessary to bring uniformity in the administration of
these three towns.
These all circumstances forced the British government to pass the
Regulating Act of 1773 in order to regulate the affairs of British East India
Company.
And, accordingly, Lord North (Prime Minister of England at that time)
decided to revamp the affairs of the East India Company with the Regulating
Act. And, so in May 1773 Lord North presented a bill in the British Parliament
which when passed was known as ‘Regulating Act of, 1773. An interesting
point to note here is that by this Act the, British Parliament only ‘regulated’
the affairs of the company but, didn’t take all power completely to itself.
The Aim of the Act: The basic objectives of implementing the Regulating
Act of 1773 are listed below:
· To control and regulate the affairs of East India Company.
· To remove the political power from the hands of the Trading
Company.
· To recognize the political and administrative power of the Company.
· To provide new administrative reforms which were to provide a
Central Administration System.
· To improve the despotic state of affairs (situation) of the company.
· To sort out the chaos created by the introduction of the system of
dual government.
· To bring anti-corruption practices via the medium of the act by
prohibiting the servants of the company, from engaging in any form of
private trade and from accepting bribes, gifts, and presents from the people.
Key Provisions of the Act: This was the first step taken by the British
Parliament to interfere in the administration of the company, directly. The
key features of the have described in the following paragraphs:
· Introduction of the office of the Governor-General of Bengal: The
office of the Governor of Bengal was redesignated as the Office of the
Governor of the Presidency of Fort William, also known as Governor-General
of Bengal. Lord Warren Hastings was the first person to hold this designation.
· Creation of Executive Council to Assist the Governor-General: Also,
the Executive Council of four members was created to assist the Governor-
General.
· Governors of Bombay and Madras presidencies subordinate to the
Governor-general of Bengal: The Governors of Bombay and Madras were
made subordinate to the Governor General of Bengal, thereby making the
Governor General of Bengal as the ultimate authority.
· Establishment of the Supreme Court at Judicature at Fort William:
In the year 1774, Supreme Court of Judicature at Fort William was established
at Calcutta with one Chief Justice and three other judges. The jurisdiction of
this court extended to all areas lying under the Bombay, Madras and Bengal
Presidency. It was a Court of Record and its power extended to try both Civil,
Criminal cases (only over the British subjects not on natives) as well as it
had jurisdiction over admiralty cases. Judges were to come from England.
The first Chief Justice of the court was Sir Elijah Impey.
· Reforms to curb corruptions: This act brought prohibition on the
servants of the company from engaging in any private trade or accepting
bribes and gift from the local people.
· Appointment of the Director: The directors of the company were
to be elected for a period of five years and one-fourth of them used to retire
every year. There was no procedure for re-election available.
The Contribution of the Act to Indian Legal History (Impacts):
1. This enactment is considered to be a landmark enactment as it
brought a lot of dynamic and significant changes in the structure of judiciary
in the country.
2. The act brought changes some important changes in the
Constitution of Court of Directors (COD)
3. For the first time, the political and administrative functions of the
company were recognized.
4. This act also laid down the foundation of the Central Administration
in the country.
5. This act created for the first time the Supreme Court at Calcutta
thereby, making a proper judicial system and Judiciary got regulated to an
extent and for the first time learned judges from England were made part of
the Supreme Court in India
Drawbacks of the Act: Though the act is considered to be a very
significant one in the Indian legal history, still there was a lacuna left
behind as the act failed to resolve the issues prevailing at that time in the
legal system. The major drawbacks of the Act are listed below.
1. The situation was a paradoxical situation for the Governor-General
had no veto power and the Governor-General was made answerable to the
Directors and was held responsible for all the acts related to the
administration in India. But, the Governor-General had no free hand to give
an independent decision as he was bound by the decision of the majority
decision of the council. Because of this situation, the council used the
Governor-General as the puppet to make their decision.
2. Though the Governors were subordinate to the GG in actual practice,
led to the ultimate power in the hands of the Governor and his subordinates
resulting in widespread corruption and weakening of the administration at
lower levels.
3. There was a lot of confusion regarding the powers and jurisdiction
of the Supreme Court. Also, there was ambiguity between the jurisdiction of
the Supreme Court and that of the Council of the Governor-General.
4. Also, the Act failed to address the concerns of the Indian natives
who were the actual sufferers.
The Act of Settlement:
The Act of Settlement was an Amending Act of 1781, which was passed
by British Parliament on 5th July 1781 to remove the defects of the Regulating
Act 1773. It is also known as Declaratory Act, 1781.
Circumstances that led to the passing of Act of Settlement:
· Though the Regulating Act of 1773, brought a great level of change
both in the regulation of affairs and judiciary, there were some significant
loopholes which this act failed to resolve. Basically, to remove the defects
of the Regulating act of 1773, the Act of Settlement 1781 was enacted.
· Firstly, some serious issues with the administration of the Warren
Hastings were there. The relevant examples of such issues are Patna case,
Cossijurah Case and particularly the Nand Kumar case where (Nand Kumar
was hanged). These all issues let to a lot of criticisms of administration of
Warren Hastings.
· Secondly, there was a big tussle between the Supreme Court and
Governor-General in Council which disturbed the balance of administration
to a great extent.
· Also, there was interference in the personal laws of the communities
which had agitated the people.
Also, in the year 1777, a complaint was made by the directors of the
company against the Supreme Court as for them it was difficult to run the
administration. To address this complaint, the House of Commons, appointed
a committee known as Touchet Committee to a do an inquiry about the
administration of Bengal, Bihar, and Odisha.
The report of this committee led to the enactment of the Act of Settlement
of 1781.
The Aim of the Act: The main objectives of the enactment of this Act
were:
1. To remove ambiguity regarding the few provisions of the Regulating
Act and the Charter which had created the division between the court and
the government.
2. To support the lawful government of Bengal, Bihar, and Orissa, so
that revenue could be collected smoothly.
3. To maintain and protect the laws and customs of the native people.
Salient Feature of Act of Settlement 1781: The Act of 1781 was passed
in order to explain and amend the provisions of Regulating Act, 1773. Some
important provisions of the Act of settlement may be briefly summarized as
follows:
a. The Act declared that the Governor-General and Council have
immunity from the Jurisdiction of the Supreme Court for all things done or
order by them in their public capacity and acting as Governor-General and
Council.
b. The Governor-General and Council and any Peron acting under
their orders had no immunity before English Courts.
c. Revenue matters and matters arising out of its collection were
excluded from the jurisdiction of the Supreme Court.
d. English law was not applicable to the natives. Hindu and
Mohammedan personal laws were preserved in matters relating to
succession and inheritance to lands, rents, goods and in matter of contract
and dealings between parties.
e. Where parties were of different religion their cases should be
decided according to the laws and usages of the defendants.
f. The Supreme Court was empowered to exercise its jurisdiction in
actions for wrongs of trespass and in civil cases where parties had agreed
in writing to submit their case to the Supreme Court.
g. It was also provided that the Supreme Court would not entertain
case against any person holding judicial office in any country courts for
any wrong inquiry done by his judicial decision. Persons working under the
authority of such judicial officers were also exempted.
h. The Parliament recognized Civil and Criminal Provision Courts.
These Company’s Courts were existing independently of the Supreme Court.
It was one of the most important provisions of the Act of 1781 as it completely
reversed the policy of the Regulating Act.
i. The Act provided that the Sardar Diwani Adalat will be the Court of
Appeal to hear appeals from the country courts in civil cases. It was
recognized as Court of Record. Its judgment was final and conclusive except
upon appeal to the King-in-Council in civil cases involving Rs. 5000 or
more. Sardar Diwani Adalat was presided over by the Governor-General
and Council was also empowered to hear and decided cases or revenue and
undue force used in the collection of revenue.
j. The Act of 1781 authorized the Governor-General and Council to
frame Regulations for the Provincial Council and Courts.
Key Provisions (features) of the Act: The Act had the following features:
· Change in the powers of the Supreme Court: The servants of the
company which earlier came within the jurisdiction of the Supreme Court
were now exempted from the jurisdiction of the Supreme Court. By the
enactment of this Act, the court’s geographical jurisdiction became limited
to only Calcutta.
· Non-interference in Revenue matters: The court now had no
jurisdiction in the revenue matters concerning revenue, or any act was
done in the collection thereof, the government now became independent of
the control of the court in the matter of revenue.
· The Shift of Appellate Jurisdiction from Court to the Governor-
General and Council: The Appellate jurisdiction shifted in the hands of the
Governor-General and Council. Now, the appeals went from Provincial
Courts to the Governor-General in council.
· The Assertion on the application of the personal laws: This act
asserted that Mohammedan law should be applied on the Mohammedan
cases and similarly, the Hindu law must be applied to Hindu cases.
Impacts of the Act of the Settlement: The major impacts of this act
were:
· The act gave superior authority to the council over the court and
favored the council.
· This act made the position of the council very strong so that it
could continue to have a good control over the Indian empire.
· It was the first attempt to separate the executive from the judiciary
by defining the respective areas of jurisdiction.
Still, the Act failed to give a vibrant impact and to remove all the flaws
of the Regulating Act of 1773.
Conclusion: These to enactment brought many great changes to the
system of administration and justice. It can also be concluded that the
Regulating Act of 1773 laid the foundation of the Central Administration
and Parliamentary Control. But, there were also some drawbacks to both
the acts which can’t be ignored.
Q.7 Write a short note on Supreme Court of Calcutta established under
charter 1774 and discuss about its composition, power & functions.
Ans. Supreme Court at Calcutta – Composition, Powers & Jurisdiction:
The Charter: The Supreme Court at Calcutta was established at Fort
William in 1773 by a Charter known as The Regulating Act of 1773. It replaced
The Mayor’s Court at Calcutta and was India’s Highest Court in British India
until 1862 where it was replaced by High Court of Calcutta by The Indian
High Courts Act 1861.The Charter was passed by The King George of England
as a Court of Record, with full power & authority to hear and determine all
complaints about any crimes and also to entertain, hear and determine any
suits or actions against any of His Majesty’s subjects in Bengal, Bihar
and Orissa. The Court till 1782 claimed jurisdiction over any person residing
in Bengal, Bihar and Orissa. This marked a period of conflict of powers and
authority with The Supreme Court of Bengal. Finally, The Bengal Judicature
Act of 1781 was passed which restricted the authority of The Supreme Court
of Calcutta to people living in Calcutta and to those British Subjects who
lived in Bengal, Bihar and Orissa.
Composition of Supreme Court at Calcutta: The Supreme Court at
Calcutta had the following Composition
· One Chief Justice and three other people as Regular Judges.
· The Judges had to be Barristers of England and must have at least
five years of experience.
The following were the First Judges and Chief Justice:
1. Sir Elijah Impey, Chief Justice
2. Stephen Caesar Le Maistre, Regular Judge
3. John Hyde, Regular Judge
4. Robert Chambers, Regular Judge
5. Sir William Jones, Regular Judge
6. Sir William Dunkin, Regular Judge
Jurisdictional Limits of the Supreme Court at Calcutta: The Supreme
Court of Calcutta had the following Jurisdictional Limits:
· The Jurisdiction of the Court was only limited to the Calcutta Region
· It could be extended to the people residing in the Bengal, Bihar and
Orissa if they were either British/His Majesty’s subject.
· It could also be extended to People directly/indirectly, employed
by the company or are the under the services of His Majesty’s Subject.
· People who voluntarily submits to the Supreme Court.
· Cases where the value of limit did not exceed Rupees Five Hundred.
Features of the Supreme Court at Calcutta: The Supreme Court of
Calcutta had the following Features:
· The Governor was raised to the Power of The Governor-General.
· All the Military and Civil Powers were vested in The Governor-
General.
· The Governor-General of Calcutta presided over the Presidencies
of Madras and Bombay.
· The Judges could be tried at The King’s Bench in England.
Powers of the Supreme Court at Calcutta: The Supreme Court of Calcutta
had the following Powers:
· Civil Powers: Limited to all people in Calcutta and it also extended
to British Subjects residing in Bengal, Bihar and Orissa.
· Criminal Powers: Limited to British People i.e. it could only try
British Subjects in criminal matters, it could not try any of the native people.
· Ecclesiastical Jurisdiction: The Supreme Court could issue probates
of the bill for the British subjects who reside in Bengal, Bihar and Orissa for
the British Subjects. It had the power to issue the letter of administration if
no executioner of the will is present then it had the power to appoint an
executioner. It also had the power to appoint the guardians of the infants
and insane children
· Admiralty Jurisdiction: The court had the power to try the civil
maritime causes or the crime that has been committed upon the high seas.
In these cases, A Petty Jury would sit to take the decision and crimes which
takes place at offshore or on the ship at the offshore of the Bengal, Bihar
and Orissa.
· Legislative Power: The Supreme Court was authorized to make his
procedures and rules which would help it in exercising jurisdiction, but
these rules were subject to the King-in-Council’s approval. The Governor-
General and Council also had the power to make laws but that law should
be registered under the Supreme Court along with it being reasonable. The
law becomes effective only after being registered.
· Miscellaneous Provisions: With the Regulating Act 1773 another
change in the provision takes place that is, the Governor General and council
and the Judges or the Supreme Court would not accept any kind of present;
and no persons who is holding a civil or military office under the crown or
the company, would accept any present. But this was not applicable to the
cases of the Councilors, Surgeons or Physicians.
Procedendo: the ability of the Supreme Court to order the lower court to
proceed to the judgment of the cases without specifying. It is also a court of
equity and court of record.
· Appellate Jurisdiction: Appeal from all the courts present at that
time went to the SC and from here the appeal went to the kings-in-council if
the case was of value more than Rs.1000.
Advantages of the Supreme Court at Calcutta: Following were the
advantages of The Supreme Court:
· It derived its powers directly from the Crown.
· It had both Civil and Criminal Jurisdiction. The Rules were needed
to be approved by The King-in-Council.
· The Court fees were regulated to prevent over-charging. It had the
power to appoint advocates to assist it.
· It had the power to issue writs.
· It also helped the Judiciary to Control the Executive.
· The Judges of the Supreme Court were a professional lawyer.
· The tenure was free from the wish of the Governor and the Company.
· Judges and lawyer had adequate knowledge of English law and
know how to apply the law in the case.
· It had the power to try the company’s servant in both the civil and
criminal cases.
· The System of Judicial Review was also introduced.
· The Supreme Court is The Court of Equity and The Court of Law.
· It has The Admiralty Jurisdiction and The Ecclesiastical Jurisdiction
at the same time.
Defects of the Supreme Court at Calcutta: The Defects of the charter of
SC of Calcutta are as following:
· Executive-judiciary relationship: The charter didn’t clearly mention
anything about the status of governor general in the civil proceedings. Nor
it differentiates 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.
· 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 creates 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 was 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.
· 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
creates a certain amount of uncertainty.
Q.8: Write a short Note on Raja Nand Kumar Case?
Or
Discuss briefly about the facts, Issue raised and Judgment decided in
the case of Raja Nand Kumar?
Or
Write a short note on judicial murder case?
Ans. Introduction: Raja Nand Kumar also called Nanda Kumar or
Nuncomar born in 1705 at Bhadrapur, which is now in Birbhum. He was a
Hindu Brahmin, a big zamindar and a very influential person of Bengal.
Maharaja Nand Kumar handled various posts under the Nawab of Bengal,
primarily, as a revenue collector. He was once a Governor of Hugli under
Nawab Siraj-Ud-Daulah in 1756. He was very loyal to the English Company
and because of that he was also known as Black Colonel during Clive’s
period. He was the first person of India who was executed by hanging.
The title Maharaja was conferred on Nand Kumar by Shah Alam II in
1764. He learnt Vaishnavism from Radhamohana Thakura. In the early 1775,
He brought several charges of bribery and corruption against Governor-
General Warren Hastings. This case revolves around Raja Nand Kumar.
Background of The Case: There were four council members of Warren
Hastings namely Francis, Clavering, Monson and Barewell in which first
three were against Warren Hastings and the only person who was in favor
was Barewell. The majority group of Francis, Clavering and Monson
instigated Nand Kumar to bring charges of Bribery and Corruption against
Warren Hastings before the council.
Nand Kumar gave a letter to Francis mentioning the complaints against
Hastings of Bribery and Corruption and said that Hastings accepted bribery
from him of more than 1 lakh for appointing his son Gurudas, as Diwan. It
was also said that Hastings had accepted rupees 2.5 lakhs from Munni
begam as bribe for appointing her as the guardian of the minor Nawab
Mubarak-ud-Daulah who was still a juvenile.
Francis placed the letter before the council in its meeting. Then Monson
moved a motion that Nand Kumar should be called to appear before the
council. But Warren Hastings who was presiding the council was against
this. Mr. Barewell, the supporter of Warren Hastings put forth the suggestion
that Nand Kumar should file his complaints before Supreme Court not here
in this council because the court was competent to hear this case.
But the majority of members objected to this action and elected
Clavering to preside the meeting in the place of Hastings. Now Nand Kumar
was called before the council to prove his charges against Hastings. The
majority of council declared that the charges levelled against Hastings
were proved right. And Hastings was directed to deposit the amount of Rs
3,54,105 in Treasury of the company. This event made Hastings a bitter
enemy of Nand Kumar and now he looked for an opportunity to show him
down.
Facts of the Case:
· Soon after Nand Kumar along with Fawkes and Radha Charan was
charged and arrested for conspiracy at the instance of Hastings.
· In order to bring further disgrace to Raja Nand Kumar, Hastings
manipulated another case of Forgery against him, for which the punishment
was death as per the provision of the English Act of 1729.
· The charge of forgery was with respect to a bond or deed claimed
as an acknowledgement of debt from Bulaki Das, the banker, which it is
said, was executed by him in 1765.
· Mohan Prasad produced charges of forgery on 6th May 1775 before
the then Hon’ble justices of the peace for the town of Calcutta.
· Le Maistre and Hyde who presided over in the capacity of
Magistrates, heard the case at length, probed & contemplated the evidence,
on behalf of the prosecution till late night.
· The Magistrates presided in the capacity of the justices of the
peace, were contended with the evidence presented by the prosecution
witnesses, in course of which they ordered the Sherriff & keeper of His
Majesty’s prison at Calcutta to accommodate Raja Nand Kumar in safe
custody until his release as per the necessary dictums of law. Mohan Prasad
furnished a bond to prosecute & hold Nand Kumar in the Supreme Court
dated 7th May 1775 accountable, basis on which, his fateful trial was
executed before the Chief Justice and three other puisne judges of the
Supreme Court on 8th May 1775.
· He was put on trial before the Supreme Court with a jury of 12
Englishmen presided over by Sir Elijah Impey who was the friend of Warren
Hastings.
· Supreme Court in its decision in 1775 fined Fawkes but reserved
its judgement against Nand Kumar on the ground of pending fraud case.
· The trial began on 7th june 1775 and continued for a period of
eight days without any adjournment and consequently the Supreme Court
sentenced him to death under an Act of British Parliament called the Forgery
Act passed in 1728.
· Serious efforts were made save the life of Nand Kumar and an
application for granting leave to appeal to the king-in-council was moved
in Supreme Court but the same was rejected.
· The sentence passed by the Supreme Court was duly executed by
hanging Nand Kumar to death on August 5, 1775 at 8:00 a.m. at Cooly Bazar
near Fort William
Important Questions Raised:
1. Whether the Supreme Court had jurisdiction in this matter?
2. Whether the English Act of 1729, which made forgery a capital
offense, was extended to India?
The answer of first Q.is that the Supreme Court had no jurisdiction to
decide the case as before the establishment of Supreme Court in Calcutta,
the Indians in Bengal was tried by local Faujdari Adalats and in this case,
the offense was committed before the establishment of Supreme Court.
On the Second Q.related to the applicability of the Act of 1729 to India,
the opinions of the judges itself were different, but the majority views
including Chief Justice Impey prevailed. The decision of Supreme Court in
this case was very controversial and it showed the arbitrary state of the
administration of justice in India.
Decision:
The Supreme Court held that the case of conspiracy was dismissed
because they didn’t have any strong evidence against Raja Nand Kumar. But
he was held liable in the second case of forgery and was given Capital
Punishment. The court held that Raja Nand Kumar was guilty as charged
with forgery and for the same he was given a capital punishment by the then
Chief Justice Impey.
Certain Features of the Trial:
· Every judge of Supreme Court cross examined the defense witnesses.
The intention of the judges was to break down Nand Kumar’s witnesses.
· Nand Kumar committed the offence of forgery nearly five years ago
in 1770 i.e. much before the establishment of the Supreme Court. The Act of
1728 under which Nand Kumar was tried had never been formally circulated
in Calcutta and the People could not be expected to know anything about it.
Critical Appraisal: Chief Justice Impey in this case acted unjustly in
refusing to respite to Nand Kumar. No rational man can doubt that he took
this course in order to gratify the Governor-General. The trial of Nand Kumar
disclosed that the institution of Supreme Court hardly commanded any
respect from the natives as it wholly unsuited to their social conditions
and customs. The trial has been characterized as “judicial murder” of Raja
Nand Kumar which rudely shocked the conscience of mankind. Raja Nand
Kumar’s trial was certainly a case of miscarriage of justice.
The decision of the Supreme Court in the trail of Raja Nand Kumar
became a subject of great controversy and criticism for the following reasons.
a. Charge against Raja Nand Kumar was preferred shortly after he
b. Chief justice Impey was a close friend of Hastings.
c. Every judges of the Supreme Court cross-examined the defense
time.
d. After the trail, when Nand Kumar was held guilty by the Court he
due consideration.
e. Nand Kumar applied for mercy to His Majesty but his case was not
Charter of 1774 to reprieve and suspend such capital punishment and
forward the matter for mercy to His Majesty. Earlier in 1765, a native,
named Radha Charan Mittre was tried in Calcutta for forgery and death
sentence was passed. A petition was sent to Governor Spencer from the
native community of Calcutta requesting “either a reversal of sentence or a
respite pending an application to the throne”. The prayer was granted and
Radha Charan got a free pardon from the King.
f. Nand kumar commited the offence of forgery nearly Five year ago,
g. Under the Hindu Law or the Mohammedian Law, the offence of
in Raja Nand Kumar’s case became very controversial. The trail and
execution of Raja Nand Kumar shocked not only Indians but also foreigners
residing in India. It was considered most unfortunate and unjust. The role
of chief Justice Impey became a target of great criticism. On their return to
England, Impey and Warran Hastings were impeached by the House of
Commons and the execution of Raja Nand Kumar was an important charged
leveled against them.
Q.9. Briefly discuss about the Patna case?
Ans. Introduction of Patna Case: The Patna case is one of the important
cases because it revealed the judicial administration system of the country.
It brought into notice the conflict between the Supreme Court and the supreme
council and made it clear that there should be proper reorganization for
the justice in the future. This case took place between the years 1777-1779.
Facts of the Case:
· One, ShahbagBez Khan came to India from Kabul and was serving
in the company Army and later he got retired. He thereafter got settled in
Patna and married Nadira Begum. He got rich after getting retired. After he
settled, he called his nephew from Kabul to India. He had the wish of adopting
his nephew and making him his heir; but before he could do so he died in
December, 1776.
· Since ShahbagBez had left huge property behind him, it led to
conflict between the wife and the nephew of the deceased. The nephew filed
a petition between the provincial council in Patna and the Begum asked the
help of the Mufti and Kazi, the Muslim officers to look into the claim of the
property by the nephew of the deceased. The nephew also stated in his
petition that he was the adopted son of the deceased and therefore the
property should be divested in him.
· The widow i.e the Begum claimed the property with the basis of the
three documents viz- the dower, the gift deed and the acknowledgement. The
Kazi and the Mufti were directed by the court to stock up and seal the
property till the issue was resolved.
· The Officers did the same by going to the house but in the process
they abused the Nadira Begum, the result of which was that she took a
shelter in the ‘Dargah’.
· Further, when the case was before the court, it was argued that the
dower was already paid by the deceased to his Begum during his lifetime, a
sum of Rs.1200 and her counsel had neglected to submit the dower deed. It
was further contended that the other two documents, the gift deed and the
acknowledgement, were forged documents and therefore the share of the
property should be divided into four shares; three should be given to the
nephew and the remaining share to the Begum as per the Muslim law of
succession.
· The Provincial Council also gave its decision in favor of the nephew
by looking into the report of the Kazi and Mufti. However, aggrieved by this
decision, the Begum approached the Sadar Diwani Adalat of Calcutta and
she also filed a suit against the Kazi and Mufti for assault, battery, other
injuries and alleged the damages of rupees six lakhs.
Issues and the Decision:
The main issue that was in this case was whether Bahadur Beg, who
lived outside the jurisdiction of Calcutta, was subjected to the same and
whether the law officers could be punished for their acts they have committed
in the exercise of their duty.
The Court held that the due process was not followed and the witnesses
were not taken on oath and the officers also had behaved outside their
official capacities and therefore the court ordered a sum of Rs. 3 lakhs to
the Begum.
This case brought into the notice about the shortcomings that were
present in the judicial administration. The deceased was an agriculturist
and the case fell within the ward of the administration. It should the
weaknesses of the organization of the judicial system and the committee
which was known by the Patna case. This case showed the exercise of extra
power and jurisdiction by the officials.
Conclusion:
Thus, the Patna case is an important judgment in the study of the legal
system that has been developed in the country. However, in spite of all the
shortcomings, the Supreme Court gave a favorable decision in the same.
Q.10: What conflict arose between the Supreme Court and Supreme
Council?
Or
Why the Supreme Court established under the charter 1774 is disliked
by everyone?
Ans. Supreme court of Judicature at Fort William was established on
October 22, 1774 in Calcutta, Bengal. It was authorized by the Regulating
act of 1773. This court replaced the Mayor’s Court, which was functioning
in Calcutta since 1753. In 1862, When the High Court of Calcutta got
established by the Indian High Courts Act of 1861, until then, the supreme
court of judicature was British India’s highest court.
Under the regulating act of 1773, Supreme Council of Bengal was also
formed in Calcutta in 1773. It was known as the highest level of executive
government in British India until 1833. This council was headed by the
Governor General and consisted of 5 members including the Governor
General himself. The council was also known as Governor-General-in-
council. The council was formally subordinate to the British crown and
Court of Directors, a board of East India Company.
History of Conflicts:
The first 6-8 years after the establishment of Supreme Court of
Judicature in Calcutta, is known for the conflicts between the Governor-
General-in-council and the Supreme Court. Some of those conflicts are
mentioned here:
Conflicts over Court’s Jurisdiction: The jurisdiction of the Supreme Court
was defined in the Regulating Act of 1773 but certain issues were not clear
in the act and those issues were creating doubts. This became the cause of
a bitter conflict between the court and the council. According to the
Regulating act of 1773, the Supreme Court’s official penned jurisdiction
was All British subjects in Bengal and anyone employed under the said
United company, directly or indirectly. Since, the term Directly or Indirectly
could be applied to almost everyone who worked under the company, the
conflict between the court and the Governor-General-in-Council was
inevitable in nature.
Supreme Court, after its establishment in 1774, claimed its jurisdiction
over any person residing in Bengal, Orissa and Bihar, from 1774 to 1782.This
became the reason of a bitter conflict between the supreme court and the
Governor-General-in-Council for eight long years. When the Bengal
Judicature act of 1781 was passed in June 1782, the conflict finally came to
an end in 1782. Jurisdiction of the Supreme Court was restricted to either
those, who lived in Calcutta or to any British subject residing in Bengal,
Orissa and Bihar, by the Bengal Judicature act of 1781. The act removed the
controversial jurisdiction of Supreme Court over any person residing in
Bengal, Odisha and Bihar.
Cases:
From 1775 to 1780, there were several disputed cases, which created
conflicts between the Governor-General-in-council and the Supreme Court.
These cases became the source of conflicts between the court and council
over jurisdiction of various subjects. Some of those cases have been
mentioned here.
1. The Patna Case: In the words of Dr. M. P. Jain, the Patna case exposed
the judicial administration of the Company. In fact the Patna case is an
illustration of various defects and weaknesses in the adalat system in
Bengal, Bihar and Orissa. The facts of the case were as given below,
One Shahbaz Beg, a soldier in the Company’s army, had no son and so
he called his nephew Bahadur Beg from Kabul to live with him. He expressed
a desire to adopt Bahadur Beg and to hand over his property to him. But
before he could do so, he died in 1776. Thereafter, a struggle ensued for
property between Bahadur Beg and Shabhaz’s widow Nadira Begum. The
Begum claimed entire property on the basis of gift said to have been executed
in her favour by her late husband. Bahadur Beg claimed the entire property
as the adopted son of the deceased, he filed a suit against the Begum in the
Patna Provincial Council which also functioned as a Diwani Court for the
town.
The Patna Council remitted the entire case to its law officers Kazis and
Muftis required them to make an inventory of property of the deceased, to
collect the property and seal it, and according to “ascertained facts and
legal justice” to transmit to the Council a written report specifying the
shares of parties. Under the the Regulations then prevailing, the law officers
were neither to perform any executive functions nor were they to concern
themselves with deciding the questions of fact, their only function was to
expound the law applicable to the facts of the case.
The law officers locked and sealed the house of the deceased. The
widow of the deceased was insulted and humiliated to such an extent that
she left the house and took refuge in a mosque. They rejected her claim
holding that ^itt deeds were forged. As Muslim law does not recognize
adoption, Bahadur Beg’s claim was also rejected. The deceased’s property
was thus to be divided according to the Muslim law of intestate succession.
The widow approached the Supreme Court and filed an action against
Bahadur Beg, the Kazis and Muftis for assault breaking and entering her
house and taking away her property, and claimed damages amounting to
Rupees 6 lakhs. Bahdur Beg, Kazi and Mutis were arrested and brought from
Patna to Calcutta and were lodged in prison.
The legal issues raised in trial, which started in November 1078, were:
1. Whether Bahadur Beg, who lived outside Calcutta was subject 10
the jurisdiction of Supreme court, and
2. Whether the law officers could be prosecuted for acts done in
their judicial capacity?
On the first issue, the court said that Bahadur Beg was a farmer of land
revenue and he was not different from the revenue Collector and therefore
was ‘directly or indirectly in the services of the Company’. On the second
issue, the court held that although the Patna council was a legally constituted
court having jurisdiction to decide the civil disputes between the Indians, it
had no jurisdiction to delegate its functions to the law officers, the Kazi and
Muftis.
The court criticised the manner in which the Kazi and Muftis had acted
for ascertaining facts. All the proceedings in the Council were ex parte
without any I notice being given to the Begum. No regular trial was held and
witnesses had not been examined on oath. Thus, the law officers were tried
not for what they had done in the discharge of their regular functions, but
for something outside thereto the court had an undoubted jurisdiction over
the Company’s servants.
The Supreme Court awarded damages of Rupees 3 lakhs to the widow
which was quite in proportionate. The Patna case brought to light the
inherent defects in the Company’s judicial system (that is Adalats and
Councils). Also, the case involved he Q.of the Supreme Court jurisdiction
and its relationship with the officials Of the Adalats. A lesson was perhaps
learnt, which became the basis of further reforms in administration of
justice carried out later.
2. Case of Kamaluddin (1775): The case of Kamaluddin was the first
case to display an open conflict between the Governor-General-in-Council
and the Supreme court regarding the jurisdiction of various subjects.
According to the facts of this case, Kamaluddin was holding a salt farm in
Hugli (Bengal) which originally belonged to another person named Kanta
Babu. Kamaluddin was just an ostensible holder of the farm and was holding
the farm on the behalf of Kanta Babu. Kamaluddin was imprisoned because
he was issued a writ to his committal to the prison without bail by the
Revenue Council. He was in the prison without bail because arrears of
revenue were due from his side in 1775.
In such cases at that time, it was according to the custom to release the
imprisoned persons on bail. Later, the defendant, i.e., Kamaluddin appealed
in the Supreme Court for a writ of Habeas Corpus. Supreme Court headed by
chief justice Elijah Impey gave its decision in the favour of the defendant
and Kamaluddin was set free by the court on bail after he obtained the writ
of Habeas Corpus. The court, in its judgement, held that the defendant, in
the cases of disputed accounts, should be granted bail till the inquiry
regarding his obligation to pay is completed and he is found liable.
As expected, Supreme council headed by Warren Hastings, the Governor
General expressed its dissatisfaction on the judgement of Supreme Court.
The Council stated that the supreme council had its jurisdiction over the
officers of Calcutta Revenue Council as the company was Diwan of the
territories of Bengal, Orissa and Bihar and the court was not empowered to
judge a matter related to the revenue. Therefore, according to the council,
the court had no power to issue a writ of Habeas corpus to the defendant
and grant him bail.
However, Elijah Impey, Chief Justice of the Court, opposed the view of
the council. He stated that the revenue officers were also the servant of the
company and therefore, on this ground, the jurisdiction over the revenue
officers can be claimed by the Supreme Court.
Again, the council expressed its dissatisfaction on the view of Supreme
Court and 4 out of 5 members of the supreme council decided to order the
provincial Council to put the defendant again in the prison without paying
attention to any of the orders of the Supreme Court. But, Warren Hastings,
the Governor General didn’t pay any heed to these decisions and hence,
they couldn’t be implemented.
3. Cossijurah (Kasijurah) Case (1779): The Cossijurah Case was one of
most contentious cases in the history of Supreme Court of Bengal. This is
the case after which the conflicts between the Council and the supreme
court reached to its Climax. The Act of Settlement, 1781, also known as, The
Bengal Judicature Act of 1781, was one of the consequences of this case,
which played a key role in settling the conflicts between the court and the
council regarding jurisdiction.
According to the facts of this case, Raja Sundernarain was a Zamindar
of Kasijurah (Cossijurah), Orissa. He was under a very heavy debt to
Kashinath, a principal merchant of Calcutta. After trying several unsuccessful
ways to recover the money from Raja, Kashinath, On 13th August, 1779,
filed a debt suit against Raja in the Supreme Court of Bengal on the ground
that Raja, a Zamindar of Cossijurah, was collecting revenue, in the service
of the company and therefore, comes under the jurisdiction of the Supreme
Court. As a decision, The Supreme Court issued a writ of capias for Raja’s
Arrest.
Raja, by hiding himself, avoided the service of the writ. Meanwhile, the
Supreme council headed by Warren Hastings, the Governor General, after
doing consultation with its Advocate General, informed all the Zamindars
of Kasijurah including Raja to not pay any heed to the Court’s orders. Also,
the Supreme Council directed the collector of Midanpur (a district in Orissa)
to refuse any kind of assistance to the Sheriff and his men. So, when the
sheriff went to Cossijurah to arrest Raja for the purpose of serving the writ,
the sheriff was drove away by Raja and his people.
The Collector also didn’t provide any assistance to them. After some
days, the Supreme Court issued the writ of sequestration to seize the effects
of the Raja’s house. When the sheriff went to Cossijurah to serve the writ,
Colonel Ahmity (Commanding Officer at Midanpur) was directed by the
council to send his troops to arrest sheriff and his men. As a result, Sheriff
and his men were arrested by the troops of Colonel. For the matter of fact,
they were later released by the council. Later, Kashiram brought a suit
against the members of the Council in the Supreme Court. But, when the
things reached at a critical stage, he withdrew his suit.
There were several issues involved in this case regarding the jurisdiction
of the court and the council. To resolve those issues, a parliamentary
committee was appointed, which later presented a detailed report before
the parliament. As a result, The Act of Settlement, 1781 was passed by the
parliament.
Conclusion:
Initial years of the Supreme Court of Judicature at Fort William in
Bengal was very controversial. Several conflicts between the Governor-
General-in-Council and the Supreme Court were recorded in these years.
Most of these conflicts were in regards to the jurisdiction of various subjects.
The disputed cases like the Case of Kamaluddin, The Patna Case, Cossijurah
Case, etc. displayed the conflicts over jurisdiction between the council and
the court at a great extent.
And, this series of conflicts went on like this until the Bengal Judicature
act of 1781 was passed. It defined the jurisdiction of Supreme Court in
relation with the council and settled the conflicts between the Governor-
General-in-Council and the Supreme Court.
Q.11. Discuss about the judicial reforms of Warren Hastings and the
advent of Adalat System.
Or
Write a short note on Adalat system and how the drawbacks of judicial
plan 1772 of Warren Hasting were removed by the new plan of 1774.
Or
What were the significant changes done through judicial reforms of
Warren Hastings?
Ans. After the Britishers had acquired the Diwani rights of Bengal, Bihar
and Orissa in 1765, there came up the concept of Mofussils which was
used to refer to the territories which surrounded the presidency towns that
were brought under the control of Britishers. Though there was well
established system of a judicial set up in the presidency town of Calcutta,
Bombay and madras under the garb of Mayor’s court and Court of Governor-
in-council but the same was required in these adjoining areas which were
to be called Mofussils.
Judicial system in Mofussils: After the Diwani rights were attained by the
colonial giant, the role of proper implementation had fell on the then
governor of Bengal presidency- Warren Hastings, as his predecessors
starting right from the times of Lord Clive had condoned the oppressions of
Ryots by Zamindars and petty tyrants which was proving to be detrimental
to the colonial administration in these areas. Keeping into mind such a
corrupted set up, Warren Hastings went on to introduce reformative judicial
measures because of the following reasons:-
1. Connection between Revenue and judicial administration: Revenue
administration was a crucial function for the Britishers, not to mention
that it was one of the major source of their finances, but to collect revenue
it was essential that there was property in the provinces and the prosperity
could be preserved only if there existed an order of peace so that people did
not get distracted from their occupational works, specially those engaged
in agricultural occupation. Such a state of peace would have given them
impetus to improve so that in the end they will be in a position to meet the
government dues. This peace and order again depended upon security of
life and property which could have been ensured only if there was a proper
judicial system in place, which at the time was absent.
2. No centralized judicial set up: With the dissolution of the Mughal
empire, and weakening of the Nawabs power in Bengal and surrounding
areas, the only judicial set up which existed also broke down such that
every person who had a local authority or power (Zamindars etc) began to
exercise judicial power as well, in order to achieve self-aggrandizement.
Now the Kazis were not selected on the basis of merit or character but on
the basis of degree of favour that they forwarded to officials. And since they
were not meritorious, they began to misuse their power as there was no
system of checks placed on them.
3. Corruption in the courts: Moreover, even the courts which were so
had become corrupt as the courts used to charge commissions from the
parties on the amount that used to be recovered by them by the help of court
and this practice was against the very principle of natural justice as such
practice made judges party to the cause they decided by making them a
profiteer from the case. This practice was common also because of the lack
of motive or incentive for the judges to act impartially. They did not even
use to get a regular salary and thus adopted to such a bribe culture. It was
highlighted by Arthur Keith that ‘courts were the instrument of power more
than an instrument of justice.
4. Atrocities of Englishmen: The incursion of the Englishmen made
the judicial system even more worse. The company servants used to seize
the lands or properties of any Indian against whom they used to have any
kind of claim. Further, they even used to hold such an Indian as their
prisoners, not releasing them until the claims or debts were paid. In doing
so, the company servants did not even used to seek consent of the officers
of the Nawab’s Government which at that time was too weak and thus, was
forced to overlook such disputes.
Judicial Plan of 1772: Under the prevailing circumstances mentioned
above, Warren Hastings went on to introduce a scheme of judicial
administration in 1772 alongside a system of revenue administration which
went on to lay foundation of Adalat system in India.
Under this plan the territory of Bengal, Bihar and Orissa was divided
into multiple districts and in each district, an English servant of company
was appointed as the collector who was to be responsible for collection of
revenue alongside having judicial powers.
Different courts in Adalat System: (in order of the hierarchy)
1. Small Cause Courts: These courts were present in each of the
village or pergunnah and used to deal with small or petty cases. Decisions
of these courts used to be binding up to the value of Rs 10. these courts were
headed by either the village headman or the head farmer of the respective
pergunnah.
2. Mofussil or district courts:
· Mofussil Diwani Adalat- These courts used to be present in each
district and had jurisdiction over the revenue and civil cases including the
disputes related to marriages, inheritance, castes, debts, contracts, disputed
accounts, personal properties, partnership and demand on rent. It used to
have pecuniary jurisdiction of up to Rs 500 such that decisions of this
court up to this amount was final. Collector of the district use to act as the
judge of this court who use to work in assistance with the native law officers
such as the Kazis and Pundits. These law officers used to assist the judge as
the collector did not has the knowledge about the personal laws of the
Hindus and the Muslims which was to be applied to different disputes
which were presented before the court.
· Mofussil Nizamat Adalat- These courts were also known as Fauzdari
Adalats. These courts were also present in each district but unlike the
mofussil Diwani Adalat, it used to deal only with the criminal cases. Further,
it was not empowered to try cases involving death sentences or cases
demanding forfeiture of property of the accused as such cases were to be
submitted to Sadar Diwani Adalat for final orders. These courts were
presided over by the Muslim law officers only. The Moulvi used to expound
the law, while the Kazi and the Mufti used to give Fatwa and render the
judgment accordingly. But alongside these officers of law, collectors also
used to have an important role in these courts which was that of a supervisor.
He used to see that all the necessary witnesses were heard, that the cases
were tried regularly and that the judgments were impartial.
3. Sadar or Provincial courts:
· Sadar Diwani Adalat– This was the apex court for civil cases in the
province. It used to have both the appellate as well as original jurisdiction
as it not only used to hear appeals from Mofussil Diwani Adalat but also
used to take up cases which involving dispute of over Rs 500. It used to
charge five percent of the amount of dispute on each petition or appeal. It
was presided over by the governor and his council, and was located in the
presidency town of Calcutta. Its first sitting took place on 17th March,
1773.
· Sadar Nizamat Adalat - This was the apex court for criminal cases
in the province. Similar to Sadar Diwani Adalat, it also used to have both
original as well as appellate jurisdiction. As mentioned above, it used to
have specific jurisdiction to decide over matter of death sentence and
forfeiture of property. In cases of death sentence, the death warrant was
prepared by this Adalat and was to be signed by the Nawab as the head of
the Nizamat. This court was presided over by Daroga-I-Adalat who used to
act as the judge of this court. He was assisted by a Chief Kazi, a Chief Mufti
and three Moulvies. Similar to Mofussil Nizamat Adalat, there used to be a
supervisory authority in the form of Governor-in-Council who used to keep
a check over the functioning of this court. It was earlier located in Calcutta
but was later shifted to Murshidabad, where the Nawab resided, in order to
reduce the effort which used to be there to get his signature in cases of
death sentences. Another development which was seen later was the
development of the office of Naib Nazim in which Mohd. Reza Khan was
appointed, who was to work and give assent on behalf of Nawab.
Miscellaneous provisions under the plan to promote impartial justice:
All cases were to be heard in open courts such that anyone was able to
observe them. This ensured that the transparency was maintained and also
helped in maintaining the trust of people in the judicial authority. Apart
from this, all Adalats at the district level or lower level were to maintain
records in the form of register of cases heard and decided such that the
same were to be sent the Sadar Adalats. This was a major step which could
have helped in curbing the misuse of power by the judges as they were
under constant check of the apex courts and misdeed on their part could
have come to light.
Introduction of new civil and criminal procedures and laws: In case of
civil procedure, a rough and ready procedure for hearing of civil cases was
adopted under which, after the plaintiff had filed a petition of complaint,
the defendant was to give answers (reply) after which the Adalat was to
hear the parties viva voce and if necessary, evidence was to be examined. It
was only after all this, a decree was passed by the court. Moreover, there
was introduction of a new limitation period which was to be 12 years from
the date of dispute such that any case being filed after that period would
have been considered time barred. This provision can still be seen in our
procedural codes. Further, a system of arbitration was also introduced to
assist the functions of the civil court.
In the case of criminal procedure and laws, focus was shifted towards
introduction procedure and laws in order to prohibit dacoity and restrict
the mutilation as a form of punishment. Dacoity was very rampant in the
country and to reduce the same strict laws were made. Under these laws, a
dacoit was to be executed on the conviction such that village shall be fined
and the family member of the dacoit would be made slaves of the state.
Mutilation was disliked by Warren Hastings as he believed that a criminal
getting mutilated as punishment, instead of improving him as a person
rather made him a permanent burden of the society. However these anti
mutilation laws remained just in text but were not enforced in reality owing
to the resistance which would have been shown by the Muslim law officers
who were reluctant to deviate from the texts of the Muslim law.
An appraisal of the plan: The plan of 1772 was appraised for its
efficiency which was a creditable achievement for Warren Hastings, given
the limitations of the available resources. Sir John William Kaye, had
rightfully called him “the Infant Administrator” because keeping in mind
the fact that company was still in its initial stage, it was big achievement
for the governor of Bengal to implement such a system. This system was
praised for being impartial and inexpensive along with being easily
accessible to the public who did not have to travel to provincial courts thus
saving their time and money. The old system of commission which was
exacted by the judges from the parties was now replaced by a court fees
which was to go government thus adding to revenue of the government
while at the same time minimizing the bribe culture. With the beginning of
the Adalat system the judicial powers of the Zamindars were also abolished
thus putting an end to oppression of the farmers.
Defects of the 1772 Plan:
1. Insufficient number of courts at village level (small causes courts):
There were very less number of small causes court present in the village
areas and even the courts which were there had pecuniary jurisdiction of
upto Rs. 10 only which was too small in amount in many cases. Thus, a
dispute of slightly greater amount had to be referred to district courts
which again used to be expensive and time consuming for people living in
these areas which was in great number as the means of travel was not
adequate.
2. Concentration of too much power in the hands of collector: Too
much power was concentrated in the hands of the collector in the district
as they used to be the administrator, tax collector, civil judge and supervisor
of criminal judicature which led to following issues:-
a. Party to the revenue cases: Since he was the civil judge along the
tax collector, he used to be party to the dispute and thus it was against the
principle of justice.
b. Carrying their private trade: The collector also started carrying
their own private trade as they were able to monopolise their trade through
their powers for their own benefits even if it was to the detriment of people.
c. Difficulty in supervision of collectors: It was difficult for Calcutta
council to supervise and keep check on the collectors as they used to be
preoccupied in their own work and also because the means of
communication was poor.
Judicial Plan of 1774: The defects of Plan of 1772 was apprehended not
only by Warren Hastings but also by the company director who asked the
governor and council to withdraw the collectors and search for an alternate
arrangements and thus the Calcutta government went on to implement the
new plan for collection of revenue and administration of justice on
November 23, 1773, and put it in force in January, 1774.
Features of Plan of 1774:
1. Appointment of Amils/Diwans: The collectors were replaced by
the Amils or Diwans who were appointed in each district. He was to act as
revenue collector as well as judge of Mofussil Diwani Adalat.
2. Divisions: The territory of Bengal, Bihar and Orissa was divided
into six divisions headquartered at Calcutta, Murshidabad, Dinajpur, Dacca
and Patna such that each division used to have several districts under its
command. For example- Patna division had the whole of bihar under it.
3. Provincial Councils: A Provincial Council consisting of 4-5
covenanted servants of the company was created in each divisions which
had the following functions:-
a. Supervision of revenue collection– They were to supervise the
collection of revenue by the Amils.
b. Hear appeals from Mofussil Diwani Adalat– They used to hear appeals
from Mofussil Diwani Adalat such that an appeal lies to Sadar Diwani
Adalat if the dispute involved matter above Rs. 1000 in value.
Thus, it became link between Mofussil Diwani Adalat and Sadar Diwani
Adalat and all cases irrespective of value were appealable in the Provincial
Council.
c. Court of first instance– It also had an original jurisdiction and
used to act as court of first instance in the divisions where they were
located such that cases arising in the division town (headquarters) could
be directly referred to these courts.
It proved to be beneficial as an appeal system was created close to
district adalats and thus supervision of the working of district judges was
possible which was not in the previous case of governor and council.
Defects of the 1774 Plan: Just like the collectors, the members of the
provincial council were also potentially mischievous and could have
monopolized the trade within their jurisdiction. However, they were more
distrustful in comparison to collectors because the collectors used to be
junior servants and could have been controlled by the governor and council
but these members used to the the senior members of the company having a
status equal to that of any member of the council and thus the governor and
council could not control their actions because of their pull and influence.
Thus, people putting themselves at the mercy of the Provincial Council
would not dare to raise their voices against their unjust treatment.
Conclusion: The system was said to be ahead of its time. Every minor
deficiency was attempted to be rectified by the governor general of Bengal.
The system so created was also assisted by the Regulating Act of 1773
which led to the creation of supreme court with an aim to separate the
judicial administration from the revenue administration as both were very
much connected since the same officers often use to have both the duties of
revue collection and adjudication but still it was not achieved as per the
expectations and thus an another attempt was made to eliminate the
deficiency in the form of reorganisation of the adalat system in 1780
which observed the official separation of the revenue and judicial
administration. The Provincial Councils which were tasked with both revenue
collection and imparting of justice were now limited to collection of revenue
and handling of the revenue cases while all the judicial function handed
back to diwan adalats which were established in each of the Provincial
Councils as well that is, Calcutta, Murshidabad, Dacca, Burdwan, Dinapur
and Patna.
Even after this reform, the Adalat System was not able to achieve the
perfection so desired by Hastings but the existence of such a system of
judicial administration in itself was praiseworthy. This system further led
to the system of courts which exist even today.
Q.12: What are the Judicial Reform plans made by Lord Cornwallis?
Or
What are the changes brought by the Lord Cornwallis in administration
of justice?
Ans. Lord Cornwallis was the famous British General, who was sent to
India in 1786 with the charge of the land settlement policy of the Government.
The governor-in-general ship of Lord Cornwallis which extended from 1786
to 1793. The Governor Generalship of Lord Cornwallis which extended from
1786 to creative constitutes a very remarkable and a highly creative period
in Indian Legal History.
He introduced for the first time the principle of administration according
to law. The Adalat System left behind by him won praise and encomium
from all quarters. The system introduced envisaged a division of revenue
and judicial functions and their vesting in distinct functionaries. Cornwallis
introduced changes in the judicial system thrice: first, in 1787; then in
1790 and, finally, in 1793. By the time he left India, he had thoroughly
reorganized the judicial system, both civil and criminal, in Bengal, Bihar
and Orissa and placed it on an entirely new basis. He introduced for the
first time the principle of administration according to law. The Adalat system
left behind by him won praise and encomium. It enjoyed such a high place
in the esteem of the people as well as the administrators that it was adopted
as the model for the judicial systems introduced later in the Provinces of
Madras and Bombay.
After warren Hastings, Lord Cornwallis was another Governor-General
who introduced various changes in judicial system of India. As Governor-
General he introduced changes in judicial system in 1787, 1790 1793 this
are-
a. The Plan of 1787
b. The Plan of 1790
c. The Plan of 1793
Indian Legal System: The Governor Generalship of Lord Cornwallis which
extended from 1786 to creative constitutes a very remarkable and a highly
creative period in Indian Legal History. Cornwallis received critical
assistance from others in his effort to introduce legal reforms. William
Jones, an expert on languages, translated existing Hindu and Muslim penal
codes into English so that they could be evaluated and applied by English-
speaking judges.
Cornwallis began in 1787 by giving limited criminal judicial powers
to the company’s revenue collectors, who already also served as civil
magistrates. He also required them to report regularly on detention times
and sentences given. In 1790 the company took over the administration of
justice from the Nawab, and Cornwallis introduced a system of circuit
courts with a superior Judges were drawn from the company’s European
employees. These reforms also included changes to the penal codes to
begin harmonizing the different codes then in use. Of the latter, he wrote “as
on account of their colour & extraction they are considered in this country
as inferior to Europeans, I am of opinion that those of them who possess
the best abilities could not command that authority and respect which is
necessary in the due discharge of the duty of an officer.” In 1791 he issued
an order that “No person, the son of a Native Indian, shall henceforward be
appointed by this Court to Employment in the Civil, Military, or Marine
Service of the Company.”
Judicial Plans of Lord Cornwallis: In the year 1786, Lord Cornwallis became
the Governor-General of the Company at Calcutta. During his tenure he
made several reforms in Judicial Administration. These reforms were made
in 3 stages in 1787, 1790 and 1793.
Judicial Plan of 1787: The main provisions of the Plan of 1787 were as
following:
1. Reorganisation of districts: The number of districts in Calcutta was
reduced from 36 to 23.
2. Appointment of collector: A collector was appointed in each district.
He was an Englishman. Collector was assigned with two tasks – to collect
revenue and to decide cases arising out of revenue matter.
· He also presided over the mofussil diwani adalat (district level
civil court) as a judge. In mofussil diwani adalat, he would decide civil
cases and cases of zamindars. Appeals from the mofussil diwani adalat lay
to the Sadr Diwani Adalat when the matters exceeded Rs.1000/-. The Sadr
Diwani Adalat was presided was the Governor General.
· He also presided over the Magistrate’s Court as a Magistrate, where
he was empowered to try and punish cases of petty crimes and offence upto
Rs. 200. Offences having value of more than Rs.200 would be sent to the
Sadr Nizamat Adalat by the Magistrate.
3. Establishment of Mal Adalats:
· Mal Adalats were revenue courts in each district which exclusively
dealt with revenue matters.
· This court was presided by the Collector who decided cases related
to revenue as he was an in charge of revenue matters.
· Appeal from the Mal adalat lay to the Board of Revenue in Calcutta
and then to the Governor General-in-council.
4. Establishment of Registrar Courts: An assistant officer of the
collector was appointed who was known as the Registrar. He was appointed
in each district who presided over the Registrar’s court which decided civil
cases upto the value of Rs.200/-But the decree passed by the Registrar was
not final until it was signed by the Mofussil Diwani Adalat i.e. the Collector.
The Salient features of Regulations of June 1787 were:
a. In each district, a Company‘s English Covenanted Servant was
appointed as Collector.
b. The Collector was made in charge of the revenue collection in the
district.
c. The Collector was also to act as the Judge in the district Mofussil
DiwaniAdalat to decide civil cases. The judge was also to decide cases and
claims concerning succession and boundaries to zamindaries, talukadaries
or other rent free land.
d. The collector was also to act as the Magistrate in the district. In
this capacity, he was to arrest the criminals and send them to the nearest
Mofussil NizamtAdalat for their trial.
e. The functions of civil justice, powers of Magistrate and function of
revenue collection and adjudication of revenue disputes were united in the
Collector.
f. The salaries of the collectors were increased to seek purity of
administration though it was not in favor of economy.
g. An Office of Registrar, a subordinate officer, was created to assist
the Collector, in his administration of civil justice. The Registrar could
decide cases up to Rs.200.
h. The Birtish nationals residing in the mofussil area beyond Calcutta
were subject to the criminal jurisdiction only of the Supreme Court and
could not be tried by the Mofussil Fauzdari Adalats
Defects of The Plan of 1787: The magistrate got power to hear the cases
against the Englishmen who committed crimes against Indians, in this case
magistrate made inquiry and he felt that there is ground for trial, he would
send the Englishman accused to the Calcutta for trial and if Indian
complainant was poor, the government paid all the expenses of travelling
to Calcutta. As magistrate, the collector was to arrest criminals and try and
punish petty offences by corporal punishment not exceeding 15 strokes, or
imprisonment not exceeding 15 days.
Judicial Plan of 1790: The main provisions of the judicial plan of 1790:
1. Reorganisation districts into divisions: The districts were divided
into four divisions – Murshidabad, Calcutta, Dacca, and Patna.
2. Moffusil Faujdari Courts were abolished: Mofussil Faujdari Courts
were the district level criminal courts. They were abolished and replaced
with Court of Circuits.
3. Establishment of Court of Circuits: A court of Circuit was Established
at each of the four divisions. It was presided by 2 servants of the company
and they were assisted by Muslim law officers – Qazi and muftis. It was not
a stationary court. Instead it was a moving court which moved from district
to district in their respective division to try criminal cases. They visited
each district of their division twice annually.
4. Increase in Salaries: The salaries of all Judges of all court were
fixed and increased to control corruption that was prevalent in the current
system of justice.
5. Collector to make a report of the working of courts: Collector to
make a report of the working of courts he was incharge of i.e. the Magistrate,
Mal Adalat and Mofussil Diwani Adalat; and send it to the British Parliament
of England bi-annually and annually.
6. The Post of Nawab was abolished: The post of Nawab, who used to
preside over Sadr Nizamat Adalat was abolished as he did not carry out
criminal justice properly and it was now presided by the Governor General-
in-council instead.
7. Court Fees: Court fees was introduced to reduce the burden on
courts. Court fees was only charged for pleaders of the court and for calling
the witnesses of the case.
8. Questionnaire sent to the Magistrates: A questionnaire was sent
to the magistrates asking for their opinions on the prevailing criminal
judicial system.
9. Three types of Courts were created in the Mofiissil area,:
I. Court of District Magistrate continued as before that is 1787 Plan,
II. Circuit Courts—It was a moving court which visited every district
twice a year to try the persons charge-sheeted by the Magistrate. It consisted
of two Company’s servants assisted by kazi and mufti. The salaries of the
court officers were increased so as to reduce their lure for bribes,
III. Sadar Nizamat Adalat- Under the judicial plan of 1790, the Nawab
of divested of all his judicial powers. The SadarNizamatAdalat was shifted
to Calcutta. The Governor-General and members of his council presided
over the SadarNizamatAdalat. The SadarNizamatAdalat was required to
conduct its business at least once in a week and a regular record of its
proceedings was to be kept.
Lord Cornwallis made the following reforms in the Mohammedan
Criminal Law and all the Adalats were directed to decide the cases according
to the modified Mohammedan Criminal Law.
a. In determining the punishment to be inflicted for the crime of
murder, the intention of the party rather than the manner of instrument
employed should be taken into account.
b. The punishment of mutilation was abolished and imprisonment
and hard labour for 14 years and 7 ears were substituted for the loss of two
limbs and that of one limb respectively.
c. The law of evidence was modified so as make provision that religion
would not be a bar to be a witness and thus the rule that a Hindu could not
be a witness against Mohammedan was abolished.
d. The relations of a murdered person could not grant pardon to the
offenders so as to do away with the trial.
e. The Sadar Nizamat Adalat could pass death sentence instead of
granting blood money to the heir as provided under Muslim Law.
Salient feature of the 1970 judicial reform plan:
a. Three types of courts in decreasing order of hierarchy were established
in the Mofussil area: the Sadar Nizamat Adalat, the Circuit Court and the
Court of the District Magistrate.
b. The District Magistrate could arrest criminals, took evidence against
them and then committed them to the Circuit Court for trial.
c. He could however punish the criminal upto 15 Rattans or 15 days of
imprisonment in small crimes.
d. He had to maintain all records and charts to be examined by the
Circuit Courts about the work done and people awaiting trial.
e. The court visited every district twice a year
f. It was assisted by a Kazi and a Mufti for expounding the law and
proposing Fatwa.
g. The court gave its punishment on these FatFatwas–’ Blood Money
was abolished.
h. Cruel punishments were abolished.
i. Salaries and allowances of the judges and native officers was
increased in order to check corruption.
Defects of the Judicial Plan of 1790:
· The magistrates opinions in the questionnaire sent to them revealed
the evils of the criminal justice system. This made Cornwallis realize that
certain vital changes were required in the system of criminal justice.
· Two important sources of these evils were:
(i) defects in the constitution of the criminal courts
(ii) the gross defects in the Muslim law of Crimes.
· Cornwallis resolved to abolish the authority of Nawab over the
criminal judicature and to transfer the administration of criminal justice
from Muslim Law officers to the Company’s legal servants.
· Court of Circuits were moving courts which were overburdened
with cases, which caused them delay in moving from one district to another
and could not visit some districts twice annually due to the delay.
· There was a lot of collective power of administration and judiciary
vested with the collector which made him abuse his power.
Judicial Plan of 1793: The main provisions of the judicial reform plan of
1793 were following:
1. Separation of Executive and the Judiciary: The powers vested in the
collector were administrative and judicial as he was also in charge of
collection of revenue and for deciding cases arising out of revenue matter.
Now, the collector was only responsible for the collection of revenue.
2. Mal Adalats were abolished: Revenue courts which exclusively tried
cases arising out of revenue matters and presided by the Collector as Judge,
was now abolished.
· All powers and pending suits of the Revenue courts were now
transferred to Mofussil Diwani Adalats and thus not tried by the collector.
3. Executive subjected judicial control: The Governor General and his
council were now subject to judicial control. Any wrong acts committed by
them while carrying out their functions and outside of it could be heard or
tried and punished by the Diwani Adalats. Suits against the Government by
private individuals could be brought forward and were tried by the Diwani
Courts.
4. Indian natives had to sign a bond with the British Subjects agreeing
to go to court: British could recover claims from Indian natives and vice
versa by signing a bond with each other agreeing to go to court.
5. Establishment of Provincial Courts of Appeal at the four divisions:
Earlier the appeal from the Mofussil Diwani Adalats lay to the Sadr Diwani
Adalat situated at Calcutta. But this process for time consuming and
expensive so provincial courts of appeal were established at each division
i.e. Patna, Calcutta Murshidabad and Dacca. Appeals from the Mofussil
Adalat now lay to the provincial court of appeal which were to be heard
within three months of filing them. These courts were presided by three
covenant English servants of the company. Quorum was of two servants. It
was an open court and could try revenue, civil and criminal cases. They
could also try cases referred to them by the Sadr Diwani Adalats.
· Cases valued more than Rs. 5000 were referred to the King-in-council.
6. Native Officers given important posts: Native officers were
appointed by the Governor General-in-council.Native officers were made
Munsiffs of the Munsiff courts at district level. This court could try cases
upto Rs.50. Zamindars, Tehsildars, etc appointed as Munsiffs.
· Personl Laws of Hindus and Muslims were applicable in cases relating
to marriage, inheritance, caste, religious usages and institsutions. These
personal laws were interpreted by the native officers who were appointed
to assist the court to expound the personal law
7. Sadr Diwani Adalat: It was highest court of appeal in India. It was
presided over by the Governor General and the Council who were the Judges
of the Sadr Diwani Adalat. Their function was to supervise the lower courts
and to hear appeals from the provincial courts of appeal when the sum of
the matter of the case was more than Rs.1000.Further an appeal from the
Sadr Diwani Adalat lay to the King-in-council, when the sum of the matter of
the case was more than Rs.5000.
8. Reforms in criminal judicature: The court of circuit was merged
with the provincial court of appeal. The power of the collector as a
magistrate was taken away and was vested in the judges of the diwani
adalats instead.
9. Uniform pattern of Regulations: Until now, any new regulation that
was issued did not follow an uniform pattern. This was changed by making
it a rule that any new regulation that would be made would have a title to
explain the nature of the subject matter and contain a preamble which
would state the purpose for enacting the regulation.
10. Reforms in Muslim Personal Law: The Sadr Nizamat Adalat was
directed to to follow the muslim personal law to try and punish criminal
cases, but with some modifications. The relatives of murder victims did not
have a provision to pardon the murderer. The cruel and inhuman punishments
such as cutting off limbs of the offender were replaced with punishment of
imprisonment and hard labour for 14 years.
11. Court Fees abolished: Court fees which was imposed in the judicial
plan of 1787 was abolished. The court fee was abolished so that the people
could easily reach to the court for securing justice.
12. Legal Profession recognised for the first time in India: The legal
profession was recognised in India for the first time. The pleaders of the
case had to have prior legal knowledge to be eligible to be a pleader of the
court.
Merits of the Plan of 1793:
1. The separation between the judicial and revenue functions was
maintained.
2. The separation between the judiciary and the executive was
maintained to some experts.
3. The principle of the judicial control of the executive authority was
applied.
4. Checks and balances were inserted in legal machinery to arrest the
practices of corruption.
5. The organization of the Courts was improved.
6. Provincial Courts of Appeal were established for first appeal.
7. The native law officers were provided security of tenure.
8. Legal profession, for the first time, was organized in India.
9. Court – fee was abolished.
10. Subordinate Judicial Agencies were established to deal with petty
cases through Munsif.
11. British subjects were equalized to natives in jurisdiction of the
Civil Courts.
12. An elaborate procedure for the DiwaniAdalats to follow was
prescribed.
13. Provision to introduce uniformity in the form of regulations made
by the Government for good feature of this plan.
Demerits of Plan 1793:
1. The judicial arrangements of 1793 were expected to cost an additional
sum of four lacks rupees to the Company.
2. A conspicuous defect in the scheme of 1793 was the exclusion of the
Indians from any effective share in public legal administration.
3. The abolition of the court fee resulted in a great increase in the
litigation.
4. The appointment of English judges only led to the failure of
administration of justice on account of their ignorance of the customs,
traditions and language of the country.
5. An anxiety to make the system perfect resulted in making it
complicated and encumbered.
6. The scheme did not allow the Munsiffs any salary except a petty
commission on the value of the suits and this led naturally to bribery and
corruption in Munsiffs courts.
Conclusion:
The judicial plans of Lord Cornwallis were the most logical,
comprehensive, well planned and foresighted. Many of the defects that
existed in earlier schemes disappeared and the courts functioned with
greater efficiency, independence and judicious outlook as for the first time
‘Rule of Law’ was established in the Mofussil area. The plan was based on
sound principles and the intention was to deliver justice to the people free
from favour or fear.
Also though the entire period of the governor-general ship of Lord
Cornwallis is a highly constructive period, yet his plan of 1793 “is a standing
testimony to the maturity of judgment, the breadth of outlook and the liberty
of vision and conception with which Cornwallis approached the task judicial
reconstruction in the last year of his governor general ship in India.” Thus,
the whole system under the regulation act of 1793 introduced many reforms
Sir George bard low assisted lord Cornwallis in drafting a signal set of 48
regulations which were issued on 1st may 1793 known as Cornwallis court.
His schemes formed the high water mark in the whole of the Indian Legal
History.
Q.13. What is Codification of law and discuss about the contribution
made by the First and Second Law Commission in codifying the law.
Or
Write a short note on the provision of Charter of 1833 regarding
codification of law?
Or
Explain the history of codification of law in India?
Ans. Codification of Law Meaning: In dictionary meaning code is a
systematic collection of statutes, body of law, so arranged as to avoid
inconsistency and overlapping. In fact, codification is the systematic process
and reduction of the whole body of law into a code in the form of enacted
law. Thus, the law which previously was in the shape of customs, ancient
texts, judicial decision and fragmentary statutes is collected at one place
and presented in systematic arrangement which is known as code.
Salmond defines codification as “the reduction of the whole corpus
juis, so far as practicable to form enacted law.”
According to Black’s Law Dictionary,‘codification’ is the process of
compiling, arranging, and systematizing the laws of a given jurisdiction, or
of a discrete branch of the law, into an ordered code.
India being a Common Law nation, follows the common law systemas
followed in Britain. In England, the idea of codification was forwarded,
propounded and stressed by the great jurist Jeremy Bentham. Bentham
criticized common law system and demanded the real codification of laws
in the 1830s. He had a profound influence on the British Jurists in India at
that time including Lord Macaulay. According to the the an existing situation
in India, codification was very much required. Consequently, the idea of
codification was borrowed and applied in India
According to the Oxford Dictionary: “Code is a systematic collection of
statutes, body of laws, so arranged as to avoid inconsistency and
overlapping.” This definition of codification is not exhaustive because it
does not include common law and case law. In fact, codification is the
systematic process and reduction of the whole body of law into a code in
the form of enacted law.
Codification implies collection, compilation, methodical arrangement
and reduction to coherent form the whole body of law on any particular
branch of it so as to present it in the form of a systematic, clear and precise
statement of general principles and rules.
Certain conditions are necessary for the codification of law. According
to Roscoe Pound, the following important conditions lead to codification:
· The exhaustion for the time being of the possibilities of juristic
development of existing legal materials, or where the legal institutions
have become completely nature, or where the country has no juristic past,
the non-existence of such material.
· The unwieldiness, uncertainty and archaic character of the existing
law.
· The development of an efficient organ of legislation.
The need for one uniform law in a political community whose several
sub-divisions has developed or received divergent local laws.
Merits of codification:
1. Certainty – By Codification, law becomes certain. It no longer
remains vague and uncertain as it generally in precedent and custom.
2. Simplicity: The codification makes law simple and by the way of
simplicity it makes it easy and accessible to everybody. By code anyone can
know the law on a particular point. This enables the citizens to know their
rights and duties and thus greatly helps the administration of justice.
3. Logical arrangement: In code, law is logically arranged in a
coherent form. There are little chances of any conflict arising among the
different provisions of the law. Thus, the law is coordinated and
systematized in the code
4. Stability: The codification makes the law stable. The law which
comes into existence by the way of other sources has not that much of
stability. Stability is very essential for law so that the people may have
confidence in it and the legal transaction may be made easily and smoothly.
5. Unity: The codification is an instrument of forging unity among
the people. Codified laws have uniform and wider application. Thus it helps
in creating unity and integration in a country
6. Planned development: The planned development in a country is
possible only through codification. A nation cannot make the desired
divergent ways. By codification there comes uniformity and the desired
development is speedily achieved
Demerits of codification:
1. Rigidity: The codification causes rigidity in the law. It is essential
that the law must keep up with the time and should change itself to new
conditions. When the law once it is codified, there will be a little scope that
there maybe a little change. When the law is codified, the only way of
changing it is through the way of amendments. Generally, it is not easy and
it takes time. Hence, codification gives rigidity to law
2. Incompleteness: The codes are generally incomplete. It is not
possible to expect all the problems that might arise in the future. Therefore,
provisions cannot be made for them in code. Thus, by this way the code is
incomplete. Thus, in regard with the law, the indefiniteness and uncertainty
happens.
3. Hardship: The code generally provides uniform laws, which are
applicable to all present within the territory or part of it. The application
rarely views on the grounds which say about the customs, convictions and
that even includes the habits of the people.
4. Defective codes: Certain defects are bounded in a code. They cannot
be removed and it can be removed by the legislative amendment. This causes
great delay and inconvenience. Hence, the defects of a code remain for a
very long time.
Codifying the Laws in India : The charter act of 1833 is considered to be
an attempt to codify all the Indian Laws. The British parliament as a supreme
body, retained the right to legislate for the British territories in India and
repeal the acts. Further, this act provided that all laws made in India were
to be laid before the British parliament and were to be known as Acts. In a
step towards codifying the laws, the Governor-General-in-Council was
directed under the Charter act of 1833, to set up an Indian law Commission.
First Law Commission : In pursuance of the authority conferred by Sec.
53 of the Charter of 1833, the first Law Commission was appointed in India
in 1834. The commission consisted of Lord T.B. Macually, as chairman and
4 members namely, C.H. Cameron, J.M. MacLeod, G.W. Anderson and F. Millet.
The first 3 members represented Madras, Bombay and Calcutta respectively.
The commission met in India in 1834 for the first time. The said Charter
placed the first Law Commission wholly under the control of the Governor-
General-in-Council which determined from time to time the subjects, upon
which the commission shall proceed to work and submit reports.
Accordingly, the commission was assigned the following tasks:
1. Codification of penal law;
2. The law applicable to non-Hindus and non-Muslims in respect of
their various rights (Lex Loci Report);
3. Codification of civil and criminal procedural law etc, etc.
1. Codification of penal law (Draft Penal Code): As the system of
administration of criminal justice was most unsatisfactory, the local
government directed the commission to take its first step to tackle this
branch of law. The members of the commission prepared a draft penal code
which they submitted to lord Auckland, the Governor-General on 2th May,
1837. It could not be immediately enacted into a code and had to wait upto
1860 due to the following reasons:
a. he substantive civil law and the law of procedure were dark and
confused;
b. The illness of two members, threw the work on Macaulay.
This draft of I.P.C was mainly the work of Lord Macaulay and on account
of it; it is called “Macaulay’s Code”. Thus the draft code became law in
1860, and the said code is still continuing in the country for the
administration of criminal justice.
2. Lex Loci Report: Another important subject to which the
commission was required to devote its attention was the problem of
uncertainty of the substantive civil law which was applicable to the
Christian’s, Anglo-Indian’s and Armenian’s. There was no lex-loci or law of
the land for non-Hindus and non-Muslims residing in mofussil areas.
However, there was law for those non-Hindus and non-Muslims who
inhabited in presidency towns. There was a lot of uncertainty with regard to
the civil law applicable to the Christians, Anglo-Indian’s and Armenian’s
residing in the mofussil. Thus, the attention of the first Law commission
was directed to this problem in 1837. The first Law commission after careful
study and consideration submitted its report on 31st Oct. 1840 to the
Government. The first Law commission submitted its report under the
chairmanship of Andrew Amos and recommended that an Act should be
passed making the substantive law of England the lex-loci, the law of the
land outside the presidency towns in mofussil areas and which shall be
applicable to all except Hindus and Mohammedans. While applying the
substantive law of England certain restrictions were imposed and they are:
· Only those laws were to be applied which were to be suitable to the
conditions prevailing in India;
· The English law not to be opposed to any regulation of any
presidency;
· All questions concerning marriage, divorce and adoption
concerning persons other than Christian’s were to be decided by the rules
of the sect to which the parties belonged;
· Rules of equity as applied in England were to override the
substantive law of England.
Thus the first Law commission submitted a draft bill on 22th May 1841
to the Government. The lex-loci report of the first Law commission was sent
to all the presidencies in India for their opinion. But it was first halted by
the preoccupation of Lord Auckland and secondly it received criticism.
In the meantime the directors ordered not to pass any law for declaring
lex-loci and the matter remained pending until 2nd law commission was
appointed. However, one portion of the lex-loci report of the first Law
commission was implemented was “The Caste Disabilities Removal Act,
1850”. This piece of legislation had immense effect on the Hindus and
Muslims who were not to lose now any interest in property merely by their
conversion to other religion.
3. Civil Procedure Code: The commission drafted a code of civil
procedure and suggested various reforms in the procedure of civil suits.
4. Law of Limitation: The First Law commission drafted a valuable
report on the law of Limitation and with a draft bill on it, submitted it to the
Government on 26th Feb, 1842.
5. Stamp Law: Another matter referred to the commission was stamp
laws which were in a state of conflict and confusion. The commission
submitted its report on 20th Feb, 1837. It was till 1860 that a comprehensive
law relating to stamps was passed for the whole of British India.
6. Other Digests and Guides: While the draft codes prepared by the
first Law commission were being discussed, several Digests and Guides
were published in India. Some of them are:
a. A guide to the civil law of the presidency of Fort William;
b. Magistrates guide for Bengal;
c. Campbell’s collection of the Regulations of the Madras presidency;
d. Beaufort’s Digest of criminal law of the presidency of Fort William;
e. Bayne’s criminal law of the Madras presidency;
f. Clark’s Regulations of the Government of Fort St. George;
g. Fenwick’s index to the civil law of the presidency of Fort William;
h. Harrison’s code of the Bombay Regulations;
i. Sutherland’s Regulations of the Bengal code.
Contribution of the first Law commission: Although any effective results
could not be obtained from the first Law commission’s report yet it served a
very useful purpose by exposing the uncertainty of law in the country. The
commission’s report successfully attracted the attention of the people in
this country of the complex problems of the legal system.
Second Law Commission: Under the provisions of the Charter Act of
1853, the second Law commission was appointed in England on 29th Nov.
1853. The second Law commission was composed of the following persons
- Sir Edward Rayan, Robert Lowe, Lord Sherbooke, V.H. Cameron, J.M. MacLeod
and T.F. Ellis.
Task Assigned to second Law commission: The task entrusted to the
commission was to examine and consider the recommendations of the first
Law commission and enactments proposed by it, for the reform of the
judicial establishment’s, judicial procedure and laws of India. The life of
the second Law commission was fixed for three years, which was to expire
in 1856. Section 28 of the Charter Act, 1853 authorised Her Majesty to
direct the commission to submit reports on these Matters and every such
report was to be submitted within a period of three years after the passing
of this Act.
Reports: The second Law commission submitted four reports to the
Indian Government. The first report was submitted in 1855, second, third
and fourth reports were submitted in 1856.
1. First Report: In the first report, the commission submitted a plan
for reforms in judiciary and in courts procedure.
2. Second Report: In its Second report the commission agreed with
the lex-loci report of the first Law commission. It suggested that there must
be a substantive civil law for persons in the mofussil who had no law of
their own. The second Law commission expressed the firm view that no
attempt should be made to codify the personal laws of the Hindus and
Mohammedans - because any such attempt “might tend to obstruct rather
than promote the gradual process of improvement in the state of population”.
3. Third and Fourth Report: In these two reports, the commission
submitted a plan for the amalgamation of the Supreme Court and Sadar
courts and a uniform civil code of civil and criminal procedure applicable
both to the High Court’s to be formed by that amalgamation.
Achievements of the second Law commission: The recommendations
of the commission resulted in important legislation’s e.g.
a. The penal code proposed by Macaulay was taken up, revised and
finally passed in the year, 1860;
b. Codes of civil procedure and criminal procedure were passed in
the year 1859 and 1861 respectively;
c. The draft on the law of Limitation as submitted by the first Law
commission was also taken up and passed into law in 1859.
For codification of law various law commissions were constituted from
time to time:
First Law Commission 1955 -58 Mr. M. C. Setalvad

Former Attorney General of India
Second Law Commission 1958 -61 Mr. Justice T. V. Venkatarama
Aiyar.
Third Law Commission 1961 -64 Mr. Justice J. L. Kapur
Fourth Law Commission 1964 -68 Mr. J ustice J. L. Kapur
Fifth Law Commission 1968 -71 Mr. K. V. K. Sundaram, I. C. S.
Sixth Law Commission 1971 -74 Mr. J ustice Dr. P. B. Gajendragadkar
Seventh Law Commission 1974 -77 Mr. Justice Dr. P. B. Gajendragadkar
Eighth Law Commission 1977 -79 Mr. J ustice H. R. Khanna
Ninth Law Commission 1979 -80 Mr. Justice P. V. Dixit
Tenth Law Commission 1981 -85 Mr. J ustice K. K. Mathew
Ele venth Law Commission 1985 -88 Mr. Justice D. A. Desai
Twelfth Law Commission 1988 -91 Mr. J ustice M. P. Thakkar
Thirteenth Law Commission 1991 -94 Mr. Justice K. N. Singh
Fourteenth Law Commission 1995 -97 Mr. J ustice K Jayachandra Reddy
Fifteenth Law Commission 1997 -2000 Mr. Justice B. P. Jeevan Reddy
Sixteenth Law Commission 2000 -2001 Mr. Justice B. P. Jeevan Reddy

2002 -2003
Mr. Justice M. Jagannadha Rao
Seventeenth Law Commission 2003 -2006 Mr. Justice M. Jagannadha Rao
Eighteenth Law Commission 2006 -2009 Dr. Justice AR Lakshmanan
Nineteenth Law Commission 2009 -2012 Mr. Justice P. V. Reddi
Twentieth Law Commission 2012 -2013 Mr. Justice D. K. Jain

2013 -2015
Mr. Justice A. P. Shah
Q.14. What do you mean by the concept of principle of Equity, Justice

and Good Conscience? Explain its importance and scope in Indian Legal
History.
Or
Write a short note on the principle of Equity, Justice & Good Conscience.
Ans. The principle of justice, equity, and good conscience means in the
case of absence of statutory or personal law, the Indian courts follow the
decision of a case known as ‘Justice, Equity and Good Conscience.
When there is no suitable statutory or personal law for deciding a
case, the Indian courts follow the principle of justice, equity and conscience.
The high court’s in the British India had contemplated that when the law is
uncertain or ambiguous in a case, the matters of the case would be decided
according to the principle of justice, equity and conscience. Indian statutes
expressly empowers the judges to use this principle in deciding cases and
are specifically made enforceable by the courts in India
In India, the doctrine of ‘justice, equity and good conscience’ dates
back to the late eighteenth century when introduced, for the first time, in the
presidencies of Bengal, Bombay and Madras. The doctrine was later on
introduced in the other territories of India also, albeit gradually.
The general idea behind this doctrine was that if on a particular point
of dispute before the Court there was no express law, then the Court was to
decide the matter according to ‘justice, equity and good conscience.’ The
doctrine owes its existence to the reason that in the 18th and 19th century’s
law could not be found on each and every matter, as the history itself
reveals. So there was a huge vacuum in the legal system and the Courts were
to act according to ‘justice, equity and good conscience.’
It can hardly be said that the doctrine is now obsolete in the wake of a
complete law code governing India. Nor can it be said in the wake of a full-
fledged judiciary India has.
The maxim justice, equity and good conscience were introduced for the
first time in Bengal in 1780. Sir Elijah Impey, the first chief justice of the
Supreme Court of Calcutta laid down that in all cases for which no specific
directions had been given, the mofussil and sadar adalats were to act
according to the principal of Justice, Equity and Good Conscience’.
Theoretically with this provision, a rule of decision for all heads of
litigation was provided -a theoretical legal basis for the courts to decide
cases for which no law had been specifically prescribed. The judges were
given a discretion to adopt any rule or custom which appeared to be
reasonable to them in the circumstances of the case to be decided.
This maxim applied in judicial legislation led to the development of
different laws and introduced many principles of English law in the
mofussil. Gradually this maxim was introduced in Bombay, Madras and
the other territories of India.
Origin and Development- Neither the period applicability of the
principle of equity, justice and good consciences was originated. Normally,
the origin of this principal may considered with the judicial plan of year
1772 of Warren Hastings Although this plan was also incomplete. No clear
mention there for this principle. In the Plan of year 1781 of Impey, this
principle was clearly mentioned. It has been said in it that where there is no
lave custom or tradition exist for making decision in a case, the judges
should decide the cases on the basis of the principles of equity justice and
good conscience. Furtherance, in many other plans, this principal was e I
followed, as- (a) Provisions for applying this principle in Bengal were made
in Regulations of year 1793 and year 1832. (b) The same provisions for
Madras were made in Regulation of year 1802, and for Bombay in Regulation
of year 1827. The principle of equity, justice and conscience was made
applicable in Mofussil’s regions under following circumstances: (a) In the
civil matters of Hindus and Mohammedans where personal law was not
applicable, and (b) In all civil matters of other persons. In this way, the
origin and development of the principle of equity had in the form of
supplementary law to common law, in England. In case of no provision for
finalisation of a case in the Common law, such cases could be finalised
under it. Accordingly, to finalise the cases, two kind of laws were prevailing
in England. Common Law and Law of Equity. For finalisation of the cases
under the law of equity, chancellory courts were established. Finalisation
of cases under the law of equity is done in accordance with the principal of
equity, justice and good conscience
Meaning- Generally, a universal definition cannot be made for the
principle of equity, justice and good conscience. Prior to codification, it
was very hard to define it. Where there is no law, the principle of equity,
Justice and good conscience is used. In the cases of Ibrahim Vs Samrat
(1914 SC 599), Baghella Vs Sheikh Massluddin (14 IA 89) and Warden Vs
Lakhpatti (9 MIA 303) etc., it has been propounded by the Privy Council that
the principal of equity, Justice and good conscience means that the English
law should be implemented in India after modifying it as far as possible
according to the Indian conditions. According to Sir Henry Maine, “the
principle of equity, justice and good conscience is a such, which makes
applicability of english law after modifying it according to the Indian
conditions where there is no law on the subject.” The judicial plan of year
1772 of Warren Hestings also reflects the principal of equity, justice and
good conscience. It was provided in the judicial plan that the cases of
Hindus and Muslims be decided according to their personal law, traditions
and custioms and where there is no such personal law, traditions and
customs, the cases should be finalised on the basis of princip of equity,
justice and good conscience. From the above discussions it is clear that
where there is no law in existence on a subject, the judicial decision is
made on the basis of principle of equity, justice and good conscience, but it
does not clarify the meaning of it. Its definition can only be inferred. Equity,
Justice and good conscience means an innate incitement. Such an incitement
which is justified, unbiased and safeguarding the interests of both parties.
An arragement in accordance with the principles of natural justice may
also be considered in the periphery of equity, justice and good conscience.
Scope: As we have seen above that the principle of Equity, Justice and
Good Conscience is utilised only then when no provision exists on a subject
in the Common Law, Customs and traditions. In such cases, the judges
could finallse the cases at their own discretion. So the scope of this principle
was very limited.
Privy Council:
Section 5 of the Central Provinces Laws Act, 1875 provided for the
introduction of Hindu or Muslim laws in civil suits. Section 6 said that in
cases not provided for in Section 5, the courts were to act according to the
principle of Justice, Equity and Good Conscience. Similarly, in 1872, Punjab
Laws Act and in 1876, the NWFP and Oudh Act introduced the same maxim.
According to the Privy Council the maxim ‘Justice, Equity and Good
Conscience’ was adopted ‘as the ultimate test for all the provincial courts
in India’ The maxim constituted the residuary source of law if in particular
point of dispute before the courts, there was no parliamentary law, no
regulation and if it fell outside the heads for which Hindu and Muslim laws
were prescribed.
But there were problems in its application as from which sources were
the 00th to draw the principle of ‘Justice, Equity and Good conscience’. The
maxim did not have any persistent and definite connotation. It pointed to
no specific body of law and did not give any articulate direction or guidelines
to the judges to follow them in deciding disputes.
Simply put, it meant the discretion of the judges. The judges had the full
freedom to decide cases coming before them to the best of their ability and
capacity in such a way as appeared to them to do substantial justice between
the parties concerned.
The maxim assigned the courts a responsibility to ascertain in each
case what law to apply to the fact in consonance with reason and justice.
This paved the way for lawmaking by judges from case to case. A judge
could draw on anybody of principles which he thought to be based on
justice and good conscience in the context of the fact situation of the dispute.
Principles of the Hindu and Muslim Law: The inevitable result was
confusion and uncertainty, as each judge interpreted according to their
perception. In course of time certain guidelines developed to guide judicial
discretion in this respect. For instance, in matters of Contract law, it was
possible for the court to apply, as a matter of good conscience, ascertainable
principles of the Hindu and Muslim law.
Even though Contract was not directly under the personal laws in the
mofussil In the Kallup Nath Singh v. Kumlaput Jah, a lease entered into by an
individual in the name of his minor son was held to be ineffectual as
according to the Hindu Law, a contract entered by a minor was void and
hence no claim could be found thereon either against the minor or his
surety.
But it was not the entire Hindu and Muslim Law of Contract which was
applied by the mofussil court. Customs prevailing in the country formed
another source upon which the courts could draw for principles to decide
cases within their discretion under the maxim of justice, equity and good
conscience.
For example, the right of pasturage in the land of another, right to bury
the dead in another’s land. In Manzur Hasan v. Mohamman Zan, the Privy
Council ruled that in India there existed a right to conduct a religious
procession through a public street. A new orientation was given to this
maxim in the 19th century by two developments:
Active Role of the Privy Council Since 1833: Advent of the High Courts in
1861-62 which consisted of the English judges trained in English Law. Merits
of the principle:
1. This principle made the role of court unusually creative and
influential, but also difficult and complex.
2. The decisions of the Indian courts were a prolific source of
incorporation of the principle of English Law into the Indian jurisprudence,
e.g. the Law of Torts.
3. The merit of introducing English Law was the gradual reduction in
the antiquated features of the Hindu and Muslim Laws; curtailed the broad
discretion inherent in the principle and bridged the dichotomy of law
between the Presidency Towns and the mofussils
After the early days of its advent, a new orientation began to be given
to the maxim ‘justice, equity and good conscience.’ That is, the Courts started
interpreting the maxim to mean English law so far as applicable to the
Indian situation. This was visible rather substantiated by the two
developments in the 19th century. The first was the establishment of High
Courts in 1862 which consisted of the Englishmen as judges, obviously
trained in English law. They had a natural bias in favour of the English law
and thus when a dispute came before them to which no local custom was
applicable, they invariably began to base their decisions on the English
law. The second factor responsible for this new orientation (rather trend)
was the activisation of Privy Council as the ultimate Court of appeal from
India from 1833 onwards. The Privy Council also consisted of the English
judges and as a corollary of it they also applied the same English concepts
of ‘justice, equity and good conscience.’ It is in this way the process of
reception of English law in India has stimulated.
However in applying the English law, the touchstone which always
remained there was whether it was applicable to the Indian situation. We
can also say that this doctrine, in a way, acted as a means to incorporate
the English law.
The trend of applying the English law did not stop here. Instead it
continued unabated during the 19th and 20th centuries so far as relevant
to the Indian situation. Thus the rules of English law continued to find their
way into the body of Indian law indirectly through the maxim of ‘justice,
equity and good conscience.’ Even after the independence of India, we find
reference is still made to English case law by the Indian Courts. Sometimes
to interpret the Indian statutes and at other times as a residuary source of
law whenever need has been felt to decide a case according to justice,
equity and good conscience.
The broader concept of Natural justice which has now become the
hallmark of Indian law like every other country is the direct manifestation
of the doctrine of ‘justice, equity and good conscience. For the doctrine
does not now only mean the English law rather it is the literal meaning of
the words used in the maxim which is important. That is, JUSTICE, EQUITY
AND GOOD CONSCIENCE. The frequent use of terms such as ‘good faith’,
‘public policy’, ‘fairness’ etc. in statutes and by the judges in their judgments
is based on principles of equity. The approach of the Judiciary in Maneka
Gandhi’s case epitomizes the application of the Doctrine. The Supreme Court
in this case held while interpreting the word ‘law’ used in Article 21 of the
Constitution of India that law must be just, fair and reasonable.
In India we do not have, nor did we ever had separate courts (as in
England) administering ‘equity’. But the equitable principles of law, i.e.,
justice, equity and good conscience, are the guiding force behind most of
the statutes in our country and the decisions of the courts.
Importance and Evaluation: From the above discussions, the importance
of the principle of equity, justice and good conscience is self proved.
According to Holdsworth, the utility of equity, justice and good conscience
is there generally in each era and time. This is being considered as an
essential part of the judicial arragements of the country. Whenever, there
was no legal arragements on any matter, then this principle was being
utilised and is being utilised even today. Inherent powers of the court are
an evidence of it. Finalisation of such cases for which no rule or provision
is available in the Act or Code could be done by the courts under the inherent
powers. In the case of State of Karnatak Vs Rameshwar Rice Mills (A.I.R. 1987
SC 1359), it has been held by the Supreme Court that where a person refuses
to performance of a contract or breach a condition, there the dispute arose
due to such breach be got settled by an arbitrator and not by the parties to
the contract. It also indicates the use of equity, justice and good consciences.
Only, one demerit of this principle is an increase in arbitrariness of the
judges. Inclusion in Indian Laws-The principle of equity, justice and good
conscience has been included in various laws, as-
1. Indian Trust Act, 1882
2. Indian Specific Performance Act, 1963
3. Transfer of Property Act, 1882
4. Indian Contract Act, 1882
5. Civil Procedure Code, 1908 Co
6. Hindu Marriage Act, 1955 etc.
In the case of Jamnala Vs Khemraj Nathulal (A.I.R 1979 Rajasthan 179) it
has been held by the Rajasthan High Court that these inherent powers are
used to fullfill the objects of Justice.
Similar views have also been expressed in the case of Messrs Medahi
Chemicals and Pharma Pvt. Ltd. Vs Messrs Biological Limited (A.I.R. 2000 SC
1869).
However the importance of the concept has somewhat diminished than
what it was in the 19th century. The diminishing effect owes its reason to
the fact that the bulk of Indian law is now codified. That most of the law
which came prievously under the doctrine of ‘justice, equity and good
conscience’ has been codified by the India. Yet the basis remains the same.
For instance in 1963 the “Specific Relief Act” was passed by the Parliament
of India following the recommendation of the Law Commission of India and
repealing the earlier “Specific Relief Act” of 1877. Under the 1963 Act, most
equitable concepts were codified and made statutory rights, thereby ending
the discretionary role of the courts to grant equitable reliefs. The rights
codified under the 1963 Act were as under;
· Recovery of possession of immovable property (ss. 5 - 8)
· Specific performance of contracts (ss. 9 - 25)
· Rectification of Instruments (s. 26)
· Recession of Contracts (ss. 27 - 30)
· Cancellation of Instruments (ss. 31 - 33)
· Declaratory Decrees (ss. 34 - 35)
· Injunctions (ss.36 - 42)
With this codification, the nature of the equitable reliefs available
earlier have been modified to make them statutory rights and are also
required to be pleaded specifically to be enforced. Further to the extent that
these equitable reliefs have been codified into rights, they are no longer
discretionary upon the courts or as the English law has it. Nonetheless, in
the event of situations not covered under the 1963 Act, the courts in India
continue to exercise their inherent powers in terms of Section 151 of the
Code of Civil Procedure, 1908, which applies to all civil courts in India.
There are no such inherent powers with the criminal courts in India except
with the High Courts in terms of Section 482 of the Code of Criminal
Procedure, 1973. Further, such inherent powers are also vested in the
Supreme Court of India in terms of Article 142 of the Constitution of India
which confers wide powers on the Supreme Court to pass orders “as is
necessary for doing complete justice in any cause of matter pending before
it”.
However, in recent times, there is a judicial tendency to strike a new
line of approach rather than the traditional one viz, the incorporation of
English law. There are a handful of cases say for example, State of Bihar v.
Abdul Maji, AIR 1954 SC 245 where we find the Supreme Court has dissented
from the English approach. In Rattan Lal v. Vardesh Chander, AIR 1976 SC
588, a dispute regarding the determination of a lease had to be decided
according to justice, equity and good conscience. Krishna Iyer, J., speaking
on behalf of the Supreme Court pleaded that in Independent India, “we
should develop our own brand of justice and equity rather than follow
blindly the English law.” He further went on to say that India should shake
off its neo-colonial jurisprudence”.
While on the one hand the Supreme Court craves to develop its own
brand of justice and equity, the habit of relying upon the English law or on
any other legal system by it is yet to be given up. We don’t need to peruse the
case laws any more for the immediate example is the recent case of mercy
killing (or Aruna Shuanbagh’s case) in which the Supreme Court relied on
the English law among other legal systems of the world. The Supreme Court
relied and quoted THE AIREDALE CASE (Airedale NHS Trust v. Bland (1993) All
E.R. 82) (H.L.) in which the House of Lords held that if the doctors act on the
basis of informed medical opinion, and withdraw the artificial life support
system if it is in the patient’s best interest, the said act cannot be regarded
as a crime.
Thus we can say there is no let down on the part of the Indian judiciary
in relying heavily on the English case law.
Given the aforesaid, however, the scheme of the doctrine of ‘justice,
equity and good conscience’ is far from satisfactory. This owes to the reason
that the maxim ‘justice, equity and good conscience’ does not have any
precise and definite connotation. It points to no specific body of law. In
simple terms, it means nothing else but the discretion of the judge. The
maxim (Doctrine) has also opened the wide doors of judicial legislation
from case to case. Furthermore it is quite absurd to apply a law which is
developed thousands of miles away under a different climate and for a
different civilization. As this doctrine has always proved to be. History is
clear that quite a few principles of English law have been refused to be
applied by the Courts in India. Even at times the Courts in India have applied
those English laws which were a product of the peculiar conditions in
England.
Q.15. Write a short note on the Indian High Court Act, 1861?
Or
Explain the main provision of High Court Act, 1861?
Ans. Establishment of the Indian High Courts/ Indian High Courts Act,
1861: In the three Presidency towns of Calcutta, Madras and Bombay there
were two existing judicial systems for administering justice i.e. the Supreme
Court and the Sadar Diwani and Sadar Nizamat Adalat. This sort of judicial
administration was inconvenient for the inhabitants of the Presidencies. In
fact, it often clashed and it resulted in conflicting decisions. Ultimately,
this problem was resolved by the British Parliament by enacting the Indian
High Courts Act, 1861. The Indian High Courts bill was moved by the secretary
of State Sir Charles Wood in the House of Commons on 6th June, 1861 and
finally the Indian High Courts Act was passed by the British Parliament on
6th August, 1861. It was titled as “An Act for establishing High Courts of
Judicature in India”. The Act consists of 19 sections only. The Indian High
Courts Act, 1861, abolished the Supreme Court and Sadar Adalat’s in the
Presidencies and the Act also empowered the crown to issue letter’s patent
under the great seal of the United Kingdom, to erect and establish high
court of Judicature at Calcutta, Madras and Bombay. It further provided
that the High Courts were to come into existence at such time as her Majesty
might deem fit. Thus, on the establishment of the High Court, the Supreme
Court, the Sadar Diwani Adalat and Sadar Nizamat Adalat at the concerned
presidency were to be abolished and the records and documents of these
courts so abolished were to become the records and documents of High
Courts concerned.
Salient Features of the Indian High Courts Act of 1861–
· The Indian High Courts Act of 1861, was an act that authorized The
Crown to establish High Courts in India.
· This Act created the High Courts in Calcutta, Madras, and Bombay.
· The Act was passed after the First War of Independence of 1857
and merged the parallel Legal and Justice Systems of the Crown and the East
India Company.
· The Indian High Courts bill was moved by the Secretary of State Sir
Charles Wood on 6th June 1861 and was passed on 6th August 1861.
· The Act consisted of 19 sections.
· It dissolved all the existing courts located at Calcutta, Madras and
Bombay.
· Each High Court could consist of a Chief justice and up to 15 judges.
· The Judges could be selected from barristers (5 years of experience),
civil servants (10 years of experience including 3 years as a zillah judge),
judges of small cause courts (5 years of experience), or Pleaders of High
Courts (5 years of experience).
· The Chief Justice and Minimum of one-third of The Regular Judges
were to be Barristers and Minimum of one third Regular Judges were to be
from the Civil Service.
· All Judges held office during the pleasure of the Crown
The main provisions of the Indian High Court Act of 1861:
1. Constitution High Courts: The High Court’s was to consist of a
Chief Justice and other puisne judges not exceeding 15 in number as her
Majesty might from time to time think fit to appoint.
2. Qualification of judges of High Court: A person could be appointed
judge of High Court if he was either:
a. A Barrister of not less than five years standing;
b. A member of the Covenanted Civil Service of at least 10 year’s
standing who had served as Zila judge for at least 3 years in that period;
c. A person having held judicial officer not inferior to that of principal
Ameen or judge of a small cause court for at least 5 years;
d. A person who had been a pleader of a Sadar Court or a High Court
for at least 10 years.
At least one third of the judges of the High Court, including the Chief
justice had to be Barristers and the other one third of the judges had to be
members of the covenanted Civil Service. The judges hold their office during
the pleasure of her Majesty.
3. Laws to be applied: The law which the high court applied was
same as applied by the Supreme Court i.e. English law. However, the High
court was allowed to use the principles of justice, equity and good conscience
on the appellate side. In criminal law, it followed the I.P.C, 1860. So far as
procedural laws are concerned the High Court’s followed civil and criminal
codes.
Jurisdiction of the High Court’s: The jurisdiction of each high court
depends on the letters Patent issued by her Majesty. She could give them
power to exercise all civil, criminal, intestate, testamentary, admiralty and
matrimonial jurisdiction. She could also confer on them original and
appellate jurisdiction and all such powers and authority with respect to
the administration of justice in the presidency, as she thought fit. Thus High
Courts were given the following original and appellate jurisdiction:
1. Original jurisdiction: The court had original jurisdiction in the
following matters:
a. Civil Jurisdiction and
b. Criminal Jurisdiction
(a) Civil Jurisdiction: The Original Civil Jurisdiction of the court was of
two types:-
i. Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction extended to
the town of Calcutta, Madras and Bombay and such local limit as from time
to time could be prescribed by law of a competent legislature in British
India. All suits of the value of Rs. 100 or more and which were not cognizable
by the small court at Calcutta, Madras and Bombay were cognizable under
High Courts. Further, the ordinary civil jurisdiction could be invoked only
if:
· The movable property was situated within the town of Calcutta,
Madras and Bombay;
· The cause of action wholly or partly arose in Calcutta, Madras and
Bombay;
· The defendant was carrying on business or working for gain in
Calcutta, Madras and Bombay.
ii. Extra Ordinary Civil Jurisdiction: Extra Ordinary Civil Jurisdiction
provides that the High Court could call a case pending in any lower court
subject to its superintendence and could decide that case itself. This
jurisdiction could be exercised in a case where the parties agreed to such
exercise or the High Court thought it proper to impart justice.
2. Criminal Jurisdiction: It is of two types also:-
i. Ordinary Original Criminal Jurisdiction: In exercise of its Ordinary
Original Criminal Jurisdiction the High Court was empowered to try all
persons brought before it in due course of law. This jurisdiction was made
available over the native criminals and crimes committed with the local
limits of the presidency towns and beyond this limit over the Britishers and
Europeans as the Supreme Court used to enjoy the jurisdiction over them
before the establishment of the High Court.
ii. Extra Ordinary Original Criminal Jurisdiction: The High Courts were to
have extra Ordinary Original Criminal Jurisdiction which was not enjoyed
by the High Court. Under this jurisdiction the High Court hear any criminal
case against any person within the cognizance of any court which was
subject to the supertendance of the High Court. If such case was referred to
the high court by the advocate general or by any magistrate or any other
officer specially empowered for that purpose.
3. Revenue Jurisdiction: The High Court was given jurisdiction to here
revenue cases also which were precluded from the jurisdiction of the
Supreme Court by the Act of Settlement, 1781.
4. Admiralty Jurisdiction: The admiralty and vice-admiralty jurisdiction
was also given to the high court. Under this jurisdiction High court was
given power to try and determine all the cases of civil as well as criminal
originated during war and at ships. This jurisdiction was like the jurisdiction
of Supreme Court.
5. Testamentary and miscellaneous jurisdiction: The High Courts were
given similar testamentary, intestate and probate jurisdiction as was
enjoyed by the Supreme Court. It also worked as the court of words for the
administration of the estate and persons (lunatics, idiots and minors).
6. Appellate Jurisdiction: The appellate jurisdiction of the High Court
was of two types:-
a. Civil Jurisdiction: The High Court could hear appeals in all cases
authorised by any law or regulation.
b. Criminal Jurisdiction: The High Court had criminal jurisdiction in all
cases decided by the subordinate courts to it. It could also entertain
revisions against the decision of the lower court and reference from them.
7. Supervision: The High court was also to exercise power of
superintendence over all the subordinate courts. It was also the court of
reference and revision for the subordinate criminal courts which were
subject to its superintendence. It could transfer any case from one court to
any other court.
Appeals from High Court: An appeal to Privy Council lay from judgement
of High Court in civil cases when the amount involved is Rs. 10,000 or more
or if the High Court certified that the case is fit one for appeal. And in case
of criminal cases from its original jurisdiction or if the High Court certified
that the case is fit one for appeal.
· An appeal to the Privy Council lay from the judgement of High Court
in Criminal cases if the High Court certified that the case is a fit one for
appeal to The Privy Council or if it felt so while using its Original Jurisdiction
Powers.
· Although the High Court was the Highest in India, A court by the
name of The Privy Council did exist. However, the problem was that to
approach the Privy Council required huge expenses and time of the litigants.
· The British Parliament passed The Government of India Act, 1935.
It provided for the establishment of a Federal Court in India. Thus in 1937,
the federal court was established. The seat of the court was in Delhi.
· The Federal Court was a Court of record.
· The Federal Court also saved the time and expenses of the litigants.
Q.16. Discuss the main feature of the Indian Council Act 1909?
Or
Describe the main provisions of the Minto Morley Reform?
Ans. Indian Councils Act of 1909 (Minto Morley Reforms): The Indian
Councils Act is also known as Minto Morley Reforms (Lord Morley was the
then Secretary of State for India and Lord Minto was the then Viceroy of
India).
The British believed that cracking down on uprising in Bengal was
necessary but not sufficient for restoring stability to the British Raj after
Lord Curzon’s partitioning of Bengal in 1905. They believed that a dramatic
step was required to restore the faith of the Indian upper classes and the
moderates in Congress. The Government aimed at rallying the Moderates
and the Muslims against the rising tide of nationalism. Muslims had
expressed serious concern that a “first past the post” electoral system, like
that of Britain, would leave them permanently subject to Hindu majority
rule
Background: The Indian Councils Act, 1909 the passage of which will
always be associated with the name of Lord Morley of Blackburn, made
important changes in the constitution and functions of the Indian legislative
councils, and gave power to make changes in the executive governments of
the Indian provinces.
The introduction of the measure was preceded by discussions and
correspondence, which began in Lord Morley’s first year of office as Secretary
of State for India and extended over a period of nearly three years.
In 1906 the Viceroy, Lord Minto, drew up a minute in which he reviewed
the political situation in India, and pointed out how the growth of education,
encouraged by British rule had led to the rise -of important classes claiming
equality of citizenship, and aspiring to take a larger part in shaping the
policy of the government.
He then appointed a committee of his council to consider the group of
questions arising out of these novel conditions. From the discussion thus
commenced was developed a tentative project of reform, which was outlined
on a Home Department letter to local governments dated August 24, 1907.
This letter, after having received approval by the Secretary of State in Council,
was’ laid before Parliament, and was published in England and India. The
local governments to whom it was addressed were instructed to consult
important bodies and individuals representative of various classes of the
community before submitting their own conclusions to the Government of
India. The replies were received in due course, and are to be found in the ‘
colossal blue books ‘ appended to a letter from the Government of India,
dated October I, 1908, in which the situation is again reviewed, and revised
proposals are formulated.
The views of the Secretary of State on these proposals are expressed in
a dispatch dated November 27,1908, and were expounded by Lord Morley
in a speech delivered in the House of Lords on December I7, 1908.
Effect was given to Lord Morley’s intention by the appointment of Mr.
Sinha, in March, 1908, to the post of law member of the Governor General’s
council. This appointment carried a step further the policy adopted in 1907,
when two natives of India were placed on the Secretary of State’s council. In
pursuance of the same policy a native of India has been placed on the
executive councils for Madras and Bombay respectively, and is to be placed
on the new executive council for Bengal.
The major provision of the Act 1909:
1. Expansion of the Legislative Councils: The act enlarged the size of
the legislative council both Central and Provincial. The number of members
in the Central Legislative Council was raised from 16 to 60. The number in
Provincial legislative council was not uniform. Legislative councils of Bengal
, Bombay and Madras was increased to 50 members each. The provincial
legislature of U.P. was to have 50, of Assam, Burma and Punjab 30 each.
2. Appointment of the members:
a. The additional members of the councils for the purpose of making
laws and regulations (hereinafter referred to as Legislative Councils) of the
Governor-General and of the Governors of Fort Saint George and Bombay,
and the members ofthe Legislative Councils already constituted, or which
may hereafter be constituted, of the several Lieutenant-Governors of
Provinces, instead of being all nominated by the Governor-General, Governor,
or Lieutenant-Governor in manner provided by the Indian Councils Acts,
1861, and 1892, shall include members so nominated and also members
elected in accordance with regulations made under this Act, and references
in those Acts to the members so nominated and their nomination shall be
constructed as including references to the members so elected and their
election.
b. The number of additional members or members so nominated and
elected, the number of such members required to constitute a quorum, the
term of office of such members and the manner of filling up casual vacancies
occurring by reason of absence from India, inability to attend to duty,
death, acceptance of office, or resignation duly accepted, or otherwise,
shall, in the case of each such council, be such as may be prescribed by
regulations made under this Act: Provided that the aggregate number of
members so nominated and elected shall not, in the case of any Legislative
Council mentioned in the first column of the first schedule to this Act,
exceed the number specified in the second column of that schedule.
3. The number of ordinary members of the councils of the Governors
of Fort Saint George and Bombay shall be such number not exceeding four
as the Secretary of State in Council may from time to time direct, of whom
two at least shall be persons who at the time of their appointment have
been in the service of the Crown in India for at least twelve years.
If at any meeting of either of such councils there is an equality of votes
on any question, the Governor or other person presiding shall have two
votes or the casting vote.
4. It shall be lawful for the Governor-General in Council, with the
approval of the Secretary of State in Council, by proclamation, to create a
council in the Bengal Division of the Presidency of Fort William for the
purpose of assisting the Lieutenant-General in the executive government of
the Province, and by such proclamation-
a. To make provision for determining what shall be the number (not
exceeding four) and qualifications of the members of the council; and
b. To make provision for the appointment of temporary or acting
members of the council during the absence of any member from illness or
otherwise, and for the procedure to be adopted in case of a difference of
opinion between a Lieutenant-Governor and his council, and in the case of
equality of votes, and in the case of a Lieutenant-Governor being obliged to
absent himself from his council from indisposition or any other cause.
5. It shall be lawful for the Governor-General in Council, with the like
approval, by alike proclamation to create a council in any other province
under a Lieutenant-Governor in the executive government of the province:
Provided that before any such proclamation is made a draft there of shall
be laid before each House of Parliament for not less than sixty days during
the session of Parliament, and, if before the expiration of that time an
address is presented to His Majesty by either House of Parliament against
the draft or any part thereof, no further proceedings shall be taken thereon,
without prejudice to the making of any new draft.
6. Where any such proclamation has been made with respect to any
province the Lieutenant-Governor may, with the consent of the Governor-
General in Council, from time to time make rules and orders for the more
convenient transaction of business in his council, and any order made or
act done in accordance with the rules and orders so made shall be deemed
to be an act or order of the Lieutenant-Governor in Council.
7. Every member of any such council shall be appointed by the
Governor-General, with the approval of His Majesty, and shall, as such, be
a member of the Legislative Council of the Lieutenant Governor, in addition
to the members nominated by the Lieutenant Governor and elected under
the provisions of this Act.
8. Communal Representation: For the first time, the Indian Councils
act gave recognition to elective principle for the appointment of nonofficial
members to the councils. However, it introduced separate and discriminatory
electorate. The electorate was decided on the basis of class & community.
For the provincial councils a provision of three categories was made viz.
general, special and chambers of commerce. However, for the central
council, a fourth category Muslims was added. This was for the first time
that, the seats in the legislative bodies were reserved on the basis of religion
for Muslims. Separate constituencies were marked for the Muslims and
only Muslim community members were given the right to elect their
representatives.
The separate electorate for Muslims had a long lasting impact on India’s
polity. It recognized the Muslim community as a separate section of the
India and triggered the cancer of Hindu-Muslim disharmony which
ultimately culminated in the partition.
Under the separate electorates, Muslims could vote exclusively for the
Muslim candidates in constituencies specially reserved for them. The idea
was to establish that the political, economic and cultural interests of the
Hindus and Muslims were distinct. The unity between Hindus and Muslims
is a illusion and this act sowed the seeds of the Muslim Communism.
9. Other Features:
· The act empowered the members to discuss the budget and move
resolutions before it was approved finally. They were given rights to ask
supplementary questions and move resolutions to on matters related
toloans to the local bodies.
· The members given right to discuss matters of the public interest
however, the house was not binding on the government. Rules were also
framed under the act for the discussion of matters of general public interest
in the legislative councils.
· No discussion was permitted on any subject not within legislative
competence of the particular legislature any matter affecting the relations
of the Government of India with a foreign power or a native state, and any
matter under adjudication by a court of law.
Critical Analysis of the Act: The Minto-Morley Reforms of 19O9 could
not come up to the expectations of the Indians. What the people of India
demanded was that there should be set up a responsible government in the
country. But the sacred heart of the reforms of 1909 was “benevolent
despotism” and it was basically a subtle attempt to create a “constitutional
autocracy”.
Further, though non-official majority was given in the Provincial
Councils, the practical result was nothing. The non-official majority was
nullified by the fact that it included nominated members. There was no real
majority of those who represented the people.
A shadow rather than substance: The reforms of 1909 afforded no
answer and could afford no answer to the Indian political problem. The
real political solution was lying in complete self-rule and accountable
governance but the 1909 Act was only a face saving device. The position of
the Governor- General remained unchanged and his veto power remained
undiluted and the Act was successfully maintained relentless constitutional
autocracy. Under such circumstances narrow franchises, indirect elections,
limited powers of the Legislative Councils ushered a complete irresponsible
government. The Act rather added new political problem with the
introduction of the separate electorate system. While the parliamentary
forms were introduced, no responsibility was conceded. At the same time
there were no connection between the supposed primary voter and a man
who sits as his representative on the Legislative Council. In such a situation,
the political participation, awareness and education remained a distant
dream. In nutshell, it can be said that 1909 Act was ‘the shadow rather than
the substance’.
Merits of the Indian Councils Act of 1909 (Minto Morley Reforms):
· It effectively allowed the election of Indians to the various
legislative councils in India for the first time, though previously some
Indians had been appointed to legislative councils.
· The introduction of the electoral principle laid the groundwork for
a parliamentary system even though this was contrary to the intent of Morley.
Demerits of the Indian Councils Act of 1909 (Minto Morley Reforms):
· Lord Morley made it clear that colonial self-government (as
demanded by the Congress) was not suitable for India, and he was against
introduction of parliamentary or responsible government in India
· The position of the Governor- General remained unchanged and
his veto power remained undiluted
· Narrow franchises and indirect elections allowed the entry of
members in an undemocratic manner
· Limited powers of the Legislative Councils ushered a complete
unaccountable government.
· The communal electorate system created rifts in society
· The reforms of 1909 gave to the people of the country a shadow
rather than substance. The people had demanded self-government but what
they were given was ‘benevolent despotism
Q.17: Write a detailed note on the history of appeals from Indian Courts
to Privy Council in England and when it got abolished?
Or
Write a short note on Privy Council and its appellate jurisdiction.
Ans. Privy Council: If we overview the history of Indian Legal System, it
clearly reveals that the Indian Legal System is more or less based on the
English Legal System. In fact, the systematic development of Indian judicial
institutions, judicial principles, laws etc. has occurred during British regime
itself. Besides this, the British regime in India has also developed a
hierarchical judicial system in India. Accordingly, the highest judicial
authority was conferred on a body of jurists, popularly called as ‘Privy
Council’. It has played a significant role in shaping the present legal system
in India. The same is discussed as under.
Origin and establishment of Privy Council: As it is an accepted fact that,
every political system develops for itself a certain sort of legislative,
executive and the judicial machinery for its smooth working and
administration. Establishment of Privy Council was with the same objective.
The Privy Council was nothing but the judicial body, which heard appeals
from various courts of the British colonies including India.
The origin of Privy Council can be traced back to the Norman Period of
English. At the beginning of 11th century, the Normans introduced a Central
Government in England for controlling their executive, legislative as well
as judicial Departments. There was a Supreme Federal Council of Normans.
It was known as ‘Curia’ and it acted as the agency of Normans to rule
England. Through it the whole administration in England was controlled.
However, gradually with the passage of time, Curia gets divided into ‘Curia
Regis’ and ‘Magnum Concillium’. Out of them, Magnum Concillium was to
deal with executive matters whereas Curia Regis performs judicial functions.
The Curia Regis was a small body consisting of high officials of the
State, members of the Royal household and certain clerks chosen by the
Crown itself. Their duty was to advice the King in matters of legislation and
administration and to deliver a justice. In fact, the Curia Regis acted as a
final Appellate Court for England and English Empire. Gradually, the Curia
Regis came to be considered as the advisory body of the King performing
most of the vital functions in the field of judicial administration. Finally,
during the regime of Henry II, there was a tremendous increase in the Judicial
Functions of Curia Regis and it lead to the formation of two different Common
Law Courts in England. They are:
a. King-in-Parliament i.e. Court of House of Lord.
b. King-in-Counsel i.e. Court of Privy Council.
The former became the highest Court of Appeal for the Courts in England
while the later acted as the highest Court of Appeal for all British
Possessions and Settlements beyond the seas. In this way, the Privy Council
was established during the middle of 16th century. It thus acted as the
advisory body of the King with regard to the affairs of the State. Headquarter
of the Privy Council was at Landon and its powers were implemented through
the means of royal proclamations, orders, instructions etc.
Composition of Privy Council: As far as India is considered, 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 keeping in view the extent and
importance of the appellate jurisdiction of Privy Council. Subsequently, in
1830 he became the Lord Chancellor and during his regime, the British
Parliament enacted the Judicial Committee Act, 1833 in order to reform the
constitution of Privy Council. In this way, officially 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 as per
the provisions of the Act. Accordingly under this Act, 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. Thereafter, by means of 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.
Role of Privy Council: The Privy Council has contributed a lot in
development of Indian Legal System. It served a cause of justice for more
than two hundred years for Indian Courts before independence. As far as
the judicial institution is concerned, the Privy Council was a unique and
unparallel among all the Courts round the world. It set the 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’. Besides the Privy Council also lead to the introduction of
Common Law in India, which forms the basis almost all present Indian
laws.
The contribution of Privy Council in personal laws like Hindu Law and
Muslim Law is also noteworthy. It acted as a channel, through which English
legal concepts came to be assimilated with the body and fabric of the
Indian law. it always insisted on the maintenance of the highest standards
of just and judicial procedure, especially in the field if criminal justice. In
this way; the decisions of Privy Council have enriched the Indian
jurisprudence in many respects. Its contribution to the statute law, personal
laws, and commercial laws is of great importance. Thus during the period
of 1726-1949 and specifically after 1833 and onwards, the Privy Council
has played a magnificent role in making a unique contribution to Indian
laws and the Indian Legal System. The fundamental principles of laws as
laid down by the Privy Council are considered as path finder for the Indian
Courts still today.
At present also, the Privy Council command a great respect among
Indian lawyers, judges as well as Indian public as the highest judicial
institution. Some of the principles laid down by the Privy Council are still
followed by the Supreme Court of India. The view taken by the Privy Council
is binding on the High Courts in India till the Supreme Court has decided
otherwise. One of such instance can be given in the form of ‘principle of
absolute liability’ as propounded by the Supreme Court in the historic olieum
gas leak case. Thus as a whole, the contribution of Privy Council is considered
as remarkable for the development of Indian Legal System and Indian
Judicial Administration. It has played a great unifying role in shaping
divergent laws in India.
Appeals to the Privy Council from various courts of India: The authority
of the Privy Council over the Indian subcontinent developed in patches that
stretched unevenly inland from coastal locations, mirroring the process by
which the East India Corporation, established in 1600, gradually acquired
political power in the region. This process resulted in “India” as such not
forming a jurisdiction until India and Pakistan emerged as independent
countries in 1947. Rather, the courts hearing appeals from the Privy Council
were provincial courts and appealed themselves from far-off subcontinental
lands.
The earliest appeals from India to the Privy Council were not appeals
against any court’s decision, but petitions to the English Crown for alleged
oppression by officials of the East India Company. The earliest plea to the
Privy Council from a court in India was in 1679.
1. Mayor’s Court: In 1726, in the Charters of the Mayor’s Courts,
established in the port cities of Bombay, Madras and Calcutta, earliest
formal provisions for appeals to the Privy Council from courts located in
India were provided. In fact, Bombay was Crown territory (acquired from
the Portuguese as royal dowry) transferred to the Company, while the
settlements in Madras and Calcutta grew around the Company’s trading
stations and on lands leased from Indian rulers.
These courts’ jurisdiction was limited to the city in which they were
located and British subjects. In 1753, explicit legislation provided for
Indians not to be subject to their jurisdiction unless they chose to be.
Nevertheless, Indians provided much of the business for these courts and
scientists speculated on the grounds.
Appeal from Mayor’s Court: In Indian Legal History, the 1726 Charter
granted Privy Council the right to appeal from the Indian Courts. Three
Mayor’s Tribunals in Calcutta, Madras and Bombay were set up in that
Charter. The provision was made concerning the first appeal to the Governor-
in-Council in the respective provinces from the rulings of the Mayor’s Court
and the second appeal to the Privy Council in England. Whereas the 1757
Charter which re-established the Courts of the Mayor reaffirmed the said
provisions of the Court of Mayor’s Appeal to Privy Council..
2. Supreme Courts and Sadr Nizamat/Sadr Diwani Adalats: The British
Parliament became more concerned with its activities when the East India
Company gained formal political power over major areas in eastern India
(Bengal, Bihar, and Orissa).
The acts included the appointment, by a Standing Parliamentary
Committee (the Board of Control) of the first governor general of India,
Warren Hastings, and the establishing, at first in the state of Calcutta and
then in Mumbai in 1823 and Madras in 1982, and the establishment of the
Supreme Courts, composed of fully trained barrister juges from Great Britain.
The consequence of these reforms was the emergence, in the cities in
which they were situated as well as in British subjects, of a peculiar divorced
legal system-whereby the Supreme Courts of Calcutta , Bombay and Madras,
like the Mayor’s Court, were repeatedly overthrown by the English rule.
The courts outside the main towns, on the other hand, were known as
‘business courts’ and were called Adalat (justice) after the Indo-Persian
word. They were divided into the Adalats Diwani (income and civics) and
the Adalats Nizamat (criminal). They have a variety of rules, including
modified variants of Hindu and Islamic law, and they have been governed
by officers of Companies with little to no legal experience and assisted by
Indian lawyers. The Privy Council appealed, on the one hand, from the
Supreme Court and, on the other, from the Provincial High Courts (Sadr
Nizamat Adalats) and Sadr Diwani Adalats. (Benton, 1999)
Appeal from the Supreme Court and Sardar Adalats: This Act empowered
the Crown to issue a Supreme Court Charter at Calcutta for establishment.
Thus, the Crown issued the Charter of 1774 to create a Supreme Court in
Calcutta, and it abolished the respective Court of Mayor. Section 30 of this
Charter provided the right to appeal to the Privy Council in civil matters
from the judgments of the Supreme Court, if two requirements were met:
· Where the amount involved exceed 1000 pagodas.
· Where the appeal is filled within six months from the date of
decision.
Similarly, the 1797 Act replaced the Court of Mayors at Madras and
Bombay with the Court of Recorders and provided direct appeals to the
Privy Council from these courts. Thus, the right of appeal to Privy Council
from King’s Court was well recognized. Besides this, there was the Court of
Business, i.e. Sadar Adalat Diwani, and Sadar Nizamat Adalat. They also
acknowledged the right to appeal their decisions to the Privy Council.
According to the Settlements Act of 1781, the right to appeal in civil matters
from Sadar Diwani Adalat at Calcutta was provided for.
3. The High Courts: This confusion, with many overlaps and
differences, persisted until these two court systems were amalgamate, the
existing courts were abolished and the provinces of Calcutta, Mumbai and
Madras were established in 1862. Subsequently, other high courts were set
up which are all listed in “India” when you use the catalogue search function
on this website. The civil and criminal powers of all provincial high courts
and the appeals rested on the Privy Council’s Judicial Committee.
Of these, the High Court in Bombay had a particularly large and complex
jurisdiction from the west shore of India to Zanzibar Island in East Africa
and to Aden and Bahrain in the Persian Gulf jurisdictions. The development
and growth of the High Courts was matched by the growth of the Indian bar
and bench in the Indian subcontinent. In the nationalist moves of India and
Pakistan, many such judges and lawyers played a leading role. For more
essays on this website relating to the growth of the practice of law in the
British Empire.
A final court of appeal within the territorial boundaries of India was
requested in India in the 1930s. Though the Government of India Act of
1935 established the Federal Court of India, its jurisdiction was largely
restricted and restricted to constitutional matters. It was only in 1948,
more than a year after the independence of India, that its competence had
increased significantly. The Supreme Court of India succeeded the Federal
Court in 1950. India abolished calls to the Privy Council in 1949
4. Appeals to Privy Council from High Courts: The high courts were
established in three provinces in 1861 under the Indian High Courts Act,
1861. It was the amalgamation of the Courts of King and the Courts of
Business. This Act provided for the right to appeal from any of its decisions
to the Privy Council from High Courts except in criminal matters. In addition
to this, there was a provision of Special leave to Appeal in certain cases to
be so certified by the High Courts. The Charter of the High Court also made
it the supreme and final court of appeal in all cases, civil and criminal,
decided by inferior courts, except such as possessed the requisite
importance, pecuniary or legal, demanding a further appeal to the Judicial
Committee of the Privy Council.
5. Appeals from Federal Court in India to Privy Council: The 1935
Government of India Act provided for the creation of a Federal Court in
India. The Federal Court was granted original exclusive jurisdiction to decide
disputes between the Center and the constituent Units. The provision was
made for the filing of appeals from the High Courts to the Federal Court and
the Privy Council from the Federal Court. The Federal Court also had
jurisdiction to grant Special Leave to Appeal, and a High Court certificate
was essential for such appeals.
Abolition of jurisdiction of Privy Council: In 1933, a white paper was
issued by the British Government for establishment of the Supreme Court in
India so as to hear appeal from Indian high Courts. It was the first step in
avoiding the jurisdiction of Privy Council. After Indian independence, the
Federal Court Enlargement of Jurisdiction Act, 1948 was passed. This Act
enlarged the appellate jurisdiction of Federal Court and also abolished the
old system of filing direct appeals from the High Court to the Privy Council
with or without Special Leave. Finally in 1949, the Abolition of Privy Council
Jurisdiction Act was passed by the Indian Government. This Act accordingly
abolished the jurisdiction of Privy Council to entertain new appeals and
petitions as well as to dispose of any pending appeals and petitions. It also
provided for transfer of all cases filed before Privy Council to the Federal
Court in India. All powers of the Privy Council regarding appeals from the
High Court were conferred to the Federal Court.
Thereafter with the commencement of the Constitution of India in 1950,
the Supreme Court has been established and is serving as the Apex Court for
all purposes in India. It hears appeals from all the High Courts and
Subordinate Courts. With this the appellate jurisdiction of the Privy Council
finally came to an end.
Conclusion:
The procedure of lodging appeals with the Privy Council and of their
being decided, was modified several times, most importantly in 1833. From
the discussion above it is apparent that the Privy Council has made a
valuable contribution to the development of the Indian judiciary and legal
system. In the Indian legal system, it implemented several fundamental
concepts of law. The courts of India were formed. In general, its role in
improving the legal system in India as it currently exists is very critical.
By looking at the history of the Indian Legal System, the Indian Legal
System is founded on the English Legal System. Indeed, during the English
regime itself there was a systematic development of Indian judicial
institutions, judicial principles, laws, etc. Furthermore, a hierarchical
judicial system was developed in India in the British regime. Consequently,
a body of lawyers popularly known as the ‘Privy Council’ was granted the
highest judicial authority. In shaping the current legal system in India, it
has played an important role.
Q.18: Discuss about the Montagu-Chelmsford Reforms and Government
of India Act, 1919?
Or
Write the Salient features of the Government of India Act, 1919?
Ans. Montagu-Chelmsford reforms and government of India Act, 1919:
In line with the government policy contained in Montagu’s statement (August
1917), the Government announced further constitutional reforms in July
1918, known as Montagu- Chelmsford or Montford Reforms.
Background:
· In 1918, Edwin Montagu, the Secretary of State, and Lord
Chelmsford, the Viceroy, produced their scheme of constitutional reforms,
known as the Montagu-Chelmsford (or Mont-Ford) Reforms, which led to
the enactment of the Government of India Act of 1919.
· Montagu-Chelmsford Reforms which came into force in 1921.
· The sole purpose of this Act was to ensure Indians of their
representation in the Government.
· The Act introduced reforms at the Central as well as Provincial
levels of Government
The main features of the Montford Reforms were as follows:
1. Provincial Government—Introduction of Dyarchy:
i. Subjects: It included the matters which were related to a specific
Province such as Public Health, Local Self-government, Education, General
administration, Medical facilities, Land-revenue, Water supply, Famine
relief, Law and Order, Agriculture etc.
ii. Executive:
a. Dyarchy, i.e., rule of two—executive councillors and popular
ministers—was introduced. The governor was to be the executive head in
the province.
b. Subjects were divided into two lists: “reserved” which included
subjects such as law and order, finance, land revenue, irrigation, etc., and
“transferred” subjects such as education, health, local government, industry,
agriculture, excise, etc.
The “reserved” subjects were to be administered by the governor through
his executive council of bureaucrats, and the “transferred” subjects were to
be administered by ministers nominated from among the elected members
of the legislative council.
c. The ministers were to be responsible to the legislature and had to
resign if a no-confidence motion was passed against them by the legislature,
while the executive councilors were not to be responsible to the legislature.
d. In case of failure of constitutional machinery in the province the
governor could take over the administration of “transferred” subjects also.
e. The secretary of state and the governor-general could interfere in
respect of “reserved” subjects while in respect of the “transferred” subjects;
the scope for their interference was restricted.
iii. Legislature:
a. Provincial Legislative Councils were further expanded—70% of
the members were to be elected.
b. The system of communal and class electorates was further
consolidated.
c. Women were also given the right to vote.
d. The Legislative Councils could initiate legislation but the governor’s
assent was required. The governor could veto bills and issue ordinances.
e. The Legislative Councils could reject the budget but the governor
could restore it, if necessary.
iv. Division of Subjects: Subjects were divided into two lists: ‘reserved’
and ‘transferred’.
a. The reserved list, under which the subjects were to be administered
by the governor through his executive council of bureaucrats.
· It included subjects such as law and order, finance, land revenue,
irrigation etc.
· All important subjects were kept in the reserved subjects of the
Provincial Executive.
b. The transferred subjects were to be administered by ministers
nominated from among the elected members of the legislative council.
· It included subjects such as education, health, local government,
industry, agriculture, excise, etc.
In case of failure of constitutional machinery in the province the governor
could take over the administration of transferred subjects also.
v. Restriction in Interference: The Secretary Of State for India and
the Governor General could interfere in respect of reserved subjects while
in respect of the transferred subjects, the scope for their interference was
restricted.
vi. Reforms in Legislature:
· Provincial legislative councils were further expanded and 70% of
the members were to be elected.
· The system of communal and class electorates was further
consolidated.
· Women were also given the right to vote.
· The legislative councils could reject the budget but the governor
could restore it, if necessary.
· The legislators enjoyed freedom of speech.
vii. Powers of the Governor:
· The Governor could overrule the ministers on any grounds that he
considered special. Also, he retained complete control over the finances.
· The legislative councils could initiate legislation but the governor’s
assent was required.
· The governor could veto bills and issue ordinances.
2. Central Level Government:
i. Subjects: The matters, which were of National importance or related
to more than one province were governed at the central level, such as Foreign
Affairs, Defence, Political Relations, Communication, Public Debt, Civil and
Criminal Laws, Wire services etc.
· The Central Legislature was made more powerful and more
representative by this Act.
ii. Executive: The Act made the Governor-General the chief executive
authority. There had to be the Executive Council of the Viceroy of eight
members, out of which three were to be Indians. The governor-general could
restore cuts in grants, certify bills rejected by the central legislature and
issue ordinances.
iii. Reforms in Legislature: Bicameral Legislature: The Act introduced
bicameral legislature; the Lower House or Central Legislative Assembly and
the Upper House or Council of State.
· The legislators, under the new reforms, could now ask questions
and supplementaries, pass adjournment motions and vote a part of the
budget, but 75% of the budget was still not votable.
· The legislature had virtually no control over the Governor-General
and his Executive Council.
· Composition of Lower House: The Lower House would consist of
145 members, who were either nominated or indirectly elected from the
provinces. It had tenure of 3 years. 41 nominated (26 official and 15 non-
official members) 104 elected (52 General, 30 Muslims, 2 Sikhs, 20 Special).
Composition Upper House: The Upper House would have 60 members. It had
tenure of 5 years and had only male members. 26 nominated 34 elected (20
General, 10 Muslims, 3 Europeans and 1 Sikh).
IV. Powers of Viceroy:
· The Legislature was addressed by the Viceroy.
· He could call for the meetings, or adjourn the meetings or even
repeal the Legislature.
· The tenure of the Legislature was 3 years, which could be extended
by the Viceroy, as he saw fit.
iv. Powers of Central Legislature:
· The central government enjoyed unrestricted control over the
provincial governments.
· The Central Legislature was authorised to make laws for all of
India, for all Officers and common people, whether they were in India or
not.
v. Restrictions on Central Legislature: Certain restrictions were
imposed on the legislature:
· It was necessary to get the permission of the Governor General to
introduce a bill, such as amendment of existing law or amendment of
ordinance of Governor General, foreign relations and relations with Indian
states, armed forces.
· The legislature of India could not change or reverse any law passed
by the British Parliament in relation to India.
Significance of the Act:
· Awakening among Indians: Indians received secret information
about administration and became aware of their duties.
· This instilled a sense of nationalism and awakening among Indians
and they moved towards achieving the goal of Swaraj.
· Expansion of Voting Rights: Election areas expanded in India and
people began to understand the importance of voting.
· Self Government in Provinces: The Act led to the existence of
provincial self-government in India.
· The Act gave the people the power to administer and administrative
pressure from the government was greatly reduced.
· It prepared Indians to discharge responsibilities in the provincial
administration.
Drawbacks of the Act:
· Irresponsible Central Government: No responsible government was
envisaged in the Act at the all-India level.
· Spread of Communalism: The flawed electoral system and limited
franchise failed to gain popularity. It promoted a sense of communalism in
a separate electoral system.
· Limited Extension of Electorates: The electorate was extended to
some one-and-a-half million for the central legislature, while the population
of India was around 260 million, as per one estimate.
· Lack of Administrative Control: At the centre, the legislature had no
control over the viceroy and his executive council.
a. The provincial ministers had no control over finances and over the
bureaucrats; this would lead to constant friction between the two.
b. Ministers were often not consulted on important matters too and
could be overruled by the governor on any matter that the latter considered
special.
c. The Governor enjoyed unrestricted powers, he could also take a
decision against the decision of his council and ministers.
· Almost all important matters related to administration depended
on the governor.
· Inappropriate Division of Subjects: Division of subjects was not
satisfactory at the centre.
a. The central legislature was given very little power and no control
over finances.
b. At the level of provinces, division of subjects and parallel
administration of two parts was irrational and, hence, unworkable.
c. Subjects like irrigation, finance, police, press and justice were
‘reserved’.
Outcomes of the Act:
1. Public Reaction: The Congress met in a special session in August
1918 at Bombay under Hasan Imam’s presidency and declared the reforms
to be “disappointing” and “unsatisfactory” and demanded effective self-
government instead.
· The Montford reforms were termed “unworthy and disappointing -
a sunless dawn” by Bal Gangadhar Tilak.
· Annie Besant found the reforms “unworthy of England to offer and
India to accept”.
· Veteran Congress leaders led by Surendranath Banerjea were in
favour of accepting the government proposals.
2. Encouraged the Struggle for Power: The Act encouraged the struggle
for power in both Indians and the British.
· As a result a large number of communal riots took place which
continued to increase from 1922 to 1927.
· The Swaraj Party was founded in 1923 and won a substantial
number of seats in the elections, except Madras.
· Whereas in Bombay and Central Provinces were successful in
blocking the majority of other supplies with the salaries of ministers.
· Thus the governors of both the provinces were forced to abolish
the diarchy regime and took the transferred subjects under their control.
3. Enactment of the Rowlatt Act: While trying to appease Indians,
the Government of India was ready with repression.
· Throughout the war, repression of nationalists had
continued. The terrorists and revolutionaries had been hunted down, hanged
and imprisoned.
· Many other nationalists such as Maulana Abul Kalam Azad had
also been kept behind bars.
· The government now decided to arm itself with more far-reaching
powers, which went against the accepted principles of rule of law, to be
able to suppress those nationalists who would refuse to be satisfied with
the official reforms.
· In March 1919 it passed the Rowlatt Act even though every single
Indian member of the Central Legislative Council opposed it.
· This Act authorized the government to imprison any person without
trial and conviction in a court of law.
· The Act enabled the government to suspend the right of Habeas
Corpus which had been the foundation of civil liberties in Britain.
Q.19 Discuss about the provision of the Government of India Act, 1935?
Or
Describe the salient feature of the Government of India Act, 1935 and
Distinguish between Government of India Act 1919 and 1935?
Or
Write a short note on the Significance and features of Government of
India Act, 1935?
Ans. The Government of India Act, 1935:
Background: As the growing demands of populace led by Indian leader
for constitutional reforms in India intensified with progression in the British
Rule, the evolving administrative arrangements put in place by the British
paved the way for a more responsible government in India premised on the
fact of maximum representation of Indians. India’s support to Britain in the
First World War also aided in British acknowledgement of the need for the
inclusion of more Indians in the administration of their own country. This
formed the basis of the passing of the Government of India Act, 1935 by the
British Parliament. This legislation was the longest Act passed by the British
Parliament after its domination and overtaking of administrative control
in India. The Act originally passed, being very lengthy, was divided into two
separate acts namely, the Government of India Act, 1935 and the Government
of Burma Act, 1935. The Act was based on the facts and considerations of
several experiences and outcomes which, inter alia, include the Simon
Commission Report, the recommendations of the Round Table Conferences,
the White Paper published by the British government in 1933 (based on the
Third Round Table Conference) and the Report of the Joint Select
Committees. The introduction of the Diarchy system, introduced by the
British Parliament.
How did the Act Come Into Force:
· The Government Act of 1919 was not satisfactory at all and was
too short in its provisions for the self-government form to be imposed in the
country. The provisions of the act were not enough to fulfill the National
Aspirations that the people of the country aspected. After which, a lot of
discussions took place which also led to the Rowlatt Act in the same year.
When the Simon Commission Report came out it was seen that the report
was not satisfactory which would lead to the consultation with the then
Indian Community Representatives at the Round Table conference, held in
London.
· The matter was important and was discussed in the round tables
of 1930, 1931, and 1932 respectively.
· On the basis of the report generated by the government, it
constituted a committee consisting of 20 representatives from the British
India (which consisted of 7 members from Indian states which included 5
Muslims) afterwards, which discussed in the session which started in 1933
and after a lot of debate upon the topic and white papers, gave its report at
the end of 1934 stating to pass the act.
· After which the matter went to the parliament and the parliament
gave its assent to pass the act and which was passed in the year 1935 and
came to be known as the Government of India Act, 1935. The provisions and
the material for the act were mainly derived from the Nehru Report, Lothian
report, Simon Commission Report, the White papers, the Joint Selection
Commission Report to form the act. One of the reasons for the enactment of
the act were the Indian Leaders who urged and fought to bring reforms in
the country through these acts.
Imposing Dyarchy at the Centre of the Government:
· Dyarchy basically means the double form of government or dual
form and it was first imposed in the year 1919 by the government of India
act for the administration of policies by the British government.
· Under the act, it basically implied that the executive authority is
governed by the Governor-General on behalf of the crown who was advised
by 3 councils of ministers on matters related to it.
· The Dyarchy has divided into parts the Reserved and the Transferred
depending upon the subject matters related, they were categorized
respectively.
· The provisions were divided under the heads of the advice of the
ministers and the councilors. The idea of dyarchy was imposed so that
better administration could be done and the governor general was appointed
to look after and coordinate among the two parts of the government.
· The act also gave a new dimension by making it a Federal form of
Government. Also, the viceroy is vested with certain overriding and certifying
powers in this under the Secretary of State for India. The main purpose of
imposing dyarchy was to bring stability and efficiency at the center. So that
the flaws that were there in the Act of 1919 could be corrected.
The Importance of the Act: The act holds great importance in the Indian
history and some points are stated below which define its importance:
· The introduction of the act ended the dyarchy system by giving
more freedom to british India for better governance in the form of Provincial
Autonomy and established at dyarchy at the center,
· There was a division of the federal Subjects between the Centre
and the provinces, as the division made in the act of 1919 was revised,
· This act is of utmost importance because it leads to the
Relationship of a Dominion Status which urged the need for Independence
again in the minds of the people,
· The main provision of the act was to make the Governor General
Pivot of the constitution to settle if there were any disputes among the
people,
· An important provision of the act was the protection of minorities
such as women etc. and safeguarding their rights.
Salient Features of the Government of India Act, 1935 The features of
the Act can be summed up as follows:
1. Division of Subjects/All India Federation: It provided for the
establishment of an All India Federation consisting of provinces and
princely states as units. The Act divided the powers between the Centre and
units in terms of three lists—Federal List (for Centre containing 59 items),
Provincial List (for provinces containing 54 items) and the Concurrent List
(for both containing 36 items). Residuary powers were given to the Viceroy.
However, the federation never came into being as the princely states did not
join it. But this has formed the basis of Schedule VII of the Constitution of
India, 1950 (read with Article 236). The approach to form the federation
and implement provincial autonomy paved the way for the division of
subjects between the Centre and the Provinces. The division of subjects that
were given by the Government of India Act, 1919 was revised and added
some more subjects in it by this Act of 1935 and included three lists.
These were:
· Federal list- 59 items
· Provincial list- 54 items
· Concurrent list- 36 items 5
The subjects which were of all-India interest and demanded uniform
treatment were put in the Federal list. Only the Federal Legislature could
make laws on the Federal subjects. Subjects of mainly of local interest were
placed the Provincial list and were wholly within the jurisdiction of the
Provincial Legislatures for the purpose of legislation. The third list known
as the Concurrent list, and which contained 36 items, included subjects
which were primarily Provincial interest but at the same time required
uniformity of treatment all over the country. Hence, the Act authorised both
the Federal and
Provincial Legislatures to pass laws on those subjects. In the event of
a conflict, the Federal law was to prevail. In order to resolve this point of
conflict, the Constitution authorised the Governor General to allocate in
his discretion the right to legislate on any subject, not included in the lists,
either the Centre or the province.
2. Provincial Autonomy: It abolished diarchy in the provinces and
introduced ‘provincial autonomy’ in its place. The provinces were allowed
to act as autonomous units of administration in their defined spheres.
Moreover, the Act introduced responsible governments in provinces which
meant that the governor was required to act with the advice of ministers
responsible to the provincial legislature. This came into effect in 1937 but
was discontinued later in 1939. A redeeming feature of the new Act was that
it marked the beginning of the Provincial Autonomy. It was definitely an
advance on the Act of 1919. The provinces were allowed to act as autonomous
units of administration in their defined spheres. Moreover, the Act
introduced responsible governments in provinces, that is, the governor
was required to act with the advice of ministers responsible to the provincial
legislature. This came into effect in 1937 and was discontinued in 1939.
This, however, does not mean that the Act of 1935 established a full-fledged
responsible Government in the Provinces. The Ministers were not absolutely
free in matter of running their departments. The Governors continued to
possess a set of overriding powers although such powers were not exercised
very often.
3. Bicameralism: It introduced bicameralism in six out of eleven
provinces. Thus, the legislatures of Bengal, Bombay, Madras, Bihar, Assam
and the United Provinces were made bicameral consisting of a legislative
council (Upper House) and a legislative assembly (Lower House) with certain
restrictions on them. Under the Government of India Act, 1935, the Central
Legislature was bicameral, consisting of Federal Assembly and Council of
States. The Council of States was to be upper house and a permanent body
with one third of its membership retiring every 3rd year. It was to be composed
of 260 members of which 156 were to be representatives of British India
while, 104 of the Indian states. The Federal Assembly was the lower house
with the tenure of five years. It was to be made of 375 members, out of which
250 were to be representatives of British India and not more than 125
members from the princely states. While the seats reserved for princely
states were to be filled by nominated members, the provinces were given
different numbers of seats. Election to the Federal assembly was to be
indirect. The term of the assembly was five years but it could be dissolved
earlier also. It also introduced bicameralism in six out of eleven provinces.
4. Diarchy at the Centre: It provided for the adoption of diarchy at
the Centre. Consequently, the federal subjects were divided into reserved
subjects and transferred subjects. However, this provision of the Act did
not come into operation at all. The Act of 1935 abolished diarchy at the
Provincial level and introduced it at the Centre. There were two categories
of federal subjects: Reserved subjects and Transferred subjects. The subjects
that were mentioned in this category of federal subjects were to be
administered by the Governor-General on the advice of the Executive
Councillors and the Executive Council could not exceed its limit of three
members. Religious affairs, defence, administration of tribal areas and
external affairs were included in the reserved subjects. The Transferred
subjects were to be administered on the advice of ministers and the number
of ministers could not exceed ten. Subjects other than reserved were dealt
with under the Transferred Subjects. The Governor-General remained over
all in charge of both the Reserved and Transferred subjects. He was also
responsible for the coordination of work between the two wings and for
encouraging joint deliberations between the councillors and the Ministers.
The idea of diarchy was imposed with the purpose of facilitating better
administration and the governor general was appointed to look after and
coordinate among the two parts of the government.
5. Communal/Class Representation: It further extended the principle
of communal representation by providing separate electorates for depressed
classes (scheduled castes), women and labourers (workers). Further
extending the principle of communal representation, by providing separate
electorate, under the Act the Muslims got 33 percent (1/3 of the seats) in the
Federal Legislature. Even the workers and women got separate representation
although they had not asked for it.
6. Other features:
· It abolished the Council of India, established by the Government of
India Act of 1858. The secretary of state for India was provided with a team
of advisors.
· It provided for the establishment of a Reserve Bank of India to control
the regulation of currency and credits of the country.
· The franchise (voting rights) was extended further from 3% to 14% of
the total population.
· It provided for the establishment of not only a Federal Public Service
Commission,
· Provincial Public Service Commission and Joint Public Service
Commission for two or more provinces
· It provided for the establishment of a Federal Court, set up in 1937,
which continued to function till the establishment of the Supreme Court of
India after the attainment of independence (1950). The Government of India
Act, 1935 provided for the establishment of a Federal Court which would
interpret the Act and adjudicate disputes relating to the federal matters.
The Act provided for a Federal Court which would consist of one Chief
Justice and not more than 8 six judges. The Federal Court was given exclusive
original jurisdiction to decide disputes between the Centre and constituent
Units. The provision was made for filing of appeals from High Courts to the
Federal Court and from Federal Court to the Privy Council. The Federal
Court also had jurisdiction to grant Special Leave to Appeal and for such
appeals a certificate of the High Court was essential.
· This Act gave the authority and command of the railways in India in
the hands of a newly established authority called “Federal Railway”
consisting of seven members who were free from the control of councillors
and ministers. The authority directly reported to the Governor-General of
India.
· The Act also paved the way for reorganisation of certain parts including
the Sindh being carved out of Bombay Presidency, split of Bihar and Orissa
and the severance of Burma from India.
Significance of the Act- The Government of India Act of 1935 marked the
second milestone towards a completely responsible government in India
after the Act of 1919. This Act was passed by the British Government in the
year 1935. It was one of the lengthiest Acts at that time as it contained 321
sections and 10 schedules. It was also the last constitution of British India,
before the country was divided, in 1947, into two parts-India and Pakistan.
Once the act was passed the government saw that it was too lengthy to be
regulated with efficiency and thus, the government decided to divide it into
two parts for the act to function in a proper manner.
· The Act of 1935 served some useful purposes by the experiment of
provincial autonomy, thus we can say that the Government of India Act
1935 marks a point of no return in the history of constitutional development
in India. The Government of India Act 1935 curtailed the powers concentrated
in the hands of the Central Government and distributed it by ensuring that
a decentralized form of government shapes away in India. Separate
electorates for women, although they had not asked for it, was quite good
for the advancement of women in the decision making process. Even the
workers had their separate representation which helped in the advancement
of the workers class. This Act was the first attempt to give the provinces an
autonomous status by freeing them from external interference. The
appointment of the Governor-General and governors, of course, remained
in the hands of the British government and they were not responsible to the
legislatures. The act never came near the objective that the nationalist
movement had been struggling for. Further, the Act made no substantial
change in matters affecting the vital issue of defence.
· The Act also holds great importance in the Indian history because
it eventually culminated in the fact of the Dominion Status which urged the
need for Independence again in the minds of the people. Government of
India Act 1935 curtailed the power concentrated in the hands of the Central
Government and distributed it among the decentralized form of government.
Separate electorates for women, although they had not asked for it, was
quite good for the advancement of women in the decision making process.
Even the workers had their separate representation which helped in the
advancement of the workers class.
· The Act was the first attempt to give the provinces an autonomous
status by freeing them from external interference. Another reason was that
this Act provided voting rights to more people than were given under the
Government of India Act, 1919.
· This Act also proposed to form the federal government that allowed
princes to participate in political affairs of India.
Why Did Act Failed: The act had so much to promise to the people for
their welfare but was not able to deliver anything that could turn out in its
implementation. The act was a complete failure and the main reasons why
the act failed have been discussed below:
· The concept of an All India Federation failed completely because
the Indian National Congress never came for the accomplishment of the
plan which was made because of the representation power of the princely
states was still in the hands of the British so the concept could not be
implemented.
· The act failed to provide flexibility to the people at the constitutional
level in regard to their amendments of rights as the power to change or alter
any right was present with the British government while the Indians could
not do anything according to their needs.
· The act failed to provide a proper federal structure, majority of the
power was with the governor general who was not at all responsible for the
central legislature which meant that the legislature was not governed
properly.
Difference between the Government Act of 1935 And 1919:
GOVERNMENT OF INDIA ACT 1935 GOVERNMENT OF INDIA ACT 1919
1. The act did not talk about the preamble. 1. The act provided for a preamble.
2. The Act was passed by the U.K government in

2. The Act was passed by the British government.
1919.
3. It was not the last constitution of the British
3. It was the last constitution of the British era.
government.
4. The concept of Bicameralism was introduced in 4. The concept of Bicameralism was not there at
some provinces of British India. the time of such provinces.
5.There was the distribution of power among 5. There was almost no distribution of powers as
various people to accomplish their goal of a federal the head had the power to take all the decisions
India on his own.
Conclusion: The Government of India Act, 1935 proved to be a giant

leap towards the independence of India and helped in the reorganization of
the states. It paved the way for the Indian Independence Act, 1947. British
introduced this Act to win the support of modern nationalist and with the
aim of maintaining continuity in their rule over the dominion of India. But
the Act proved largely to be disappointing because it did not hold out
assurance about granting Dominion Status, not did it consider
sympathetically the feelings and urges of politically conscious Indian
populace. It also said nothing regarding the fundamental rights of the people.
It only showed the dominion of the British Government over the Indians. In
spite of the drawbacks, the Act had its own significance for this Act provided
a basis for negotiation between Britishers and Indians for getting
independence. The Government of India Act 1935, however, had introduced
several features which later formed the nucleus of the present Constitution.
The Government of India Act 1935 marks, in fact, a watershed moment in
the Constitutional history of India.
Q.20. Write a short note on the Salient Features of the Indian
Independence Act, 1947?
Or
Discuss the salient features of the Indian independence act (1947)
relating to the transfer of power. How far have they been successful in
terms of relevance of today’s political set up?
Ans. The Indian Independence Act, 1947 was the last legislation of the
British Parliament passed with the intent of creating an independent India.
As per the recommendation of the Cabinet Mission Plan, the Constituent
Assembly was established presided by Dr. Rajendra Prasad for making the
Constitution. However, the proposal of Cabinet Mission though accepted by
Congress was rejected by the Muslim League. Resultantly, communal riots
occurred throughout the country and finally, Clement Attlee, the then Prime
Minister of England declared the transfer of power on 20th February 1947.
The British Government sent Lord Mountbatten to transfer power to
India who held consultations with all political leaders and found that a
compromise between Congress and the Muslim League was impossible on
the basis of United India and agreement reached on the basis of partition.
The Indian Independence Act was passed in 1947. The act created two
new independent dominions; India and Pakistan. Pakistan was split into
Pakistan and East Pakistan which is now Bangladesh. The Bengal and Punjab
provinces were partitioned between the two new countries. These dominions
separated the Muslim, Hindu and Sikh population and caused the biggest
forced migration which has ever happened that was not the result of war or
famine. The Act repealed the use of ‘Emperor of India’ as a title for the
British Crown and ended all existing treaties with the princely states. Lord
Mountbatten continued as Governor-General and Jawaharlal Nehru was
appointed India’s first Prime Minister, Muhammad Ali Jinnah became
Pakistan’s Governor-General and Liaquat Ali Khan its Prime Minster. The
15th August 1947 has since become celebrated as India’ and Pakistan’s
Independence Day.
The Salient feature of the Act: Lord Mountbatten reached India on
March 24, 1947. As soon as he reached, he declared that he will complete
the work of transfer of power into the Indian hands within the next few
months and he held consultations with the Indian leaders for this purpose
in the meanwhile the Indian Independence Bill was presented before British
Parliament on July 4, 1947 and was passed by Parliament on July 18, 1947.
The Act provided as under:-
1. The partition of India and the establishment of two dominions of
India and Pakistan from August 15, 1947. The dominion of Pakistan would
include Provinces of Sindh, N.W.F.P the British Baluchistan, east Bengal,
West Punjab and the states which would accede to Pakistan. The act also
provided for the Legislature of the two dominions.
2. It conceded complete cessation of British control over Indian affairs
from August 14, 1947. Thereafter the powers of the British Government and
Parliament over the India and Pakistan would cease altogether.
3. It provided for the creation of two constituent assemblies for two
dominions. All powers were to be vested in the constituent assembly of
each dominion. Each constituent assembly thus became the sovereign law-
making body in each dominion with full powers to frame her constitution in
any way it might decide.
4. Both the dominions were given full right to decide whether to remain
with the British Commonwealth of Nations or to come out of it.
5. Until a new constitution was framed for each dominion, the Act
made the existing constituent assemblies the domination legislature for
the time being. The assemblies were to exercise all the powers which were
formerly exercised by the central legislature. This was in addition to its
powers regarding the framing of new constitution.
6. Till the framing of the new constitution each of the dominions and
all the provinces were to the overfed in accordance with the government of
India Act, 1935. Each dominion was authorized to emend the government of
Indian Act, 1935 under the Independence Act 1947.
7. The right of the King to veto laws or to reserve laws for his pleasure
was given up. Under the Independence Act of 1947, this right was given to
the Governor-General. He was also given the full right to assent in the name
of his majesty to any law of the dominion legislature made in its ordinary
legislative capacity.
8. The act provide for the termination of the suzerainty of the crown
over the Indian States. All treaties, agreements, exercisable by his Majesty
with regard to States and their rulers were to lapse for 15 august, 1947. It
was also provided that the existing arrangements between the Government
of Indian states were to continue pending the detailed negotiations between
the Indian states and the new dominions. The rulers of the dominion keeping
in view the majority of their population.
9. Agreement with the tribes of the North-Western frontier of India
was to be negotiated by successor dominion.
10. The office of the Secretary of state’s fro India was to be abolished
and his work was to be taken over by the secretary of the state for
commonwealth affairs.
11. The title of “Emperor of India” was to be dropped from the royal
style and titles of the King of England.
12. All the Civil and Army servants were given full option to join either
of the Dominion.
13. It was provided that for each of the new dominions there shall be
a Governor-General who shall be appointed by his majesty and shall
represent his majesty for the purpose of the Government of the dominions.
14. The Crown was no longer the source of authority.
15. The Governor-General and Provincial Governors were to act as
Constitutional heads. They lost extraordinary powers to legislate.
16. The office of the Secretary of State was abolished.
17. From the 15th of August, 1947, the British Crown lost all rights of
Paramount over India and the Indian states were free to join either Indian
Union or Pakistan.
18. The power in each dominion was transferred to the Constituent
Assembly which became fully sovereign from 15th August 1947 and was
absolutely free to frame the Constitution. The Constituent Assembly had a
dual role i.e. Constituent and Legislative. They functioned as Central
Legislature till the new legislatures were formed.
19. Until the new Constitution was framed, the Act of 1935 would govern
the Centre and the Provinces with necessary modifications.
The result of the enactment of the Indian Independence Act, 1947 was
that India and Pakistan after partition emerged as free nations. And the
Independence of India is remembered as one of the greatest events of history
that were achieved after long and glorious years of struggle.
Evaluation : The Act brought India on the threshold of new era where
both the Dominions were to share their own responsibilities without any
super power patronage. Lord Attlee said in the House of Commons that, “It
is the culminating point in a long course of events.” Dawn which represented
Muslim view point in those difficult days called it as “momentus and
unique piece of legislation”.
Lord Samuel called it as “a treaty of peace without war”. The Hindustan
Times characterised it as the noblest and the greatest law ever enacted by
British Parliament. Dr. Rajendra Prasad in his India Divided says, “The
period of domination of British over India ends today and our relationship
with Britain is henceforth going to rest on a basis of equality, of mutual
goodwill and mutual profit.
Of course, the Act provided for the freedom of India and the struggle of
our freedom-fighters bore fruit but it was quite unfortunate that the people
of both the Dominions had to undergo untold sufferings and miseries after
the partition of the country. It was a period in which inhuman and un-
human acts were committed in the name of religion. Life, respect and property
of none else but the goondas was safe.
All the crimes which religion forbade were committed to glorify that.
Not only this, but the scheme was deliberately made mischievous insofar
as Indian states were concerned. In fact, Britain left more than 567
independent India’s. It needed a person of will, determination and far-
sightedness of Sardar Patel who could undo the mischief and knit them in
the fabric of one polity and merge them with Indian Union.
Q.21. Write a short note on Charter of 1753 and Administration of
Justice in presidencies?
Ans. Charter of 1753: In the year 1746 the French got the control of
Madras presidency because of this Madras corporation which was created
after the Charter of 1726 was ceased to function in the year 1749 again
British got the control of Madras to establish again Madras corporation,
King George II again issue a new Charter on the 8th January 1753, to the
Company official utilized this chance and tried to remove all the
disadvantages of the Charter of 1726. The new Charter of 1753 was made
applicable to the entire presidency town. New charter changed the method
of appointment of Mayor and Alderman. Governor and Council got the power
to appoint the aldermen. Regarding selection of the Mayor the corporation
selected the names of 2 people and Governor and Council selected one of
them as the Mayor every year.
This way Mayor became the puppet of the Governor and Council. This
way Mayor as well as Aldermen becomes the nominee of Government and
Government got the Full Control of corporation.
This way government got the power to appoint the judges of the mayor’s
court and remove him also. If he disobeyed the government or Governor.
Mayor’s Court lost all the autonomy and Independence and became
Secondary in nature. The Court was allowed to hear the Indian cases only if
both native Indian parties agreed and submitted the case to the Mayor’s
Court. Mayor’s Court got the right to take action against the Mayor. No
person was allowed to sit as a judge if he was interested in the matter in
any way. Mayor’s Court got the power to hear the cases against the
government and government defended them.
Suitors deposited money with the government not to the Mayor’s Court.
The new Charter also created the new court called as “Court of Request” at
each presidency town to decide cheaply and quickly cases up to 5 Pagodas.
This Court was established to help poor Indian litigants who cannot afford
the expenses of the Court. The Court weekly sat once, and was, manned by
Commissioners between 8 to 24 in numbers. The government appointed the
commissioners and every half of the commissioners got retired and those
places were filled by the ballot method by remaining commissioners.
Commissioners sat in each court on rotations for small claims, cognizable
by requests Court. If people plaintiff went to the Mayor’s Court the rule was
that Defendant was awarded costs, this way it saved time and money also
requests court got the power to hear the Indian matters also.
There were 3 Courts, namely –
1. Court of request
2. Mayor’s Court
3. Jurisdiction Court of governor and Council.
The court where appeal from the mayor court went criminal cases.
Justice of the peace and Court of quarter sessions consisting of governor
and Council. Regarding Civil cases, Privy Council in the England was the
final authority. This Charter introduced many changes but this Charter took
away the independence of Mayor’s Court, which way given to this court by
the Charter of 1726. The East India Company with this Charter also always
followed the policy not to break the customs of Hindu and Muslims. When
both Indian parties agreed that time only Mayor’s Court handseled those
cases. An executive enjoyed more powers they appointed company servants
as the judges. The executive handled the cases in such a way it does not
harm them or did not harm the company servants or friends. In 1772 House
of Commons appointed a committee of secrecy to check the affairs of the
East India Company, the committee in its 7th report gave adverse report
regarding Calcutta judicial system. The report stated that Mayor’s Court
behaved as the wish in all the cases without following English law. As a
result of criticism Supreme Court was established at Calcutta in the year
1774.
Good feature of Charter 1753:
The Charter of 1753 removes out the uncertainty and made it clear that
the Mayor’s Court could not hear the cases where both the parties were
natives unless such cases were submitted to its judgment with the consent
of both parties. The Mayor’s Court could hear the suits against the Mayor,
Aldermen or the Company.
The establishment of the Court of Requests was of great help to poor
inhabitants. The Court provided quick and cheap justice to the poor litigants
with small claims.
Defects of the Judicial System of 1753:
• The judicial system of 1753 was too much executive ridden. The
judges of the mayor’s court were the nominees of the Government and also
most of them used to be junior servants of the Company who began their
Indian career without any special training. The court could not adopt an
impartial attitude since the governor and the council were constantly
attached to the court.
• Moreover the company’s servants themselves carried on their own
private trade and a number of cases thus arose between them and the
Indians with whom they entered into various transactions.
• There existed a professional brotherhood between the judges and
the company’s servants.
• The criminal judicature also suffered from a similar weakness.
Consisting of the members of the executive, it was an insufficient deterrent
to wrongdoing on the part of the company’s servants who tended to abuse
their positions with impunity to the detriment of the people.
• The governor and council sitting as justices of peace often refused
to take cognizance of complaints laid before them on oath when any servant
was in any way interested in them. In addition to the judicial powers, the
executive also had powers of admin and legislation. The whole Government
system was therefore despotic in nature without any adequate safeguard
for the people’s life, liberty or property.
• Another weakness arose from the lack of adequate knowledge on
the part of the judges on the intricacies of English law which they were
supposed to administer. Their knowledge of the English law was confined to
the legal materials which the company had sent along with the charter, and
the remarks made by the company’s lawyers from time to time after perusing
their records.
• The arrangements made of administering civil justice to the Indians
were poor and inefficient. The application of English criminal law to the
Indians also resulted in injustice as they had no idea about this law.
• A major defect of the English law at the time was its emphasis on
capital sentences. It treated a large number of offences as felonies and
hence capital. Neither the Hindu law nor the Muslim law was as severe as
the English law at the time.
• The territorial jurisdiction of both the civil and criminal courts in
a presidency town did not extend beyond its limits and factories subordinate
to it. Being immune from any judicial process, the Englishmen in the interior
of Bengal, beyond Calcutta, felt free to indulge in all kinds of objectionable
activities. This was proving harmful to the Indians in Bengal. With the
weakening of the nawab’s authority, the Englishmen became immune from
the jurisdiction of the local courts.
• In 1772 House of Commons appointed a committee of secrecy to
check the affairs of the east India Company. The committee in its 7th report
gave adverse report regarding Calcutta Judicial system.
• The reported stated that Mayors court behaved as they wish in all
the cases without following English law.
• As a result of criticism, Supreme Court was established at the
Calcutta in the year 1774
• The supreme court of Calcutta was Independent court and does not
work under company executive and consisted of professional lawyers who
knew English law in depth.
Administration of Justice in Presidencies:
· Justice of Peace: The Governor and 5 senior members of the Council
would have criminal jurisdiction and would-be justice of peace. Some cases
were finalized in these courts:
· Arab Merchant’s Case: An Arab Merchant brought a suit in the
Mayor’s Court for the recovery of the valuable pearls which were alleged to
have been escorted from him by a man who saved him from the burning
boat at the coast of Gujarat. The Mayor’s Court consulted the Governor in
Council. The Governor upheld the jurisdiction of the Mayor’s Court. It
suggested the Mayor’s Court not to try the case as the defendant had been
previously hired for piracy regarding the same occurrence and acquitted.
The Mayor’s Court ignored this and decreed the suit. This was reversed
by the Governor.
· Hindu Woman’s Case: (1730): A 12-year-old boy (Hindu) left his
mother and began to live with his relatives, since his mother became Roman
Catholic in Bombay. The mother filed a suit for the custody of the boy in the
Mayor’s Court. The Court ordered the relatives to hand over the boy to his
mother. On a complaint filed by the head of the caste, the Governor in
Council held that the Mayor’s Court had no power to decide cases of religious
nature or caste disputes of the natives. The Governor removed the Mayor
from his office.
· Pagoda Oath Case: In Madras, Hindus gave evidence in the Court
on Bhagwad Geetha Oath. Two Hindu Merchants were put to jail by the
Mayor’s Court for refusing to take the pagoda oath which they said was
contrary to their religion and the rules of the castle. This made the Hindu
Residents very furious and they approach the Governor to interfere. So
Governor released those merchant on parole. At the same time the Court
was directed to pay regard to the religious rites and ceremonies of the
natives.
· Re-electing as Mayor Case: In 1734, a conflict arose over the Mayor’s
re-election. Naish was re-elected as Mayor but the Governor refused to
allow him to take the Oath of Office on the ground that an outgoing Mayor
could not be re-elected under the Charter of 1726. Ultimately another Mayor
was to be elected.
· Mayor and Secretary Betting Case: Terrain the Secretary to the
Madras Government and Mayor Naish met at a dinner party and entered
into a bet which Naish lost and refused to pay. Terrain sued him in the
Mayor’s Court which ruled that Mayor was immune from prosecution. The
Government later complained that its secretary had been treated with
indignity by the Court.
Q.22. Explain the System of Dyarchy introduced in British Provinces
under the Government of India Act, 1919. Enumerate the defects of the
system.
Or
Explain the working of Dyarchy under the Government of India Act,
1919?
Ans. Dyarchy, also spelled diarchy, system of double government
introduced by the Government of India Act (1919) for the provinces of British
India. It marked the first introduction of the democratic principle into the
executive branch of the British administration of India. Though much-
criticized, it signified a breakthrough in British Indian government and was
the forerunner of India’s full provincial autonomy (1935) and independence
(1947). Dyarchy was introduced as a constitutional reform by Edwin Samuel
Montagu (secretary of state for India, 1917–22) and Lord Chelmsford
(viceroy of India, 1916–21).
The principle of dyarchy was a division of the executive branch of each
provincial government into authoritarian and popularly responsible
sections. The first was composed of executive councillors, appointed, as
before, by the crown. The second was composed of ministers who were
chosen by the governor from the elected members of the provincial
legislature. These latter ministers were Indians.
The various fields, or subjects of administration were divided between
the councillors and the ministers, being named reserved and transferred
subjects, respectively. The reserved subjects came under the heading of law
and order and included justice, the police, land revenue, and irrigation. The
transferred subjects (i.e., those under the control of Indian ministers)
included local self-government, education, public health, public works,
and agriculture, forests, and fisheries. The system ended with the
introduction of provincial autonomy in 1935.
The Montague Chelmsford Report laid down that the steps towards the
progressive realisation of responsible government should first be taken in
provinces. Therefore, the scheme envisaged under the Government of India
Act, 1919, contemplated the transference of responsibility for certain
functions of the Government to the elected representatives of the people in
provinces while reserving control of Governor over others. The system to
introduced was known as “Dyarchy”.
The provincial subjects were divided into 2 classes viz. the Transferred
and Reserved.
As per the Act the reserved and transferred subjects were classified in
the following ways:
Dyarchy
Sr. No. Reserved Subjects Transferred Subjects
1 Finance Local Self-Government

2 Land Revenue Education
3 Famine Relief Medical
4 Justice and Police Sanitation and Public Health
5 Reformatory and Criminal Tribes Public Works
6 Control of Newspapers Agriculture
7 Printing Press and Books Industrial Department
8 Irrigation and Water Resources Excise
9 Factorie s Veterinary Department
10 Mines, Electricity, Motor Vehicles Labour, Fisheries
Welfare and Industrial disputes
11 Adulteration
12 Birth and Death Date
13 Cooperative Societies
The responsibility for the proper administration of the “reserved

subjects’ lay with the Governor (and his executive) Council which was not
responsible to the legislature while the “transferred subjects’ were
controlled by the Governor acting with his ministers, responsible to the
legislative councils.
From the above it is clear that under two chamber systems, there were
two parts of Provincial government-Governor in Council and Governor &
Ministers. From amongst them one of them was British and other was Indian.
One was responsible to British Parliament and other was to legislative
council.
This two Chamber System was made applicable in eight Provinces,
Bengal, Madras, Bombay, Bihar, Assam, Joint provinces, Middle Province
and Punjab on 1st April, 1919 by the Government of India Act 1919. Later on
in the year 1932, it was also made applicable in the province of West
frontier. This two chamber system continued from the year 1921 to 1937.
Out of these sixteen years, this system was not running in proper way in
Bengal. In other remaining provinces it continued till the formation of
Provincial autonomy.
Failure of Dyarchy: The factors for its failure are as follows:
1. The division of provincial government into 2 water light
compartments was repugnant to the efficient administration.
2. The division of provincial subjects was illogical and unscientific.
In this context an Indian Minister had remarked that, “I was a minister for
development without forests. I was a minister for Agriculture minus
Irrigation. As minister of Agriculture, I had nothing to do with the
Agriculturist Loans Act or the Land Improvements Loans Act.” Famine relief
of course could not be touched by the Minister of Agriculture.” The Minister
for Industries had not power over factories, electricity and water power,
mines or labour, all of which were reserved subjects.
3. The position of Governor was very powerful like he could remove
any minister on his will.
4. The communal and separate electorate divided legislative Council’s
into small fractional groups.
5. The ministers never worked as a team. A policy which caused
bickering between the ministers lowered while prestige before public.
6. The powers of Governor General virtually made him a constitutional
dictator.
On the whole the Montague Chelmsford Reforms introduced
revolutionary changes in the sense that it promised responsible Government
which was categorically denied to Indian people.
Q.23. What do you understand by “Provincial Autonomy”? Explain its
working and importance.
Or
Describe the nature and working of Provincial autonomy under the
Government of India Act, 1935.
Ans. Provincial Autonomy: It abolished diarchy in the provinces and
introduced ‘provincial autonomy’ in its place. The provinces were allowed
to act as autonomous units of administration in their defined spheres.
Moreover, the Act introduced responsible governments in provinces which
meant that the governor was required to act with the advice of ministers
responsible to the provincial legislature. This came into effect in 1937 but
was discontinued later in 1939. A redeeming feature of the new Act was that
it marked the beginning of the Provincial Autonomy. It was definitely an
advance on the Act of 1919. The provinces were allowed to act as autonomous
units of administration in their defined spheres. Moreover, the Act
introduced responsible governments in provinces, that is, the governor
was required to act with the advice of ministers responsible to the provincial
legislature. This came into effect in 1937 and was discontinued in 1939.
This, however, does not mean that the Act of 1935 established a full-fledged
responsible Government in the Provinces. The Ministers were not absolutely
free in matter of running their departments. The Governors continued to
possess a set of overriding powers although such powers were not exercised
very often.
One of the significant features of the Government of India Act, 1935
was the introduction of the Provincial autonomy. Actually the main aim of
this Act was to establish autonomy in the Provinces. It is also called
Provincial self-governance.
Meaning- There is two meanings of Provincial autonomy established
under the Government of India Act, 1935-
1. First, the independence of the Provincial Executive and Legislature
a precisely defined field in respect of which they were broadly free from the
control of the Central Government and Legislature; and
2. Second, the responsibility of the Executive to Provincial legislature
within the Province.
In this way, from the meaning of Provincial autonomy, two aspects of it
reflects-Free from the control of Central Government and Responsibility
towards Legislature. Some consider only one aspect necessary for the
Provincial autonomy- Free from the control of Central Government. According
to them, the Provincial autonomy can be established without the responsible
government.
Provincial autonomy under the Government of India Act-The following
were provided in the Government of India Act, 1935 for the Provincial
autonomy:
1. The Governor was appointed in all the British Provinces as a British
representative who was upto now merely an agent of Central Government.
2. For aid and advise, a Council of Minister was constituted for the
Governor who were collectively responsible to the Provincial Legislature.
3. Judicial, Financial and Executive Functions of the Provinces were
transferred to the Ministers by abolishing Dyarchy System and removing
the difference between Transferred and Reserved subject.
4. The Governor was free to discharge functions at his own discretion.
5. The Governor is discharge of functions might consult his ministers.
6. The Legislature was bicameral in 6 Provinces, they were to be known
as the Legislative Council and the Legislative assembly.
7. The Executive council of the Governor was abolished.
8. For division of powers between Federation and Units three lists
were prepared in the Act-
(a) Federal list
(b) Provincial list, and
(c) Concurrent list.
9. Infinite jurisdiction was provided to Provinces make law on the
Provincial subjects.
In this way an effectual effort was made to establish provincial
autonomy under the Act. Efforts were made to include all elements which
are necessary for provincial autonomy.
Limitations-The Provincial autonomy introduced under the Government
of India Act, 1935 along with the commendation was also criticised. It is
presumed that the Provincial autonomy established under the Government
of India Act, 1935 was a wandering and mirage. So many limitations and
bans were imposed upon it. Following are the reasons of criticism of
Provincial autonomy:
1. The Governor was free to discharge functions at his own discretion
by which he could avoid the advise of the Council of Ministers.
2. The cases in respect of which the Governor could discharge the
functions at his own discretion, these all subjects were under the control of
Governor- General. Or in other words, it may be held that in respect of these
cases the provincial administration was fallen in the control of Governor-
General.
3. To achieve a certain specific aim, the Governor- General may direct
to the Provinces and in case of non-implementation by the Provinces he
may make an order to the Governor for that. Thus, there was a control over
the Provinces of the Governor- General.
4. During the period of Emergency, the Federal legislation could make
the law on the subjects included in Provincial list.
5. The constitutional provisions that certain kinds of Bills could not
be introduced in the provincial legislature without the previous consent of
the Governor.
6. The Governor could reserve any Bill passed by t Provincial
legislature for the signification by the Governor-General and approval for
such bill was dependent upon the discretion of the Governor- General.
7. The Governor-General himself may pass an Act on a subject, etc.
Q.24. Write a short note on Cossijurah case.
Ans. Introduction: The Cossijurah Case illustrates another aspect of the
East India Companies administration in India. The Cossijurah case raised
the defects of charter of 1774 which created the Supreme Court at
Calcutta.The Charter did not specify either the jurisdiction of the Court or
the position of the Governor-General-in-Council. As a result of this
confusion, there were occasions of conflicts between Supreme Court and
the Council. In the Cossijurah case the confrontation between Supreme Court
and the Council became evident to the highest degree.
Facts of the case:
• The conflict between the Supreme Court and the supreme council
reached its zenith during this case. While the Supreme Court ordered the
sheriff to carry out its orders, the supreme council ordered its troops to
defend the implementation of its orders.
• The Supreme Court also claimed its jurisdiction over all the native
population which was strongly opposed by the council.
• Raja sundernarain was the zamindar of cossijurah and was under
a heavy debt to kashinath babu. Though the latter tried to extract the money
through the board of revenue, his efforts proved in vain. He therefore filed
a case in the Supreme Court.
• The Supreme Court issued a writ of capias for the arrest of the raja.
• The council came to know of the developments. After seeking legal
advice from the advocate general, the council issued a notification informing
all the landholders that they need not pay any attention to the process of
the supreme court, unless they were either the servants of the company or
had accepted the court’s jurisdiction by their own consent.
• The raja was specially informed about the council and therefore
his people drove away the sheriff of the Supreme Court when that official
came with the writ to arrest the raja of cossijurah.
The hiding of King caused two adverse effect- First, the collection of
revenue for company got stopped, which caused the company a huge loss,
as a result the Governor in Council with the advice of Advocate General
passed an order that other than the employees of Company and person
voluntarily- accepting the jurisdiction, no person came within the
jurisdiction, hence they were not bound to obey the order of the court.
Secondly, the Supreme Court was not happy by the return of its writ without
service, therefore it again issued a writ to arrest the king and forfieture of
his property and it send a party of 50-60 sheriffs for its execution. This
party arrested the king of Cassijurah.
When the information of this incident reached Governor General in
Council, then an army officer of Midnapur was send alongwith his army to
Cassijurah to present the use of force by the employees of Supreme Court.
The troops of army get met with the king of Cassijurah during the way. The
army arrested the employees of Supreme Court and freed the king of
Cassijurah.
The Kashinath Babu presented a suit of trespass before the Supreme
Court against the Governor General and its Council. Firstly, the Governor
General and its Council got present before the Supreme Court but later they
withdraw their presence on the advice of their Advocate General. The Supreme
Court became unhappy by this act of Advocate and send him to Jail for the
contempt of Court. While he was in Jail, he received the news of the death of
his wife and he also died immediately after his release. In this way, this
matter ended.
Arguments-This matter has been the case of severe critisims. The
Governor General and its Court presented the conention that the Supreme
Court had no jurisdiction to hear the case because the king of Cassijurah
was not the employee of company. Wheras the SC considered that the King
of Cassijurah used to collect revenue alongwith being a therefore he was
indirectly an employee of company and so within its jurisdiction.
The Jurist are of opinion that the power to decide the jurisdiction was
with the Supreme Court only, not with Supreme Council. It is the reason that
Stephen criticising the Supreme Council said that- “The Supreme Council
acted haughtily, quite illegally and most violently without any adequate
reason for counduct.”
The Supreme Council and king of Cassijurah was required to let the
Supreme Court decide the Q.of jurisdiction and if unsatisfied would have
appealed to the Privy Council. But, the Supreme Council did not do so but
instead itself issued orders in respect of jurisdiction and said that the
person itself decide whether it falls within the limits of Supreme Court or
not.
It is important that the Supreme Council also presented an application
before the British Parliament in respect to the jurisdiction of Supreme Court.
As a result, the jurisdiction of Supreme Court was reduced.
Conflicts:
• The supreme court issued another writ to seize the raja‘s property
in order to compel his appearance before the supreme court.
• This time sheriff with a force of 60-70 men marched to cossijurah.
They imprisoned the raja.
• In the meantime the governor-general ordered colonel ahmuty, to
detach a sufficient force to intercept and arrest the sheriff with his party
and release the raja from arrest. This was done efficiently.
• Kashinath babu brought an action of trespass against the governor-
general and the members of the council individually. The latter became
annoyed and declared that persons in Bengal, out of Calcutta, need not
submit to the court and assured that the council would safeguard their
interests even by the use of armed of the armed forces.
• The Supreme Court issued writs against all members of the council
except governor-general and. But the army officials refused to allow the
Supreme Court officials to serve the writ to the members of the council.
• The judges became furious and took the action against the attorney
general of the company. He was committed to the prison and no bail was
accepted.
• The councilors conveyed to the judges that if they were held
accountable to the Supreme Court on the suit of an Indian, the respect for
the government in the minds of the Indians would decrease and the
administration would be weakened.
• The councillers very strongly stuck to their stand and refused to
submit to the authority of the Supreme Court.
• At this critical stage the plaintiff withdrew the case against the
Governor General, members of the council and the raja.
Observation of Some Vital Issues:
• That whether the zamindars were subjected to the jurisdiction of
the Supreme Court.
• Who was the competent authority to decide the issue?
• As far as the first Q.is concerned, it is in the political interest of the
company to keep the zamindars ignorant of their rights and status. There
are many instances to prove that the zamindars and the hereditary rajas
and ranis were at times were harassed by the company’s official’s.
• Also the judges of the Supreme Court could not get an opportunity
to enquire in to the status of the zamindars.
• Regarding the next Q.the judges of the Supreme Court held that the
court was the competent authority to determine the legal status of the
zamindars and the council had no such power.
Judgement of the Council:
The Council issued instructions to all the Zamindars, landholders and
the persons residing outside Calcutta not to pay any attention to the process
of the Court and that in the case the Supreme Court persisted in issuing
writs against them, the Council would protect them.
Critical Analysis:
The show down between the Supreme Court and the Council brought out
the inherent weaknesses and defects in the Regulating Act which did not
specify the areas and the persons which were under the jurisdiction of the
Supreme Court. The language of the Act was vague enough for various
interpretations. These defects, however, were removed to a great extent by
the passing of the Act of Settlement 1781.
LEADING CASES
LEGAL & CONSTITUTIONAL
HISTORY OF INDIA
1. Patna Case:
Introduction:
The Patna case is one of the important cases because it revealed the
judicial administration system of the country. It brought into notice the
conflict between the Supreme Court and the supreme council and made it
clear that there should be proper reorganization for the justice in the
future. This case took place between the years 1777-1779.
Facts of the Case:
• One, ShahbagBez Khan came to India from Kabul and was serving
in the company Army and later he got retired. He thereafter got settled in
Patna and married Nadira Begum. He got rich after getting retired.
• After he settled, he called his nephew from Kabul to India. He had
the wish of adopting his nephew and making him his heir; but before he
could do so he died in December, 1776.
• Since ShahbagBez had left huge property behind him, it led to conflict
between the wife and the nephew of the deceased. The nephew filed a petition
between the provincial council in Patna and the Begum asked the help of the
Mufti and Kazi, the Muslim officers to look into the claim of the property by
the nephew of the deceased. The nephew also stated in his petition that he
was the adopted son of the deceased and therefore the property should be
divested in him.
• The widow i.e the Begum claimed the property with the basis of the
three documents viz- the dower, the gift deed and the acknowledgement. The
Kazi and the Mufti were directed by the court to stock up and seal the property
till the issue was resolved.
• The Officers did the same by going to the house but in the process
they abused the Nadira Begum, the result of which was that she took a
shelter in the ‘Dargah’.
• Further, when the case was before the court, it was argued that the
dower was already paid by the deceased to his Begum during his lifetime, a
sum of Rs.1200 and her counsel had neglected to submit the dower deed. It
was further contended that the other two documents, the gift deed and the
acknowledgement, were forged documents and therefore the share of the
property should be divided into four shares; three should be given to the
nephew and the remaining share to the Begum as per the Muslim law of
succession.
• The Provincial Council also gave its decision in favor of the nephew
by looking into the report of the Kazi and Mufti. However, aggrieved by this
decision, the Begum approached the SadarDiwaniAdalat of Calcutta and
she also filed a suit against the Kazi and Mufti for assault, battery, other
injuries and alleged the damages of rupees six lakhs.
Issues and the Decision:
• The main issue that was in this case was whether Bahadur Beg, who
lived outside the jurisdiction of Calcutta, was subjected to the same and
whether the law officers could be punished for their acts they have committed
in the exercise of their duty.
• The Court held that the due process was not followed and the
witnesses were not taken on oath and the officers also had behaved outside
their official capacities and therefore the court ordered a sum of Rs. 3 lakhs
to the Begum.
• This case brought into the notice about the shortcomings that were
present in the judicial administration. The deceased was an agriculturist
and the case fell within the ward of the administration. It should the
weaknesses of the organization of the judicial system and the committee
which was known by the Patna case. This case showed the exercise of extra
power and jurisdiction by the officials.
Effect of this Case on the Company Government:
• The fact of the case and decision of the Supreme Court exposed the
weakness of the company’s administrative machinery in India.
• It pointed out the deteriorating state of the administration of justice
in the country.
• It also proved that the moffusil courts under the company’s control
failed to impart justice to the Indians.
• Another important reaction of the case was that the local zamindars
refused to accept the work of revenue collection for the company. They became
afraid of the jurisdiction of the supreme court.
• The case was directly responsible for many provisions of the act of
settlement which was passed in 1781 a.d so as to remove the evils of the
Regulating act.
Conclusion:
Thus, the Patna case is an important judgment in the study of the legal
system that has been developed in the country. However, in spite of all the
shortcomings, the Supreme Court gave a favorable decision in the same.
2. Raja Nand Kumar Case:
Introduction: Raja Nand Kumar also called Nanda Kumar or Nuncomar
born in 1705 at Bhadrapur, which is now in Birbhum. He was a Hindu Brahmin,
a big zamindar and a very influential person of Bengal. Maharaja Nand
Kumar handled various posts under the Nawab of Bengal, primarily, as a
revenue collector. He was once a Governor of Hugli under Nawab Siraj-Ud-
Daulah in 1756. He was very loyal to the English Company and because of
that he was also known as Black Colonel during Clive’s period. He was the
first person of India who was executed by hanging.
The title Maharaja was conferred on Nand Kumar by Shah Alam II in
1764. He learnt Vaishnavism from Radhamohana Thakura. In the early 1775,
He brought several charges of bribery and corruption against Governor-
General Warren Hastings. This case revolves around Raja Nand Kumar.
Background of the Case: There were four council members of Warren
Hastings namely Francis, Clavering, Monson and Barewell in which first
three were against Warren Hastings and the only person who was in favor
was Barewell. The majority group of Francis, Clavering and Monson instigated
Nand Kumar to bring charges of Bribery and Corruption against Warren
Hastings before the council.
Nand Kumar gave a letter to Francis mentioning the complaints against
Hastings of Bribery and Corruption and said that Hastings accepted bribery
from him of more than 1 lakh for appointing his son Gurudas, as Diwan. It
was also said that Hastings had accepted rupees 2.5 lakhs from Munni
begam as bribe for appointing her as the guardian of the minor Nawab
Mubarak-ud-Daulah who was still a juvenile.
Francis placed the letter before the council in its meeting. Then Monson
moved a motion that Nand Kumar should be called to appear before the
council. But Warren Hastings who was presiding the council was against
this. Mr. Barewell, the supporter of Warren Hastings put forth the suggestion
that Nand Kumar should file his complaints before Supreme Court not here
in this council because the court was competent to hear this case.
But the majority of members objected to this action and elected Clavering
to preside the meeting in the place of Hastings. Now Nand Kumar was called
before the council to prove his charges against Hastings. The majority of
council declared that the charges levelled against Hastings were proved
right. And Hastings was directed to deposit the amount of Rs 3,54,105 in
Treasury of the company. This event made Hastings a bitter enemy of Nand
Kumar and now he looked for an opportunity to show him down.
Facts of the Case:
· Soon after Nand Kumar along with Fawkes and Radha Charan was
charged and arrested for conspiracy at the instance of Hastings.
· In order to bring further disgrace to Raja Nand Kumar, Hastings
manipulated another case of Forgery against him, for which the punishment
was death as per the provision of the English Act of 1729.
· The charge of forgery was with respect to a bond or deed claimed as
an acknowledgement of debt from Bulaki Das, the banker, which it is said,
was executed by him in 1765.
· Mohan Prasad produced charges of forgery on 6th May 1775 before
the then Hon’ble justices of the peace for the town of Calcutta.
· Le Maistre and Hyde who presided over in the capacity of
Magistrates, heard the case at length, probed & contemplated the evidence,
on behalf of the prosecution till late night.
· The Magistrates presided in the capacity of the justices of the peace,
were contended with the evidence presented by the prosecution witnesses,
in course of which they ordered the Sherriff & keeper of His Majesty’s prison
at Calcutta to accommodate Raja Nand Kumar in safe custody until his
release as per the necessary dictums of law. Mohan Prasad furnished a
bond to prosecute & hold Nand Kumar in the Supreme Court dated 7th May
1775 accountable, basis on which, his fateful trial was executed before the
Chief Justice and three other puisne judges of the Supreme Court on 8th May
1775.
· He was put on trial before the Supreme Court with a jury of 12
Englishmen presided over by Sir Elijah Impey who was the friend of Warren
Hastings.
· Supreme Court in its decision in 1775 fined Fawkes but reserved its
judgement against Nand Kumar on the ground of pending fraud case.
· The trial began on 7th june 1775 and continued for a period of eight
days without any adjournment and consequently the Supreme Court
sentenced him to death under an Act of British Parliament called the Forgery
Act passed in 1728.
· Serious efforts were made save the life of Nand Kumar and an
application for granting leave to appeal to the king-in-council was moved in
Supreme Court but the same was rejected.
· The sentence passed by the Supreme Court was duly executed by
hanging Nand Kumar to death on August 5, 1775 at 8:00 a.m. at Cooly Bazar
near Fort William
Important Q.s Raised:
1. Whether the Supreme Court had jurisdiction in this matter?
2. Whether the English Act of 1729, which made forgery a capital
offense, was extended to India?
The answer of first Q. is that the Supreme Court had no jurisdiction to
decide the case as before the establishment of Supreme Court in Calcutta,
the Indians in Bengal was tried by local Faujdari Adalats and in this case,
the offense was committed before the establishment of Supreme Court.
On the Second Q. related to the applicability of the Act of 1729 to India,
the opinions of the judges itself were different, but the majority views
including Chief Justice Impey prevailed. The decision of Supreme Court in
this case was very controversial and it showed the arbitrary state of the
administration of justice in India.
Decision:
The Supreme Court held that the case of conspiracy was dismissed
because they didn’t have any strong evidence against Raja Nand Kumar. But
he was held liable in the second case of forgery and was given Capital
Punishment. The court held that Raja Nand Kumar was guilty as charged
with forgery and for the same he was given a capital punishment by the then
Chief Justice Impey.
Certain Features of the Trial:
· Every judge of Supreme Court cross examined the defense witnesses.
The intention of the judges was to break down Nand Kumar’s witnesses.
· Nand Kumar committed the offence of forgery nearly five years ago
in 1770 i.e. much before the establishment of the Supreme Court. The Act of
1728 under which Nand Kumar was tried had never been formally circulated
in Calcutta and the People could not be expected to know anything about it.
Critical Appraisal: Chief Justice Impey in this case acted unjustly in
refusing to respite to Nand Kumar. No rational man can doubt that he took
this course in order to gratify the Governor-General. The trial of Nand Kumar
disclosed that the institution of Supreme Court hardly commanded any
respect from the natives as it wholly unsuited to their social conditions and
customs. The trial has been characterized as “judicial murder” of Raja Nand
Kumar which rudely shocked the conscience of mankind. Raja Nand Kumar’s
trial was certainly a case of miscarriage of justice.
The decision of the Supreme Court in the trail of Raja Nand Kumar
became a subject of great controversy and criticism for the following reasons.
1. Charge against Raja Nand Kumar was preferred shortly after he
2. Chief justice Impey was a close friend of Hastings.
3. Every judges of the Supreme Court cross-examined the defense
time.
4. After the trail, when Nand Kumar was held guilty by the Court he
due consideration.
5. Nand Kumar applied for mercy to His Majesty but his case was not
Charter of 1774 to reprieve and suspend such capital punishment and forward
the matter for mercy to His Majesty. Earlier in 1765, a native, named Radha
Charan Mittre was tried in Calcutta for forgery and death sentence was
passed. A petition was sent to Governor Spencer from the native community
of Calcutta requesting “either a reversal of sentence or a respite pending an
application to the throne”. The prayer was granted and Radha Charan got a
free pardon from the King.
6. Nand Kumar commited the offence of forgery nearly Five year ago,
7. Under the Hindu Law or the Mohammedian Law, the offence of
in Raja Nand Kumar’s case became very controversial. The trail and execution
of Raja Nand Kumar shocked not only Indians but also foreigners residing in
India. It was considered most unfortunate and unjust. The role of chief
Justice Impey became a target of great criticism. On their return to England,
Impey and Warran Hastings were impeached by the House of Commons and
the execution of Raja Nand Kumar was an important charged leveled against
them.
3. Cossijurah Case:
The Cossijurah Case illustrates another aspect of the East India Companies
administration in India. The Cossijurah case raised the defects of charter of
1774 which created the Supreme Court at Calcutta. The Charter did not specify
either the jurisdiction of the Court or the position of the Governor-General-
in-Council. As a result of this confusion, there were occasions of conflicts
between Supreme Court and the Council. In the Cossijurah case the
confrontation between Supreme Court and the Council became evident to the
highest degree.
Facts of the case:
• The conflict between the Supreme Court and the supreme council
reached its zenith during this case. While the Supreme Court ordered the
sheriff to carry out its orders, the supreme council ordered its troops to
defend the implementation of its orders.
• The Supreme Court also claimed its jurisdiction over all the native
population which was strongly opposed by the council.
• Raja Sundernarain was the zamindar of cossijurah and was under
a heavy debt to Kashinath Babu. Though the latter tried to extract the money
through the board of revenue, his efforts proved in vain. He therefore filed a
case in the Supreme Court.
• The Supreme Court issued a writ of capias for the arrest of the raja.
• The council came to know of the developments. After seeking legal
advice from the advocate general, the council issued a notification informing
all the landholders that they need not pay any attention to the process of the
supreme court, unless they were either the servants of the company or had
accepted the court’s jurisdiction by their own consent.
• The raja was specially informed about the council and therefore
his people drove away the sheriff of the Supreme Court when that official
came with the writ to arrest the raja of cossijurah.
Conflicts:
• The supreme court issued another writ to seize the raja‘s property
in order to compel his appearance before the supreme court.
• This time sheriff with a force of 60-70 men marched to cossijurah.
They imprisoned the raja.
• In the meantime the governor-general ordered colonel ahmuty, to
detach a sufficient force to intercept and arrest the sheriff with his party and
release the raja from arrest. This was done efficiently.
• Kashinath babu brought an action of trespass against the governor-
general and the members of the council individually. The latter became
annoyed and declared that persons in Bengal, out of Calcutta, need not
submit to the court and assured that the council would safeguard their
interests even by the use of armed of the armed forces.
• The Supreme Court issued writs against all members of the council
except governor-general and. But the army officials refused to allow the
Supreme Court officials to serve the writ to the members of the council.
• The judges became furious and took the action against the attorney
general of the company. He was committed to the prison and no bail was
accepted.
• The councilors conveyed to the judges that if they were held
accountable to the Supreme Court on the suit of an Indian, the respect for the
government in the minds of the Indians would decrease and the administration
would be weakened.
• The councillers very strongly stuck to their stand and refused to
submit to the authority of the Supreme Court.
• At this critical stage the plaintiff withdrew the case against the
Governor General, members of the council and the raja.
Observation of Some Vital Issues:
• That whether the zamindars were subjected to the jurisdiction of
the Supreme Court.
• Who was the competent authority to decide the issue?
• As far as the first Q. is concerned, it is in the political interest of the
company to keep the zamindars ignorant of their rights and status. There are
many instances to prove that the zamindars and the hereditary rajas and
ranis were at times were harassed by the company’s official’s.
• Also the judges of the Supreme Court could not get an opportunity
to enquire in to the status of the zamindars.
• Regarding the next Q. the judges of the Supreme Court held that the
court was the competent authority to determine the legal status of the
zamindars and the council had no such power.
Judgement of the Council:
The Council issued instructions to all the Zamindars, landholders and
the persons residing outside Calcutta not to pay any attention to the process
of the Court and that in the case the Supreme Court persisted in issuing writs
against them, the Council would protect them.
Critical Analysis:
The show down between the Supreme Court and the Council brought out
the inherent weaknesses and defects in the Regulating Act which did not
specify the areas and the persons which were under the jurisdiction of the
Supreme Court. The language of the Act was vague enough for various
interpretations. These defects, however, were removed to a great extent by
the passing of the Act of Settlement 1781.
4. Case Of Kamaluddin (1775):
The case of Kamaluddin was the first case to display an open conflict
between the Governor-General-in-Council and the Supreme court regarding
the jurisdiction of various subjects. According to the facts of this case,
Kamaluddin was holding a salt farm in Hugli (Bengal) which originally
belonged to another person named Kanta Babu. Kamaluddin was just an
ostensible holder of the farm and was holding the farm on the behalf of
Kanta Babu. Kamaluddin was imprisoned because he was issued a writ to
his committal to the prison without bail by the Revenue Council. He was in
the prison without bail because arrears of revenue was due from his side in
1775.
In such cases at that time, it was according to the custom to release the
imprisoned persons on bail. Later, the defendant, i.e., Kamaludd in appealed
in the supreme court for a writ of Habeas Corpus. Supreme Court headed by
chief justice Elijah Impey gave its decision in the favour of the defendant
and Kamaluddin was set free by the court on bail after he obtained the writ
of Habeas Corpus. The court, in its judgement, held that the defendant, in the
cases of disputed accounts, should be granted bail till the inquiry regarding
his obligation to pay is completed and he is found liable.
As expected, Supreme council headed by Warren Hastings, the Governor
General expressed its dissatisfaction on the judgement of Supreme court.
The Council stated that the supreme council had its jurisdiction over the
officers of Calcutta Revenue Council as the company was Diwan of the
territories of Bengal, Orissa and Bihar and the court was not empowered to
judge a matter related to the revenue. Therefore, according to the council,
the court had no power to issue a writ of Habeas corpus to the defendant and
grant him bail.
However, Elijah Impey, Chief Justice of the Court, opposed the view of the
council. He stated that the revenue officers were also the servant of the
company and therefore, on this ground, the jurisdiction over the revenue
officers can be claimed by the Supreme Court.
Again, the council expressed its dissatisfaction on the view of Supreme
Court and 4 out of 5 members of the supreme council decided to order the
provincial Council to put the defendant again in the prison without paying
attention to any of the orders of the Supreme Court. But, Warren Hastings,
the Governor General didn’t pay any heed to these decisions and hence, they
couldn’t be implemented.
Facts and Decisions:
• This case represents the first open difference of opinion between
the court and the government over the Q. of the Court’s control of Diwani
functions.
• kamaluddin was an ostensible holder of a salt farm at Hijili, on
behalf of kanta babu, who was the real farmer. In 1775 Kamaluddin was
committed on the ground of arrears of revenue due from him the claim of
which he disputed.
• On this basis revenue council at Calcutta issued a writ for
kamaluddin’s committal without bail.
• Kamaluddin obtained habeas corpus from the Supreme Court, which
set him free.
• The judges further stated that kamaluddin should not be imprisoned
again until his under-renter had been called upon to pay the arrears and
had proved to insolvent.
CONFLICTS:
• The members of the council stated that the Supreme Court cannot
deal with the cases of revenue as was being highlighted in the regulating act
of 1773.
• The council therefore ordered the provincial council to re-arrest
kamaluddin and pay no attention to the Supreme Court order. But the governor-
general warren hasting refused to support the council members.
CONCLUSION:
• The case of Kamaluddin was an eye opener disclosing defective
provisions of the regulating act due to which not only the supreme court and
the supreme council came into the dispute but also the gulf between the
governor-general Warren Hastings and three members of the council ,who
constituted the majority, gradually became wider and wider
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LEGAL &amp; CONSTITUTIONAL HISTORY OF INDIA

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According to syllabus of Dr.

Bhimrao Ambedkar Law University, Jaipur 1

Q. 1. Explain the main feature of the Charter of 1600?

Composition of Privy Council: As far as India is considered, the Privy

Q.1. Explain the judicial administration in Madras from the period of

First Law Commission 1955 -58 Mr. M. C. Setalvad

Fourth Law Commission 1964 -68 Mr. J ustice J. L. Kapur

Fifth Law Commission 1968 -71 Mr. K. V. K. Sundaram, I. C. S.

Sixth Law Commission 1971 -74 Mr. J ustice Dr. P. B. Gajendragadkar

Seventh Law Commission 1974 -77 Mr. Justice Dr. P. B. Gajendragadkar

Eighth Law Commission 1977 -79 Mr. J ustice H. R. Khanna

Ninth Law Commission 1979 -80 Mr. Justice P. V. Dixit

Tenth Law Commission 1981 -85 Mr. J ustice K. K. Mathew

Ele venth Law Commission 1985 -88 Mr. Justice D. A. Desai

Twelfth Law Commission 1988 -91 Mr. J ustice M. P. Thakkar

Thirteenth Law Commission 1991 -94 Mr. Justice K. N. Singh

Fourteenth Law Commission 1995 -97 Mr. J ustice K Jayachandra Reddy

Fifteenth Law Commission 1997 -2000 Mr. Justice B. P. Jeevan Reddy

Sixteenth Law Commission 2000 -2001 Mr. Justice B. P. Jeevan Reddy

Eighteenth Law Commission 2006 -2009 Dr. Justice AR Lakshmanan

Nineteenth Law Commission 2009 -2012 Mr. Justice P. V. Reddi

Twentieth Law Commission 2012 -2013 Mr. Justice D. K. Jain

Q.14. What do you mean by the concept of principle of Equity, Justice

2. The Act was passed by the U.K government in

Conclusion: The Government of India Act, 1935 proved to be a giant

Sr. No. Reserved Subjects Transferred Subjects

1 Finance Local Self-Government

The responsibility for the proper administration of the “reserved

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