TOPIC 2.

1: BHAKTI MOVEMENT

The Bhakti Movement​

The Bhakti movement, which emphasized a personal and direct relationship with God, began long before
the arrival of the Turks in India. While the Vedic texts didn’t highlight Bhakti, its roots can be traced back
to the influence of Mahayana Buddhism, which began to worship the Buddha in a more personal, gracious
form. During the Gupta period, Bhakti was officially recognized as one of the paths to salvation, along
with knowledge (jnana) and action (karma), especially as holy texts like the Ramayana and Mahabharata
were re-written.

In South India, between the 7th and 12th centuries, the Saiva Nayanars and Vaishnavite Alvars took the
lead in promoting devotion to God as a means of salvation. They rejected the austerities of Jainism and
Buddhism and preached against caste restrictions, focusing on love and personal devotion to God. They
also used local languages to communicate their message, which made it easier for people to relate.
However, this approach limited their reach beyond South India, as Sanskrit remained the dominant
language of scholarly thought.

Bhakti ideas began to spread to North India slowly through scholars and saints like Namadeva and
Ramananda. Namadeva, a 14th-century saint from Maharashtra, composed devotional poetry in Marathi,
emphasizing love and devotion to God. Ramananda, a follower of the philosopher Ramanuja, focused on
the worship of Rama and taught that people from all castes should be included in the spiritual community.
His disciples included individuals from lower castes, such as Ravidas (a cobbler), Kabir (a weaver), and
others from traditionally marginalized groups. This inclusive approach resonated deeply with people,
especially as the dominance of the Brahmins waned due to the rise of the Turkish Sultanate and the
influence of Islamic ideas of equality.

During the 15th and 16th centuries, the Bhakti movement gained significant traction in North India. Kabir
and Guru Nanak, two of the most prominent figures of this period, challenged the social and religious
norms of the time. Kabir, who is believed to have been born into a Muslim family but raised by a Hindu
family, emphasized the unity of God, rejecting both Hindu idol worship and Islamic formalities like
namaz. He advocated for a life of devotion and love for God, without the need for rituals or asceticism,
and strongly opposed the caste system, untouchability, and discrimination. Kabir’s teachings were aimed
at uniting people from all walks of life, irrespective of caste or religion.

Guru Nanak, the founder of Sikhism, shared similar beliefs. Born in 1469, he emphasized the worship of
one God, and his teachings stressed purity of character, moral conduct, and the importance of a guru for
spiritual guidance. Like Kabir, Nanak rejected idol worship, pilgrimages, and other formal practices,
advocating instead for a practical spiritual life that could be lived while fulfilling the duties of a
householder. Although Nanak’s teachings led to the foundation of Sikhism, his goal was to bridge the gap
between Hindus and Muslims, creating a harmonious environment for both religions.

The impact of Kabir and Nanak’s teachings, while not immediately overturning social norms like the
caste system, created a significant shift in religious thought. Their message of unity and devotion
continued to influence future generations. For instance, the Mughal emperor Akbar, known for his policy

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of religious tolerance, was deeply influenced by their ideas of equality and harmony. Over time, the
Bhakti movement, particularly through figures like Kabir and Nanak, contributed to the intellectual and
religious discussions of the 16th, 17th, and 18th centuries, sparking a broader struggle between
progressive and orthodox elements within both Hinduism and Islam. This ongoing tension shaped the
religious landscape of India for centuries.

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 TOPIC 2.2: THE SUFI MOVEMENT

Religious Ideas and Beliefs​

Islam was not new to India when the Turkish empire was established in the north. By the 8th century,
Islam had already reached Sindh, and by the 10th century, it had spread to Punjab. Arab traders and Sufi
saints also traveled to various parts of India between the 8th and 10th centuries. Works like Al-Biruni's
Kitab-ul-Hind introduced Hindu ideas to scholars in West Asia, and Indian knowledge, including
Buddhist texts and books on astronomy and medicine, was translated into Arabic. Indian yogis also
visited the region during this time. Buddhism and Vedantic philosophies likely influenced Islamic
thought, though the exact extent of this influence is debated. Evidence of Buddhist monasteries and stupas
in Afghanistan and Central Asia, along old trade routes, points to the significant presence of Buddhism in
these areas. Both Greek and Indian philosophies contributed to the development of early Islamic
philosophy. The Sufi movement, which began to take root in India in the 12th century, played a key role
in bridging Hindu and Muslim communities. Although early Sufis incorporated practices like yoga from
Hinduism, their core beliefs remained rooted in Islam. This created a shared spiritual platform that
influenced both Hindus and Muslims.

The Sufi Movement​

The tenth century was significant in Islamic history for the rise of the Turks and changes in philosophical
and religious ideas. It marked the decline of Mutazila rationalism, which was criticized for promoting
skepticism and atheism, and the rise of orthodox schools based on the Quran and Hadith. Sufism also
emerged as a prominent movement. Early Sufis like Rabia and Mansur bin Hallaj emphasized love
between God and the soul, but their pantheistic views led to conflicts with orthodox Islam. Al-Ghazzali
later reconciled mysticism with Islamic orthodoxy, asserting that knowledge of God comes through
revelation, not reason.

Sufism became organized into twelve orders (silsilahs), often led by a prominent mystic and centered in a
khanqah or hospice. Some Sufi practices, such as fasting and breath control, were influenced by Hindu
and Buddhist yogic traditions, which had spread to the region even before Islam's arrival. Despite debates
on the philosophical origins, Sufism shared similarities with Hindu and Buddhist ideas about God, the
soul, and the material world, fostering mutual understanding. Sufism’s humane spirit is reflected in the
words of Persian poet Sanai: "Faith and Infidelity, both are galloping on the way towards Him."

Sufi orders were divided into two types: Ba-shara, which followed Islamic law, and Be-shara, which did
not. Both existed in India, with Be-shara orders being followed by wandering saints, many of whom
gained widespread veneration among both Muslims and Hindus.

The Chishti and Suharwardi Silsilahs​

In the thirteenth and fourteenth centuries, two major Ba-shara Sufi movements gained influence in north
India: the Chishti and Suharwardi silsilahs. The Chishti order was established by Khwaja Muinuddin
Chishti, who arrived in India around 1192. He settled in Ajmer, where his fame grew through his
disciples, including Bakhtiyar Kaki and Farid-ud-Din Ganj-i-Shakar. Farid's humane outlook made him
widely respected, even influencing the Adi-Granth of the Sikhs. The most famous Chishti saints,
Nizamuddin Auliya and Nasiruddin Chiragh-i-Delhi, led simple lives and mingled freely with lower-class
people, including Hindus. They used music and Hindi verses to foster closeness to God and were not

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focused on conversions, though many later attributed their conversions to the saints' blessings.
Nizamuddin also adopted yogic practices, earning the title 'sidh' among yogis. After Nasiruddin's death,
the Chishtis spread across eastern and southern India. The Suharwardi order, active in the Punjab and
Multan, was founded around the same time. Unlike the Chishtis, the Suharwardis, such as Shaikh
Shihabuddin Suharwardi and Hamid-ud-Din Nagori, accepted state service and held ecclesiastical
positions. The Chishtis, however, distanced themselves from state politics. Despite their differences, both
orders contributed to creating a climate of peace and harmony among people of various religions and
sects, providing a point of devotion for Muslims in India while Mecca remained the ultimate religious
center.

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 TOPIC 3.1: THE EMERGENCE OF THE EAST INDIA COMPANY

Charter of 1600: East India Company​

The rise of the British Empire in India is unique because it began not through a king or army, but through
a trading company. This company, called the East India Company, was formed in England on 31
December 1600 by a charter from Queen Elizabeth. Its full name was “The Governor and Company of
Merchants of London trading into the East Indies.” The Company was given a 15-year license, but the
Crown could cancel it earlier with two years’ notice if it wasn’t profitable. It had exclusive rights to trade
in areas beyond the Cape of Good Hope to the Straits of Magellan—this included parts of Asia, Africa,
and America. No British person could trade in this region without the Company’s permission. Violators
faced heavy penalties like losing their goods, being jailed, or other punishments. The Company ran in a
democratic way. All members formed the General Court, which elected a Governor and 24 Directors
every year to manage the Company. They could also remove and replace any official who was not doing a
good job.

Legislative Power​
The Charter allowed the East India Company to make rules for its own management, its workers, and to
help its trade. These rules could include punishments like fines or jail, but had to be fair and in line with
English laws. The Company was not allowed to give harsh punishments like the death penalty or create
laws that went against English legal customs. At that time, the Company had no authority to govern land
or people—it was only seen as a trading group, not a political ruler. The laws it made were mostly about
managing its business and workers, like deciding how meetings were held or setting up offices, such as
making Surat its main base in India in 1621. Although the law-making power was small, it was important
because it marked the beginning of what would later become the legal system in British-ruled India. This
small start in 1600 eventually grew into full legislative authority.

King’s Commission​
The East India Company soon realized that its limited power to make laws wasn't enough to keep its
workers disciplined during long sea voyages. Since it could only give punishments like imprisonment, it
couldn’t properly deal with serious crimes like murder or mutiny. To handle this, the Company asked the
Crown (the monarch) to give special permission, called a commission, to the commander of each voyage.
This allowed the commander to use strict military laws—called "law martial"—and give harsher
punishments, even the death penalty. The first such commission was given by Queen Elizabeth on 24
January 1601 to Captain Lancaster. Under one of these commissions, a trial was held on 28 February 1616
on the ship Charles near Surat. A man named Gregory Lellington had killed another Englishman and
confessed. He was found guilty and sentenced to death. This was the first recorded trial by the Company
in India.

Power to Issue Commission Granted to the Company​

To avoid needing a new royal order for every sea voyage, King James I gave the East India Company a
general power on 14 December 1615. This allowed the Company to give its ship captains authority to
punish serious crimes, like murder or mutiny, but only if a jury of 12 Company servants agreed on the
verdict. Later, when the Company set up trading posts in India, it needed similar powers on land to
control its British employees. So, on 4 February 1623, King James I allowed the Company to give this

5
power to its local leaders in settlements. They could now punish crimes on land too—including the death
penalty for murder, mutiny, or other serious crimes—again, only after a jury trial. This gave the Company
full authority to keep order among its British staff, both at sea and on land in India.

Charter of 1661 and Further Power to the Company​

The Charter of 1661 was very important for the development of India’s judicial system. The East India
Company asked the English government to give its Presidents and Councils in India the power to make
English residents follow the law and to punish wrongdoers under English law. The Company said it had
no proper authority for years to enforce discipline among English people in its areas. So, on 3 April 1661,
King Charles II gave the Company a new Charter. It allowed the Governor and Council at each factory
(trading post) to handle all legal matters—civil and criminal—for anyone living under their control, using
English law. If a factory didn’t have a Governor, the leaders there had to send the accused to another place
with a Governor and Council, or back to England for punishment.

Wide Powers​
The Charter of 1661 gave much more power to the East India Company than the earlier Charter of 1600.
The 1600 Charter only allowed the Company to control its own servants and didn’t allow harsh
punishments like the death sentence. But the 1661 Charter allowed the Governor and Council of a factory
to deal with all people living in the Company’s settlements—including Indians—and to give any
punishment, even death. While the 1600 Charter focused on maintaining discipline among the Company’s
workers, the 1661 Charter aimed to set up a full judicial system in the Company’s territories. This showed
that the Company was no longer just a trading body—it was becoming a political and territorial power.

Features​
Two important features of the 1661 Charter stand out. First, the judicial power was given to the Governor
and Council of each factory, meaning the same people who ran the place also decided legal matters. This
meant there was no separation between the executive and the judiciary. Second, the Charter required that
justice be carried out according to English law. This was a protection for English people, ensuring they
were always governed by English law. The 1600 Charter had also stated that the Company’s laws couldn’t
go against English law. However, this English legal system didn’t benefit the Indian people. They were
also governed by English law, which didn’t take into account their own local laws, customs, and
traditions. The 1661 Charter shaped how justice was administered in India, and we will see how this
played out later. A charter is a legal document granted by the crown, usually to public institutions or
special organizations like universities. The East India Company was one such "chartered" company,
meaning it was given special powers and rights.

Surat Factory​
The East India Company, with its powers from the 1600 Charter, began trading with India during
Jehangir’s reign. To manage its trade, the Company needed to set up "factories"—places with offices,
employee housing, and warehouses for goods. These factories were the starting points for British power in
India, growing from small establishments to large provinces and eventually to an empire. Surat was
chosen as the first site for a factory because it was a major commercial hub in the Mughal Empire and had
a busy port. The British saw it as a key location for trade with England, especially since many Muslim
pilgrims sailed from Surat to Arabia. However, the Portuguese, already settled in Surat, didn’t welcome

6
competition. This led to a naval conflict in 1612, where the British defeated the Portuguese, allowing
them to establish their factory in Surat with the Mughal Governor’s permission.

Sir Thomas Roe’s Visit​

The English wanted to make their Surat factory permanent, so James I sent Sir Thomas Roe to the Mughal
Emperor in 1615. The Emperor granted a firman that gave the Englishmen certain privileges, such as
permission to trade and establish a factory in a rented house at Surat. They were allowed to follow their
own religion and laws, with disputes among them settled by their President. Disputes between an
Englishman and an Indian would be handled by local authorities, and the Mughal officials were ordered to
provide quick justice and protect the English from harm. Until 1687, Surat was the main center of the
Company’s operations in India. The President of Surat was the Company's chief representative in India,
and other factories were under its control. However, in 1687, the Company moved its administrative
headquarters from Surat to Bombay. As a result, Surat lost its leading role and was subordinated to
Bombay. Over time, the Company’s power was concentrated in three Presidencies—Bombay, Madras,
and Calcutta—which became political centers as the Company took on more governance roles. The areas
around these towns were called mofussil.

Administration and Judicial Arrangements​

The Surat factory had a simple administrative and judicial system. The President and Council, appointed
by the Company, made all decisions by majority vote. The President had no veto power, which was
different from later systems in India where Governors had veto power. The Englishmen in Surat lived
under a dual legal system, following both English and Indian laws. Even though they had settled with the
permission of the Mughal Government and should have followed local laws, they preferred to be
governed by English law rather than Islamic law, which had a religious character. This request was
granted by the Mughal Emperor, who allowed the English to govern themselves within the factory. While
not much is known about the early judicial setup in Surat, it is clear that the Englishmen were mainly
concerned with governing themselves, not Indians. They did not set up regular courts but instead relied on
the President and Council to handle disputes. The President had special authority to administer criminal
justice, as given by the Company. One example of this was in 1636 when a criminal trial took place
aboard a ship, where the President and Council convicted a man and executed him. Justice at this time
was not well-administered and was more based on the personal judgment of the President and Council
than any formal legal process. The members of the President and Council were traders, not lawyers, so
they had little legal knowledge and did not follow established legal procedures. The Englishmen in Surat
came from humble backgrounds and were not trained in law, which resulted in a less effective judicial
system.

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 TOPIC 3.2: ADMINISTRATION OF JUSTICE IN MADRAS: 1639-1726

General​
The early centres of British power in India were the three Presidency Towns of Madras, Bombay, and
Calcutta, which were founded by the British and grew almost from scratch. These three settlements
became crucial in the development of British rule in India. The judicial system in these towns was
initially designed to cater primarily to the English settlers. However, as the Indian population in these
towns grew, there was a need to adjust the judicial system to provide for the administration of justice for
the local people as well. Despite these changes, the judicial machinery in the Presidency Towns continued
to be heavily influenced by the English legal system. Madras was the first of these towns to be established
by the British, and its judicial institutions evolved in three stages before 1726. The first stage, from 1639
to 1665, saw justice administered in a rudimentary manner. In the second period, from 1665 to 1686, the
court of the Governor and Council was established. The third and most significant phase, from 1686 to
1726, saw the creation of two important courts: the Admiralty Court and the Mayor’s Court.

First Period: 1639-1665​

Madras was founded in 1639 by Francis Day, who acquired a piece of land on the eastern sea-coast from a
Hindu Raja. The Company constructed a fortified factory there, naming it Fort St. George. The Raja
granted the Company full power and authority to govern and manage the affairs of Madraspatnam, a small
village near the fort. Over time, the village of Madraspatnam grew in size and population due to the
opportunities for trade and commerce. It became known as the Black Town, as most of its inhabitants
were Indians. Inside the fort, the White Town developed as a settlement for the British and other
Europeans. Together, the Black and White Towns formed what came to be known as Madras.

Administrative Set-up​
To begin with, Madras was given the status of an agency and its administrative head was called the
‘Agent’. He administered the settlement with the help of a Council. It was subordinate to Surat, which
was the only Presidency in India at the time. In the beginning, affairs of the settlement were mostly
commercial in nature and did not raise any complicated administrative problems. With the passage of
time, these functions grew and became diversified.

Judicial System​
The early judicial system in Madras was limited and unclear. The Agent and Council handled justice in
the White Town, but their authority was vague, so serious criminal cases were often referred to England,
leading to delays. One example is the case of two Englishmen found guilty of sedition and punished with
the lash. For the Black Town, the Raja entrusted the English with administration but they showed little
interest. The traditional local system continued, with a Choultry Court led by Adigar Kanappa handling
minor cases. Kanappa was dismissed in 1652 for abuse of power, and two Englishmen took over. The
Choultry Court only handled petty cases, and no other court was set up for more serious issues. In 1641,
an Indian man was accused of murdering his partner and was hanged after a brief inquiry. In 1642, a
British soldier killed by a Portuguese was executed by the Raja’s order. In 1644, when Sargeant Bradford
accidentally killed a native, the Agent and Council referred the case to the Black Town’s inhabitants, who
ruled it an accident.

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No Established Procedure​
These accounts show that there was no standard trial procedure, and most trials were informal. Serious
crimes, particularly those involving Indians or committed against them, were handled on a case-by-case
basis, with procedures varying depending on the situation. The Agent did show some interest in serious
crimes in the Black Town, and for capital cases involving non-British individuals, the case was referred to
the Raja, who ordered punishment according to English law. This likely happened because the Agent and
Council lacked the power to impose the death penalty under the 1600 Charter, and they needed the Raja's
consent to avoid conflict. During this period, there was no regular system of justice. The judicial process
was basic, with only two bodies involved: the Agent and Council for the White Town, and the Choultry
Court for the Black Town. The Agent's court was inefficient and unsure of its powers, while the Choultry
Court only handled minor cases. There was no established process for dealing with more serious crimes in
the Black Town.

Second Period: 1665-1686​

Extensive Power and Delay in Justice​
The Charter of 1661 granted judicial powers to the Governor and Council, but it wasn’t immediately
implemented in Madras. The first significant case in 1665, involving Mrs. Ascentia Dawes, marked a
turning point. She was charged with murdering her slave, and the Agent and Council referred the case to
England due to uncertainty over their powers. The Company decided to make the Charter effective,
elevating the Agent to the position of Governor. This change extended judicial power to all inhabitants,
not just the English. Mrs. Dawes' trial was the first to use a jury, which included both Englishmen and
Portuguese. However, the jury’s unexpected verdict of "not guilty" left the Governor and Council
uncertain, as none had legal training. Despite their request for legal guidance, the Company did not send
any legal experts to Madras. As a result, the Governor and Council continued to administer justice based
on their judgment, leading to inefficient and inconsistent legal proceedings. This situation worsened due
to delays in trial, as the Governor and Council often referred cases to London for advice. In some cases,
accused individuals waited years for trial. These delays, along with a lack of proper legal knowledge, led
to growing public dissatisfaction and calls for reform. Governor Streynsham Master, serving from 1667 to
1681, took steps to improve the system. In 1678, he restructured the judiciary, establishing the High Court
of Judicature, which would meet twice a week to handle civil and criminal cases using English law and a
jury. The Choultry Court was reorganized to deal with minor cases. This established a hierarchy of courts,
with the Choultry Court handling smaller matters and the High Court overseeing more serious cases,
including appeals. With these reforms, trials began to function more efficiently, and the judicial system
became more structured.

Admiralty Court​
The East India Company’s monopoly on trade, granted by the Charter of 1600, was infringed upon by
unauthorized merchants (interlopers) and piracy, leading to substantial losses. To address these issues,
King Charles II issued a Charter on 9 August 1683, allowing the Company to establish one or more courts
with jurisdiction over maritime and mercantile cases. These courts would be headed by a “learned in the
civil law” and include two merchants. The courts were empowered to hear cases of trespass, injuries,
wrongs on the high seas, and cases involving ships or goods involved in illegal trade within the
Company’s domain. These courts were to follow rules of equity, good conscience, and the customs of
merchants. A similar Charter was issued by King James II on 12 April 1686, continuing the provisions of
the 1683 Charter. The appointment of a civil lawyer was mandated because maritime law and mercantile

9
law were based on Roman law, which differed from the English Common Law. At this time, English
Common Law had limited rules for mercantile cases, with Lord Mansfield only later developing the
subject.

As a result, a Court of Admiralty was established in Madras on 10 July 1686. The court initially consisted
of three civil servants from the Governor’s Council, and occasionally, the Governor and Council enforced
‘law martial.’ In 1687, the Company sent Sir John Biggs, a professional civil lawyer, to serve as the
Judge-Advocate, which allowed the court to function more effectively. After Biggs' death in 1689, the
Governor and Council took over judicial functions, appointing local members, including merchants from
different communities, as the judges. This composition did not follow the 1686 Charter, which required a
civil lawyer and two merchants. By 1694, the Company began facing issues with the court's structure, as
the appointment of a qualified civil lawyer was delayed. In 1696, the Company began having the
Governor and Council hear appeals in certain cases, further weakening the court’s independence. Over the
years, the Admiralty Court convened sporadically, including in 1782 and 1788, but the requirement for a
civil lawyer was never fully met in these instances. In the 1694 case against Elihu Yale, a jury trial request
was denied, as the Charter did not mandate jury trials for civil cases, citing impracticality due to the
shortage of Europeans capable of serving as jurors. By the end of the 17th century, the Admiralty Court’s
influence had waned, and its jurisdiction was exercised only intermittently, often under the oversight of
the Governor and Council rather than a dedicated civil lawyer.

Mayor’s Court​
In 1688, the Company established the Mayor’s Court in Madras, which was part of the Madras
Corporation, created by a Charter issued on 30 December 1687. The Mayor’s Court was inspired by the
system in England, where municipal corporations held judicial powers, such as the one in London. The
Company chose to grant judicial authority to the Madras Corporation instead of relying on royal
commissioners, whom it found prone to arrogance. The Company wanted the corporation to be under the
control of the Governor and Council, using its powers from the Charter of 1600 and the Charter of 1683.
Several reasons led to the creation of the corporation. By this time, Madras had become a populous town,
and the Dutch had successfully implemented municipal government systems in the East, prompting the
Company to consider a similar system for Madras. Additionally, in 1686, a house-tax was levied to fund
repairs to the city wall, but the native population resisted, making collection difficult. To address this, the
Company believed that a mixed body of both Englishmen and Indians from key communities could make
taxation more acceptable and support civic welfare efforts. The Charter aimed to encourage merchants
and traders of all nations and religions, and specified that the corporation should be composed of
respectable individuals from various communities. The Court of Aldermen, in particular, was intended to
include the leaders of different castes, reflecting the diverse population of the settlement. The Company
also emphasized that the corporation would help resolve minor disputes among the inhabitants more
efficiently.

Corporation of Madras​
The Madras Corporation, established on 29 September 1688, consisted of a Mayor, 12 Aldermen, and 60
to 120 Burgesses. The first Mayor, appointed by the Company, was a member of the Governor’s Council,
and the Mayor was elected annually by the Aldermen and Burgesses. Only an Englishman could hold the
Mayor’s office, while Aldermen had life tenure unless removed for misconduct. The first group of
Aldermen included a diverse mix of Englishmen, Hindus, Frenchmen, Portuguese, Jews, and Armenians.

10
The Charter allowed for representation from major communities in the settlement, with a reserve power
for the Governor and Council to remove members of the Corporation.

The Mayor and three senior Aldermen served as justices of the peace, forming the Mayor’s Court. This
court had authority over civil and criminal cases, with punishments including fines, imprisonment, and
corporal punishment. For cases involving significant criminal charges or civil disputes, appeals could be
made to the Admiralty Court. As the judges lacked legal training, a Recorder was appointed to assist, and
the first Recorder was Sir Biggs. The court used a jury for criminal cases, but not for civil ones. The
Mayor’s Court lacked a fixed legal system, dispensing justice according to "good conscience" and the
laws of the Company, which led to inconsistencies in its rulings. For example, a trial of three Indians
accused of murder resulted in a severe and arbitrary sentence, including the public mutilation and hanging
of the prisoners. At times, the Mayor’s Court could refer cases to England if it lacked the legal authority
to decide them. Corruption was rumored, with some travelers alleging that bribes could sway decisions.
Additionally, the appointment of Sir Biggs as Recorder was criticized due to his dual role as
Judge-Advocate in the Admiralty Court, creating a conflict of interest. The Mayor’s Court was heavily
influenced by the Governor and Council, leading to occasional tensions, particularly during the
governorship of Elihu Yale, who had personal conflicts with members of the Council. These tensions
reflected the lack of true judicial independence in the system at the time.

Choultry Court​
After the establishment of the Mayor’s Court, the Choultry Court, which had been an important
institution, became less significant. It then dealt with only petty offenses and civil cases up to two
pagodas. In criminal cases, punishments like fines, imprisonment, pillory, whipping, and even slavery
were imposed. For example, a native merchant convicted of child theft was given the option of paying a
fine or enduring public humiliation and a fine, while his associates were enslaved. Initially, two Aldermen
were assigned to sit at the Choultry Court, but due to the demanding duties of the Mayor's Court, this
became impractical. As a result, special Choultry justices were appointed. From 1686 to 1726, Madras
had the Choultry Court, the Mayor’s Court, and the briefly functioning Admiralty Court. The Mayor’s
Court, established under the Company’s Charter, lacked a professional legal system, as it was mostly run
by non-lawyers. While the Admiralty Court functioned, the Governor and Council had no judicial powers.
However, once the Admiralty Court's activity decreased after 1704, the Governor and Council assumed
the role of appellate court for decisions from the Mayor’s Court, despite some Aldermen being members
of the Council. This period marks the dominance of non-professional judges in the administration of
justice.

Crimes and Punishments​

During the period in Madras, the justice system was slow and inefficient. Criminals and debtors were
often imprisoned for long periods, sometimes without any proper resolution of their cases. In 1712, an
inquiry revealed that several individuals had been locked up for theft and other crimes for extended
periods. For example, Governor Pitt had two weavers imprisoned for not repaying money borrowed from
the Company. These prisoners were too poor to pay and were released to work off their debts. Some
prisoners were sent to Sumatra for hard labor. Capital punishment was commonly carried out by hanging,
but in some cases, Indians were executed or whipped to death. The Governor and Council had the power
to grant reprieves. The punishment of banishment was used for serious offenses, and offenders could be

11
sent out of the settlement or to places like Sumatra or St. Helena to work for the Company. Englishmen
accused of serious crimes like murder were often sent back to England.

Imprisonment was particularly harsh, with poor conditions, including long periods of confinement on only
rice and water. Other forms of punishment included forfeiture of limbs, fines, pillory, branding, and
whipping. Piracy was a capital offense, and those convicted could be hanged or branded and banished.
Robbery, witchcraft, and forgery were also punished severely, with penalties ranging from execution to
heavy fines, pillory, or banishment. Punishments were often arbitrary, with no consistent standard or
principle behind them. They were intended to act as deterrents, making examples of offenders. Public
punishments like whipping and the pillory were common, and there was no distinction between genders.
A legal principle known as "benefit of clergy" allowed Englishmen accused of manslaughter to escape
harsh punishment by being branded and then released.

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 TOPIC 3.3: ADMINISTRATION OF JUSTICE IN BOMBAY: 1668-1726

The Island of Bombay​

The Portuguese were the first Europeans to acquire the Island of Bombay in 1534 from the King of
Gujarat, Sultan Bahadur. In 1661, the Portuguese King, Alfonsus VI, transferred the Island to Charles II
as part of a dowry for the marriage of his sister, Princess Catherine, to the British King. At that time,
Bombay was a small, poor fishing village with a population of only about 10,000 people. Finding it
uneconomical to govern from England, Charles II transferred the island to the East India Company in
1668 for a nominal annual rent of £10. Before 1726, the judicial system in Bombay developed in three
stages. The first stage lasted from 1668 to 1683, followed by the second stage from 1683 to 1690, and the
third from 1718 to 1726.

First Period: 1668-1683

Charter of 1668​
Company a Charter, giving it full powers to govern and administer justice on the island. The Charter
allowed the Company to make laws, impose punishments like fines, imprisonment, or even death, as long
as the laws were reasonable and closely aligned with English law. The Company was also authorized to
create courts to handle all cases, with procedures modeled on those in England. The Charter granted the
Company the authority to govern Bombay in full, without being bound by any specific English legal
procedures that might not work well in the diverse context of India. The document marked a significant
shift for the Company, transitioning from a trading entity to a territorial sovereign with both civil and
military powers. According to Ilbert, this Charter symbolizes the Company's change in status, as it was
now invested with the authority to govern the territory.

Judicial System​
In 1668, a Deputy Governor and Council were appointed to manage Bombay under the Surat Presidency.
The Governor of Surat also served as the Governor of Bombay. Gerald Aungier, the Governor of Surat, is
credited with establishing the first judicial system in Bombay in 1670. He divided the city into two
divisions and set up courts with five judges in each. These courts, led by English customs officers,
handled small thefts and civil cases under 200 xeraphins (about 150 rupees). Some Indian judges were
appointed to help with a shortage of Englishmen and to improve relations with the Indian population. The
courts were required to maintain records, and appeals went to the Deputy Governor and Council, who
served as a higher court. However, the system had flaws. The judges were traders with no legal
knowledge, and the judicial system was too tied to the executive. Aungier, realizing the need for
professional legal expertise, requested the Company to send a lawyer. The Company refused but advised
him to choose someone familiar with the law from its staff. Aungier selected George Wilcox, and a new
judicial system was launched in 1672.

Judicial System of 1672​

Before the British took over, Bombay was under Portuguese rule for over a century, which established
Portuguese laws and customs. The British acquisition in 1668 through the Treaty of Cession did not
continue these laws, and the Charter of 1668 introduced English law on the Island. The Portuguese laws
were formally abolished by a proclamation on August 1, 1672. The first judicial system, created under
George Wilcox in 1672, had jurisdiction over civil, criminal, probate, and testamentary matters. The city

13
was divided into four sections, each with a justice of the peace, who held preliminary hearings for
criminal cases. A court of conscience was established to hear petty civil cases, providing quick and
fee-free justice to the poor. The court system used juries for civil trials, and appeals could be made to the
Deputy Governor and Council. Governor Aungier emphasized impartial justice, irrespective of nationality
or religion, and encouraged fair treatment for all.

The judicial system followed a simplified version of English law. Trials were fast and inexpensive, but the
court was still closely linked to the executive. Despite this, it helped the poor by offering a forum for
affordable justice. However, Wilcox was never paid his promised salary, and after his death in 1674, his
widow petitioned for compensation. His successors faced reductions in salary and status, with the
judiciary becoming more subservient to the executive. The judicial system ended in 1683 after Keigwin’s
Rebellion, marking the end of the first phase of Bombay's judiciary. The rebels surrendered the Island to
the Company in 1684, bringing this period of judicial development to a close.

Second Period: 1684-1690​

The second phase in the development of the judiciary in Bombay began with the establishment of an
Admiralty Court in 1684, following the Charter of 1683. The East India Company sent Dr. St. John, a
learned expert in civil law, from England to serve as the Judge-Advocate of the court, with an annual
salary of £200. However, the experiment of appointing a professional lawyer as a judge did not go as
smoothly as it did in Madras. The relationship between Dr. St. John and Child, the Surat Governor,
became very strained, affecting the efficiency of the judicial system.

Admiralty Court in 1684​

The second phase of judicial development in Bombay began with the establishment of the Admiralty
Court in 1684 under the Charter of 1683. Dr. St. John, a learned civil lawyer from England, was appointed
as the judge at an annual salary of £200. Initially, the Admiralty Court handled both civil and criminal
cases along with maritime issues due to the collapse of the judicial system after Keigwin’s rebellion.
However, tensions soon arose when Dr. St. John took evidence against Governor Child, which led to a
strained relationship between them. Child, feeling offended by Dr. St. John’s independence, reduced the
court’s jurisdiction in 1685, limiting it to maritime cases. To handle civil and criminal cases, a new court
was set up with Vaux as the judge, who was not legally trained. Dr. St. John criticized Vaux’s lack of legal
knowledge, describing him as unfit for the judicial role. Disputes between the two courts occurred over
jurisdiction, including a case where Thorburn owed money to King, leading to confusion over which court
had the authority to decide the case. Despite Dr. St. John’s efforts to assert judicial independence, his
actions were not well received by the authorities, who preferred a more submissive judiciary. As a result,
Dr. St. John was dismissed in 1687.

This event reflected the Company's general reluctance to appoint professional lawyers as judges, fearing
their independence might create conflicts. Unlike Dr. St. John, who maintained his autonomy, Sir Biggs in
Madras had the Company’s confidence because he was more pliable. The Company’s attitude was evident
in the treatment of Dr. St. John, and his dismissal led to an even greater reluctance to appoint professional
lawyers to judicial positions. After Dr. St. John’s departure, Vaux assumed control of the Admiralty Court
in 1688, although he lacked the legal qualifications required by the Charter. In 1690, an attack by the
Moghul Admiral Siddi ended the judicial development in Bombay. From 1690 to 1718, there was no

14
formal judicial system, and justice was administered in an informal and arbitrary manner by the Governor
and Council, resulting in a period of legal instability and stagnation.

Third Period: 1718-1726​

Indian Judges​
After a 30-year gap, a new court was established in Bombay on 25 March 1718. This court consisted of a
Chief Justice and nine other judges, five of whom were British and the remaining four were Indian judges
representing the four major communities on the island: Hindus, Muslims, Portuguese Christians, and
Parsis. The Chief Justice and a few of the British judges were members of the Governor's Council. The
court had authority over civil, criminal, and testamentary cases and operated based on law, equity, good
conscience, the Company's rules, and ordinances. It also paid attention to caste customs and the laws of
England. The court served as the registration house for immovable property sales and had jurisdiction
over probate and estate matters. Appeals from the court were directed to the Governor and Council, and it
had broad powers for enforcing its decrees.

The Indian judges, however, did not have the same status as the British judges and acted more as
assessors than full judges. This is evident in the fact that the quorum required three English judges, and
Indian judges were not counted for this. Additionally, the Indian judges were referred to collectively as
"black justices" in the court's daily proceedings, rather than by name, indicating their subsidiary role. It
can be assumed that the Indian judges were leading citizens of Bombay, included to provide knowledge
about local customs and practices that the British judges might not have been familiar with. The structure
of this court was likely influenced by the Madras Mayor’s Court, which also included Indian judges.
While the court of 1718 was an improvement over its predecessor—the Governor and Council’s
court—by including Indian judges, it still showed a strong connection between the judiciary and the
executive. However, this court was not entirely subsumed by the executive, as it had some differentiation,
especially with the inclusion of Indian judges, marking a step forward in Bombay’s legal evolution.

Working of the Court​

The proceedings of the court were swift and inexpensive, focusing on commonsense decisions without
being bound by technicalities, laws, or precedents. There were no lawyers, codes, or law books, and the
civil cases mostly involved simple matters like debt and estate partition, rarely raising complex legal
questions. Decisions were generally based on facts, with law taking a backseat. Complicated estate cases
were referred to arbitration, with the court confirming the arbitrator's award. Debtors were often
imprisoned until debts were cleared, and the customs of Hindus and Muslims were applied where
relevant. Although English and international law principles were occasionally applied, these were likely
the only legal frameworks the court knew. The court's major role was in criminal justice. Punishments
were harsh and arbitrary, including indefinite imprisonment and frequent use of whipping, with 39 lashes
being standard but occasionally escalating to 100 lashes. Public flogging served as a deterrent, and
branding was used in some cases. While theft of property was not treated as a capital offence, crimes like
treason, rape, murder, and manslaughter were. Habitual criminals or those committing severe crimes were
often banished from the island.

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 TOPIC 3.4: ADMINISTRATION OF JUSTICE AT CALCUTTA: 1690-1726

Calcutta​
The foundation of Calcutta was laid on 24 August 1690 when Job Charnock and a few Englishmen landed
at Sutanati on the banks of the river Hughly and built a fortified factory named Fort William. In 1668, the
Company secured the zamindari of three villages—Calcutta, Sutanati, and Govindpur—for an annual
revenue of 1195 rupees from Prince Azimush-shan, the grandson of Aurangzeb. This marked the
beginning of the modern city of Calcutta. In December 1699, Calcutta was elevated to a Presidency, and a
President (or Governor) and Council were appointed to govern the settlement. The acquisition of the
zamindari granted the Company legal and constitutional recognition within the Moghul administrative
system. As a zamindar, the Company had the right to exercise powers similar to other zamindars in
Bengal at the time.

Moghul Judicial System​

Zamindar’s Judicial Powers​
During the height of the Mughal Empire, the zamindars of Bengal were responsible for collecting land
revenue and maintaining law and order within their territories but did not possess significant judicial
power. The kazi's courts, located across the country, handled civil and criminal cases. Each district
(sarkar), sub-district (parganah), city, and even large villages had a kazi. Village panchayats were also
active and decided various cases, excluding serious crimes. These panchayats were effective, with
members deterred from injustice by the fear of public opinion. Litigants and witnesses were careful with
their testimony, as everyone’s affairs were commonly known within the community. Appeals from
panchayat decisions went to the kazi of the sarkar, then to the chief kazi of the subah. The judicial system
was simple and met the needs of the people. Few cases came before the kazis due to the active role of
village panchayats and Hindu elders or Brahmins deciding civil matters for Hindus. The Mughal
government generally allowed Hindus to resolve their own disputes. However, the judicial system under
the Mughals was not as organized as other departments, with individuals seeking careers in more
prestigious areas.

Kasiz and Courts​

As the Mughal administrative system weakened and the authority of the Nawab declined in Bengal, the
judiciary also deteriorated. The ranks of the kazis degenerated — many posts remained vacant or were
filled by unqualified individuals. These positions became hereditary or were auctioned to the highest
bidder, leading to widespread corruption. Incompetent and dishonest people gained judicial authority, and
justice became something that could be bought. The kazis received no fixed salary; instead, they took a
portion of fines and recovered property, often charging both guilty and innocent parties. Corruption was
rampant, with decisions often favoring those who paid the most.

In rural areas, the kazi courts barely functioned, leading to a legal vacuum. With no proper judicial
system, people began turning to zamindars for justice. This allowed zamindars to usurp judicial powers,
which they used arbitrarily and often oppressively. They handled civil, criminal, and revenue cases,
sometimes charging large fees — even up to one-fourth of recovered property. Though theoretically
appeals could be made to the Nawab’s court at Murshidabad, in practice this was rare. While zamindars
could pass capital sentences, these required confirmation from the Nawab’s government. The zamindars’
courts lacked fairness, proper procedure, and legal codes. Judgments were often dictated by personal

16
interest rather than justice. Fines were pocketed by the zamindars, and records of proceedings were rarely
maintained. In regions beyond the control of zamindars, there was virtually no legal system — only
scattered, corrupt kazis offering dubious justice.

Nawab’s Courts​
The Nawab’s courts at Murshidabad, though formally the highest in Bengal, had limited authority beyond
the capital. The Nawab, once the head of criminal justice (Nizamat), gradually stopped presiding over
court proceedings, delegating his role to the Darogah-Adalat-al-alia. Similarly, the Diwan, head of civil
and revenue matters (Diwani), passed his judicial duties to his deputy, the Daroga-i-Adalat Diwani.
Jurisdiction between these deputies often overlapped, causing confusion, and litigants chose courts based
on convenience or influence.

Other officials also had judicial roles: the kazi dealt with inheritance, marriage, and succession cases,
assisted by the mufti, who interpreted the law but didn’t deliver judgments. The fozdar handled serious
crimes, the kotwal dealt with petty offences, and the mohtassib regulated moral and commercial practices.
Despite this structure, justice was poorly administered. A major reason was the absence of a clear,
uniform legal system—law was based loosely on the Quran, its interpretations, and customs, which led to
arbitrary and inconsistent decisions.

Judicial System at Calcutta​

In Calcutta, the East India Company’s zamindari functions were handled by an English officer called the
collector or zamindar, who was also a member of the Governor’s Council. He held judicial authority over
all criminal, civil, and revenue matters involving Indians in the settlement. Criminal cases were decided
quickly and without a jury, with punishments like whipping, fines, forced labor, imprisonment,
banishment, and even whipping to death (instead of hanging, which was considered too disgraceful for
Muslims). Death sentences required confirmation from the Governor and Council. The zamindar also
heard civil cases involving Indians or where a European was the plaintiff and an Indian the defendant,
often relying on local customs or his own discretion. Appeals, though rare, went to the Governor and
Council. Petty cases involving Europeans also came before the zamindar, while more serious ones went to
the Governor and Council under the Charter of 1661, which allowed for jury trials. Unlike other
zamindars in Bengal, the British in Calcutta did not seek the Nawab’s confirmation for capital sentences
or appeals; everything was routed through the Governor and Council. This showed the Company’s
attempt to function as a sovereign power in Calcutta, ignoring the Nawab’s authority despite being only a
zamindar officially. The judicial system was rudimentary and biased, with all power centralized in the
hands of the collector. This continued until the Charter of 1726, which introduced a new judicial system in
line with other Presidency Towns and shifted authority from zamindari rights to royal charter.

17
 TOPIC 4.1: ROYAL CHARTER OF 1726 AND ITS SIGNIFICANCE

Charter of 1726​
The Charter of 1726, issued by King George I, marked a major turning point in the judicial history of the
three Presidency Towns. Before this, each town had developed its own unsatisfactory and inconsistent
legal system. The Charter brought uniformity by establishing civil and criminal courts in all three towns,
with authority derived from the British Crown rather than the Company—making them true royal courts.
These courts had a clear legal status and their decisions were as authoritative as those of English courts.
The Charter also allowed appeals from Indian courts to the Privy Council in England, linking Indian and
English legal systems. Over time, English law began influencing Indian law, and by 1833, it was accepted
as the foundation for Indian legal codification. Additionally, the Charter introduced local legislatures in
the Presidency Towns, shifting some legislative power from England to India. This allowed laws to be
made in line with local needs. The Charter also marks the formal introduction of English law into the
Presidency Towns and is thus called the "judicial Charter." However, two old practices continued: justice
was still delivered by non-professional judges, and the judiciary remained closely tied to the executive.
These aspects changed only after 1773.

Genesis of the Charter​

The East India Company petitioned the British Crown for a new charter because the Presidency
Towns—Calcutta, Madras, and Bombay—had grown significantly in trade, population, and importance.
However, they lacked proper judicial powers for efficient administration of justice. The Company argued
that better justice would lead to better governance and increased trade and revenue, and asked the Crown
for powers to punish crime, administer justice, and manage settlements effectively. Another major issue
was the absence of courts in India with testamentary (will-related) powers recognized by English courts.
Though Madras had a Mayor’s Court with such powers, it wasn’t respected in England as it was only a
Company-run court. When Englishmen died in India without legal heirs present, their property was sold
off by the Governor and Council, often leading to lawsuits in England—like the case of Woolaston, who
won damages after his son’s death in India. To avoid such problems, the Charter of 1726 established
courts with proper authority from the Crown. These courts could issue probate and administration even if
legal heirs weren’t in the settlement, and their decisions would be respected in England.

Courts under Direct Royal Authority​

Before 1726, the East India Company avoided appointing officers in India under royal authority because
they feared such officers might become arrogant and try to act independently. However, the Company had
to abandon this policy. The reason was that they needed courts in India whose authority would be
accepted and respected by English courts. Courts set up by a royal Charter carried much more weight than
those established by the Company alone. Also, decisions of Indian courts were sometimes challenged in
British courts. To prevent this and strengthen the legal system, courts in India had to be placed on a solid,
royal foundation. Another reason for seeking a new Charter was that while Madras had a corporation
since 1687, Bombay and Calcutta didn’t. The Company wanted all three Presidency Towns to have
corporations for better and uniform administration.

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Provisions of the Charter​
Corporation​
According to the Charter of 1726, each Presidency Town (Madras, Bombay, Calcutta) was to have a
Corporation made up of a Mayor and nine Aldermen. Two of the Aldermen could be foreigners from
friendly countries, but the rest had to be natural-born British subjects. The Charter directly appointed the
first Mayor and Aldermen. The Mayor served for one year and then became an Alderman. Every year, the
Mayor was chosen from among the Aldermen by the Aldermen themselves and the outgoing Mayor.
Aldermen held office for life or as long as they lived in the town. When an Alderman’s position became
vacant, it was filled by the Mayor and Aldermen from among the town’s prominent residents. The
Governor and Council couldn’t appoint the Mayor or Aldermen, though they could remove an Alderman
for a valid reason. However, the removed Alderman could appeal to the King-in-Council. These rules
were meant to make the Corporation largely independent from the executive (Governor and Council).

Judicial System​
In each Presidency Town, the Mayor and the Aldermen were to constitute the Mayor’s Court. The quorum
of the Court was to be three—the Mayor or senior Alderman together with two other Aldermen. The
Court was to have authority to hear and try all civil suits arising within the Town and its subordinate
factories. The first appeal from the Court lay within fourteen days to the Governor and Council, from
where a further appeal could be lodged within fourteen days with the King-in-Council in all matters
involving 1,000 pagodas or more. Thus, for the first time, a right of appeal to the King-in-Council from
the decisions of the courts in India was granted.

Mayor’s Court​
The Mayor’s Court was to act as a court of record and thus had power to punish persons for its contempt.
The Court also had testamentary jurisdiction and could thus grant probates of wills of the deceased
persons.12 In case a person died intestate, it could grant letters of administration.

Sheriff​
Under the Charter of 1726, a Sheriff was to be appointed every year by the Governor and Council in each
Presidency Town. His authority extended to the town and ten miles around it. The Sheriff was responsible
for serving court notices, bringing people to court, allowing bail or confining them, and carrying out court
orders by selling their property if needed. The civil procedure was simple. When someone filed a written
complaint, the court issued a summons through the Sheriff. If the person didn’t appear, the court could
send a warrant to bring them in. Bail could be given, or the person could be held in custody. After the
hearing, if the court passed a judgment, the Sheriff had to make sure it was enforced. If the defendant ran
away, the court could seize their property. After six months, the case could be heard even without the
defendant, and the property could be sold to satisfy the judgment. This system was based on English legal
practices, but with fewer technicalities to make it smoother. The Charter did not clearly mention what law
the court had to follow. It only said decisions should be made according to "justice and right." But since
English law had already been introduced in 1661, it was understood that the Mayor’s Court would use
English law. The Company also reminded the judges often to follow English legal principles. Later, it was
accepted by courts that the 1726 Charter was the main point when English law was formally brought into
India. No later Charter introduced it again.

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Criminal Jurisdiction​
The criminal jurisdiction in each Presidency Town was given to the Governor and five senior Council
members, who acted as Justices of the Peace, similar to those in England. They had the power to arrest,
punish minor crimes, and commit serious cases to trial. Three Justices of the Peace formed a court,
holding quarter sessions four times a year to try criminal offences, except high treason. These trials
followed the English system, using grand and petty juries, and procedures were to be as close to English
courts as possible, given local conditions. However, the separation between the judiciary and the
executive was only partially applied. The executive still had a strong role, with the Governor and Council
acting as an appellate court. The Mayor’s Court was not fully independent, as the Aldermen were either
Company servants or English traders, dependent on the Company for their stay in India. This meant they
were influenced by the local government. Additionally, justice was administered by non-professional
judges. The Company avoided sending professional lawyers to India, preferring to appoint its own
servants or trusted individuals. This was because the Company believed these non-professional judges
could be more easily controlled. Although the Company briefly experimented with professional lawyers
in the admiralty courts, this was discontinued due to unsatisfactory outcomes. Therefore, the Charter of
1726 maintained the Company’s policy of not sending professional lawyers to India.

Legislature​
The Charter of 1726 had significant legislative importance. Before this, legislative power in India was
held by the Company and exercised by its General Court in England. However, this power was rarely
used due to a lack of understanding of local conditions in the Indian settlements. It became clear that
those familiar with local issues should be given the authority to create laws. The creation of Corporations
in the Presidency Towns highlighted the need for local regulations. The Charter granted the Governor and
Council of each Presidency the power to make by-laws, rules, and ordinances for the governance of the
Corporation and its inhabitants. These regulations had to be reasonable, not against English law, and
could not be enforced without approval from the Company’s Court of Directors. In this way, three local
legislatures were established in India. However, in practice, the Governor and Council were more likely to
prepare drafts of laws, which would only be enforced once approved by the Directors in England.

Charter of 1726 vs Madras Charter of 1687​

The Charter of 1726 was inspired by the 1687 Madras Charter, but there were significant differences
between the two. The 1687 Charter applied only to Madras, whereas the 1726 Charter applied to all
Presidency Towns. The 1726 Mayor’s Court was limited to civil cases, while the Madras Mayor’s Court
had jurisdiction over both civil and criminal cases. Appeals from the 1726 court could be made first to the
Governor and Council and then to the King-in-Council, whereas appeals from the Madras court went to
the Admiralty Court. One notable difference was that the Madras Mayor’s Court had a lawyer as a
Recorder to advise it on legal matters, while the 1726 court lacked such an advisor, making it a weaker
institution. In terms of criminal justice, the 1687 Madras Charter kept judicial and executive powers
separate, which was seen as progressive. However, the 1726 Charter reintroduced executive control over
criminal justice, which was considered a retrograde step, as it blurred the lines between the judiciary and
the executive. This weakened the system’s ability to protect individual liberty and property. Regarding
Indian representation, the Madras Corporation of 1687 had significant Indian involvement, but the 1726
Corporation had only two non-English Aldermen, and no Indians were appointed in practice. This lack of
Indian participation made the 1726 Mayor’s Court less inclusive compared to the Madras court, which
had more local involvement.

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Post Charter Period​
The post-Charter period in each Presidency Town was marked by conflicts between the Government and
the Mayor’s Court. The Charter had made the Mayor’s Court largely independent, but the Government
often tried to interfere, which led to tensions. The Court resisted these attempts, asserting its autonomy,
which strained relations. In 1730, a significant dispute occurred in Bombay. The Mayor’s Court had to
decide a case involving a Hindu woman who had converted to Christianity. Her son left her and went to
live with a relative, and she accused the relative of wrongfully keeping some jewels. The Court ordered
the boy to be returned to his mother, but caste leaders complained to the Governor. The Governor and
Council ruled that the Mayor’s Court had no authority over caste or religious matters and instructed the
Court not to interfere in such cases. The Court disagreed, arguing that it had jurisdiction under the Charter
to hear such disputes, as the previous court had done. The Governor and majority of the Council stood by
their decision, and a Council member, Rammell, who disagreed, was suspended for his dissent. Mayor
Edward Page, who supported the Court’s position, was also removed from his secretary’s post for his
comments. The Court of Directors in England criticized the Bombay Council’s actions, defending the
right to dissent.

Charter of 1753​
In September 1746, the French occupied Madras, and the British regained control in August 1749. During
the French occupation, the Madras Corporation, established under the Charter of 1726, stopped
functioning. Lawyers advised the Company that the occupation had rendered the 1726 Charter invalid for
Madras, and a new Charter was needed. As a result, King George II issued a new Charter on January 8,
1753. This new Charter aimed to fix the issues faced by the previous one and applied uniformly to all
three Presidency Towns.

Adjustments and Modifications​

The Charter of 1753 was a revised version of the Charter of 1726, keeping many of the original
institutions but with important changes. First, to address the conflicts between the Mayors’ Courts and the
Government, the method of appointing the Mayor and Aldermen was altered. Previously, the Mayor was
elected annually, and the Aldermen were chosen by the Mayor and the Aldermen themselves. Under the
new Charter, the Governor and Council were given the power to appoint the Aldermen, and the Mayor
was selected from a list of two names submitted by the Corporation. As a result, the Government gained
more control over the Corporation, which made the Mayor’s Court less independent and more dependent
on the Government. Secondly, the jurisdiction of the Mayor’s Court over Indians was restricted. The
Court could not hear cases between natives unless both parties agreed to bring the matter to court.
Additionally, the Charter allowed Indians to swear oaths in a manner that was binding on their
consciences, based on their caste customs, to avoid conflicts with the Indian population. Finally, the new
Charter aimed to improve the administration of justice by making it more impartial. It allowed the
Mayor’s Court to hear cases against the Mayor, prohibited judges from hearing cases in which they had an
interest, and gave the Court the authority to hear suits against the Company. Additionally, it required
suitors to deposit money with the Government, not the Court, to avoid mismanagement of funds, as had
happened in Madras.

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Court of Requests​
The Charter of 1753 introduced significant changes to the judicial system in the Presidency Towns,
building on the earlier Charter of 1726. It modified the appointment process for the Mayor and Aldermen,
making them more dependent on the Governor and Council, thus reducing the independence of the
Mayor's Court. The new Charter also restricted the Mayor's Court's jurisdiction over Indian cases and
introduced provisions for impartial justice, such as allowing suits against the Mayor and the Company.
Additionally, it created the Court of Requests, which aimed to provide affordable, summary justice for
small claims up to five pagodas (Rs 15), catering to poor litigants, especially Indians, who could not
afford the expenses of the Mayor's Court. The Court of Requests, consisting of commissioners appointed
initially by the Government and later selected through a ballot, became a vital institution for resolving
minor disputes. It was an essential resource for the poor, offering a quick and inexpensive means of legal
redress. Unlike the Mayor’s Court, it could decide cases among Indians and was free from undue
influence. This court's establishment provided much-needed relief to low-income residents, especially in
cases that would otherwise be ignored by the higher courts, highlighting its role in ensuring access to
justice for all, regardless of their social standing.

Courts for the Indians​

The Company's 1753 Charter focused on governing Europeans, leaving Hindus and Muslims to resolve
their disputes based on their own customs. The Company adopted a non-interference policy, only
applying English law to Indian cases brought voluntarily to the Mayor's Court. However, this resulted in a
lack of justice for the Indian people, as it was difficult to agree to bring cases to the court, and if one party
retracted their consent, the case could not proceed. There was no court for cases with higher values, and
arbitration was ineffective. In Madras, the Choultry Court was established to handle small cases for the
poor, but it had issues with its structure. Over time, courts were created to address disputes among
Indians, including the Recorder’s Court in 1798. Similarly, in Calcutta, the Zamindar’s court handled
cases for Indians, but there was competition with the Mayor’s Court. Disputes arose, and the Mayor’s
Court established itself as the primary court for Europeans and non-Hindus. In the 18th century, English
law was harsh for Indians, leading to punishments that were out of line with their customs. In Bombay,
the Mayor’s Court continued to hear cases from the Indian population, despite restrictions in the 1753
Charter, as the local population was considered British subjects. Overall, the courts failed to provide an
effective justice system for Indians, with numerous challenges such as jurisdictional conflicts and harsh
English laws that did not fit Indian customs.

Defects of the Judicial System​

The judicial system of 1753 was deeply influenced by the executive, which made it ineffective and
biased. Judges were mainly Company servants with little to no legal training, making it difficult for them
to be impartial, especially when cases involved the Company or its officials. These judges, often
appointed by the government, were more concerned with their commercial interests than administering
justice. Their tenure was at the mercy of the government, and while appeals could be made to the
King-in-Council, this process was too distant to be effective. Decisions were often based on personal
discretion rather than legal principles, and without proper law reports or codes, the courts struggled to
handle complex cases. The system was heavily criticized for failing to provide fair justice, as it primarily
served the interests of the Company rather than the people.

22
The criminal justice system faced similar issues, as the same government officials acted as both judges
and executive authorities. This created a conflict of interest, especially when cases involved Company
servants. The jury system also failed to safeguard fairness, as jurors were usually Company servants or
free merchants with ties to the government. Moreover, the judicial jurisdiction was limited to the
Presidency Towns, leaving areas outside these regions vulnerable to exploitation by Englishmen who
were immune from local courts. This deficiency in coverage led to widespread abuse, with English
officials acting with impunity. Overall, the judicial system of 1753 was biased, inefficient, and incapable
of delivering justice, especially to the Indian population, as it mainly served to protect the Company’s
interests.

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 TOPIC 5.1: ADALAT SYSTEM

The Adalat System Expands​

Up until the mid-18th century, the British East India Company controlled only the three Presidency
Towns—Calcutta, Madras, and Bombay—and had created a judicial system within them. However, as the
Company expanded its territories beyond these towns, they needed to establish an administrative and
judicial system in these new areas, leading to the creation of the adalat system. This system, which started
in Bengal in 1772, was different from the judicial structures in the Presidency Towns and was tailored for
the mofussil, or rural areas. The adalat system began in Bengal, and as it evolved, it was refined and
improved. Over time, this system was introduced in the mofussil areas of Bombay and Madras as well,
with similar developments occurring in each region. Bengal played a central role in experimenting with
the adalat system, serving as a testing ground for reforms. Once successful methods were established,
they were adopted in the other provinces of Bombay and Madras, leading to the widespread
implementation of the adalat system across British-controlled territories.

Company becomes Diwan​

In 1756, Nawab Siraj-ud-daula, fearing the growing power of the British, captured Calcutta, but the
British East India Company quickly recaptured it in 1757 after defeating him at the Battle of Plassey. The
Company then became the dominant power in Bengal, but rather than formally annexing the region, they
installed Mir Jafar as Nawab, allowing him to handle the civil government. However, the power of the
Nawabs continued to decline, and Mir Jafar was replaced multiple times due to dissatisfaction with his
rule. By 1765, after the Battle of Buxar, the Mughal Emperor Shah Alam granted the Company the
Diwani of Bengal, Bihar, and Orissa, which gave them the right to collect revenue.

Despite this, the Company did not want to openly annex Bengal for two reasons: it feared this might lead
to parliamentary interference in Britain and possible international complications with the French and
Portuguese. As a result, the Company maintained the fiction of Nawabship, keeping the Nawabs as
figureheads while the British exercised the real power behind the scenes. This arrangement allowed the
Company to control Bengal without formally assuming responsibility, thus avoiding both legal and
diplomatic challenges.

Significance of Diwani​
During the Mughal period, provinces like Bengal were administered by two officials—the Nawab and the
Diwan. The Nawab handled military matters, law and order, and criminal justice, while the Diwan was in
charge of revenue collection and civil justice. This division of power acted as a system of checks and
balances: the Nawab had force but no funds, and the Diwan had money but no army, so neither could
dominate alone. However, as the Mughal Empire declined, the Nawab of Bengal became almost
independent, and the Diwan was reduced to a mere nominee. When the Mughal Emperor granted the
Diwani of Bengal to the British in 1765, it had little real significance, as the Emperor had no actual power
and the British already controlled Bengal.

Although the Nawab was technically left with military and criminal justice powers, the Company ensured
he could not pose any threat. In an agreement, the Nawab gave up his right to maintain an army and
accepted a fixed annual allowance of Rs 53 lakhs for himself and the criminal judiciary. The Nawab,
being a minor, was made completely powerless. A Deputy Nawab was appointed to carry out his duties,

24
but only under the control of the British. The administration was done in the Nawab’s name, but all real
power rested with the Company. This marked the beginning of the Dual Government in Bengal—where
the Company controlled the army, revenue, and civil justice, while the Nawab's government handled
criminal justice only in name.

Execution of Diwani Functions​

The grant of Diwani of Bengal, Bihar, and Orissa to the Company in 1765 was a turning point in Indian
history, marking the start of British involvement in actual governance. The Emperor’s firman gave the
Company complete control over administration but lacked details about how governance, law, or justice
was to be handled. It didn’t define the roles of the Nawab, the legal system, or the Emperor’s authority.
Too weak to enforce any terms, the Emperor essentially gave the Company a free hand to rule as it
pleased. As Diwan, the Company became responsible for land revenue collection and civil justice.
However, lacking trained officials and facing widespread corruption, it chose not to take direct control
right away. Instead, it continued using the existing local administrative setup. To oversee this, the
Company appointed Mohammed Reza Khan at Murshidabad and Raja Shitab Roy at Patna, both
supervised by English officers. Reza Khan, also named Naib Nazim, managed criminal justice for the
Nawab, reinforcing the system of dual control during the early phase of British administration.

The Ruinous System​

The dual system of administration proved disastrous for Bengal. Indian officials lacked real power and
were unable to act against the Company’s servants, who wielded influence without accountability. These
servants often interfered in justice and governance, exploiting their position for personal gain. Their
unchecked greed led to widespread corruption and oppression, while even high-ranking officials,
including the Governor and Council members, engaged in private trade to increase their income. This
commercial obsession degraded the moral standards of the Company’s servants, ushering in a period of
lawlessness starting with the Battle of Plassey. Nawab Mir Kasim's attempt to regulate trade led to his
fall, showing the Company's refusal to tolerate any limits on its servants. Governor Clive famously
described Bengal as a place of unmatched corruption and exploitation. Pressured by shareholders to
maximize profits, Company officials oppressed the peasantry, pushing Bengal—a once-prosperous
land—into economic collapse and chaos.

Scheme of Suspension​
In 1769, Governor Verelst attempted to reform Bengal’s chaotic administration by appointing Company
servants as supervisors in the districts. While Indian officials continued to hold formal administrative
roles, the supervisors were tasked with overseeing revenue collection, justice delivery, and curbing
corruption. They were not to interfere directly but were expected to gather data, check malpractices, and
monitor local officials. Their role covered nearly every aspect of the Diwani administration. The judicial
system, described as corrupt and exploitative by the Governor and Council, prompted specific instructions
to the supervisors. They were told to promote justice, encourage arbitration in civil disputes, and ensure
decisions were fair. Capital punishments required review by the Resident at Murshidabad and final
decision by the Naib Nazim. Registers of court cases were to be maintained, and local judges—kazis and
brahmins—had to present their authority (sanads) to prevent unauthorized jurisdiction.

25
The Scheme Fails​
The scheme of supervisors failed due to multiple reasons: their small numbers, lack of training, heavy
workload, and inexperience (most were junior British servants). Worse, many began misusing their
positions for private gain, continuing the cycle of exploitation. As administrative conditions worsened,
Bengal suffered a catastrophic famine in 1771, leading to widespread death, starvation, and a sharp
decline in revenue collection.

Blaming Indian officials for misappropriating funds, the Company took a decisive step in 1771—it
formally assumed direct responsibility for revenue administration, ending its earlier passive role. This
marked a major policy shift: the Company would now actively manage governance through its own
servants. Although motivated by profit, this decision forced the Company to confront the challenges of
administration and led to the beginning of reforms, including the foundation of a new judicial system in
the provinces (mofussil).

Warren Hasting’s Measures​

Warren Hastings was given full responsibility in 1771 to implement the Company’s new role as Diwan,
but without clear directives from the Directors. His challenge was to create an effective revenue collection
system while also addressing the collapse of justice in Bengal. Hastings understood that a stable judicial
system was essential for peace, prosperity, and ultimately, efficient tax collection. At the time, Bengal's
legal system was in ruins: zamindars misused their judicial power, kazis were corrupt and underqualified,
and courts charged commissions, making justice a tool of exploitation. Englishmen often bypassed legal
authority altogether, detaining people for debts and letting their Indian servants dominate local courts.
Recognizing these injustices, Hastings introduced major reforms in 1772 by launching a new system of
judicial administration alongside revenue collection. This marked the beginning of the adalat system
(courts of law) in India. However, for many years, the judicial branch remained subordinate to the
revenue administration. It wasn’t until May 1793 that a separate Judicial Department was formally
established.

Judicial Plan of 1772​

Warren Hastings’s administrative plan of 1772 was devised with a district as the unit. The territory of
Bengal, Bihar and Orissa was divided into a number of districts. In each district, an English servant of the
Company was appointed as collector who was to be responsible for the collection of land revenue. The
judicial plan was integrated with this scheme for revenue collection. Its chief features were as follows:

Mofussil Diwani Adalat​

In 1772, Warren Hastings introduced a scheme of judicial administration alongside revenue reforms,
which laid the foundation of the Adalat system in India. A mofussil Diwani Adalat (civil court) was set up
in each district, with the district Collector, usually a British officer, acting as the judge. These courts were
empowered to decide civil disputes relating to property (both real and personal), inheritance, marriage,
caste, debts, contracts, rent, and other related matters. In cases concerning inheritance, marriage, caste,
and religious usages, the courts were directed to apply the respective personal laws—Hindu law
(Shastras) for Hindus and Muslim law (Quran) for Muslims. Since British Collector-judges lacked
familiarity with these legal traditions, native law officers—pundits for Hindu law and kazis for Muslim
law—were appointed to assist them in interpreting and applying the appropriate laws. Decisions in cases
involving a value of up to ₹500 were deemed final and not subject to appeal.

26
Small Cause Adalats​
To facilitate disposal of small cases, provision was made for disputes up to rupees ten to be decided
finally by the head farmer of the pergunnah where the dispute arose. People having only petty cases were
thus saved much trouble and expense involved in travelling long distances from their homes to the district
headquarters in quest of justice.​
​
Mofussil Fozdari Adalat​
A mofussil nizamat or fozdari adalat was established in each district to try all kinds of criminal cases. The
adalat consisted of the Muslim law officers, kazi, mufti and moulvies. The moulvies were to expound the
Muslim law of crimes; the kazi and mufti were to give futwa and render judgment accordingly. The
collector was required to exercise general supervision over the adalat. He was to see that it heard all
necessary witnesses, tried cases regularly and rendered impartial judgments. It could not finally determine
cases involving sentences of death or forfeiture of property of the accused, proceedings of such cases had
to be submitted to the Sadar Nizamat Adalat for final order.

Sadar Adalats​
In addition to the Mofussil Adalats, two superior courts were established in Calcutta: the Sadar Diwani
Adalat and the Sadar Nizamat Adalat. The Sadar Diwani Adalat, which consisted of the Governor and
members of the Council, was set up to hear appeals from the Mofussil Diwani Adalats in cases involving
amounts greater than five hundred rupees. The court commenced its first sitting on 17 March 1773. A fee
of 5% was charged on each appeal petition, and appeals had to be filed within two months from the date
of the decree given by the Mofussil Adalat.

The Sadar Nizamat Adalat had an Indian judge, known as the Daroga-i-Adalat, who was assisted by the
chief-kazi, chief mufti, and three moulvies. These individuals were appointed by the Nawab on the advice
of the Governor. The primary role of the Sadar Nizamat Adalat was to revise the proceedings of the
Mofussil Nizamat Adalats and to give final approval for death sentences and forfeitures of property. In the
case of a death sentence, the Adalat would prepare the death warrant, which would then be signed by the
Nawab. The Governor and Council exercised general supervision over the Sadar Nizamat Adalat to
ensure that justice was not compromised by corruption or bias.

Miscellaneous Provisions​
Several provisions were introduced to ensure pure and impartial justice. All cases had to be heard in open
court, promoting transparency. Adalats were required to maintain proper registers and records, with
district adalats sending abstracts to Sadar Adalats to prevent misuse of power. This discouraged
corruption, as judicial officers feared their actions would be exposed. Additionally, cases older than 12
years were not actionable. In civil trials, after the plaintiff filed their complaint, the defendant had limited
time to respond. The adalat would then hear both sides, examine evidence, and issue a decree. To make
justice affordable, moderate fees were prescribed, replacing previous vexatious impositions. Arbitration
was also introduced to supplement the courts. In criminal law, a severe measure was introduced to tackle
the rampant issue of dacoity. Convicted dacoits were to be executed in their villages, and their families
made slaves to the state. Warren Hastings believed that only such harsh penalties would effectively deter
dacoity, arguing that lesser punishments had proven ineffective. He rejected mutilation, viewing it as a
burden on society. However, this provision was largely unenforced due to resistance from Muslim law
officers, who refused to depart from traditional Muslim Law principles.

27
Appraisal of the Plan​
The Judicial Plan of 1772 is considered a significant achievement by Warren Hastings, marking the first
substantial effort to organize judicial administration in the newly acquired territories. Before 1772, the
judicial system was chaotic, with abuses of power by zamindars. Hastings' plan aimed to offer impartial
and inexpensive justice, a necessary change after years of exploitation. Although not perfect, the plan laid
the foundation for the Anglo-Indian judicial system. It abolished vexatious exactions and placed judicial
officers on a salary basis to ensure objectivity. Court fees were redirected to the government, eliminating
judges’ personal financial stakes in cases. The establishment of civil courts in districts made justice more
accessible to rural populations.

The plan was partly influenced by the traditional division of authority between the Nizam and Diwan.
Civil and criminal justice were separated, with civil cases handled by English judges and criminal justice
left under Muslim judges. This division reflected the Company's responsibility for civil justice, while
criminal justice remained under the Nawab. However, due to the lawlessness in the country, with crimes
such as thuggee rampant, criminal justice needed reform. The existing criminal courts were corrupt,
driven by financial incentives to convict. Hastings reorganized the criminal courts and implemented
supervision to prevent corruption. Despite this, the Nawab's authority was formerly maintained through
functions like appointing Muslim law officers and signing death warrants.

Although aware of anomalies in Muslim criminal law, Hastings did not make major changes, except for
imposing a severe penalty on dacoits. He justified setting up the Sadar Nizamat Adalat in Calcutta
(instead of Murshidabad) as a necessary intervention due to the state's instability. To ensure fairness,
collectors and the Governor and Council supervised criminal courts, preventing corruption. The Diwani
rights were cited to justify this intervention, although it lacked true legal basis. A major policy shift was
allowing Hindus and Muslims to use their respective laws in civil matters, which had a lasting impact on
Indian law, fostering diversity in legal practice.

Defects​
A defect in the 1772 scheme was the lack of subordinate adalats in the interior of districts to handle small
cases. While provision was made for cases up to Rs. 10, this amount was too small. For all other cases,
people had to travel to the district headquarters, which was costly and inconvenient due to poor travel
options. A better solution would have been to establish more courts in the interior to handle small cases,
leaving larger cases for the district adalats. However, this step came later, as the 1772 plan was only a
preliminary attempt at judicial reform.

Another significant flaw was the excessive concentration of power in the hands of the collector. The
collector acted as administrator, tax collector, civil judge, and supervisor of criminal justice. As a revenue
collector, he had a vested interest in cases involving taxes, but he also decided them, which led to a
conflict of interest. The Calcutta Government was unable to monitor the collectors effectively due to
communication challenges. This allowed collectors to engage in private trade for personal gain,
potentially abusing their powers. Hastings recognized this problem and feared the collectors might
become tyrants, oppressing people for their own benefit. In 1773, the Directors agreed with Hastings and
instructed the Calcutta Council to remove the collectors from their positions and adopt new arrangements.
This led to a revised plan for revenue collection and judicial administration in January 1774.

28
Plan of 1774​
In the revised plan, collectors were replaced by Indian officers called diwan or amil, who were tasked
with revenue collection and acting as judges in the mofussil diwani adalat. Bengal, Bihar, and Orissa were
divided into six divisions, with headquarters in Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca, and
Patna, each containing several districts. A Provincial Council, consisting of English covenanted servants,
was appointed in each division to supervise revenue collection and hear appeals from the amils. Cases
exceeding Rs. 1000 were appealed to the Sadar Diwani Adalat. This structure created a link between the
mofussil adalats and the Sadar Diwani Adalat, and the Provincial Council acted as a court of first instance
for civil cases within its jurisdiction, improving access to justice and facilitating better supervision of
district judges.

Despite its advantages, the new scheme had flaws. Warren Hastings feared that the Provincial Councils
could become oppressive, as their members were senior servants with significant influence, making them
harder to control than the collectors. Hastings worried that they might monopolize trade and act as
despots. He viewed the 1774 plan as a temporary measure, but after the Regulating Act passed, he was
unable to make reforms due to the hostile majority in the Council. He could only reorganize the adalat
system in 1780, marking a pivotal moment in the history of India’s judicial system. The creation of the
Supreme Court at Calcutta would also introduce significant challenges in the legal framework, marking
another important development in India's legal history.

Sadar Nizamat Adalat​

Under the 1772 plan, death warrants prepared by the Sadar Nizamat Adalat had to be sent from Calcutta
to Murshidabad for the Nawab’s signature, leading to delays due to the time taken for transmission and
the Nawab’s sluggishness in addressing the matter. To address this, Warren Hastings persuaded the Nawab
to delegate the signing of death warrants to the Daroga of the Sadar Nizamat Adalat, who would act as the
Nawab’s Deputy. Hastings also sought the Governor’s supervision over the Daroga's duties, including
revising sentences and approving warrants. This effectively placed Hastings in overall control of the
criminal judicature.

However, this arrangement was short-lived. The establishment of the Supreme Court at Calcutta and
Hastings’ heavy workload led him to seek relief from overseeing the Sadar Nizamat Adalat.
Consequently, the Adalat was moved to Murshidabad, and the office of Naib Nazim was created to
manage the Adalat on the Nawab's behalf, with Mohd. Reza Khan was appointed to the role. This shift
meant the Governor-General and Council no longer supervised the Adalat, and after the collectors were
withdrawn from the districts in 1774, supervision over the district criminal courts was also lost. As a
result, the criminal judicature fell back under the control of Muslim law officers, leading to its
deterioration over time.

29
 TOPIC 5.2: SUPREME COURT AT CALCUTTA

Conditions Prior to 1773​

The establishment of the Supreme Court of Judicature at Calcutta under the Regulating Act of 1773
marked a significant development in Indian legal history. Following the Battle of Plassey, Bengal, Bihar,
and Orissa fell into disorder as East India Company officials exploited the local population for personal
gain. These officials, driven by greed, returned to England with immense wealth and lived lavish
lifestyles. Their arrogance and misuse of wealth earned them the nickname "nabobs" and caused
resentment among the British elite. Back in England, the influence of these ex-servants in politics and
their control over Company affairs raised concerns. Their role in British governance, along with reports of
mismanagement and famine in Bengal, led to growing public dissatisfaction. Prominent figures like
Edmund Burke pointed out that the Company had evolved from a commercial entity into a political
power, exercising sovereignty in India. As a result, there was increasing support for bringing the
Company's activities under parliamentary control.

Parliamentary Intervention​
The turning point came when the financially struggling East India Company had to seek a large loan from
the British Government. Ironically, while the Company’s servants were becoming wealthy, the Company
itself faced severe financial distress. From 1767, shareholders increased their dividends, and the Company
was obliged to pay £400,000 annually to the British Exchequer as a tribute for keeping its Indian
territories. This was seen, as Ilbert noted, as the State’s share of the “Indian spoil.” Due to the public
outcry and suspicion, the British Government couldn’t grant the loan without investigation. The House of
Commons formed Select and Secret Committees, whose reports exposed serious flaws in the Company’s
functioning. These revelations convinced Parliament that the Company’s autonomy must end. Thus, the
Regulating Act of 1773 was passed, asserting Parliament’s authority over the Company, restructuring its
administration, and establishing the Supreme Court at Calcutta. This Act marked the shift from royal
charters to parliamentary control, with subsequent Acts further tightening the Crown’s oversight.

Provisions of the Regulating Act​

The Regulating Act of 1773 introduced significant reforms for better governance of the East India
Company in both India and Europe. It extended the term of Company directors from one to four years and
introduced staggered elections to ensure continuity and efficiency. Voting rights were limited to
shareholders holding stock worth at least £1,000, preventing ex-servants from easily buying influence.
The Act also increased British Government control—requiring revenue-related communications to be
submitted to the Treasury and civil-military affairs to the Secretary of State. In India, the Calcutta
Government was reorganised under a Governor-General and four-member Council, with Warren Hastings
as the first Governor-General. However, the Governor-General could not override the Council’s majority,
leading to prolonged deadlocks until this was changed in 1786 when Lord Cornwallis was empowered to
overrule the Council. Another important reform was the administrative centralisation of India. Earlier, the
Presidencies of Madras, Bombay, and Calcutta functioned independently, but the Act made Madras and
Bombay subordinate to Calcutta in matters of war and peace. There were exceptions—such as
emergencies or direct orders from the Court of Directors—but generally, they were expected to follow
Calcutta’s lead. However, the clause of ‘imminent necessity’ allowed them much autonomy, making

30
Calcutta’s control more symbolic than practical. Overall, the Act marked the beginning of systematic
governance and centralised administration in British India.

Supreme Court​
A key reform introduced by the Regulating Act of 1773 was the establishment of the Supreme Court at
Calcutta, replacing the ineffective judicial system under the Charter of 1753. The Act authorised the
Crown to create this court through a royal charter, which would include a Chief Justice and three puisne
judges—all barristers with at least five years' standing. The court was to have civil, criminal, admiralty,
and ecclesiastical jurisdiction. For criminal trials in Calcutta and nearby factories, it operated with grand
and petty juries made up of British residents. The Supreme Court’s jurisdiction was limited to British
subjects and persons employed by the Company or the Crown. Indians could voluntarily submit to its
jurisdiction in disputes over ₹500 through a written contract. The court could not try the
Governor-General or Council members for any crime other than treason or felony, and these officials were
immune from arrest by the court. They were also made justices of the peace. Appeals from the court could
go to the King-in-Council, and the court had authority to frame its own procedural rules to ensure justice.

Legislative Authority​
The Regulating Act of 1773 changed the legislative process in Calcutta by giving the Governor-General
and Council the power to make laws for Fort William and its subordinate factories. However, their laws
had to meet three conditions: they couldn’t conflict with English laws, had to be reasonable, and had to be
registered and published in the Supreme Court. Anyone in India could appeal such laws to the
King-in-Council within 60 days, and the same applied in England after their publication there. The
King-in-Council also had the power to cancel any law within two years, even without an appeal.

This system was meant to reduce delays caused by earlier rules that required the Company’s directors in
England to approve laws. It also ensured that British interests were protected. The Supreme Court
checked that laws were fair and lawful before they came into effect—marking an early form of judicial
review, although unlike today, this check happened before the law was implemented.

Miscellaneous Provisions​
The Act contained a number of provisions to check some of the flagrant abuses prevailing at the time in
the administrative machinery in India. The Governor-General, members of the Council, judges of the
Supreme Court and officers engaged in collection of revenue were prohibited from receiving presents or
engaging in private trade. The Court of King’s Bench in England was empowered to punish offences,
crimes, or misdemeanours committed against any of His Majesty’s subjects or any inhabitant of India by
the Governor-General, members of the Council, Governor, any judge in any court in the Company’s
settlements or any person employed by the Company.

Charter of the Supreme Court​

On March 26, 1774, King George III issued a Charter under the Regulating Act, establishing the Supreme
Court at Calcutta as a court of record. Sir Elijah Impey was appointed Chief Justice, with Robert
Chambers, Stephen Caesar LeMaistre, and John Hyde as puisne judges. The Court had jurisdiction over
civil cases involving the East India Company, the Corporation of Calcutta, British subjects in Bengal,
Bihar, and Orissa, their executors and administrators, Company employees, and even local inhabitants
who agreed in writing to submit disputes to the Court, provided the matter exceeded ₹500. It could act as

31
both a court of first instance and an appellate court. As a court of equity, it followed principles of the
English High Court of Chancery. It also had criminal jurisdiction akin to a court of oyer and terminer and
gaol delivery, with the power to try British subjects and Company employees using a grand and petty jury
system. The judges could recommend mercy in capital cases by suspending execution until the Crown’s
decision. The Court exercised ecclesiastical jurisdiction over British subjects based on the law of the
Diocese of London, enabling it to grant probate, letters of administration, and appoint guardians for
minors and the mentally ill. It also functioned as a Court of Admiralty for Bengal, Bihar, and Orissa,
trying maritime civil and criminal matters involving British subjects and Company employees using a
jury. Each judge also served as a justice of the peace and had powers similar to those of the King’s Bench
in England. The Court supervised lower courts like the Court of Requests, justices of peace, and quarter
sessions, and could issue writs such as mandamus, certiorari, and error to ensure their conformity with
law and justice. Appeals in civil cases lay to the King-in-Council if the value exceeded one thousand
pagodas and the appeal was filed within six months. In criminal cases, the Supreme Court had discretion
to allow appeals, though the King-in-Council could intervene in special cases. The Court admitted
advocates and attorneys who alone could represent parties, with the authority to remove them for good
cause. The Governor-General, his Council, and the judges were immune from arrest except in treason or
felony cases, and the Court could not try them for lesser offences. The Supreme Court had the autonomy
to frame procedural rules, subject to approval or modification by the King-in-Council, and largely
followed English court practices in its functioning.

Merits and Demerits of the Supreme Court​

The judicial system under the Charter of 1753 was ineffective, with limited jurisdiction confined to
Calcutta, leaving British subjects in Bengal, Bihar, and Orissa outside its reach. The creation of the
Supreme Court in 1773 aimed to address these flaws by appointing independent judges who were
professionals with knowledge of English law. This helped ensure impartiality, even in cases involving the
East India Company. The Supreme Court also expanded its jurisdiction to cover British subjects in the
Diwani lands, ensuring that crimes committed outside Calcutta could be prosecuted. This reform removed
the major deficiency of the previous system, where crimes went unpunished due to a lack of jurisdiction.
Overall, the Supreme Court reformed the judicial system by establishing a more competent and
independent body with broader jurisdiction, making justice more effective and less influenced by the
executive.

Jurisdiction​
The Supreme Court in Calcutta was unique in being both a court of law and a court of equity, combining
admiralty and ecclesiastical jurisdiction as well. This was a significant departure from the judicial system
in England, where such jurisdictions were handled by separate courts, leading to a proliferation of legal
bodies. In this regard, the Supreme Court was a precursor to England’s Judicature Act of 1873, which
merged various courts into one. This integration of different types of jurisdiction in a single court can be
seen as a progressive step, occurring in Calcutta a century before similar reforms were made in England.
Additionally, the Supreme Court’s ability to control the Company’s servants marked another important
aspect of its authority, reinforcing its role as a powerful and independent judicial institution.

32
Executive–Judiciary Authority​
The Supreme Court faced challenges due to ambiguities in the Regulating Act and the Charter, which led
to tensions between the Court and the Council. The territories of Bengal, Bihar, and Orissa had not been
officially declared British under Crown sovereignty, and the Company's role as Diwan was still in effect.
While Calcutta was a British settlement, the Act did not clearly define the powers of the
Governor-General and Council over the Diwani territories, leading to confusion about the Court's
jurisdiction. To address practical needs, the Supreme Court's jurisdiction was extended to Englishmen and
certain other groups living in the Diwani areas. This included British subjects, Company servants, and
others who were under the Court's authority, even if they were not British. The Court was also given the
power to issue subpoenas in the Diwani territories to administer justice. However, the lack of clarity in the
Act led to contradictions and tensions, complicating the Court’s role in the judicial system.

Undefined Terms in the Act​

The terms used to define the Supreme Court's jurisdiction, such as "British subjects," "subjects of His
Majesty," and "persons employed in the service of the Company," were unclear and often confusing. The
distinction between "British subjects" and "His Majesty’s subjects" was particularly ambiguous, as the
two terms were not always consistent. It could be assumed that residents of Bengal, Bihar, and Orissa
were not British subjects, as these areas had not yet been declared British territory. The term "British
subjects" likely referred to individuals of British birth or origin, while "His Majesty’s subjects" included
colonial subjects, such as those from places like Canada or Australia.

Changed Pattern of Power​

The Regulating Act marked a significant shift in the relationship between the executive and the judiciary,
aiming to give the judiciary control over the executive. Before this, the British Company's servants had
committed widespread oppression, and the Mayor’s Court and Council were insufficient to curb these
actions. The creation of the Supreme Court was intended to address this issue by giving it jurisdiction
over the Company's servants and allowing it to issue writs in the King’s Bench capacity. This was aimed
at enforcing legal restraint on the actions of Company servants, particularly in relation to revenue
collection. However, tensions arose when the Governor-General and Council resisted the Court’s
intervention, especially concerning the Company's control over the Diwani lands and the revenue
collection process. The Regulating Act did not clearly define whether the Court had authority over the
Company’s revenue actions, leading to disputes. The Court, while maintaining it could not interfere with
the "ordering and management" of the Diwani, asserted its right to investigate cases of violence and
oppression in the revenue collection process. This stance led to a series of legal and administrative
conflicts. The Company's resistance intensified, fearing the breakdown of the administrative system. The
Court’s powers were broadly defined, and in practice, it issued writs, including habeas corpus, to address
grievances, further exacerbating tensions. Had the powers of the Court been framed more cautiously,
many of these issues could have been avoided. Additionally, the unclear definitions of terms like
“employment” and “service of the Company” led to confusion about the scope of the Court’s jurisdiction,
including over Indian zamindars and farmers of revenue. The Court held that these farmers were
indirectly in the Company's service and thus could be held liable for torts, although the question of
zamindar liability was never conclusively addressed.

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Supreme Court and the Governor General​
The relationship between the Supreme Court and the Governor-General and Council under the Regulating
Act was unclear. It was uncertain whether the Court could take cognizance of the acts performed by the
Governor-General and the Council in their official capacity or whether they could be held accountable
individually. The Act barred the Court from trying criminal cases against them, except for treason or
felony, and exempted them from arrest in any suit, action, or proceeding. The lack of clarity raised
questions about whether the Court could challenge their official orders. The Regulating Act and Charter
left unresolved whether the Governor-General and Council's actions, especially in revenue collection,
were within the Court's jurisdiction. The Court could argue they were subject to its powers, but the
Governor-General and Council contended their public acts were beyond the Court's reach. This vagueness
in the provisions created confusion about which authority—Court or Council—would prevail in case of a
conflict.

Two Distinct and Independent Judicial Systems​

With the Regulating Act, two parallel judicial systems emerged in Bengal, Bihar, and Orissa. One was the
Company’s mofussil system, based on the Diwani grant and structured with its own adalats; the other was
the Supreme Court in Calcutta, a royal court under British authority. Had the Supreme Court’s jurisdiction
been limited to Calcutta, conflicts may have been avoided. But since it extended to certain persons in the
provinces where the Company’s courts also operated, clashes were inevitable. The Act and the Charter
failed to clarify how these two systems should interact. They didn’t mention the Company’s courts or
provide safeguards for them. Though not intended to override the Company’s judiciary, the Supreme
Court found no legal reason to ignore misconduct by Company judges and law officers, who were under
its jurisdiction. The Court began hearing complaints against them, which angered the Governor-General
and Council, leading to tensions—culminating dramatically in the Patna case.
​
Judges of the Supreme Court​
The judges of the Supreme Court were made justices of the peace “throughout Bengal, Bihar and Orissa”
with powers like those of the King’s Bench in England. This included the authority to arrest, examine, and
punish for minor offences, and to issue writs like habeas corpus, mandamus, and certiorari. However, the
Charter's language was vague, raising key questions: Did this jurisdiction extend to all residents or only to
those already under the Court’s civil and criminal jurisdiction? Could writs be issued to Company
officials or adalats? A broad reading implied the Court could oversee the entire justice system in the
provinces and act against abuses by Company servants—matching the original intent of the Regulating
Act. In an 1830 Minute, judges argued this broad view was valid, noting the unqualified language and the
need to control British and Indian offenders alike. However, others insisted the clause should be narrowly
read to exclude Indians, as they were governed by Muslim law. In practice, the Court's writ jurisdiction
remained limited—it did not interfere with Company courts or cover Indians broadly. Another issue was
procedural: the same judges who held committal proceedings also later tried the accused, risking bias.

Difficulties of Indians​
The establishment of the Supreme Court created many problems for Indians in Bengal, Bihar, and Orissa.
The Court followed English laws and procedures that were unfamiliar, expensive, and confusing for
Indians. Though most Indians were technically outside its jurisdiction, they were still affected. If someone
was sued, they had to appear before the Court just to argue that it had no authority over them. This meant

34
costly travel to Calcutta, hiring English lawyers, and long stays away from home. One major issue was
that even before deciding jurisdiction, the Court could arrest the person using a writ called capias. Bail
was often set too high for Indians to afford, so they were jailed until the Court ruled on jurisdiction. If
later found outside the Court’s jurisdiction, the case ended—but the damage (loss of money, health, and
dignity) had already been done. The Council criticized this process, especially as zamindars were
disturbed and revenue collection suffered. This tension peaked in the Cossijurah case. The harsh English
procedure of arrest before trial, called arrest on mesne process, was seen as deeply unjust and oppressive.

Which Law to be Administered​

The Regulating Act did not clarify which laws the Supreme Court should follow. Since it was built on the
earlier Mayor’s Court, it automatically followed English law. However, this English law was rigid,
complex, and suited only to English society. It became unjust when applied in India. The Court was
supposed to apply only those parts of English law that suited Indian conditions, but it was unclear which
parts those were until the Court decided in a case, creating uncertainty. There was also confusion about
when English law was introduced in Calcutta—possibly in 1726, 1753, or 1774—but no clear rule was
laid down. The Supreme Court also handled cases involving Indians in Calcutta, including Company
servants, but it wasn’t clear whether English law or Indian personal laws applied to them. The English
criminal law used by the Court was especially harsh, with many crimes punishable by death, earning it the
name “hanging law.” Indians were unfamiliar with it, as it was never officially published in Calcutta and
completely foreign to their customs. Earlier courts were more lenient because their judges lacked deep
legal knowledge, but the Supreme Court judges strictly enforced the harsh English law, making things
worse for Indians.

Disaffection between the Governor and the Court​

In the wake of the establishment of the Supreme Court at Calcutta, disaffection arose between the
Government and the Court mainly under three heads: First, the Court’s exercise of jurisdiction over the
revenue officers so as to punish them for corrupt or oppressive acts done in official capacity in the
collection of revenue and issuing of habeas corpus to liberate those who had been confined for
non-payment of revenue; Secondly, the claim of the Supreme Court to try illegal acts of the judicial
officers of the Company done in their official capacity; and, Thirdly, issue of writs of capias against
native defendants residing in Bengal, Bihar and Orissa to make them appear before the Court to plead to
its jurisdiction.

Hasting’s Attitude​
In the beginning, Warren Hastings supported the Supreme Court, despite having some doubts. He found
Chief Justice Impey to be sensible and moderate and believed the Court acted cautiously, especially in
matters like tax collection. He thought the real problem was that the Court’s powers were
unclear—everyone in the provinces was under Company control, but the Court's authority wasn’t clearly
defined. Hastings felt the Court should either have full authority or be limited to Calcutta and British
subjects outside it. He even supported the harsh practice of "arrest on mesne process" at first. However,
his support changed over time. While he was in the minority in the Council, he remained friendly towards
the Court and blamed others in the Council for the tensions. But once he regained power through his
casting vote in 1776, his attitude shifted completely. He became openly hostile and worked to limit the
Court's powers to only the town of Calcutta.

35
Interference with the Court’s Working​
It’s often wrongly believed that the Government interfered with the Supreme Court because the Court
claimed power over zamindars (landholders). In truth, the Court never declared that all zamindars were
under its control just because they were zamindars. In most cases, the Court accepted that zamindars
weren’t within its jurisdiction unless there were special reasons—like if a zamindar worked for the
Company. In the Cossijurah case, the issue was whether the zamindar had to appear in Court to plead his
case. The Court never got the chance to decide that, because the zamindar, with government support,
chose not to appear. The Government feared a ruling from the Court—if the Court said the zamindar
worked for the Company, it could interfere in revenue collection; if it said the zamindar was an
independent owner, then he could resist government actions. So, the Government used force to stop the
case and encouraged other zamindars to also ignore the Court. This behavior was wrong and dangerous.
The Court should decide who it can judge, not the individuals themselves. Otherwise, no one would
appear before the Court, and it would become powerless. However, the Court’s own practice of arresting
people before trial (called arrest on mesne process) was also very harsh. Bail was often set very
high—like 3 lakh rupees—so most people ended up in jail for months even if they were later found to be
outside the Court’s authority. This English-style procedure caused a lot of suffering and made Indians
resent the Court. Though the Court made a rule that required the plaintiff to give an affidavit before an
arrest, it wasn’t enough to prevent misuse. The Court could have done more to reduce this harm, like
lowering bail or avoiding imprisonment when possible.

Act of Settlement, 1781​

Supreme Court Disliked by All​
The Supreme Court became an institution that nobody liked. Government officials hated it because it
questioned their actions and tried to punish them for being oppressive. The Government disliked it
because it tried to control how the administration worked and interfered with revenue collection.
Europeans disliked it because it stopped them from exploiting Indians. Even Indians feared the Court,
despite it trying to protect them. They were scared because of harsh actions like jailing Bahadur Beg and
Muslim law officers in Patna, humiliating the zamindar of Cossijurah, and hanging Nandkumar. The
Court’s procedures, language, and laws were all unfamiliar and confusing to the Indian people. The
Cossijurah case marked the peak of this conflict, showing that the Supreme Court and Supreme Council
were openly fighting. The idea behind the Regulating Act—that the Court would control the
administration—had failed. This was mainly because the Government resisted the Court, and partly
because the judges behaved harshly and made the Court unpopular. Overall, the main reason for the
conflict was that the Government didn’t want the Court interfering with how it collected revenue in
Bengal, Bihar, and Orissa.

Touchet Committee​
By 1777, the conflict between the Supreme Court and the Council in Bengal had escalated, with the
Directors of the East India Company complaining that the Court's actions were interfering with revenue
collection and local laws. The Directors called for the Court to be restrained from controlling the diwani
courts and urged clearer boundaries between the Council and the Court. In response, Parliament set up the
Touchet Committee in 1780 to investigate the issue, which led to the Act of Settlement in 1781. The Act
aimed to clarify the Regulating Act, support the revenue collection process, and protect local rights. It

36
favored the Council over the Court, strengthening the executive's role to ensure smooth governance and
revenue collection. The Act’s main goal was to prioritize the stability of British rule in India.

Role of the Supreme Court​

The Act of Settlement, 1781, introduced provisions that altered the balance of power between the
Supreme Court and the Governor-General's Council in Bengal, Bihar, and Orissa. The Governor-General
and Council were granted immunity from the Court’s jurisdiction for actions taken in their official
capacity, and no one could be held liable for acts done under the Council’s written orders. Additionally,
the Supreme Court was prohibited from interfering in matters of revenue collection, which had been a
major source of friction between the Court and the Government. This exemption gave the Government a
free hand in managing revenue, effectively removing the Court's jurisdiction in this area. The Act also
specifically exempted landowners and Company servants from the Supreme Court's jurisdiction in matters
of inheritance, succession, and contract, except for cases involving wrongs or trespasses. The Act further
clarified the jurisdiction of the Supreme Court within Calcutta, affirming its authority over inheritance,
succession, and contracts for the city's inhabitants. It confirmed that Muslims and Hindus would be
governed by their respective personal laws in matters such as marriage and inheritance. The Act also
sought to respect native customs by allowing the Supreme Court to apply Hindu and Muslim personal
laws in family matters and exempting caste-related acts from being deemed criminal, even if they were
inconsistent with English law. The Court was given the flexibility to adapt its processes and procedures to
accommodate native religious practices, as long as it did not hinder the administration of justice.

Sadar Diwani Adalat​

The Sadar Diwani Adalat was officially recognized as a court and granted the authority to hear and
determine appeals and references from the mofussil adalats in civil cases. This court was designated as a
court of record, with its judgments being final and conclusive, except for appeals to His Majesty in civil
suits exceeding five thousand pounds. This recognition legally sanctioned the judicial system of the
Company, aligning the Sadar Diwani Adalat with the Supreme Court in terms of authority, as both were
backed by British parliamentary legislation and subject to appeals to the Privy Council. Furthermore, the
Sadar Diwani Adalat was also granted the power to hear cases involving offences, abuses, and extortions
related to revenue collection, with the discretion to impose punishment, though not extending to death,
maiming, or perpetual imprisonment. However, the practical impact of this provision was limited, as the
Sadar Diwani Adalat was composed of the Governor-General and Council, who had vested interests in
revenue collection. This made it difficult for the Adalat to objectively handle complaints against
Company servants for excesses in revenue collection. The provision effectively allowed the Adalat to
sanction customary practices in revenue collection, including any excesses deemed "necessary" or
"customary," undermining the potential for impartial justice in cases related to revenue abuses. As a
result, while the Sadar Diwani Adalat gained significant authority, its practical functioning was hindered
by conflicts of interest within its composition.

Miscellaneous Provisions​
To safeguard judges and law officers in the discharge of their duties, the Act stipulated that no action for
wrong or injury could be brought in the Supreme Court against anyone exercising judicial authority in the
country courts for any judgment, decree, or order issued by them. This protection extended to acts done
by judicial officers in virtue of their court's orders. The Privy Council, in the case of Calder v. Halket,

37
clarified that this provision aimed to shield judges of native courts from actions arising from their
decisions, even if those decisions were erroneous or irregular, while still holding them accountable for
actions beyond their jurisdiction. The Supreme Court followed this principle by ruling that it could not
entertain civil actions against judicial officers for illegal acts carried out within their judicial capacity.
However, judicial officers could be held liable for corrupt practices, provided a formal notice was issued
beforehand. The length of the notice varied depending on the distance from Calcutta, and no officer could
be arrested or held in bail without first declining to appear after receiving the notice. Additionally, the Act
granted indemnity to the Governor-General and Council, along with others acting under them, from any
legal actions in respect of resistance shown to the Supreme Court’s processes in the Cossijurah case. This
indemnity was essential since many actions taken by the Government were not strictly justifiable under
the law. Notably, this indemnity was only extended to the executive branch and not to the judges,
signaling that Parliament believed the Supreme Court had not overstepped its jurisdiction or acted
unlawfully. Moreover, any individuals wrongfully imprisoned in the Patna case were to be released, and
the Company was required to compensate them for damages awarded by the Supreme Court. This
provision aimed to balance judicial protection with the need for accountability in cases of misconduct.

Legislative Power​
The Act of 1781 was pivotal not only in defining the jurisdiction of the Supreme Court but also in
addressing the question of legislative power over Bengal, Bihar, and Orissa. Prior to the Act, the legal
position was unclear. The Regulating Act had granted the Governor-General and Council limited
legislative authority, mainly for the Town of Calcutta and subordinate factories, but it did not explicitly
extend to Bengal, Bihar, and Orissa. The legal framework governing these provinces was based largely on
customary law under Warren Hastings’s 1772 plan. While the Governor-General and Council did make
regulations for the mofussil adalats (regional courts) from 1780 onwards, these were not registered with
the Supreme Court, and their legal basis was questionable. This ambiguity raised doubts about the validity
of such regulations, leading to the necessity for a more explicit grant of legislative power. The Act of
Settlement of 1781 rectified this by formally empowering the Governor-General and Council to frame
regulations for the provincial courts and councils, and for the first time, legislative authority was
explicitly conferred for Bengal, Bihar, and Orissa. Section 23 of the Act allowed the Governor-General
and Council to create regulations for the provincial courts, which would be submitted to the Court of
Directors and one of His Majesty’s Secretaries of State, and could be disallowed by His
Majesty-in-Council within two years. This marked the beginning of dual legislative power for the
Governor-General and Council, one for Calcutta under the Regulating Act and the other for Bengal,
Bihar, and Orissa under the Act of 1781. Although the legislative powers granted under the Act were
limited and mostly confined to procedural regulations, in practice, the Government interpreted this
provision more expansively, enacting a broad range of regulations that effectively created a new and
comprehensive legal system for the regions. Despite the Act's seemingly restrictive terms, Parliament
ultimately acquiesced to the extensive use of this power, leading to the formation of a revised code in
1793. This marked an unofficial recognition of the legislative authority exercised by the Indian Council,
further solidifying the regulatory framework under British colonial rule.

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TOPIC 5.3: SUPREME COURT AT BOMBAY AND MADRAS RECORDERS’ COURTS​

Judicial Business Increases and becomes Complex​

In the Presidency Towns of Bombay and Madras, the judicial system that had been established by the
Charter of 1753 continued to operate for a much longer period than it did in Calcutta. However, as time
passed, it became increasingly evident that this system was inadequate to effectively handle the growing
demands of these towns. The population, as well as the trade and commerce, had expanded significantly.
During the early years of settlement, most disputes were of a commercial nature, which the judges, with
their practical experience and good sense, could resolve. But with the growth of these towns, the nature of
disputes became more complex and multifaceted. As the problems before the Mayors' Courts grew more
intricate, it became clear that the existing judges, who were not legally trained, were no longer equipped
to deliver full justice. The simple and informal methods that worked in the early stages of settlement
could not address the more complicated legal issues that arose due to the increasing commerce and
population. This gap in the legal system highlighted the need for reforms that would bring more
professional and specialized legal expertise into the judicial process, ensuring that the growing legal
complexities of the Presidency Towns were adequately addressed.

Dearth of Trained Persons​

As the complexity of administering justice increased, it became clear that judges needed legal training to
handle the growing volume of cases. Only professional judges could effectively manage the increasing
legal challenges. Over time, individuals with legal knowledge became attorneys, gaining influence over
judges who lacked formal legal expertise. This shift highlighted the need for a more professional judicial
system in the Presidency Towns. Previously, the Governor and Council managed criminal justice with
ease, but as the population grew, so did the number of cases, making criminal justice a full-time job
requiring skilled judges. The expansion of civil and criminal court jurisdiction further increased the
workload, making it clear that only trained judges could effectively handle the demands of the legal
system. These changes called for new judicial arrangements to address the evolving needs of the
Presidency Towns.

Recorders’ Courts​
In 1791, the Madras Council highlighted the difficulties in administering justice and recommended the
appointment of professional lawyers for civil and criminal courts. They also suggested that appeals from
Madras courts be directed to the Supreme Court in Calcutta instead of England, to reduce harmful delays.
The reliance on non-lawyer judges had become outdated, and to address this, the British Parliament
passed an Act in 1797, allowing the Crown to establish Recorders’ Courts in Bombay and Madras. On 1
February 1798, King George III issued Charters to create these courts, with the Madras Recorder's Court
beginning operations on 1 November 1798.

Jurisdiction, Powers and Authority​

The Recorder's Court, established in Madras and Bombay, consisted of the Mayor, three Aldermen, and a
Recorder who was a barrister with at least five years' standing. The Recorder, appointed by the Crown,
served as the President of the Court. This court had full civil, criminal, ecclesiastical, and admiralty
jurisdiction, similar to the Supreme Court at Calcutta. It had authority over British subjects and persons
employed by the Company, as well as subjects of native princes allied with the Government.

39
However, like the Calcutta Supreme Court, the Recorder's Court was restricted by the Act of 1781. It
lacked jurisdiction over revenue matters, landholders, and actions involving the Governor and Council. It
administered Hindu law for Hindus, Muslim law for Muslims, and the law of the defendant when parties
had different religious affiliations. No action for injury could be brought against judicial officers in a
country court. Appeals from the Recorder’s Court were directed to the Judicial Committee of the Privy
Council, just as they were from the Calcutta Supreme Court. The Recorder's Court absorbed the Mayor's
Court and the court of Oyer and Terminer and Gaol Delivery from the Charter of 1753. The first
Recorders were Sir Thomas Strange in Madras and Sir William Syer in Bombay.

Courts of Requests​
The Courts of Requests established in the three Presidency Towns of Calcutta, Madras and Bombay by
the Charter of 1753, had been found to be beneficial and convenient for deciding petty civil suits quickly
and cheaply.9 The jurisdiction of these courts had been fixed at five pagodas. The Act of 1797 which
established the Recorders’ Courts increased the jurisdiction of the Courts of Requests to eighty rupees.

Recorders’ Courts vs Mayor’s Courts​

The Recorder’s Court was a significant improvement over the Mayor’s Court, with a professional lawyer
(the Recorder) appointed by the Crown. This added legal expertise, allowing the court to handle complex
legal matters. The Recorder's independence from the Company enabled impartial decisions, especially in
cases involving the Company. The Recorder’s Court had civil, criminal, and admiralty jurisdiction, unlike
the Mayor’s Court, which was limited to civil matters. It also applied English, Hindu, and Mohammedan
law. Indians, previously exempt from the Mayor’s Court, were now under the jurisdiction of the
Recorder’s Court. Appeals from the Mayor’s Court went to the Governor and Council, while those from
the Recorder’s Court went directly to the King-in-Council. The Recorder’s Court also made final
decisions in cases under 1,000 pagodas, whereas the Mayor’s Court was fully appealable. The
establishment of the Recorder’s Court marked a key step in separating the judiciary from the executive,
strengthening judicial independence in the Presidency Towns of Bombay and Madras.

Supreme Courts​
The Recorder’s Court at Madras was short-lived. In 1800, the British Parliament passed an Act to replace
it with a Supreme Court, which would inherit the powers of the Recorder’s Court and be subject to the
same restrictions as the Calcutta Supreme Court. The Supreme Court of Madras was established on 4
September 1801, with Sir Thomas Strange as its Chief Justice. The Recorder’s Court at Bombay lasted
longer, but in 1823, an Act of Parliament authorized the creation of a Supreme Court in Bombay, also
modeled after the Calcutta Supreme Court. The Bombay Supreme Court began functioning on 8 May
1824, with Sir E. West as its Chief Justice. Both the Supreme Courts at Madras and Bombay had similar
powers and jurisdictions as the Calcutta Supreme Court, as outlined in Section 17 of the Act of 1823. By
the early 19th century, Supreme Courts were established in all three Presidency Towns, bringing
uniformity to the judicial system.

Difference Between Supreme Court and Recorders’ Court​

The major difference between the Supreme Court and the Recorder’s Court was that the former was a
fully professional court and had no lay element and all its judges were lawyers. The Recorders Court, on

40
the other hand, had some lay element in the Mayor and the Aldermen. The Supreme Court was therefore a
much more effective instrument of justice than the Recorder’s Court.

Conflict at Bombay​
The Recorder's Court at Bombay faced significant tension with the executive. The Company's civil
servants, particularly those in high positions, viewed the courts as a nuisance due to their scrutiny of
government officials. This conflict became evident when Recorder West dismissed an official, Erskine,
over charges of misappropriation. Erskine was a favorite of Governor Elphinstone, who responded by
treating West with increasing hostility. In 1826, a dispute arose over a proposed law that restricted press
freedom. The Supreme Court, led by Chief Justice Sir E. West, rejected the law, arguing that it was
unnecessary and threatening penalties against a pro-government paper that supported it. Another serious
clash occurred in 1825 when the Supreme Court ruled against the government's claims in a property case.
The Governor resisted the Court’s demands to produce records, fearing it would break secrecy. The case
was appealed to the Privy Council, which ruled that the Supreme Court had no jurisdiction. The tension
escalated in 1828 when the Court issued writs of habeas corpus for individuals outside Bombay's
jurisdiction. In one case, the Court ordered the release of a boy detained by his grandfather, and in
another, it intervened in a prisoner's case despite opposition from the government. The Governor reacted
by directing the Court to avoid further legal proceedings that could lead to conflict with the executive.
The Court resented this directive, leading to a deeper rift between the judiciary and the executive in
Bombay.

Other Jurisdictional Issues​

Initially, there was significant confusion about whether the Bombay and Madras Supreme Courts had
jurisdiction over crimes committed on the High Seas. This doubt was clarified in 1813 with Section 110
of the Charter Act, which granted the Crown Courts in the Presidency towns, including Bombay and
Madras, the authority to take cognizance of crimes committed at sea, regardless of the offender’s regular
jurisdiction. This was a key step in resolving jurisdictional conflicts related to maritime law. Further
complexities arose due to differences in the charters of the Bombay and Madras Supreme Courts
compared to the Calcutta Supreme Court. While the Charters for Bombay and Madras were largely
modeled on the Calcutta Charter, they contained significant variations. For instance, the Bombay and
Madras courts had restrictions on calling native witnesses, which were not imposed on the Calcutta Court.
Section 17 of the Act of 1823 was intended to make the jurisdiction of all three Supreme Courts identical,
but this raised questions about whether these restrictions on the Bombay and Madras courts should be
applied to the Calcutta Court as well.

In the realm of revenue matters, the Charters also introduced discrepancies. The Calcutta Charter of 1781
imposed a restriction on the Supreme Court regarding matters related to revenue collection, while the
Madras and Bombay Charters used broader language that restricted any matters concerning revenue.
Despite these differences, a ruling in the Madras Supreme Court in the case of Vencata Runga Pillay v
The East India Company concluded that the Madras Supreme Court’s jurisdiction over revenue matters
should align with that of the Calcutta Court, emphasizing equal justice in both provinces. A similar
position was taken by the Bombay Supreme Court in 1844, further reinforcing the principle of equal
jurisdiction in revenue matters. Another important issue concerned the Admiralty jurisdiction. While the
Charter Act of 1813 extended the Admiralty jurisdiction to all persons committing crimes on the High

41
Seas, the Bombay Supreme Court Charter issued years later contradicted this by limiting the jurisdiction
to those under its regular authority. This contradiction persisted until the establishment of the High Courts
in 1862, which addressed many of the jurisdictional ambiguities that arose in the colonial courts.

In 1843, a significant case concerning ecclesiastical jurisdiction arose when a Parsi woman sought a suit
for restitution of conjugal rights. The Bombay Supreme Court initially ruled that it had jurisdiction over
matrimonial causes for Parsis, as it had done for Christians. However, the Privy Council overruled this
decision, stating that ecclesiastical jurisdiction could only apply to Christians under English ecclesiastical
law. The Privy Council held that Parsi law should govern matrimonial matters for Parsis, not English
ecclesiastical law, which was incompatible with the principles of Parsi marriage. This case highlighted the
tension between the English legal system and local laws, particularly in personal matters such as
marriage. These complex jurisdictional issues and conflicts between the charters of the Bombay and
Madras Supreme Courts reflect the challenges faced by the colonial legal system. The ambiguity in
jurisdiction continued until the High Courts were established in 1862, marking a significant shift in the
legal landscape of British India.

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 TOPIC 5.4: REORGANIZATION OF THE ADALAT SYSTEM JUDICIAL PLAN: 1780

Judicial Plan of 1780​

The Patna case of 1774 revealed significant flaws in the adalat system across Bengal, Bihar, and Orissa.
Under the 1774 Plan, six Provincial Councils were responsible for both judicial and revenue functions.
However, these Councils focused primarily on revenue collection, leaving the administration of justice to
native law officers. This delegation resulted in the Councils merely imitating courts, with little oversight,
and their judicial functions were largely ineffective. It became clear that the system required reform to
provide proper justice to the people. In 1780, Warren Hastings introduced a new judicial plan to address
these issues. The Plan of 1780 separated the judicial and revenue functions by removing judicial duties
from the Provincial Councils. New diwani adalats were set up in six divisions, including Patna, with an
English Superintendent presiding over each. These adalats were empowered to decide civil cases,
including inheritance and property disputes, and were required to sit regularly, hear cases in open court,
and maintain proper records. Native law officers continued to expound Hindu and Muslim laws, and
appeals were allowed for higher-value cases. This overhaul aimed to create a more effective and
independent judicial system.

Evaluation of the New System​

The major strength of the 1780 judicial plan was the clear separation between the executive and judicial
functions—something the East India Company had not implemented since 1772. The adalats were now to
focus solely on civil justice, free from revenue responsibilities, which remained with the Provincial
Councils. This separation ensured judicial independence from administrative influence. By allowing each
authority to devote full attention to a specific task, it was hoped that both justice and revenue
administration would improve in quality and efficiency. However, the plan had serious drawbacks. The
most glaring issue was the insufficient number of adalats—only six for the vast regions of Bengal, Bihar,
and Orissa. This led to excessive workloads, huge backlogs, and great inconvenience for litigants who had
to travel long distances repeatedly. While smaller cases (under ₹100) could be referred to nearby
zamindars or public officers, this system was flawed. These local judges were unpaid, which led to covert
bribery, and many lacked impartiality or proper legal training. Moreover, diwani adalat superintendents
were junior Company servants with no legal expertise, resulting in poor-quality judgments. Also, the
Provincial Councils, still handling revenue cases, often acted as judges in matters they were directly
involved in—compromising the fairness of justice. Thus, while the 1780 plan was progressive in intent,
its practical execution remained inadequate.

Impey Appointed to The Sadar Diwani Adalat​

In October 1780, Warren Hastings initiated a major reform by appointing Sir Elijah Impey, Chief Justice
of the Supreme Court, as the sole judge of the Sadar Diwani Adalat. This move was driven by the
inability of the Governor-General and Council—who had previously headed the Adalat—to effectively
manage judicial duties alongside their administrative responsibilities. Their irregular sittings and lack of
legal expertise had weakened the entire judicial structure, leaving the lower courts without proper
supervision or guidance. Hastings recognized that only a dedicated, legally trained official could restore
order and efficiency in the judicial system, especially in the mofussil. Impey’s appointment aimed to
make the Sadar Adalat a more efficient appellate court and supervisory body. As a professional judge, he
was expected to streamline the system, correct lower court deficiencies, and bring coherence between the

43
Company’s adalats and the Supreme Court, which had often clashed in the past. However, critics worried
that his dual role might compromise judicial independence and lead to the imposition of English legal
practices in rural areas. Despite these concerns, Hastings' proposal was passed by his casting vote in the
Council on 18 October 1780.

Impey Improves Company’s Judicature​

Sir Elijah Impey, while serving as Chief Justice of the Supreme Court at Calcutta, also took charge of the
Sadar Diwani Adalat in 1780. During his one-year tenure, he introduced significant judicial reforms to
reorganize the Company’s adalat system. In response to the irregularities revealed in the Patna Case,
especially judges relying on native law officers for questions of fact, a Regulation was passed on 3
November 1780. It mandated that judges themselves decide factual matters, and native officers were only
to advise on religious laws. Evidence was now required to be recorded in open court under oath, replacing
earlier informal practices. Further reforms came on 6 April 1781, increasing the number of mofussil
diwani adalats from six to eighteen. The separation of judicial and revenue functions was maintained, and
diwani adalats were barred from handling revenue matters. On 5 July 1781, the first Civil Procedure Code
in India was introduced by Impey. It consolidated existing rules, streamlined civil procedures, and gave
adalats clearer authority, including the power to summon zamindars and refer small cases to munsiffs. The
Sadar Diwani Adalat was also strengthened. It was given appellate jurisdiction in cases over Rs. 1,000,
original jurisdiction in cases referred by the Governor-General, and supervisory powers over lower
adalats, including the ability to suspend judges for misconduct. This made it a central and active authority
in the judicial system. The application of Hindu and Muslim laws in personal matters was retained, with
the word “succession” added. For cases not covered by religious laws, Impey’s Code introduced the
principle of “justice, equity, and good conscience” as a guiding rule. This provision allowed for judicial
discretion and encouraged the growth of Indian law through judicial decisions and the introduction of
English legal principles.

Recall of Impey​
Impey’s involvement with the Sadar Diwani Adalat greatly benefited the Company’s judicial system. He
worked to fix its flaws and turn it into a proper and efficient system. His Civil Procedure Code—India’s
first codification of civil law—was a major contribution, guiding courts on how to handle cases and
improving their functioning. It was even translated into Persian and Bengali. Both the Company’s
Directors and the Governor-General praised his efforts. Under Impey, the Sadar Diwani Adalat began
functioning more actively, encouraging lower courts to do the same. Unfortunately, he left too soon;
otherwise, the judicial system might have improved even more.

Holding Two Offices​

Impey’s time with the Sadar Diwani Adalat was brief, and he soon lost both his positions—as Chief
Justice of the Supreme Court and judge of the Sadar Adalat. His dual role was criticized in England.
While his Supreme Court position was a Crown appointment with a secure salary, his role in the Sadar
Adalat was under the control of the Company’s Governor-General and Council, making it less
independent. This raised concerns about conflict of interest and compromised judicial independence.
Many felt it was improper for the Chief Justice to hold a position dependent on the Company, especially
since the Regulating Act aimed to make the judiciary independent and limit Company influence. Critics

44
argued that Impey’s dual role could weaken the Supreme Court’s effectiveness and looked like a bribe to
reduce his opposition to the Company’s actions in Bengal.

Resolution to Recall​
On 3 May 1782, the House of Commons passed a resolution asking the Crown to recall Impey for
accepting an office that violated the Regulating Act. As a result, Impey left India on 3 December 1782,
and the Sadar Diwani Adalat went back under the control of the Governor-General and Council. The
effort to coordinate the Supreme Court with the Company’s courts ended abruptly and was not attempted
again until 1861, when the High Courts were established. While Impey’s appointment was
constitutionally questionable—since it compromised judicial independence—he seemed genuinely
motivated to reform the judicial system rather than gain personally. He even offered to return his salary if
found improper. A key lesson from this episode was that a qualified lawyer leading an independent Sadar
Diwani Adalat could improve justice in the mofussil. Unfortunately, after Impey’s departure, this idea was
abandoned and the system reverted to its earlier form.

Criminal Judicature​
During his time as Governor-General, Warren Hastings faced two conflicting pressures regarding criminal
justice. On one hand, he believed that the responsibility for criminal justice lay with the Nawab, not the
Company. On the other hand, he knew the criminal courts were in a poor state and needed reform. To
balance this, in 1772 he allowed Muslim law officers to continue handling criminal cases but placed them
under the supervision of British officials. However, the British avoided directly changing Muslim criminal
law, even when it clashed with modern ideas of justice. In 1775, the Sadar Nizamat Adalat was moved
from Calcutta to Murshidabad and placed under Reza Khan’s control. This shift disconnected it from
reform efforts and led to a decline in the criminal justice system. Courts became corrupt and violent, often
punishing the innocent and letting the guilty go free. Despite the worsening conditions, Hastings stuck to
a policy of limited involvement to maintain the illusion that criminal justice remained under the Nawab’s
authority.

Measures to Improve​
To improve the criminal justice system, the Governor-General and Council took two key steps in 1781.
First, they created a system to arrest criminals and send them to the fozdari adalats for trial—something
that was missing earlier. Judges of the mofussil diwani adalats were made magistrates with the duty to
arrest suspects and send them for trial. However, these magistrates had no power to try or punish even
minor offenders, so all cases—big or small—went to the mofussil criminal courts. This caused serious
delays, with many petty offenders jailed for long periods before their trials. The poor prison conditions
led to many deaths, and justice suffered. In 1785, the Council allowed magistrates to handle minor cases
like small assaults, thefts, or insults. But serious cases still had to go to the regular criminal courts.

Remembrancer of Criminal Court​

In 1781, the government created a new department in Calcutta to oversee criminal justice and the
functioning of criminal courts. The department was directly controlled by the Governor-General, and its
head was called the Remembrancer of Criminal Courts. All criminal courts had to send regular reports
about their proceedings, including details about arrests, trials, and sentences. The Remembrancer’s role
was to review and organize these reports. The idea was to monitor the state of criminal justice across the

45
country and identify any issues. While the Remembrancer helped reveal irregularities in the criminal
courts, his supervision was ineffective. The reports often didn't reach him on time or were manipulated to
show a better picture of the situation. He lacked executive powers and could only bring attention to cases
of injustice. The government’s intervention came too late to prevent or fix many problems. The system
remained deeply flawed, and there was no significant reform to address the issues in the criminal law.
Although Warren Hastings recognized the need for reform, his proposals were not acted upon. It wasn’t
until 1790, under Cornwallis, that the government took full control of criminal justice, ending the
Nawab’s influence.

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 TOPIC 6.1: JUDICIAL MEASURES OF LORD CORNWALLIS​

General​
The Governor-Generalship of Lord Cornwallis, from 1786 to 1793, marked a significant and
transformative period in Indian Legal History. Cornwallis introduced major reforms to the judicial system
on three occasions: first in 1787, then in 1790, and again in 1793. By the time he left India, Cornwallis
had thoroughly reorganized the judicial system in Bengal, Bihar, and Orissa, laying the foundation for a
completely new legal framework. Cornwallis is credited with introducing the principle of administration
according to law, a first in India. The adalat system he established received widespread praise from both
the people and administrators. The reforms were so effective that they became the model for judicial
systems introduced later in the Provinces of Madras and Bombay, showcasing their lasting impact on
India’s legal structure.

Judicial System of 1787​

The judicial scheme of 1781, introduced during Warren Hastings’s tenure, separated revenue and judicial
functions. However, after his departure, some Company officials advocated merging the two to reduce
administrative costs. Sir John Shore, later Governor-General, supported this merger in January 1785,
arguing that a despotic form of government would better align with Indian customs. He also noted that the
revenue and judicial departments often clashed, causing confusion about which tribunal should handle
complaints. The call for merging the functions was driven by the desire for simplicity, efficiency, and
economy, especially in revenue collection. By combining the roles of collector and judge, it was believed
that issues could be resolved more effectively. The Court of Directors agreed and, in April 1786, directed
Cornwallis to merge the positions, aiming for greater simplicity and cost efficiency.

Outlines of the Scheme​

The Cornwallis plan of 1787 was primarily focused on economy while maintaining the purity of
administration. Cornwallis implemented this by increasing the salaries of collectors and reducing the
number of districts from 36 to 23, which also redistributed the Diwani territory. The plan was introduced
through two regulations in June 1787: one for revenue administration and the other for justice
administration. Under this plan, an English covenanted servant was appointed as a collector in each
district, tasked with revenue collection as well as judicial duties, including adjudicating civil cases related
to revenue, succession, and land boundaries. The collector also served as the district's magistrate. To
prevent conflicts of interest, the collector was directed to keep his revenue and judicial functions separate.
Revenue-related appeals went to the Board of Revenue and eventually to the Governor-General in
Council, while civil cases above Rs 1,000 were appealed to the Sadar Diwani Adalat. For cases involving
substantial amounts, further appeals could be made to the King-in-Council. To assist the collector, a
registrar was appointed in each district court to handle cases up to Rs 200, though his decrees required the
judge's countersignature. The legal framework for civil cases remained the same as the 1781 scheme, with
one addition: the diwani adalats now needed to consider any regional or family-specific customs in cases
of succession to land or property.

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Defects​
Under the Cornwallis Plan of 1787, magistrates were given the authority to arrest criminals and handle
petty offences, which could be punished with corporal punishment or imprisonment for up to 15 days.
This marked a significant change from the previous law in 1785, which granted magistrates the power to
punish petty criminals with a maximum of 4 days' imprisonment. For crimes requiring harsher penalties,
magistrates were to refer the case to the mofussil fozdari adalat. One notable change introduced by this
plan was the ability of magistrates to try British nationals for crimes committed outside Calcutta, where
previously they were immune from the jurisdiction of mofussil courts. This change aimed to address the
miscarriage of justice where British nationals could commit crimes without facing legal consequences, as
Indians had to go to Calcutta personally to seek justice. The 1787 provisions allowed magistrates to
apprehend British subjects based on sworn information, conduct inquiries, and, if necessary, send them to
Calcutta for trial. The complainants and their witnesses had to travel to Calcutta at their own expense,
although the government would cover the costs for the poor. Non-British Europeans were also placed
under the jurisdiction of local fozdari adalats, alongside Indians, which was a step toward ensuring more
equal treatment. However, the 1787 scheme marked a setback in civil justice, as it undermined the
separation of powers achieved in 1781 by merging judicial and executive functions. This compromise
favored the needs of revenue collection over independent justice.

Re-organisation of the Criminal Judicature​

In 1790, Cornwallis took significant steps to reform criminal law and justice in the mofussil. The system
had long been plagued by defects: serious crimes were often committed without punishment, and a
general sense of insecurity prevailed. Jails were overcrowded, and corruption was widespread in the
courts. This led to the guilty escaping justice while innocent people suffered. Shore described the system
as a “mere system of rapine and plunder.” The ineffective administration of criminal justice was
undermining society, creating an urgent need for reform.

Degradation of Justice​
The administration of criminal justice was previously left to Muslim law officers, with mofussil fozdari
adalats manned by kazis, muftis, and moulvies, under the nominal control of the Governor-General and
Council. The Sadar Nizamat Adalat, presided over by Reza Khan, controlled the entire criminal
judicature, but its authority was unchecked, with arbitrary sentences passed and no real oversight from the
Government. Although magistrates were given limited powers to punish petty offenses, the majority of
trials were still handled by the Muslim law officers in poorly organized adalats. These officers were
poorly paid, often months behind in salary, and lacked job security, which encouraged corruption. As a
result, judges accepted bribes, leading to miscarriages of justice, where criminals could escape
punishment and innocent people suffered. The mofussil adalats were given excessive power, with little
supervision. Once a case was handed over to them, they had full control over the trial, including the
length of custody, witness summoning, and evidence recording. The Sadar Nizamat Adalat had limited
oversight due to geographical distance, allowing these adalats to manipulate cases and pervert justice
without fear of detection. This led to widespread injustice and corruption.

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Criminal Proceedings Tardy and Dilatory​
The prompt execution of law is essential in criminal justice to deter crime, but criminal proceedings
during this time were slow and inefficient. Mofussil adalats often took a long time to resolve cases,
sometimes due to workload, difficulties in procuring witnesses, or the negligence and corruption of
judges. In some cases, prisoners languished in jail for years without trial—one prisoner was held for ten
years on a murder charge without being sentenced. Even the Sadar Nizamat Adalat, responsible for
overseeing these cases, was also plagued by delays and inefficiency, with cases sometimes pending for
years. These delays led to many issues. Prosecutors and witnesses grew frustrated and abandoned cases,
while the adalats sometimes intentionally prolonged trials to discourage prosecution. Evidence was lost
over time, making convictions difficult. Prisoners, often kept in overcrowded and unsanitary conditions,
suffered long periods of imprisonment without trial. Even if acquitted, they faced severe consequences,
including loss of wealth, reputation, and sometimes their lives. The long delay between crime and
punishment weakened the deterrent effect of justice, allowing crime to flourish and undermining the
effectiveness of the legal system.

Punishments Awarded​
In many cases, the punishments given to the accused were inconsistent and disproportionate to the offense
committed. There was no clear standard for sentencing, and the severity of punishment largely depended
on the judge's character, leading to widely varying outcomes—some excessively harsh, others absurdly
lenient. For serious crimes like murder and robbery, punishments ranged from 39 stripes, imprisonment
for a short period, indefinite imprisonment ("during pleasure"), loss of limbs, or death. Flogging, typically
39 stripes, was often more ceremonial than a real punishment, as it could lead to death if done properly.
Theft could result in the loss of a limb, and perpetual imprisonment was common. The punishment of
"confinement during pleasure" was handed out indiscriminately, with no fixed term, leaving prisoners to
be forgotten in prison, sometimes for life. If released, it was often only through bribery. Some prisoners,
after serving their sentence, had to give security for good behavior to gain freedom, and if they couldn’t,
they remained imprisoned indefinitely. In extreme cases, mutilation of limbs was used as a punishment.

Misapplication of Law​
Murder was often the least punished crime, with many criminals escaping severe penalties due to
corruption and the misapplication of the law. Despite confessions, criminals like dacoits sometimes
received light sentences, such as imprisonment for a few months, while innocent people or those guilty of
lesser crimes faced harsher punishments. This inconsistency in sentencing, where confessions led to more
severe penalties, discouraged truthfulness and encouraged falsehoods. Children, including an 8-year-old,
were wrongfully imprisoned for crimes they couldn’t have committed, highlighting the miscarriage of
justice in the system. Moreover, major crimes, including dacoities and murders, were often committed
with impunity due to the protection provided by zamindars, who were closely connected with criminals.
Some zamindars even took a share of the plunder. This created an environment of lawlessness in Bengal,
Bihar, and Orissa, where criminal activity was rampant, and justice was hindered by the complicity of
powerful figures, making it nearly impossible to apprehend or prosecute offenders.

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Questionnaire Issued​
In 1790, Lord Cornwallis sought feedback from magistrates on the criminal justice system by posing nine
questions regarding the length of time between arrest and sentencing, the punishment for serious crimes
like murder and robbery, the qualifications and pay of officers, the treatment of prisoners, the applicability
of Muslim law, and measures to combat dacoity and improve police efficiency. The replies revealed
deep-rooted issues within the system, including corruption, inefficiency, and widespread abuses that led to
unjust punishments, overcrowded jails, and rampant crime. Cornwallis was convinced that the system was
fundamentally flawed and required radical reform to restore law and order, which were essential for the
country's prosperity. As a result, Cornwallis embarked on a reform agenda that aimed to overhaul both the
structure of criminal courts and aspects of Muslim law. While he cautiously addressed the flaws in the
law, he focused more decisively on reforming the administrative machinery. The most significant change
was the abolition of the Nawab’s role in criminal justice and the transfer of authority to the British East
India Company’s English officers. This anglicized system was designed to ensure quicker, more impartial
trials under government supervision, and Muslim law officers were retained only as advisers to explain
the Islamic legal principles. This reform marked a complete break from previous practices and aimed to
restore efficiency and fairness to the criminal justice system.

Scheme of Criminal Judicature​

Three Limbs​
The reform scheme introduced by Lord Cornwallis consisted of three levels of criminal courts. At the
base were district magistrates, followed by the Courts of Circuit, with the Sadar Nizamat Adalat being the
highest court. The Sadar Nizamat Adalat was moved from Murshidabad to Calcutta, and the Nawab was
stripped of control over it. In its place, the Governor-General and Council members were designated as
judges, supported by Muslim law officers (Kazi and Mufti) who would interpret the law applicable to
each case. The law followed was the Muslim criminal law, updated by regulations from the
Governor-General-in-Council. When cases reached the Sadar Nizamat Adalat, they were first reviewed by
the Muslim law officers to ensure that the proposed verdict aligned with the evidence and law. The final
judgment was then made by the Adalat, which was to meet weekly and maintain a record of its
proceedings. In cases where a prisoner deserved mercy, the Adalat could recommend a pardon or sentence
reduction to the Governor-General-in-Council. This system aimed to streamline the judicial process and
ensure impartiality in criminal trials.

Reorganisation​
Lord Cornwallis recognized that re-organizing the Sadar Nizamat Adalat would be ineffective if the lower
courts remained disordered. As a result, the mofussil fozdari adalats with Muslim law officers were
abolished, and four Courts of Circuit were established in Patna, Calcutta, Murshidabad, and Dacca. Each
court, consisting of two Company’s covenanted servants, was mobile, traveling between districts within
its jurisdiction to try criminal cases, holding two Gaol Deliveries per year. The Courts of Circuit were
assisted by Muslim law officers, Kazi and Mufti, who were granted security of tenure. They proposed the
futwa in each case, and the court passed sentences based on it if it aligned with the law and justice.
However, if the court disagreed with the futwa or the sentence involved death or perpetual imprisonment,
the case was referred to the Sadar Nizamat Adalat for a final decision.

50
Collector’s Functions​
The collector in each district was also designated as the magistrate, holding significant responsibilities for
the success of the new system. It was his job to bring offenders before the Courts of Circuit for trial. The
magistrate would arrest the accused and conduct an inquiry into the alleged crime. If the complaint was
unfounded, the suspect would be discharged. For petty crimes, the magistrate could impose corporal
punishment or up to 15 days’ imprisonment. For more serious crimes, the case was referred to the Court
of Circuit. Until the court’s arrival, the magistrate could either imprison the accused or release them on
bail, except for those suspected of murder, robbery, theft, or housebreaking. Every month, the magistrate
was required to report to the Sadar Nizamat Adalat, detailing the names, dates of arrest, and orders passed
on those apprehended.

Crimes by British Subjects​

In 1787, provisions were made for the arrest of British subjects residing in the mofussil and accused of
crimes. However, the situation improved only in 1793. The Charter Act of 1793, enacted by Parliament,
authorized the Governor-General in Council to appoint justices of the peace from the Company’s
covenanted servants or other British inhabitants. These appointments were to be made under the seal of
the Supreme Court. Justices of the peace were not to sit on any court of Oyer and Terminer unless
specifically called upon. Any conviction by a justice of the peace outside such a court could be appealed
to the Supreme Court through a writ of certiorari within six months.

Inauguration of the New System​

The new criminal judicial system was inaugurated on 1 January 1791, marking a significant overhaul. The
office of the Remembrancer, created during Warren Hastings's regime, was abolished, and the first
meeting of the Sadar Nizamat Adalat was held on 10 January 1791. For the first time, the
Governor-General and members of the Council directly took responsibility for administering criminal
justice in Bengal, Bihar, and Orissa. To attract competent individuals, the salaries of judges and officers
were increased, ensuring that they remained above corruption. The new system was set to cost the
Government an additional Rs 1.39 lakhs, with Cornwallis arguing that withholding the necessary funds
for justice would be bad economy. The new system marked a significant improvement over the previous
one. The Courts of Circuit, with English judges, were expected to handle criminal cases effectively and
impartially, ensuring that under-trials would not languish in jail and that crime would be suppressed. The
structure was designed with checks and balances, where magistrates operated under the control of the
Courts of Circuit, with final decisions on serious cases resting with the Sadar Nizamat Adalat. While the
system worked well initially, issues arose over time, necessitating adjustments in the post-Cornwallis
period.

Further Reforms Upto 1793​

Cornwallis's reforms in criminal justice in 1790 reflected a humane approach. In 1792, the Government
introduced a small daily allowance for prosecutors and witnesses in need, covering their expenses for
attending the Courts of Circuit. This allowed indigent individuals to testify without fear of financial
hardship, addressing the issue of offenders being acquitted due to lack of evidence. The same year,
Cornwallis's Government abolished the practice of attaching the property of accused persons, a legacy of
the Muslim period. To assist those released from prison after serving long terms, the Government decided
to provide a stipend of up to five rupees to help them reintegrate into society and avoid returning to crime.
However, the 1790 system revealed several flaws. The Courts of Circuit, burdened with excessive work,

51
had to deal with minor cases, causing delays in trials and unnecessarily long imprisonments for those
accused of minor crimes. The requirement for witnesses to appear twice—once for the magistrate's
inquiry and again for the trial—was also a burden, especially on the poor. To address these issues, the
Government increased the powers of the magistrates in 1792, allowing them to handle petty theft cases
without aggravating circumstances. They were also authorized to impose corporal punishment (up to 30
lashes) or a maximum of one month’s imprisonment. These reforms aimed to ease the pressure on the
Courts of Circuit while ensuring more timely justice for minor offenses.

Defects of the Scheme of 1787: Need for a Change​

In 1793, Lord Cornwallis introduced a significant judicial reform, which is considered a milestone in
Indian legal history. The reform sought to address the flaws of the previous system, particularly the fusion
of judicial and revenue functions under the collector. Prior to Cornwallis's reforms, the collector wielded
vast powers, acting as both the revenue administrator and judicial authority. This concentration of power
often led to abuses, as there were no effective checks on the collector's actions. The system prioritized
revenue collection over justice, and the collector's role as a judge in matters related to land revenue
disputes was seen as inherently flawed. Cornwallis recognized the dangers of such a system, where the
same individual was responsible for both collecting revenue and adjudicating disputes, often resulting in
biased judgments and oppression, particularly towards the ryots (peasants). The lack of an impartial
judicial system led to a significant loss of public trust in the administration of justice. Cornwallis’s
reforms aimed to correct these issues by separating judicial functions from revenue collection. He
proposed that the responsibility for deciding revenue-related cases should be transferred to the courts,
which were disinterested in the collection of revenue and could therefore act impartially. Additionally,
Cornwallis recommended that courts be empowered to punish executive officers for any abuse of power,
thus ensuring that officers could not commit oppression with impunity. This step was vital in restoring
confidence in the judicial system and providing security to individuals regarding their property and
personal safety. Cornwallis believed that the prosperity of the country depended on the happiness and
security of its people. A sound judicial system, where laws were enforced equitably, was essential for the
long-term stability of both the government and the economy. Overall, Cornwallis's 1793 judicial reform
marked a break from the past, establishing principles that would later form the foundation of a more just
and equitable legal system in India. By removing the revenue officer from the judicial process, Cornwallis
aimed to create a system that protected the rights of individuals, encouraged agricultural growth, and
promoted general welfare.

Judicial Scheme of 1793​

The Scheme of 1793, introduced by Lord Cornwallis, aimed to create a more impartial and efficient
judicial system in India. The key principle was the separation of executive and judicial powers. The
collector, who previously held both executive and judicial powers, was stripped of judicial authority in
civil and revenue matters. This was to prevent conflicts of interest and ensure that those administering
justice were dedicated solely to that role, with integrity and ability. The judiciary was given the power to
review the actions of executive officers, holding them accountable for any misuse or abuse of power.
Moreover, the government itself was required to abide by court decisions when involved in property
disputes, reinforcing the idea that no one, not even the government, was above the law. Cornwallis's
reforms aimed to protect individuals from exploitation by government officers and ensure justice for all.
The broader goal was to promote public welfare and prosperity by creating a system that protected private
rights, reduced oppression, and ensured fairness in the administration of justice.

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Separation of Executive and Judiciary​
Cornwallis, recognizing the harmful effects of the union of executive and judicial functions under the
Scheme of 1787, sought to separate these powers. This policy was implemented through Regulation II of
1793, which abolished the mal adalats and transferred the cases previously handled there to the mofussil
diwani adalats. The collector's role was now limited strictly to revenue collection, and the power to
administer civil justice was removed from them. Instead, civil and revenue cases were transferred to the
diwani adalats, which were restructured to handle these matters. This shift marked a significant break
from the previous policy, which had allowed collectors to handle revenue cases. By taking away their
judicial powers, Cornwallis effectively made collectors administrative officers, marking a clear distinction
between executive and judicial functions.

Executive Subjected to Judicial Control​

Section X of Regulation III introduced a significant reform by making collectors and all executive
officials accountable to the diwani adalats for their official acts. These officers could be held personally
liable and required to pay damages to those harmed by their violations of the Regulations. This was a
radical shift from past practices. Before this, the government had numerous officers dealing with the
public, and there was often the risk of these officers exploiting their positions for personal gain by
violating the law. If an officer committed an oppressive act, the affected individual had limited recourse,
typically through uncertain and slow petitions sent to the government in Calcutta. These petitions, when
returned to the collector for investigation, lacked impartiality, especially if the complaint was against the
collector or his subordinates. Even if the officer was reprimanded or dismissed, this rarely provided any
real satisfaction or protection against future abuses. By making officers, including collectors, subject to
judicial oversight and holding them personally liable for any damages, Cornwallis sought to dismantle the
idea that officers were above the law. This measure aimed to prevent oppressive actions and ensured that
officers would be more likely to follow the Regulations strictly. It marked a pivotal step in establishing
the rule of law, safeguarding the rights of individuals, and ensuring that government officers adhered to
legal standards.

Suits against Government​

Not only this, Cornwallis even advocated the principle: “Where Government is a party with its subjects
regarding property, it should submit its rights to be tried through the medium of its officers in the courts
of justice.” He, therefore, conferred on the people the privilege of bringing suits in the diwani adalats
against the government in case they felt aggrieved or injured under the Regulations. All suits between
government and individuals were, therefore, to be decided by the diwani adalats in the same manner as
suits between private individuals.29 This would “ensure to the people,” as far as practiceable, “the
uninterrupted enjoyment of the inestimable benefit of good laws duly administered.”

British Subjects and the Company’s Adalats​

The British subjects, mostly merchants and traders, lived in the interior of Bengal, Bihar, and Orissa for
commercial reasons, and could easily recover claims from native inhabitants through local diwani adalats.
However, Indian inhabitants had no such means to seek redress against British subjects, as their cases
could only be filed in the Supreme Court in Calcutta. This created an inequitable situation where Indians
were unable to afford the time and expenses of pursuing claims in a distant court. Cornwallis recognized
this injustice, stating it was both unfair and unwise to make it difficult for the weak (Indians) to seek
redress while allowing the strong (British subjects) to do so easily.

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To address this, Cornwallis empowered the diwani adalats to require British subjects living more than 10
miles from Calcutta to execute a bond agreeing to be amenable to the adalats for civil suits involving up
to 500 rupees. If a British subject was the plaintiff, they too had to execute a bond agreeing to abide by
the adalat's jurisdiction. Non-British Europeans outside Calcutta were already subject to the mofussil
diwani adalats. While this measure helped safeguard Indians against British oppression, it had limited
effectiveness, as claims exceeding 500 rupees still had to be filed in the Supreme Court.

Diwani Adalats Reorganised​

The mofussil diwani adalats under the collectors had been ineffective. Cornwallis believed that good laws
could only protect rights and property if courts operated impartially. To achieve this, he separated the
adalats from the executive and established a new judicial structure through Regulation III of 1793. Diwani
adalats were set up in each district and in Patna, Murshidabad, and Dacca, overseen by a civil servant.
They handled civil and revenue cases but not criminal ones. The reforms ensured that orders were made
in open court, judges couldn’t correspond with parties, and parties could submit written representations.
Regulation IV set rules for case procedures with a 12-year limitation period for claims.

Courts of Appeal​
A sound judicial system requires provisions for appeals to higher courts to correct unjust or erroneous
decisions and ensure uniformity in law. The Scheme of 1793 addressed this need by creating appellate
courts between the Sadar Diwani Adalat and the mofussil adalats. Before 1793, appeals from the diwani
adalats could only go to the Sadar Diwani Adalat in Calcutta for cases over Rs 1,000, but this system was
impractical due to long journeys and high expenses. Many poor litigants were unable to appeal, even
when they felt wronged. To remedy this, Regulation V established four courts of appeal in Patna, Dacca,
Calcutta, and Murshidabad. These courts would hear appeals from the mofussil diwani adalats, supervise
their functioning, and address corruption complaints. Cases could be appealed to these courts regardless
of their value, with a further appeal to the Sadar Diwani Adalat for cases over Rs 1,000. The appellate
courts aimed to ensure justice, protect rights, and inspire confidence in the judicial system. The judges
were selected for their integrity, ability, and knowledge of local customs.

Sadar Diwani Adalat​

The highest court in the judicial hierarchy was the Sadar Diwani Adalat, composed of the
Governor-General and Council members as judges. It heard appeals from the courts of appeal in cases
involving more than Rs 1,000, with its decisions being final, except for cases valued at £5,000 or more,
which could be appealed to the King-in-Council. The Sadar Diwani Adalat also had supervisory functions
over lower adalats, ensuring they operated impartially and efficiently. It could receive original suits, direct
Provincial Courts of Appeal to handle cases, and investigate charges of corruption against judges. If a
judge was found guilty, the Governor-General could remove or suspend them. Regulation VI of 1793
established procedural rules for the proper functioning of the Sadar Diwani Adalat.

Subordinate Civil Judicature​

Before the 1793 reforms, all judicial work in districts was handled by a single mofussil diwani adalat,
leading to difficulties. Parties and witnesses had to travel long distances, incurring expenses and delays,
which often resulted in denial of justice for many. The district adalat was overloaded with small cases,
delaying more important matters. To address this, Regulation XIII authorized the mofussil adalat to
delegate cases involving money or property up to Rs 200 to a register, whose decrees were valid only

54
when countersigned by the judge. Regulation XL introduced munsiffs, local honorary judges appointed to
handle cases up to Rs 50. They helped bring justice closer to the people, but their lack of salary made
them vulnerable to corruption. Appeals from munsiffs’ decisions went first to the district adalat, then to
the Provincial Court of Appeal. The Sadar Diwani Adalat could remove munsiffs for corruption or
negligence.

Position of Indians​
In the 1793 Scheme, the highest judicial position an Indian could hold was that of munsiff, chosen from
landholders and farmers. This was inconsistent with the Scheme’s goal of separating judicial powers from
revenue officials, as it allowed landowners, who were also revenue collectors, to have judicial authority.
The government likely made this choice to strengthen zamindars and ensure timely revenue collection,
but merging landholding with judicial functions was problematic for fairness in justice. Additionally, the
Scheme provided for appointing ameens, junior to munsiffs, to handle smaller cases. Ameens could try
suits up to Rs 50, but could only act when referred by the mofussil adalat. The system also allowed for the
appointment of arbitrators, chosen by both parties to resolve disputes, whose decisions could only be
overturned for corruption or bias. The goal was to ensure no person had to travel more than ten miles for
justice.

Court Fees Abolished​

To make justice more accessible, Cornwallis abolished court fees in 1793. Before this, fees ranging from
2% to 5% of the claim value made litigation costly, with additional expenses for lawyers and travel,
preventing many from seeking justice. Court fees were intended to discourage unnecessary lawsuits, but
Cornwallis found they were not effective, as the backlog of cases was due to inefficiency, not
[Link] believed the fees were a tax that denied justice to the poor. He argued that
abolishing them would not lead to more lawsuits but would allow all people, rich and poor, access to
justice. By removing the financial burden, he hoped that judges, now fully dedicated to their roles, would
resolve cases more quickly and impartially.

Criminal Judicature​
The criminal judicature scheme of 1790 was largely maintained in 1793, with a few adjustments to ensure
coordination between civil and criminal courts. Regulation IX of 1793 modified the earlier scheme in the
following ways: (1) The magisterial powers previously held by collectors were transferred to the judges of
the mofussil diwani adalats, aligning with the 1793 policy of limiting collectors to executive roles. (2)
Magistrates were now authorized to punish minor offences with up to 15 days of imprisonment or a fine
of up to Rs 100. (3) The Courts of Circuit, established in 1790, and the Provincial Courts of Appeal, set
up in 1793, were merged into four Courts of Appeal and Circuit. Each court consisted of three English
judges, who would divide into two divisions for circuits. After completing the circuits, all three judges
would reconvene to hear appeals from the mofussil diwani adalats.

Legal Profession​
In 1793, Cornwallis introduced Regulation VII, which created and organized the legal profession of
vakeels in a structured and regulated manner. Before this, the legal system was inefficient, with suitors
either pleading their own cases or relying on unqualified vakeels. Many vakeels had little knowledge of
law and procedure, lacked integrity, and often prolonged litigation for financial gain. Cornwallis
recognized the need for a professional and educated legal profession to ensure effective administration of

55
justice. The regulation required that only qualified individuals with good character and knowledge of
Hindu and Mohammedan law could become vakeels. They had to take an oath of duty and could be
suspended or dismissed for misconduct. Vakeels were to charge moderate fees, and a schedule of
authorized fees was laid out. They were prohibited from demanding extra money and could face
prosecution for delaying cases for personal gain. To protect clients, fees were to be collected through the
courts, with the defeated party responsible for paying them as part of the costs of the case. Cornwallis
hoped that this reform would ensure that justice was accessible and impartial, fostering trust in the legal
system. This step was crucial in promoting effective justice in the Company's courts.

Native Law Officers​

Since 1772, native law officers such as Pundits, Kazis, and Muftis played a crucial role in interpreting
Hindu and Mohammedan laws in the courts. The Scheme of 1793 continued this practice, recognizing the
significant contribution of these officers to the judicial system. To improve the integrity and effectiveness
of the judicial process, specific rules were implemented to ensure that these officers were well-versed in
the laws, of high moral character, and secured in their positions. Regulation XII of 1793 mandated that
native law officers be appointed by the Governor-General-in-Council, based on their expertise and
integrity. They were required to take an oath upon appointment and were given job security, with
dismissal only possible for reasons such as incapacity, misconduct, or serious moral failings. Disciplinary
action could be initiated by the court where the officer was assigned, but appeals could be made to the
Sadar Diwani Adalat. Ultimately, the Governor-General-in-Council held the final authority in such
matters. This regulation aimed to enhance the professionalism and accountability of the judicial
administration.

Legislative Methods and the Form of Regulations​

Before 1793, the regulations in Bengal, Bihar, and Orissa were poorly organized and difficult to access.
Many were in manuscript form, and some were lost in government archives. This lack of accessibility
meant that the public, government officers, and even lawyers could not easily reference or understand the
laws. Cornwallis recognized the need for a formal system to improve the clarity and accessibility of
regulations, ensuring that they were more easily understood and applied. To address these issues,
Cornwallis introduced Regulation XLI, which established a more structured approach to lawmaking.
Regulations were required to have clear titles, preambles explaining their purpose, and a formal structure
with numbered sections and clauses. At the end of each year, regulations were compiled into volumes,
indexed, and translated into Persian and Bengali for easier access by the public. This reform aimed to
make the law more transparent, accessible, and effective in ensuring justice.

Cornwallis vs Hastings​
The Scheme of 1793, introduced by Cornwallis, was the culmination of the process initiated by Warren
Hastings in 1772. Hastings had worked to establish the Company's sovereignty in the Diwani territory,
assuming full responsibility for governance and abolishing the dual government system introduced by
Clive in 1765. Cornwallis built upon this foundation, completing the separation of civil and criminal
justice systems and reinforcing judicial control over executive functions. Cornwallis took the next step by
fully separating revenue and judicial functions, a reform only partially implemented by Hastings. He
transferred the decision of revenue cases to the adalats, marking a more progressive step. Cornwallis also
introduced the principle of ‘sovereignty of law’ in India, subjecting the executive to judicial oversight for

56
the first time. This principle became the cornerstone of the Indian judicial and administrative systems,
creating a lasting legacy in governance.

Defects​
Cornwallis left India immediately after establishing the new system of judicature in 1793. He did not stay
to see the scheme in actual operation. The responsibility to work the scheme fell on Shore1 who
succeeded Cornwallis. Shore started his career as the Governor-General with a profound respect for the
Cornwallis system, his initial reaction being that “the judicial system proceeds well. I am satisfied that his
Lordship’s plan was solid, wise and proved beneficial to the country.” In the meanwhile, the Court of
Directors also accorded their “strong and flattering approbation” of the arrangements adopted in 1793.

Accumulation of Arrears in Adalats​

Despite Cornwallis' carefully planned judicial system, it faced significant challenges. One major issue
was the overwhelming volume of litigation in the civil courts, which led to an accumulation of cases and
immense delays. For instance, in Burdwan in 1795, the district adalat had nearly 30,000 pending suits,
with the judge only able to resolve about ten cases a day. This backlog meant that justice could not be
delivered in a reasonable timeframe, ultimately undermining the system's purpose. Similar delays
occurred throughout Bengal, Bihar, and Orissa, which hindered the provision of impartial justice
Cornwallis had intended. Additionally, the Scheme of 1793 had assigned revenue dispute resolution to the
diwani adalats, which only increased their workload. This further delayed the adjudication of cases,
particularly those concerning zamindars' revenue claims against tenants. While the government could
quickly collect its dues through land sales, zamindars had to rely on the slow adalat process to recover
dues from tenants, often facing the risk of their lands being sold before their cases were heard. These
delays clogged the judicial system, affecting both government revenue collection and private claims,
prompting calls for reform.

Faulty Procedure​
The best solution to the growing backlog of cases in the Cornwallis judicial system would have been to
increase the number of adalats, which would have helped alleviate the burden on the existing courts.
However, the Scheme of 1793, despite its well-intended goal of providing accessible justice, had several
structural flaws. In Bengal, Bihar, and Orissa, only 26 diwani adalats were established, and the
jurisdiction of lower courts like munsiffs and registers was limited. These lower courts could not finalize
matters without the diwani judge’s countersignature, further increasing the workload on the adalats.
Additionally, the system allowed two appeals for every case, which compounded the burden on the courts,
particularly as they had to also deal with revenue disputes. Despite this, the government was reluctant to
establish more courts, believing that the existing ones would suffice once the system became fully
operational. The government’s assumption that the backlog was a temporary issue, which would resolve
once the system settled down, proved to be naive. Prior to 1793, judicial work had been less systematic,
with many disputes being resolved informally or through summary methods by the collector. After the
1793 reforms, the courts became more accessible to the public, and with the abolition of court fees, even
the poor could file suits. This led to a surge in litigation, adding to the already heavy workload. The
decision to not expand the number of courts resulted in continued congestion, and while minor
adjustments were considered, the Cornwallis system failed to address the fundamental issue of inadequate
judicial infrastructure.

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 6.2: JUDICIAL REFORMS OF LORD WILLIAM BENTINCK

Lord William Bentinck​

The Governor-Generalship of Lord William Bentinck, extending from July, 1828 to March 1835, forms a
notable period in the Legal History of India. He introduced a number of innovations and initiated new
policies in the sphere of judicature and his administration stands second only to that of Cornwallis from
the point of view of its significance in Indian Legal History.

Creation of Another Sadar Adalat​

Background​
In 1815, Lord Hastings suggested setting up a separate Sadar Adalat for the Western territory, as people
had to travel over 1,000 miles to Calcutta to file appeals. The long distance increased costs, caused
hardship, and forced people to adjust to different climates, languages, and customs. Hastings
acknowledged concerns about legal diversity but argued that such diversity already existed, as the
Western Provinces followed different laws. Despite his reasoning, the proposal was not acted upon. Later,
Lord Bentinck revived the idea, stressing the same issues—long distances, high costs, delays, and
inaccessibility of justice for people in the Western areas. Appeals took years, and in criminal cases, delays
left prisoners in jail for months or even years. To fix this, Bentinck's government passed Regulation VI of
1831, establishing a Sadar Diwani Adalat and Sadar Nizamat Adalat at Allahabad from 1 January 1832.
These courts served the Banaras Province and Ceded and Conquered Provinces, including Meerut,
Saharanpur, Muzaffarnagar, and Bulandshahar, making justice more accessible in the region.

Reorganization of Criminal Judicature​

Drawbacks of Cornwallis Scheme​
The Cornwallis criminal judicature system, in operation for nearly 40 years, proved deeply flawed.
Despite minor adjustments, it failed to ensure speedy trials, leading Bentinck to push for a complete
overhaul. The Circuit Courts, central to this system, were ineffective and seen as unfit for delivering
quick, affordable justice. Bentinck criticized them as places for unpromising officials and highlighted
severe delays in trials, especially in gaol deliveries. Witnesses were summoned all at once, forced to stay
away from families and livelihoods for extended periods. Prisoners—whether guilty or
innocent—suffered long detentions without trial. Cases requiring references to the Sadar Nizamat Adalat
often faced further delays due to slow communication and scheduling, worsening the already slow
process. Each Circuit Court was responsible for a vast area and also served as a civil appellate body,
leading to heavy backlogs. Due to cost concerns, their number couldn’t be increased, and their rotating
nature meant judges couldn’t build local familiarity, making it hard to supervise magistrates or police. The
lack of frequent visits allowed administrative abuses to go unchecked. Since the courts returned after long
gaps, people had little faith in receiving timely justice or protection under the system. The failure to
ensure prompt trials harmed both victims and the wrongly accused, and encouraged continued crime and
litigation.

Commissioners of Revenue and Circuit​

In light of the failures of the Circuit Courts, Bentinck decided to abolish them and introduced the system
of Commissioners of Revenue and Circuit through Regulation I of 1829. These Commissioners replaced
the Circuit Courts and were given control over magistrates, police, collectors, and other revenue officers.
Each was assigned a smaller, more manageable division to improve accessibility and supervision. Bengal

58
Presidency was divided into twenty divisions, each under a Commissioner who was to conduct sessions
and hold at least two gaol deliveries per year, though quarterly sessions were preferred. The Provincial
Courts of Appeal stopped functioning as Circuit Courts but continued handling civil appeals temporarily.
Commissioners also had supervisory roles over revenue collection and were expected to personally verify
records rather than rely solely on reports. Additionally, the Commissioners were made superintendents of
police within their divisions. They were subject to the Sadar Nizamat Adalat in judicial matters and to the
Board of Revenue in revenue duties. Under Regulation II of 1829, decisions of magistrates could now be
appealed to the Commissioners, whose decisions were final and not revisable by the Sadar Nizamat
Adalat. Regulation VI of 1829 further strengthened magistrates' powers, allowing them to impose up to
two years' imprisonment with labour for multiple offences, in addition to corporal punishment.

Defects of the New Plan​

The new plan introduced by Bentinck in 1829 had several advantages over the earlier criminal justice
system. Each Commissioner was allotted a smaller area (2–3 districts), leading to more frequent sessions,
quicker trials, and less delay for undertrial prisoners. Appeals from magistrates to Commissioners became
faster and less costly due to closer proximity. However, the system had a major flaw: each Commissioner
had to manage three major roles—judicial, police, and revenue, resulting in a heavy workload. Judicial
work suffered as revenue duties took priority. Though Cornwallis had earlier separated revenue and
judicial functions, Bentinck combined them again, and this led to poor outcomes. To reduce the burden,
Regulation VII of 1831 empowered district diwani judges (non-magistrates) to act as Sessions Judges
when Commissioners were too busy. These Sessions Judges could conduct criminal trials but had no
control over magistrates or police. Although the change was initially optional, it soon became the norm
because Commissioners couldn’t manage all duties. This shift marked the origin of modern District and
Sessions Courts, where serious cases were tried quickly and monthly gaol deliveries became routine.
Trials happened soon after committal, reducing chances of false evidence and improving conviction rates
due to fresher witness memory.

Collector and Magistrate​

Although a law in 1821 under Lord Hastings allowed collectors to also serve as magistrates, it was rarely
used at first. The British Government had doubts, fearing it would violate the Cornwallis system of 1793
which separated judicial and revenue functions. Collectors were already overburdened with land revenue
work and couldn’t travel or handle magisterial duties effectively. Combining these roles would make both
less efficient. The Government preferred to keep judges, magistrates, and collectors as separate officers,
but financial constraints led the Directors in London to push for combining the roles. They argued that
since most disputes were about land, giving collectors magisterial powers would help settle such matters
faster. During Bentinck’s time, this idea was fully implemented. Collectors across Bengal Presidency
were now given magisterial powers, forming the institution of collector-magistrates. The district judges,
no longer acting as magistrates, became Sessions Judges to try criminal cases. But this combined role
faced strong criticism: the collector-magistrate judged his own actions, especially in revenue disputes,
which was unfair to the people and went against basic legal principles. The combination made the
collector more powerful, but less effective as a magistrate, and often led to neglect of justice and misuse
of power. Still, this flawed system lasted for a long time due to administrative convenience.

59
Indian Participation​
In 1831, under Regulation V, sadar ameens (Indian judicial officers) were given the power to investigate
criminal cases, but they could not commit cases for trial. In 1832, their powers increased—they could
now give sentences in minor cases: up to one month of imprisonment with hard labour and 30 rattans of
corporal punishment. Although Bentinck’s rule was seen as liberal and gave more power to Indian judges,
their magisterial powers remained limited. In the same year, Indians were allowed to act as assessors or
jurors in criminal trials, but the final decision still rested with European judges. This showed that even
under reforms, racial prejudice remained strong in criminal justice.

Reforms of Civil Judicature​

Lord Bentinck’s reforms in the field of civil judicature were more meaningful and effective than his
reforms on the criminal side. Under Lord Cornwallis, Indians had been systematically excluded from
holding any responsible position in civil justice. This led to Indians having a low and subordinate status in
their own country, which demoralised them and damaged their self-confidence. The British judges,
unfamiliar with the Indian language, customs, and traditions, made the judicial system slow, inefficient,
and unpopular. With only a small number of English judges available due to cost and lack of trained
personnel, the courts became overloaded and delayed justice. It became clear that the exclusion of Indians
was not only unjust but also impractical. Over time, the British realised that involving Indians in civil
justice was both necessary and beneficial. Before Bentinck’s time, some Indians had already been given
limited judicial powers. Though small in scope, these Indian judges handled a large portion of litigation
and did so with dedication and ability. The earlier belief held by Cornwallis—that Indians were incapable
of handling responsible duties—was disproved by experience. It became evident that involving Indians in
larger numbers and increasing their powers would not only improve the efficiency of the system but also
reduce costs and bring justice closer to the people. Lord Bentinck continued this shift by supporting
greater Indian involvement in civil judicial administration.

Employing Indians​
The Directors of the East India Company, more objective about the Indian situation than Lord Cornwallis,
had suggested in 1786 that Indians be employed in administration, but Cornwallis ignored this advice.
Over time, the impracticality of excluding Indians became clear, and judicial powers were extended to
them to avoid the collapse of the judicial system. By 1814, Lord Hastings had expanded their
employment, and in 1824, the Directors emphasized the need for more native functionaries in justice
administration, advocating for fair allowances. However, the Government of India did not implement
these recommendations fully, leaving Indian judges underpaid. From 1827, reforms under Lord Bentinck
gained momentum. A circular was issued to district diwani judges, recommending increased numbers,
powers, and salaries for munsiffs. Bentinck fully embraced the Directors’ policy, recognizing that
excluding Indians from administration was unjust and impractical. He introduced more Indians into
judicial and fiscal roles, reorganizing the civil judicature for greater Indian involvement. This policy
culminated in the 87th clause of the Charter Act of 1833, which allowed natives to hold office under the
Company, regardless of religion, birth, or descent.

60
Regulation of 1831​
Bentinck’s new scheme of civil judicature, embodied in the Regulation of 1831, was designed to address
inefficiencies in the district diwani adalats. The preamble stressed the need to employ respectable natives
in important judicial roles. Key provisions of the Regulation included the increase of the munsiff's
jurisdiction to Rs. 300, allowing them to handle suits up to that amount. Munsiffs were to receive a
monthly allowance instead of compensation via suit fees. The creation of new positions, such as the
principal sadar ameens, allowed Indians to handle suits up to Rs. 5,000. Appeals from the munsiffs and
sadar ameens went to the district diwani adalat, with provisions for appeals to the Sadar Diwani Adalat if
needed. The regulation also reorganized the district structure, ensuring that justice was more accessible by
placing munsiffs at the center of districts. Bentinck’s reforms also aimed to streamline judicial procedures
by abolishing the Provincial Courts of Appeal, transferring their functions to district diwani adalats. The
new system simplified and expedited the administration of civil justice by consolidating judicial functions
into two levels. By emphasizing Indian participation in the judicial process, Bentinck’s system reduced
the pressure on English judges, promoting decentralization and economy. The reforms led to improved
efficiency, though the number of judges remained insufficient to address the backlog of cases.
Nevertheless, the system marked a significant move towards Indianisation in the judicial sphere, earning
the approval of the Court of Directors for its practical and cost-effective approach to justice.

Indian Judges and Restrictions​

Though Indian judges were increasingly involved in civil justice under Bentinck’s reforms, they were still
subject to limitations. They had a monetary ceiling on their jurisdiction, with even the principal sadar
ameens restricted to cases of a fixed value. Their jurisdiction was also limited by Regulation V of 1831,
which excluded Americans and British. Additionally, while the reforms increased their authority, Indian
judges did not have the right to final judgment; appeals were always subject to an English judge's review.
Moreover, sadar ameens lost their appellate jurisdiction, which was now confined to cases referred to
them by the district judge. The Bengal Government justified this policy, fearing that granting such powers
to lower Indian judges would undermine the public’s confidence in the judiciary. An important shift
occurred between Cornwallis’ and Bentinck’s judicial systems. In 1793, the district diwani adalat was the
principal court of original jurisdiction, handling most civil suits. Under Bentinck, its role became
primarily appellate, hearing appeals from the lower courts, and its original jurisdiction was limited to
cases over Rs 5,000. The district diwani adalat also gained the power to try criminal cases, forming the
basis of the current District and Sessions Court system. Thus, the main structure of the judiciary was
shaped during Bentinck’s tenure.

Jury System​
Bentinck introduced a jury-like system to involve respectable Indians in the administration of justice.
Under Regulation VI of 1832, European civil judges were given the option to seek assistance from
respectable Indians in one of three ways. First, judges could refer a suit or specific points to a panchayat
of respectable Indians, who would conduct inquiries outside the court and report back. Second, judges
could appoint two or more respectable individuals as assessors to assist with witness examination. Third,
judges could use respectable persons in a jury-like capacity, attending the trial, suggesting points of
inquiry, and delivering a verdict after consultation. However, the selection of any of these methods, the
number of jurors, and how the verdict would be delivered were left to the discretion of the judge. Despite
these innovations, the final decision remained solely with the presiding judge.

61
Adalats and Revenue Cases​
In 1793, Cornwallis separated the functions of revenue collection and revenue case decisions, with the
former handled by the collectors and the latter by the district diwani adalats. In 1794, Shore made slight
modifications to this arrangement. Over time, however, collectors regained some judicial authority in
revenue cases. In 1799, district diwani adalats were required to refer cases related to rent and other
matters, previously handled by the mal adalats, to the collectors for inquiry and report. Regulation V of
1812 mandated the transfer of summary suits against property distraint by the zamindar to the collectors.
By 1817, the obligation to refer rent suits was made discretionary as such referrals were causing delays. In
1822, collectors in the North-Western Provinces were granted powers to decide cases related to irrigation,
boundaries, crops, and other local rights. In 1825, similar powers were granted to collectors in certain
districts of the Bengal Presidency due to the region's unsettled conditions.

Increasing Arrears​
The accumulation of arrears in civil courts caused delays in the disposal of summary and rent suits,
leading to frequent breaches of peace. To speed up the process, collectors were given the authority to
decide these matters through a summary process, although the suits still had to be initiated in civil courts,
with district judges executing the decrees. This system was inefficient, as it clogged the diwani adalats
without resolving the revenue issues. It was suggested that the entire revenue jurisdiction be handed over
to the collectors, who were better positioned to detect unjust demands. To ensure fairness, it was proposed
that district diwani adalats could revise the collector’s decisions if a regular suit was filed, and parties
could also opt for regular suits under Regulation II of 1821. In 1831, Regulation VIII was enacted,
granting collectors the power to handle summary rent claims and making their decisions final, with the
option for revision by district adalats. This Regulation altered Cornwallis’s principle of separating
revenue and judicial powers, though the collector’s authority was still limited. It helped reduce the burden
on civil courts while maintaining the courts' ultimate authority to revise collectors’ decisions. However,
the discretion granted to the collectors, along with the challenges many people faced in accessing regular
suits, led to cases of oppression. In 1834, Regulation XIV expanded the powers of collectors, allowing
them to determine rent-related cases through a summary process, with execution of decrees remaining in
the hands of civil courts. The preamble of the Regulation emphasized the failure of previous provisions to
expedite trials and the necessity of granting revenue officers more authority to address rent disputes
effectively.

Later Changes​
Civil Judicature​
In 1831, Bentinck set the jurisdiction of the principal sadar ameens at Rs 5,000, with suits above this
amount going to the district diwani adalats. However, in 1837, a proposal was made to remove this
monetary limit, allowing the principal sadar ameens to handle civil suits of any value. While the Judges of
the Sadar Diwani Adalat opposed the change, citing concerns about the integrity of Indian judges,
Macaulay supported it, pointing out that Indian judges had successfully handled cases up to Rs 5,000 with
few instances of corruption. He argued that case complexity wasn't determined by monetary value and
that the importance of a case depended on its significance to the parties involved. Macaulay also
highlighted the impracticality of placing European judges in every district. With Macaulay's backing, the
Act of 1837 was passed, allowing principal sadar ameens to try suits of any amount, with appeals going to
the district diwani adalat for suits up to Rs 5,000 and to the Sadar Diwani Adalat for higher amounts.
They could also set aside the summary decisions of collectors. This reform made the principal sadar

62
ameens' court the primary venue for important civil litigation. Additionally, to improve the quality of
justice, the emoluments of Indian judges were increased, ensuring greater efficiency and integrity in the
judiciary.

Revenue Matters​
Act X of 1859 made all revenue cases cognizable by the collectors, completely barring the jurisdiction of
the diwani adalats for such matters. Appeals from the collectors were directed to the Commissioners,
under the oversight of the Board of Revenue. This Act effectively placed complex land law issues in the
hands of collectors, who were executive officers without legal training, leading to significant opposition.
In 1869, Act III reversed this policy, transferring the jurisdiction to civil courts for deciding revenue
matters. The Bengal Tenancy Act of 1885 further empowered civil courts to resolve disputes between
landlords and tenants, while allowing revenue officers limited jurisdiction for disputes arising during the
preparation of records of rights.

Criminal Judicature​
When magisterial functions were assigned to the collectors, it was expected that each district would have
a deputy to ease the workload of the collector-magistrate. However, due to economic considerations, this
was rarely implemented, and in most districts, no deputies were appointed. As a result, the burden on the
collector-magistrate became overwhelming, often leading to neglect of magisterial duties. In 1837, citing
this neglect, Governor-General Lord Auckland sought approval from the Company’s Directors to separate
the two roles. Over the next eight years, this separation was gradually implemented. However, due to low
salaries for magistrates, the position often fell to junior staff, and the quality of justice suffered. The two
offices were reunited in 1859. Keith notes that the union of these powers was advocated by Dalhousie in
1854 and Canning in 1857, reflecting a preference for strong, centralized rule, especially after the Mutiny.

Indians in Criminal Judicature​

The first step toward involving Indians in criminal justice was taken by Lord Hastings in 1821, but this
plan was short-lived as magisterial functions were soon transferred to the collectors. For a while, Indians
had no role in criminal justice, despite repeated advocacy by Company servants for their involvement. In
1843, however, Indians were given a significant role when they were appointed as deputy magistrates.
These deputy magistrates, who could also serve in the Revenue Department as deputy-collectors, were
uncovenanted servants of the Company. This marked the first significant involvement of Indians in
criminal justice, a decision by Lord Ellenborough’s Government driven by the need to strengthen the
police and criminal branches with Indian officers.

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 TOPIC 7.1: CHARTER OF 1833

The Charter Act of 18338 was calculated to increase the number of British residents in the mofussil of
India. Till 1833, the British in India were there only on sufferance. The Act of 1833, for the first time,
unsealed the doors of British India to the British subjects. They thus got a right to live in India and even to
acquire property. This created the prospect of a large number of British people coming to India and
misbehaving or even exploiting India.

Specific Reservation in Favour of the British Subjects​

The Act of 1833 took precautions against potential injustices by requiring the government to protect
natives from insults or harm in their persons, properties, religions, and opinions (Section 85). However, it
also made a specific reservation for British subjects in Section 46, stating that no law could be passed
without the Directors' prior approval that would empower any court, other than the Supreme Court, to
sentence British subjects or their children to death, or abolish such courts. No other exemptions were
granted to British subjects from the judicial process. The Directors, adhering to Section 85's obligation,
urged the Government of India to move toward eliminating discrimination in law. They acknowledged the
possibility of differing laws for various groups, such as property succession and marriage laws, depending
on nationality or religion. Thus, it became crucial for the government to determine the jurisdiction of the
Company's civil courts over British subjects before a large influx occurred.

Macaulay’s Opinion​
Macaulay, the first Law Member of the Government of India under the Charter Act of 1833, believed that
the legal system should be as uniform as possible, without distinctions between people unless absolutely
necessary for efficient administration of justice. He argued that both English and Indian citizens should be
treated equally in civil proceedings and should be amenable to all courts of the Company, except for the
munsiffs. This exception was based on concerns that an Englishman could intimidate a munsiff and
influence the decision unfairly. To eliminate privileges and ensure fairness, Macaulay proposed abolishing
the special right for British residents in the mofussil to appeal directly to the Supreme Court instead of the
Sadar Adalat. Although this privilege was rarely used, it created an unequal and demoralizing atmosphere
in the Company’s courts. Macaulay criticized this as signaling that while the Sadar Adalat was deemed
adequate for Indians, it was not trusted for British subjects. He argued that such distinctions undermined
the credibility of the Company's courts and suggested that all residents, whether Indian or British, should
be subject to the same judicial system. He emphasized that exempting British subjects from the Sadar
Adalat created the impression that Englishmen were entitled to superior justice, a notion that was unjust
and harmful to the overall trust in the legal system.

The Black Act​

The proposed repeal of the privilege for British subjects to appeal directly to the Supreme Court caused an
uproar in Calcutta. The British community, particularly in Calcutta, strongly opposed the measure, even
dubbing it the ‘Black Act.’ Despite the vigorous propaganda and agitation against it, the Government
stood firm in its decision, recognizing the necessity of the change. Interestingly, the opposition came not
from Englishmen in the mofussil, who would be directly impacted by the repeal, but from the English
community in Calcutta, who would remain under the Supreme Court and unaffected by the proposed
measure.

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Establishment of an All India Legislature​
The Act of 1833 significantly altered India's legislative system, focusing on centralizing legislative power.
Previously, each Presidency Government had the authority to make Regulations for its territory, but this
created inconsistency across the Presidencies, especially with limited legislative power over Presidency
Towns due to the Supreme Court's veto. The 1833 Act sought to create a unified, all-India legislature with
authority to make laws for the entire territory under the Company's control. The establishment of a
Legislative Council marked a pivotal moment in the development of Indian law. This Council had the
power to repeal, amend, or alter laws across India and legislate for all persons and courts. However, this
power was restricted in certain areas, such as the Charter Act, the Mutiny Acts, and Acts of Parliament
affecting the Company, its territories, or its people. The Legislative Council's laws were to be subject to
review by the British Parliament, which retained ultimate legislative authority over India. The laws made
by the new Legislative Council were considered more authoritative than the previous Regulations and
were called "Acts of the Government of India," with the same force as Acts of Parliament. The need to
register these Acts with the Supreme Court, which had been a barrier to the effective governance of
Presidency Towns, was eliminated.

Principles for Legislation​

In their communication to the Governor-General regarding the Charter Act of 1833, the Court of
Directors emphasized the importance of a careful and thorough legislative process. They urged that no
law, except in urgent or exceptional circumstances, should be passed without extensive deliberation and
discussion. They pointed out that in England, the lengthy and public process through which laws passed,
including debates and conflicting opinions, acted as a safeguard against hasty or imprudent legislation.
The Directors recommended that every proposed law should follow a structured process within the
Legislative Council, moving through defined stages where it would be carefully discussed at each step.
They also emphasized that the intervals between discussions should be sufficient to allow Council
members time for reflection and inquiry. This advice underscored the importance of thoughtful and
well-considered lawmaking, ensuring that legislation was not rushed but instead subjected to thorough
scrutiny before adoption.

Law Member​
The Charter Act of 1833 introduced significant changes in India's legislative structure by centralizing
power in a new Legislative Council, consisting of the Governor-General and four ordinary members, one
of whom was the Law Member. The Law Member’s role was unique as he was not a Company servant,
unlike the other members, and was tasked solely with legislative functions. His duties were to assist in the
law-making process, ensuring that laws were coherent, fair, and applicable to the diverse Indian
population. Although the Law Member had no veto power, his expertise was crucial for the quality and
validity of the legislation. The Law Member could only participate in legislative meetings and had no
voting rights in non-legislative business, which made his position somewhat subordinate to the other
members of the Council. The creation of the Legislative Council marked the centralization of legislative
authority in Calcutta, effectively removing the law-making powers from the Presidencies of Bombay and
Madras. However, these Presidencies could still propose drafts or projects for laws, which would be
considered by the Governor-General-in-Council. Macaulay defended the removal of the Supreme Court's
veto over legislative matters in the Presidency Towns, arguing that either the Supreme Court should have
a general veto power or the Government’s laws should be binding on all courts. This shift consolidated
the legislative authority under the British Government and established a unified legal system for India,

65
replacing the older, decentralized system where laws and regulations varied from Presidency to
Presidency.

Law Commission​
The Charter Act of 1833 took a pivotal step towards creating a uniform legal system in India by
establishing the Law Commission under Section 53. This was aimed at consolidating and modifying the
scattered, conflicting, and incoherent laws and regulations in the country into a coherent system of codes
applicable to all inhabitants of British India, regardless of their caste, religion, or race. The Law
Commission was tasked with investigating the jurisdiction, powers, and rules of existing courts and police
establishments, and assessing the nature and operation of all laws, both civil and criminal, prevailing in
the country. The Commission was expected to make periodic reports on their findings and suggest
beneficial changes to improve the judicial and legal system. Furthermore, the reports were to be presented
to the British Parliament, highlighting the importance of the Commission’s work in shaping the future
legal landscape of India. The creation of the Law Commission was seen as an essential move towards the
eventual introduction of a unified and standardized system of law, police, and judiciary across India.
While the Commission was still in the process of gathering information and formulating its
recommendations, the government began the process of initiating legislative actions to promote
uniformity in laws. The Law Commission's work was to be divided into three phases: ascertainment,
consolidation, and amendment of laws, with the overarching goal of applying a common legal system to
all people in India, irrespective of their origin. This vision was set in motion through the establishment of
the Law Commission, which would later influence the direction of law reform in India. The Charter Act
of 1833 thus laid the foundation for a comprehensive legal framework, aiming to bridge the gap between
diverse regional laws and practices.

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 TOPIC 8.1: INDIAN COUNCILS ACT, 1861

Legislative Council of 1853​

The Legislative Council established in 1853 gained more power and independence than expected,
particularly with judges involved, leading it to resist control by the Executive Council or the Court of
Directors. Sir Charles Wood, Secretary of State, criticized its growing autonomy, fearing it could become
an independent body or a precursor to a constitutional parliament. To address this, the Indian Councils
Act of 1861 was passed after the British Crown took over governance in 1858. The Act aimed to
reconstitute legislative authority in India, limiting the Council’s independence and ensuring it focused
solely on lawmaking, under tighter control by the Crown.

The Indian Councils Act, 1861​

The Indian Councils Act of 1861 had three main objectives: expanding the Governor-General’s
Legislative Council, restoring legislative powers to the Presidencies of Bombay and Madras, and
establishing legislative bodies in other provinces. The expanded Council included members of the
Governor-General's Council and up to twelve nominated persons, at least half of whom were not
government officials. While not mandated, some Indians were assured representation. The Act addressed
complaints of Bengal’s disproportionate influence in the previous setup. The Council had the authority to
pass laws for all of India, with the Governor-General having veto power over measures related to revenue,
religion, defense, and foreign affairs. The Crown, through the Secretary of State, could disallow laws
passed by the Governor-General. The Governor-General also had the power to issue ordinances in
emergencies. The Council’s role was strictly legislative, with no scope for inquiry into grievances or the
Executive's actions, preventing it from becoming a "Parliament."

Provincial Legislative Councils​

The Indian Councils Act of 1861 restored the Provincial Legislative Councils but kept them subordinate
to the Governor-General to avoid issues faced earlier with the independent functioning of Bombay and
Madras. Provincial Governments needed prior approval from the Government of India before introducing
any Bill, and laws passed required the assent of both the Governor and the Governor-General. The Crown
also retained the power to disallow any law, maintaining strong central control despite a slight relaxation.
Though the arrangement gave the appearance of local legislative authority, the Provincial Councils had no
real deliberative power. They could not raise grievances, seek information, or question the executive.
Their laws were essentially executive orders dressed in legislative form. The Act also empowered the
Governor-General to create legislatures for other provinces, leading to the establishment of councils in
Bengal in 1862 and the United Provinces in 1886.

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 TOPIC 8.2: INDIAN HIGH COURTS ACT, 1861

The Indian High Courts Act of 1861, passed on 6 August 1861, aimed to establish High Courts in India
by abolishing the existing Supreme Courts and Sadar Adalats in the Presidencies of Calcutta, Madras, and
Bombay. The Act authorized the British Crown to issue Letters Patent for setting up these High Courts.
Once a High Court was established, the corresponding Supreme Court, Sadar Diwani Adalat, and Sadar
Nizamat Adalat were abolished, and their records transferred to the new High Court.

Constitution​
Each High Court was to have a Chief Justice and up to fifteen other judges, appointed by the Crown.
Judges could be selected from four categories: (1) barristers with at least five years' experience, (2) civil
servants with ten years’ service and three years as zillah judges, (3) judicial officers with at least five
years’ experience, and (4) pleaders with ten years' practice in a Sadar or High Court. At least one-third of
the judges, including the Chief Justice, had to be barristers, and another one-third had to be from the civil
service. Judges held office at the pleasure of the Crown.

Jurisdiction​
Each High Court was granted broad civil, criminal, admiralty, testamentary, and matrimonial
jurisdiction—both original and appellate—as specified by Her Majesty through letters patent. These
courts inherited all powers of the abolished Supreme Courts and Sadar Adalats, and had authority over
areas beyond Presidency towns unless restricted. The High Courts were also given supervisory powers
over subordinate courts, including rule-making, calling returns, and transferring cases. Her Majesty could
later establish more High Courts, alter jurisdictions, and issue new or amended letters patent within three
years of the High Court’s establishment.

Establishment of High Courts under the Indian High Courts Act, 1861​
The Indian High Courts Act of 1861 did not itself establish the High Courts but authorized the Crown to
do so via letters patent. Its main aim was to merge the Supreme Courts and Sadar Adalats in the three
Presidencies. The Calcutta High Court was established on 1 July 1862, while the Bombay and Madras
High Courts began functioning on 14 and 15 August 1862. The Act allowed the Crown to issue new
charters within three years to address issues in the original ones. As the 1862 Charters had defects, they
were replaced with new ones on 28 December 1865, continuing the same High Courts with necessary
changes.

The Indian High Courts Act, 1861, allowed for the establishment of additional High Courts beyond the
three Presidencies. Her Majesty could issue letters patent to create a High Court for any region not
already under another High Court’s jurisdiction. Judges of these new High Courts had to meet the same
qualifications as those in the existing High Courts. These new courts could be granted the same powers
and jurisdiction as the original High Courts. All relevant provisions of the Act would apply to these
additional High Courts as far as circumstances permitted.

68
High Court of Calcutta​
The Calcutta High Court was made a court of record with original civil and criminal jurisdiction mainly
within Calcutta. It could hear suits involving property or causes of action within the city, or where the
defendant lived or worked there. Its jurisdiction was narrower than the old Supreme Court’s but expanded
in some respects — it could hear revenue cases and matrimonial matters of non-Christians, which the
Supreme Court couldn’t. It also had extraordinary original civil jurisdiction, allowing it to pull up and try
cases from subordinate courts in the interest of justice. In criminal matters, the High Court took over from
the Supreme Court and Sadar Nizamat Adalat. It could try all persons lawfully brought before it and had a
new power to try important cases from outside Calcutta referred by the Advocate-General or authorised
officials. It had appellate, reference, and revision powers over subordinate courts and could transfer
criminal cases between courts. However, it could not hear appeals from its own original criminal trials,
only review them on legal points.

The Calcutta High Court inherited various powers from the Supreme Court, including jurisdiction over
infants, idiots, lunatics, and insolvency cases. It was also made a court of admiralty and vice-admiralty,
holding civil, criminal, and maritime jurisdiction. It could adjudicate prize causes and other maritime
issues, a power previously held by the Supreme Court. The Court also inherited testamentary and intestate
jurisdiction, allowing it to grant probates and letters of administration. For matrimonial matters, its
jurisdiction was limited to Christian subjects, but this didn’t exclude other courts' jurisdiction over cases
involving Native Christians or Armenians. Regarding procedure, the High Court was empowered to make
rules for civil, admiralty, testamentary, intestate, and matrimonial cases, following the Civil Procedure
Code, 1859. For criminal cases, it followed the Criminal Procedure Code, 1861, except for its ordinary
original jurisdiction, where the Supreme Court’s procedures applied. The Charter allowed for appeals to
the Privy Council and provided that the Indian Legislature could amend or alter it as needed.

Allahabad High Court​

Through a Charter issued on 17 March 1866, a High Court was established at Agra for the North-Western
Provinces, replacing the Sadar Diwani Adalat and the Sadar Nizamat Adalat. The Court began
functioning on 11 June 1866 and was later shifted to Allahabad in 1875, becoming the High Court of
Judicature at Allahabad. Its constitution, jurisdiction, powers, and privileges were similar to the Calcutta
High Court, but with two key differences: (1) unlike Calcutta, the Allahabad High Court did not have
ordinary original civil or criminal jurisdiction within the local limits of the town, except for the criminal
jurisdiction over British subjects in the North-Western Provinces; (2) the Allahabad High Court lacked
admiralty and vice-admiralty jurisdiction, as it originated from the Sadar Diwani Adalat and Sadar
Fozdari Adalat, which did not have such powers.

In Oudh, the Judicial Commissioner’s Court was established in 1865, which was later elevated by the
Oudh Civil Courts Act, 1877, becoming the highest court of appeal for Oudh. This Court was further
upgraded by the U.P. Legislature in 1925 with the Oudh Courts Act, creating the Oudh Chief Court.
Post-Independence, the Oudh Chief Court was integrated into the Allahabad High Court on 26 July 1948,
and its territorial jurisdiction was expanded. The Allahabad High Court maintains a bench at Lucknow to
serve the region.

69
The Indian High Courts Act, 1911​
The Indian High Courts Act, 1911 made several key modifications to the Indian High Courts Act, 1861.
First, it raised the ceiling on the number of judges in a High Court. The 1861 Act had set the maximum
number of judges (excluding the Chief Justice) at 15, but the 1911 Act increased this limit to 20, including
the Chief Justice. Second, the Act of 1911 liberalized the power to establish High Courts. While the 1861
Act allowed the establishment of a High Court only in territories not under the jurisdiction of another
High Court, the 1911 Act removed this restriction, enabling the Crown to establish additional High Courts
in any territory within His Majesty's dominions in India, regardless of overlap with another High Court’s
jurisdiction. The 1911 Act also addressed the exhaustion of power to create High Courts, as the creation
of the Allahabad High Court had already used up the powers under the 1861 Act. Additionally, the 1911
Act allowed for the appointment of temporary judges by the Governor-General-in-Council for a
maximum of two years. Finally, the Act specified that the salaries of judges (including temporary judges)
were to be paid from the revenues of India.

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 TOPIC 9: INDIAN COUNCILS ACT, 1892

The Indian Councils Act of 1892 was a pivotal step in the development of the Indian Legislative
Councils, following the Indian Councils Act of 1861. Its primary goal was to enlarge the representation of
public opinion in India by increasing the number of additional and non-official members in both the
Central and Provincial Councils, while maintaining the official majority. The Supreme Legislative
Council could now include between 10 and 16 additional members, and the Provincial Councils could
have a maximum of 20 members in Madras and Bombay, and 15 in other Councils. At least half of the
additional members in Bombay and Madras, and a third in the other Councils, were to be non-officials.

While the Governor-General or the Governor nominated the members, the Act provided some flexibility
in the nomination process, leaving it to the Regulations made by the Governor-General in Council, with
approval from the Secretary of State in Council, to determine the conditions for nominations. Indirect
elections were introduced for some non-official seats. For instance, the Calcutta Chamber of Commerce,
municipalities, and local boards could elect representatives to both the Central and Provincial Councils.
The Act of 1892 also slightly expanded the Councils' functions, allowing them to ask questions and
discuss the budget, although they could not propose resolutions or demand divisions. However, despite
these reforms, the Councils remained far from parliamentary bodies; they were merely legislative bodies
that could discuss immediate legislation within a very restricted scope, unable to engage with broader
issues affecting the governance of India.

71
 TOPIC 10: INDIAN COUNCILS ACT, 1909

The Indian Councils Act of 1909, also known as the Minto-Morley Reforms, marked a significant step
towards creating a more representative legislative system in India. Building on the Indian Councils Act of
1892, it further extended the elective principle, recognizing the need to gradually popularize the
Legislative Councils in order to align them with the growing political sentiments of India. This Act was a
response to the increasing demand for greater Indian participation in governance, particularly following
the rise of political movements and the Indian National Congress.

One of the most important provisions of the Act was the increase in the number of elected representatives
in the Legislative Councils. The Act created elected majorities in Provincial Legislatures, although the
official majority at the Central Legislature was retained. The Central Legislature could now include up to
60 additional members, while the Provincial Councils of Bombay, Madras, Bengal, and United Provinces
could have up to 50 members, and the Punjab Council could have 30 members. The Act also authorized
the Governor-General in Council to establish Legislative Councils in additional provinces as needed.

The composition of these Councils was a mix of nominated and elected members, but the method of
election was left to be determined by Regulations created under the Act. The Secretary of State decided
that the official majority could be abolished in the Provincial Councils, but it was deemed necessary at the
Central level to ensure control. The Regulations introduced under the Act specified that, in the Central
Legislature, 35 members could be nominated by the Governor-General, while the remaining 25 members
would be elected by various bodies, such as the Provincial Councils, landholders, the Mohammedan
community, and Chambers of Commerce in Bombay and Bengal.

The communal representation system was introduced, granting separate representation for Muslims,
which allowed them to elect their own representatives to specific seats reserved for them in both the
Central and Provincial Councils. This marked a key development in India's legislative history, giving rise
to the concept of communal electorates.

The deliberative powers of the Provincial Councils were expanded slightly, allowing members to move
resolutions on the budget and other public matters, though the resolutions had no binding effect. These
were merely recommendatory, and the government retained the power to accept or reject them as it saw
fit. While the Councils were seen as grand inquests that could examine and discuss matters of public
importance, their real power was limited. The executive was irremovable and not responsible to the
Legislatures, effectively preventing the Councils from having any real legislative influence. Additionally,
the Governor-General and the Governors had the power to veto any legislation passed by these bodies,
further curbing their legislative authority.

72
 TOPIC 11: GOVERNMENT OF INDIA ACT, 1919

On 20 August 1917, the British Government declared its policy to gradually increase the participation of
Indians in all branches of administration and to move towards self-governing institutions. This aimed at
the progressive realization of responsible government in India, while keeping India an integral part of the
British Empire. Following this pronouncement, an inquiry was conducted by Edwin S. Montagu and Lord
Chelmsford, which led to the publication of the Report on Indian Constitutional Reform in 1918. The
Government of India Act of 1919 was enacted as a step towards fulfilling this policy. It introduced
dyarchy in the Provinces, dividing matters into ‘transferred’ and ‘reserved’ subjects. The transferred
subjects were to be administered by the Governor with the help of ministers responsible to the elected
Legislative Council. However, the reserved subjects remained under the Governor's control and his
executive council, who was not accountable to the Legislature. The governor could override both the
ministers and the Executive council. At the Centre, no element of responsible government was introduced,
and the Governor-General continued to be accountable to the British Parliament.

Effect of the Act​

The Government of India Act of 1919 had several key effects on the Legislative Councils. Firstly, it
introduced the bi-cameral system in the Indian Legislative Council, creating two chambers. Secondly, it
increased the size of Provincial Legislative Councils, particularly by raising the number of elected
members. Thirdly, the Act replaced indirect elections with direct elections in the Provinces. Lastly, it
expanded the electorate, allowing a larger portion of the population to participate in the elections. In line
with the Montagu-Chelmsford Report, the British government initially favored joint electorates. However,
Muslim delegates opposed this idea, leading the British to support separate electorates for Muslims,
Sikhs, Anglo-Indians, and Indian Christians. This principle of communal representation was retained in
the Government of India Act of 1935.

Members​
The Indian Legislature was restructured under the Government of India Act, 1919, comprising the
Governor-General and two chambers: the Council of State and the Legislative Assembly. The Council of
State was made up of 60 members, with no more than 20 official members. It included 33 elected
members and 27 nominated members, with a balance of official and non-official representation. The
Legislative Assembly had 143 members, with 103 elected and 40 non-elected members, of which 25 were
official and 15 were non-official. For the passage of laws, including financial bills, the consent of both
chambers was required, though only the Legislative Assembly had the power to vote on supply. The
Governor-General had the authority to dissolve either house or extend their duration if necessary. The
number of members of these Legislative Councils was set forth as a schedule to the Act as follows:

73
The Provincial Legislative Councils were also established under the Act, with the number of official
members limited to 20% and at least 70% of the members elected. For example, the Bombay Legislative
Council had 86 elected members, with the remainder appointed by the Governor, including representation
for various communities like the Anglo-Indian, Christian, and laboring classes. These Councils were
intended to introduce direct election to ensure that representatives were more accountable to the electors,
fostering a stronger sense of responsibility. The goal was to increase the involvement of Indians in
governance and make them more accountable for their elected officials.

Defects​
The Government of India Act, 1919 did not define the qualifications for voters, the method of election, or
the constitution of constituencies. These details were to be determined by rules made under the Act. The
majority of elected members were representatives of territorial constituencies, although there were a few
non-territorial constituencies, such as representatives from the Bombay and Calcutta Chambers of
Commerce in the Council of State, and constituencies for specific communities like Deccan and Gujarat
Sardars in the Bombay Legislative Council. This system of non-territorial constituencies also applied to
other provinces, with groups like Taluqdars in the United Provinces Legislative Council having their own
constituencies. The principle of communal representation, established under the Morley-Minto reforms,
was retained and even expanded. Seats were reserved for various religious and social communities, such
as Muslims, Sikhs, Anglo-Indians, and non-Brahmins. Elections to the Council of State covered large
areas, with certain constituencies using plural-member constituencies where electors could vote for
multiple members. In some areas, like Bombay, the cumulative vote system allowed electors to allocate
all their votes to a single candidate or spread them across multiple candidates. The Legislative Assembly
elections, with more limited electoral areas, were divided between urban and rural constituencies. The
electorate grew significantly under the reforms. Voters were generally required to meet property
qualifications, such as paying land revenue or income-tax, or having a minimum rental value for urban
properties. The qualifications varied by region and council. In some areas, like the Bombay Presidency, an
elector could be qualified based on owning a house with a minimum rental value or land with a specific
revenue assessment. Women were also granted the right to vote in all legislatures except for the Council
of State, marking a significant step toward broader suffrage.

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Qualifications​
The Government of India Act, 1919 outlined specific qualifications for both members and electors of
legislative bodies. Members had to be British subjects, at least 25 years old, mentally sound, and free
from criminal convictions. They were also prohibited from serving in more than one legislative body.
Residential restrictions applied in certain provinces like Bombay, Punjab, and Central Provinces, but not
elsewhere. Electors needed to be British subjects, at least 21 years old, and free from criminal charges,
with certain exemptions for subjects of Native States. Plural voting was allowed in special constituencies
such as Chambers of Commerce or Universities. In terms of electoral reforms, the Act marked a
significant expansion of the electorate. It introduced direct elections and greatly increased the number of
elected members, thus making members more accountable to their electors. Provincial Legislatures gained
increased responsibility, with more elected and non-official members. This was facilitated by relaxing the
control of the Secretary of State and the Government of India, giving more authority to local legislative
bodies. Despite these advances, the Act still limited the scope of the Indian Legislature. The
Governor-General held considerable powers, including the ability to prevent or withdraw assent from
Bills, refer them for royal assent, or dissolve the legislative chambers. In emergencies, the
Governor-General could issue ordinances with the force of law for up to six months. These provisions
ensured the Governor-General's authority in maintaining control, particularly in matters affecting the
safety and tranquility of British India.

Powers​
The Provincial Legislative Councils had the power to legislate on matters related to the peace and good
government of the provinces but required Governor-General’s sanction for laws affecting the public debt,
discipline of forces, or central subjects. Any law passed by a Provincial Legislature required assent from
both the Governor and Governor-General to be valid. The Governor had the authority to withhold assent,
return Bills, or reserve them for His Majesty’s pleasure. The Governor could also dissolve the Council or
pass laws related to reserved subjects if deemed necessary. The financial powers of legislative bodies
were enhanced, with the Governor-General-in-Council laying out the annual revenue and expenditure
before the Indian Legislature. The Legislative Assembly could vote on demands for grants, but the
Governor-General could restore grants if refused or reduced. Similarly, Provincial Councils could vote on
finances, but certain matters were exempt, and the Governor-in-Council could restore grants if essential.
The Government of India Act, 1919 did not create federalism but instead delegated powers from the
Centre to the Provinces. The Centre retained the authority to legislate on any matter, and the
Governor-General-in-Council had the final say on whether a matter was central or provincial, keeping the
structure unitary with the Governor-General-in-Council at its core.

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 TOPIC 12.1: GOVERNMENT OF INDIA ACT, 1935

Section 84A of the Government of India Act, 1919 mandated the appointment of a commission to
investigate the development of representative institutions in British India. This led to the establishment of
the Simon Commission in 1927. After its report in 1930, three Round Table Conferences were held in
London from 1930 to 1932, but these efforts ended in a deadlock. Despite this, the British Government
passed the Government of India Act, 1935, which granted substantial autonomy to the Provinces and
introduced responsible government for the first time. The Government of India Act, 1935 marked the
introduction of federalism in India, creating a structure that divided legislative powers between the Centre
and the Provinces. Prior to this, India’s government had been unitary. This Act also introduced
bicameralism at both the Centre and in some Provinces, significantly altering the composition of the
Legislatures.

Central Legislature (Federal Legislature)​

The Central Legislature under the Government of India Act, 1935 was bicameral, consisting of the King
(represented by the Governor-General) and two Houses: the Federal Assembly and the Council of State.
The Council was a permanent body with 260 members, one-third of whom retired every three years. The
Federal Assembly had a maximum duration of five years. It consisted of 156 members from British India
and up to 104 members from Indian States. The British India members were mostly directly elected, with
some reserved seats for scheduled classes, women, and minorities. The Federal Assembly had elected
representatives for General, Sikh, Muhammadan, and reserved categories, with additional seats for
commerce, industry, landholders, and labor. Representatives were indirectly elected by Provincial
Assemblies using proportional representation with a single transferable vote. Bills could originate in
either chamber, except financial bills, which could only start in the Federal Assembly and required the
Governor-General's recommendation. In case of disagreement between the two Chambers, the
Governor-General could summon a joint sitting. A Bill passed by the Central Legislature could be vetoed
by both the Governor-General and the Crown. However, the Central Legislature never functioned under
the provisions of the 1935 Act due to the reluctance of the Indian States to join the federation and the
interruption caused by the Second World War. The Provincial Legislatures, however, were constituted
under the Act, with the first elections held in 1937. Their functioning was later interrupted in 1939 when
the Congress Ministries resigned to push for India's independence. In six Provinces—Madras, Bengal,
United Provinces, Bihar, Bombay, and Assam—the Provincial Legislatures were bicameral, consisting of
a House of Assembly and a Legislary Council. In other Provinces, the Legislature was unicameral. The
composition of each Provincial Assembly varied, continuing communal representation with special
provisions for Muslims and Sikhs in some regions. Dyarchy (a system of dual administration) was
abolished in the Provinces under the 1935 Act.

High Courts under the Government of India Act, 1935​

In 1935, the British Parliament enacted the Government of India Act which sought to remodel the
Constitution of the country on federal lines. The Act contained a number of provisions regulating the
composition, constitution and working of the High Courts. While the Act provided generally that the
jurisdiction of the High Courts would continue to be the same as it had been before its commencement,
nevertheless, it effected certain notable changes in the constitution of the High Courts.

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Number of Judges​
The Indian High Courts Act, 1911 set a maximum limit of 20 judges for each High Court. However, the
Government of India Act, 1935 removed this numerical ceiling and gave the King-in-Council the
authority to determine the number of judges for each High Court, based on the workload and needs of the
court. This change introduced flexibility, allowing the number of judges to be adjusted over time. Under
the 1935 Act, judges of a High Court were appointed by the King through a royal warrant, but the
Governor-General-in-Council had the power to appoint additional judges temporarily for up to two years
in situations such as the temporary incapacity of a judge or Chief Justice, vacancies, or a sudden increase
in the court’s workload. However, the total number of judges in a High Court could not exceed the
maximum limit set by the King-in-Council.

Appointment​
Until 1935, High Court judges in India were appointed by Letters Patent from the Sovereign in England,
serving at His Majesty’s pleasure, with no fixed retirement age but typically retiring at 60. The Act of
Settlement, 1701 in England ensured judicial independence, which was not formally established in India,
where judges could technically be removed by the Crown. However, a convention respecting judicial
independence was followed. The Government of India Act, 1935 formalized judicial independence by
stating that judges would hold office until 60 and could only be removed earlier for misbehavior or
infirmity if recommended by the Privy Council. The Act also addressed the disparity in qualifications,
allowing both barristers and Indian advocates with ten years of standing to qualify for High Court
appointments. It removed the rigid quota system for barristers and civil servants, allowing for more
flexibility in selecting judges, but emphasized a reasonable proportion of UK barristers for British legal
traditions. There was public opposition to appointing civil servants as judges due to their perceived
executive bias. Critics argued that appointing judges from the bar ensured independence, as seen in
England. Despite this, the British Government and the Joint Select Committee defended the inclusion of
civilian judges, valuing their knowledge of Indian conditions and their contribution to the judiciary.

Chief Justice​
The Indian High Courts Act, 1861 mandated that the Chief Justice of a High Court be a barrister. After
1915, it was changed to allow the Chief Justice to be either a barrister or advocate. The Government of
India Act, 1935 removed the restriction, allowing civilian judges to be appointed as Chief Justices, a
move that was logical but unpopular in India, which already opposed the appointment of civil servants as
judges. The Act of 1935 continued the 1951 prohibition on High Courts' original jurisdiction over revenue
matters, a legacy of the historical conflict between the Company’s adalats and the Supreme Court. This
restriction was outdated and had lost its justification over time. The Act of 1935 did not change the
jurisdiction or law administered by the High Courts, nor did it alter the powers of High Court judges. To
preserve judicial independence, it ensured that the salaries, allowances, and pensions of High Court
judges were fixed upon appointment by the King-in-Council and could not be reduced after their
appointment.

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Administrative Control over High Courts​
The Government of India Act, 1935 raised the question of whether administrative control over High
Courts should lie with the Federal or Provincial Government. Before this, the Provincial Government had
control, but the Calcutta High Court had a special arrangement with the Central Government for matters
like court strength and finances, while the Bengal Government covered the extra costs. Two views
emerged: one favored Central control to ensure impartiality by keeping High Courts free from local
political pressures, while the other supported Provincial control, arguing that High Courts, as provincial
institutions, should be managed locally. The Statutory Commission preferred Central control, but the Joint
Select Committee chose Provincial control, believing it strengthened the connection with the subordinate
judiciary. The Act of 1935 adopted Provincial control, with safeguards to maintain judicial independence.
The Governor would assess the High Court’s expenses, which could not be reduced by the legislature, and
discussions about judges' conduct were prohibited. Additionally, the Governor-General or Governors
could reserve any Bill threatening the High Courts’ powers for His Majesty’s assent. This balance ensured
the High Courts remained independent, neither fully federalized nor provincialized.

More High Courts Created​

The Government of India Act, 1935 allowed His Majesty to establish a High Court in any territory of
British India, even if it was within the jurisdiction of another High Court. It also gave the authority to
confer jurisdiction and powers to the newly established High Court, similar to those of existing ones at
that time. Over time, several High Courts were established under this provision. Under the Constitution of
India, each state has its own High Court, although Parliament can create a common High Court for
multiple states. Currently, there are 25 High Courts in India: Allahabad, Andhra Pradesh, Telangana,
Bombay, Calcutta, Chhattisgarh, Gauhati, Gujarat, Himachal Pradesh, Jammu & Kashmir and Ladakh,
Jharkhand, Karnataka, Kerala, Madras, Madhya Pradesh, Meghalaya, Manipur, Orissa, Patna, Punjab and
Haryana, Rajasthan, Sikkim, Tripura, and Uttarakhand. Delhi also has its own High Court, even though it
is a Union Territory, administered by both the Centre and the State Government, but it has not been
granted full statehood.

Federal Court​
The Supreme Court of India today is the result of an evolutionary process that began with the creation of
the Federal Court of India in 1937. The Government of India Act, 1935 aimed to establish a federal
system in India, where powers are distributed between the Centre and the constituent units. A Federal
Court is crucial in a federal system as it interprets and safeguards the Constitution and resolves disputes
between the Centre and states, or among states themselves. To fulfill this role, the Act of 1935 established
the Federal Court, which was formally inaugurated on 1 October 1937. The first three judges of the court
were administered the oath of allegiance by the Viceroy: Sir Maurice Gwyer (Chief Justice), Sir Shah
Muhammad Sulaiman, and M.R. Jayakar. The Court held its first sitting in New Delhi on 6 December
1937.

Limited Jurisdiction​
The Federal Court, established under the Government of India Act, 1935, initially had limited jurisdiction.
It exercised exclusive original jurisdiction in disputes between the Centre and the provinces or between
the provinces themselves. It also had advisory jurisdiction, allowing the Governor-General to refer any
legal question of public importance to the Court. However, the Governor-General was not bound to follow
the Court's opinion. The appellate jurisdiction of the Federal Court was also restricted. Appeals could

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only be made from a judgment, decree, or final order of a High Court if the High Court certified that the
case involved a substantial question of law related to the interpretation of the Act of 1935. If a High Court
refused to grant this certificate, the Federal Court could not hear the appeal, as it lacked the power to grant
special leave to appeal, nor could it question the High Court's refusal. The Federal Court, being a statutory
body, derived its powers strictly from the Act. In cases arising under its original jurisdiction, appeals
could go to the Privy Council. In other matters, appeals to the Privy Council required the leave of the
Federal Court or the King-in-Council. Importantly, the Act left existing appeal routes to the Privy Council
from High Courts intact, except where constitutional interpretation was involved. In such cases, appeals
had to first go to the Federal Court before reaching the Privy Council. Thus, the Federal Court acted as an
intermediary only in constitutional matters. According to Section 212 of the Act, decisions of the Privy
Council were binding.

Judges of the Federal Court​

The Judges of the Federal Court were appointed by His Majesty. They were to remain in office till they
reached the age of 65 years. A Judge could be removed from office for misbehaviour or infirmity of mind
or body. In such an event, a reference was to be made to the Judicial Committee of the Privy Council and
His Majesty was to act on its report.

Span of Life​
Though the Federal Court existed for only twelve years, it played an important role in shaping India’s
federal constitutional jurisprudence. Many of its principles for interpreting the Government of India Act,
1935, were later adopted by the Supreme Court for interpreting the Constitution. Most importantly, the
Federal Court was the direct predecessor of the Supreme Court. On 26 January 1950, it was converted
into the Supreme Court, and all its judges became Supreme Court judges, establishing a clear historical
continuity between the two institutions.​
​
At the time of the Federal Court's establishment, it was expected that its appellate jurisdiction would
eventually expand, reducing the role of the Privy Council. The Government of India Act, 1935, even
empowered the Federal Parliament, with the Governor-General’s approval, to pass laws to that effect.
However, from 1937 onwards, no steps were taken to enlarge the Federal Court’s jurisdiction or limit the
Privy Council’s. As a result, the Federal Court remained underutilized, handling only constitutional cases,
which were few under the 1935 Act. It had no authority over civil or criminal matters, so such appeals
went directly from the High Courts to the Privy Council. Ironically, the creation of the Federal Court
increased appeals to the Privy Council, since its own decisions could be further appealed. Between 1937
and 1947, several efforts to expand the Federal Court’s powers failed, mainly due to the colonial
government's resistance.

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 TOPIC 13: THE ADVOCATES ACT, 1961

In 1961, the Parliament enacted the Advocates Act to amend and consolidate the law relating to legal
practitioners and to provide for the constitution of State Bar Councils and an All-India Bar Council. This
Act implemented the recommendations of the Bar Committee and the Law Commission with certain
modifications. It repealed the Indian Bar Councils Act, 1926, the Legal Practitioners Act, 1879, and other
laws on the subject. The Act, which extends to the whole of India, has undergone several amendments
since its enactment. The Act established an All-India Bar Council for the first time. The Attorney-General
of India and the Solicitor-General of India are its ex-officio members. Additionally, each State Bar
Council elects one member to the Bar Council of India. The Council elects its own Chairman and
Vice-Chairman. The Bar Council of India is entrusted with several important functions, including laying
down standards of professional conduct and etiquette for advocates, safeguarding the rights and interests
of advocates, promoting legal education, and laying down standards of legal education in consultation
with universities and State Bar Councils. It also recognises universities whose law degrees qualify for
enrolment as advocates, supervises and controls State Bar Councils, promotes law reform, and organises
legal aid for the poor. Each State has a State Bar Council, which is an autonomous body. The
Advocate-General of the State is its ex-officio member, and it consists of 15 to 25 elected advocates.
These members are elected for five years using a proportional representation system by means of a single
transferable vote. The State Bar Council has powers to admit persons as advocates, maintain a Roll of
Advocates, entertain and determine cases of professional misconduct, safeguard the rights and interests of
advocates, support law reform, and organise legal aid. Every State Bar Council sends an authenticated
copy of its Roll of Advocates to the Bar Council of India.

Applications for admission as advocates are made to the State Bar Council under whose jurisdiction the
applicant intends to practise. Each State Bar Council has an Enrolment Committee of three elected
members, responsible for deciding on applications. If the Committee proposes to reject an application, it
must seek the opinion of the Bar Council of India. Initially, the Act required the Bar Council of India to
maintain a common roll of advocates, consolidating entries from all State rolls, but this provision was
repealed in 1973. The Bar Council of India regulates the content, syllabus, and duration of law degrees.
Universities are allowed to make their own provisions within these standards. The Bar Council is assisted
in this regard by a Legal Education Committee comprising ten members—five from the Council and five
co-opted members, mainly law teachers. The finances of the Bar Councils come mainly from enrolment
fees, with 20% of the fees paid by each State Bar Council to the Bar Council of India. They may also
receive donations and grants. Bar Councils are empowered to make rules for carrying out their functions.
Rules made by State Bar Councils require approval from the Bar Council of India. The Central
Government also has the power to make rules, which was not originally part of the Act. This power was
introduced in 1964 and has been criticised as undermining the autonomy of the Bar Councils. For
example, in 1968, the Bar Council of Maharashtra strongly objected when the Central Government
allowed enrolment of LL.B. holders without undergoing prescribed training or examination.

To qualify for enrolment, a person must be an Indian citizen, at least 21 years old, and hold an LL.B.
degree from an Indian university. Foreign nationals may also enrol on a reciprocal basis. The Bar Council
of India may recognise foreign law degrees. The Act also extended enrolment privileges to former vakils,
pleaders, mukhtars, and certain others under specific conditions. The Act recognises only one class of
legal practitioners—Advocates. An Advocate enrolled on a State roll has the right to practise in any court

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or tribunal in India, including the Supreme Court. High Courts may make rules governing the practice of
advocates in their jurisdiction. The Bar Council of India can also prescribe rules under Section 49(1)(ah)
regarding the conditions of practice. Advocates are classified into Senior Advocates and other Advocates.
A lawyer may be designated as a Senior Advocate with their consent if the Supreme Court or High Court
considers them deserving based on ability, experience, and standing at the Bar. Senior Advocates are
subject to certain practice restrictions as prescribed by the Bar Council of India. Originally, the Act
retained the dual system of lawyers—Advocates and Attorneys—on the Original Side of the Bombay and
Calcutta High Courts. However, these provisions were abolished from 1 January 1977, thus eliminating
Attorneys as a separate class. Nevertheless, the practice continues informally in these cities due to
long-standing custom.

Thus, the Advocates Act places the regulation, discipline, privileges, and development of the legal
profession in the hands of the profession itself. It achieved the long-standing objective of creating a
unified legal Bar at the national level. The Government of India issued a notification in June 2011
bringing Section 30 of the Act into force from 15 June 2011. This section grants advocates the right to
practise throughout the country, including before any court, tribunal, or authority, thereby reinforcing the
unified nature of the legal profession in India.

Controversy regarding AOR system in the Supreme Court​

After the Gazette notification in June 2011 brought Section 30 of the Advocates Act, 1961 into force, a
controversy arose regarding the continued validity of the Advocate-on-Record (AoR) system in the
Supreme Court. Some advocates argued that Section 30 grants an unqualified substantive right to all
advocates enrolled in various State Bar Councils to practise the profession of law throughout India,
including before the Supreme Court. They contended that this statutory right, coupled with the
fundamental right under Article 19(1)(g) of the Constitution—namely, the right to practise any
profession—cannot be infringed upon or restricted by rules made under the Supreme Court's authority. It
was further argued that under Article 22(1) of the Constitution, every person, including those in custody,
has the right to consult and be defended by a legal practitioner of their choice. According to the
petitioners, the AoR system violates this right by limiting the choice of lawyers who can file and argue
cases in the Supreme Court. This led to the filing of a petition in the Delhi High Court soon after the
Section 30 notification, challenging the Supreme Court Rules, 1966—particularly Rule 6 and Rule 10 of
Order IV—which prescribe that only AoRs can file cases and be given related facilities such as chambers
and registration of clerks. The core issue raised in the petition was that the right to practise under Section
30 was being denied due to these rules, which allegedly discriminate against advocates who are not AoRs.
However, the Delhi High Court dismissed the petition, upholding the validity of the Supreme Court Rules.
Despite this, the matter has now reached the Supreme Court, where the final decision on this
constitutional and statutory conflict is awaited.

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