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M.P, Singh

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 Outlines of
ladiad
Legal &Constitutional
ilistory
Including Elements of Indian Legal System

Eighth Edition

Professor Mahendra P. Singh

Former Professor, Head & Dean, Faculty of Law, University of Delhi

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Second Edition 1971
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 PREFACE

It is a matter of some satisfaction that this book has survived and appeared
year after year even though I could not get an opportunity to revise it since long.
In view of its several shortcomings | generally felt embarrassed when quite a few
of my or other former students of law in different walks of life fondly introduced
themselves to me by telling me that they read this book with benefit as law
students. On every such occasion, besides admitting several shortcomings in the
book, I always resolved to revise it at the earliest so as to at least remove from
it the patent errors. But somehow I could never succeed in creating conditions
required for the realization of my resolve. The conditions could not be created
because I was also entertaining a grand design of legal and constitutional history
of India which I have tried to outline in the introduction to the present edition.
Conversion of such design into concrete shape demanded sustained research for
a considerably long time. Unfortunately I did not get the opportunity for such
a research in spite of my sincere desire and efforts in that direction. Therefore,
even this delayed revision has not gone that far as I would have liked it to go.
Primarily it removes the patent errors and updates information wherever
appropriate. As the students are well satisfied with the information the book
contains, it very well serves their purpose. I hope it will serve it better now than
what it has been doing so far.
The revision would have not been possible but for the persistent persuasion,
encouragement and help from the publishers, especially from Professor Manish
Arora, who has been pursuing the matter with me wherever I have been and did
everything I asked for. I am grateful to him for all the help and for bearing with
me every inconvenience. I am also grateful to several of my former students who
have been asking me from time to time to revise the book in order to make it
more readable and beneficial to them. Amongst them I must express my special
thanks to those who also participated in its revision. Although they were several
whom I beg to forgive me for failing to recall their exact names. Amongst them,
however, I thankfully recall Amit Gupta and Suhash Ratan Joshi for the
contribution of the former to several chapters of the book and of the latter for
checking the first proofs. Above all sympathies and encouragement of family
members, friends and several colleagues have been the highest source of
encouragement in whatever I have been able to do in this book and otherwise.
I express my gratitude to all of them.
Mahendra Pal Singh
18th August, 2006 3/6 Roop Nagar
Delhi 110007
India
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 CONTENTS
* Preface *
Table of Cases ar
¢ Introduction xvii

1
THE EAST INDIA COMPANY AND ITS
EARLY SETTLEMENTS
The East India Company 1
Powers of the Company 1
Royal Commissions 2
Charter of 1661 3
Settlement at Surat 3
Constitution and Functions of the Factory 3
Settlement in Madras 4
irst Stage (1639 to 1665) =
Second Stage (1665 to 1686 5
Third Stage (1686 to 1726)F-Admiralty Court 5
Establishment of Corporation and the Mayor’s Court 6
Mayor’s Court 7
Choultry Court 7
Conclusion 7
Settlement in Bombay 8
First Stage (1668 to 1683) 9
Court of Judicature 9
Court of Conscience 10
Court of Appeals 10
Second Stage (1684-1693) 10
Third Stage (1718 to 1726) 11
Conclusion 12
Settlement in Calcutta 12
Judicial system under the Company 13

2
ESTABLISHMENT OF CROWN’S
COURTS IN INDIA: THE MAYOR’S COURT
Charter of 1726 . 15
Mayor’s Courts 16
Court of Governor and Council 17
Legislative Powers 17
Main Features of the Charter — 17
Mayor’s Courts under the Charter of 1687 and 1726: Comparison 18
Working of the Charter of 1726 19
Charter of 1753 20
Criticism 21
Courts for Natives 23
(1) Madras 23
(2) Calcutta 23
(3) Bombay . 24
Vii
viii Indian Legal & Constitutional History :
3
BEGINNING OF ADALAT
SYSTEM: WARREN HASTINGS
Judicial Pian of 1772
(a) Courts of Original Jurisdiction
|
Mofussil Faujdari Adalat .
Moffussil Diwani Adalat
Small Cause Adalat
(b) Appellate Courts
Sadar Nizamat Adalat
Sadar Diwani Adalat
Judicial Plan of 1774
Judicial Pian of 1780
Diwani Adalat
Working of the Plan of 1780
Appointment of Sir Impey as sole Judge of Sadar Diwani Adalat
Reforms of Sir Impey
Recall of Sir Impey
Administration of Criminal Justice

1
SUPREME COURTS AT CALCUTTA, MADRAS
AND BOMBAY
The Regulating Act, 1773
1. Governor-General and Council
2. Powers and duties of the Council
3. Control of Madras and Bombay
4. Legislative power of the Council
5. The Supreme Court
6. Provision on presents and private trade
7. Jurisdiction of King’s Bench over Governor-General,
Councillor, Judges, Company’s servants and British subjects
The Supreme Court at Calcutta
Composition of the Supreme Court
Jurisdiction of the Supreme Court
1. Civil Jurisdiction
2. Equity Jurisdiction
3. Criminal Jurisdiction
4. Ecclesiastical Jurisdiction
5. Admiralty Jurisdiction
Other Powers of the Supreme Court
Appeals
Working of the Supreme Court
Illustrative Cases
The Act of Settlement of 1781
Changes introduced by the Act
The Supreme Courts at Madras and Bombay
Recorder’s Court
The Supreme Courts
Working of the Supreme Courts
 5
ADALAT SYSTEM UNDER LORD CORNWALLIS
The Judicial Plan of 1787
1. Revenue matters
2. Civil matters
3. Criminal matters
Judicial Plan of 1790
Courts Created under the Plan of 1790
1. Court of District Magistrate
2. Circuit Courts
3. Sadar Nizamat Adalat
The Judicial Plan of 1793
Features of the Scheme of 1793
A. General Features
1. Separation of Executive and Judiciary
2. Control of Judiciary over Executive
3. Governmental Liability
4. British subjects made amenable to Diwan: Adalat
B. Reorganisation of Courts
1. Civil Judiciary
(a) Sadar Diwani Adalat
(b) Provincial Courts of Appeal
(c) Diwani Adalat
(d) Registrar’s Courts
(e) Munsif’s Courts”
(f) Ameen’s Courts
2. Criminal Judiciary
C. Other Reforms
1. Abolition of Court Fee
2. Legal Profession
3. Legislative Reforms
4. Position of Native Law Officers Improved
Evaluation of the Plan of 1793 Va

6
ADALAT SYSTEM AFTER CORNWALLIS
Sir John Shore
(1) Provision for several appeals
(2) Limited powers of lower courts
(3) Lengthy procedure
Changes introduced in 1794
Changes introduced in 1795
Changes introduced in 1797
Adalat System Extended to Benaras
Evaluation of Sir John Shore’s Reforms
Lord Wellesley
1. Restriction on Appeals to Sadar Diwani Adalat
2. Constitution of the Sadar Adalat Changed
The Sadar Adalats
(a) Paucity of time
 (b) Concentration of all powers
(c) Camera Proceedings
Assistant Judge for Diwani Adalat —
Registrar's Jurisdiction enhanced
Appointment of Sadar Arneens
Appointment of Munsifs
Extension of the Adalat system to Oudh and other areas
Lord Cornwallis
Lord Minto
A. Changes in Sadar Diwani Adalat
B. Change in Criminal Judicature
(1) Enhancement the Powers of the Magistrate
(2) Appointment of more Magistrates
C. Original Jurisdiction of the Provincial Court of Appeal created
D. Reference in Revenue Matters
Lord Hastings
1. The delay in the disposal of cases
(a) Breach of Peace
(b) Difficulty for Ryots
(c) Corruption
(d) No execution of decreas
2. Large territiorial jusrisdiction of the courts
3. Limited Criminal Courts
4. Difficulty with English Judges
Reforms of Lord Hastings
Reforms in Civil Judicature
1. Increase in Court Fee
2. Court of Munsits and Sadar Ameens
3. Provincial Courts of Appeal
4. Sadar Diwani Adalat
5. Diwani Adalat
6. Court of Registrar
Arbitration in Land Disputes
Reforms in Criminal Judicature
(1) Enhancement of powers of Magistrates
(2) Conferment of Magisterial Powers on Indians
(3) Magisterial Powers conferred on the Collector
Appraisal of the Reforms of Lord Hastings
Lord Amherst
Reforms of Lord Amherst
1. Position of Sadar Ameens Improved
2. Number of judges in Provincial Court of Appeals Increased
3. Collector authorised to decided revenue disputes
Appraisal of the Reforms of Lord Amherst
Lord William Bentinck
Creation of a Sadar Adalat at Allababad
Reforms in Criminal Judiciary
(i) Abolition of Circuit Court83
(ii) Creation of the Court of Commissioner SSSS
SF
SSSS
SSS
€
Contents

(iii) Creation of the Court of District and Sessions Judge

(iv) Creation of Collector-Magistrates
(v) Increased participation of Indians
Reforms in Civil Judicature
(i) Enhancement in the powers of the Munsifs and Sadar Ameens
(ii) Court of Principal Sadar Ameen
(iii) Judicial Powers of the Registrar abolished
(iv) Abolition of Provincial Court of Appeals and enhancement of
powers of the Diwani Adalat
(v) Introduction of Jury System
Reforms in Revenue matters
Appraisal of the Reforms of Lord William Bentinck
Judicial Reforms made after Bentinck
Civil Judiciary
Criminal Judiciary
Revenue matters
7
JUDICIAL SYSTEM BEYOND BENGAL
Madras — , |
Bombay
Judicial Administration in non-regulation Provinces
8
HIGH COURTS AND THE PRIVY COUNCIL
High Courts |
A. Original jurisdiction
(1) Civil jurisdiction
(2) Criminal jurisdiction
(3) Revenue jurisdiction
(4) Admirality jurisdiction 7
(5) Testamentary and Miscellaneous jurisdiction
B. Appellate jurisdiction
(1) Civil jurisdiction
(2) Criminal jurisdiction
Application of law
Later Changes
Writ Jurisdiction of the High Courts .
The Privy Council
Appeals from India
(1) Appeals as of Right
(2) Appeal by special leave
Working of the Privy Council
Appraisal of the Privy Council
 «ii History
Indian Legal & Constitutional

9
THE LAW AND ITS CODIFICATION
1. Law And The Regulations
(a) Criminal Law
(b) Civit Law
Presidency Towns
Law in Mofussil
2. The Codification of Laws
The Charter Act, 1833
The First Law Commission
The Charter Act, 1853
The Second Law Commission
The Third Law Commission
The Fourth Law Commission
Law reforms since Independence
10
DEVELOPMENT OF PERSONAL LAWS
DURING BRITISH PERIOD
Personal Laws and Legislation
. The cast Disabilities Removal Act, 1850
. The Native Convert Marriage Dissolution Act, 1866
. The Hindu Widows Re-marriage Act, 1856
re
WN. Act Ill of 1872, Act XXX of 1923 and the Arya Marriage
Validation Act, 1937
5. Laws of Wills
6. The Majority Act, 1875 and the Guardian and Wards Act,1890
7. The Hindu Inheritance (Removal of Disabilities) Act, 1928,
the Hindu Law of Inheritance Act, 1928 and the Hindu
Women’s Right to Property Act, 1937
8. Child Marriage Restraint Act, 1929
9. Hindu gains of Learning Act, 1930
10. The Waafs Act, 1913, the Shariyat Act of 1937 and
the Dissolution of Muslim Marriage Act, 1939
11. Other Legislations
Adjudication
(1) Justice, equity and good conscience
(2) Factum valet
(3) Gains of Learning
(4) Debts
(5) Adoption
(6) Theory of Spiritual Benefit
(7) Wills
(8) Stridhana and Hindu Women’s Estate
The legal works on personal laws
Contents xiii

11
RACIAL DISCRIMINATION IN THE
JUDICIAL ADMINISTRATION
Civil Matters 125
Criminal Matters 127
12
MODERN JUDICIARY
The Supreme Court
Original
Appellate
Advisory
The High Courts
Subordinate Courts
Subordinate Civil Courts
State of Uttar Pradesh
Presidency Towns
City Civil Courts
Small Cause Courts
Subordinate Criminal Courts
Nyaya Panchayats
Separation of Judiciary and Executive
13
LEGAL PROFESSION
Early Development
The Legal Practitioners Act, 1879
The Chamier Committee and the Indian Bar Council Act, 1926
The All India Bar Committee, 1951
The Advocate Act, 1961
State Bar Councils
The Bar Council of India

PART II
14
CONSTITUTIONAL HISTORY OF INDIA
The Indian Councils Act, 1861
The Indian Council Act, 1892
The Minto Morley Reforms of 1909
The Government of India Act, 1919
The Central Government
Central Executive
Central Legislature
Provincial Governments
Provincial Executive: The Dyarchy
(i) Absence of collective responsibility
 (ii) Financial Problems
(iii) Non-co-operation of civil servants.
(iv) Mutual interference
(v) Minister’s Office
(vi) Absence of party system
Provincial Legislature
The Government of India Act, 1935
Basic Features of the Federalism
The Structure of the Government
Federal Government
The executive
The Legislature
The Federal Court
The Provincial Government
The Executive
The Legislature
Working of the Act of 1935
Constitutional Developments after the Act of 1935
The Cripps Mission
The Wavell Plan
The Cabinet Mission 1946
The Indian Independence Act, 1947
The making of the Constitution

PART III
ELEMENTS OF INDIAN LEGAL SYSTEM
15
CONCEPT AND SOURCES OF LAW
i. Concept of Law
lil. Law and Morality
ill. Sources of Law
1. Constitution
2. Legislation
3.Precedent
4. Custom
(i) Antiquity
(ii) Reasonableness
(iii) Conformity with Statutory Law
(iv) Observance as of Right
-(v) Consistent with Morality and Public Policy

THE RULE OF LAW IN INDIA

1. The Rule of Law
(i) The Legislature and the Rule of Law
(ii) The Executive and the Rule of Law
(iii) The Criminal Process and the Rule of Law
(iv) The Judiciary and the Legal Profession under the Rule of Law
ll. The Rule of Law in India
Pre-Constitution Position
Post-Constitution Position
© Subject Index
 TABLE OF CASES
A.D.M., Jabalpur v. S. Shukla, AIR 1976 SC 1207 182, 202, 206
Abdul Fata Mohamed Ishaq v. Roosomoy Dhar Chowdhary, 22 IA 76 120
Advocate Gen. of Bengal v. Rannee Surno Moyee Dossee, 9 MLA 387 18, 125
All India Judges Association v. Union of India, (2002) 4 SCC 247 145
All India Judges’ Assn. v. Union of India, AIR 1992 SC 165 140
All India Judges’ Association v. Union of India, (1992) 1 SCC 119 143
All India Judges’ Association v. Union of India, (1993) 4 SCC 288 143
All India Judges’ Association v. Union of India, (2002) 4 SCC 274 144
B.L. Wadhera v. State (NCT of Delhi), AIR 2000 Del 266 154
Balusami v. Balkrishna, AIR 1957 Mad 97 195
Balusu v. Balusu, 26 IA 113 . 122
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 209
Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661 192
Bhagwan Din Dubey v. Maina Bai, MIA 487 123
Bir Partap v. Rajendra Pratap, 12 MIA 137 123
Brij Behari Lal v. High Court of Madhya Pradesh, AIR 1981 SC 894 133
Centre of Legal Research v. Kerala, AIR 1986 SC 2195 3 139
Chandra Mohan v. State of Utta? Pradesh, AIR 1966.SC 1987 133
D.G. Wadhwa v. State of Bihar, AIR 1987 SC 589 208
Din Dayal v. Jagdeep, 4 IA 247 122
Emperor v. Narain, 74 IA 89 202
Emperor v. Tilak, 22 Bom 112 (1897) | 202
Frances Carolie Mullin v. Administrator, Union Territory of Delhi,
AIR 1981 SC 746 208
Girdhari Lal v. Kantoo Lal, 1 IA 132 122
Gokal Chand v. Parvin Kumar, AIR 1952 SC 231 195
Gokul Chand v. Hukam Chand, 48 IA 162 122
Golak Nath v. State of Punjab, AIR 1967 SC 1641 204
Guru Gobind v. Anand Lal, (1870) Bengal IR 15 123
Gwalior Rayon Mills v. Asstt. Comm. 5S.T., AIR 1974 SC 1560 205
Hallet (in re:), (1879) 13 Ch D 712 190
Hamid Hasan v. Banwarilal Roy, AIR 1947 PC 90 = 98
Hoskot v. State of Maharashtra, AIR 1978 SC 1548 208
Hull v. Macknna, 1926 IR 402 101
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 104 209
L.C. Golak Nath v. Punjab, AIR 1967 SC 1643 189
Ibrahim v. Rex, 1914 AC 599 101
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299:
AIR 1173 SC 1461 182, 189, 191, 204, 205, 208
Jaisinghani v. Union of India, AIR 1967 SC 1427 197
Kashinath Dikshita v. India, AIR 1986 SC 2118 132
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 204
Krishna Kumar Narula v. State of Jammu & Kashmir, AIR 1967 SC 1868 191
M.M. Chetty v. Board of Revenue, Madras, (1931) ILR 55 M 137 97
M.P. Sugar Mill v. State of Uttar Pradesh, AIR 1979 SC 621 184
XV
 xVl1 Indian Legal & Constitutional
History

Madazimbamuty v. Lardner Burke, (1968) 5 SA 284: (1969) 1 AC 646 178

Mahabir Prasad Singh v. Jacks Aviation (Pvt.) Ltd., (1999) 1 SCC 37 154
Maneka Gandhi v. Union of India, AIR 1978 SC 597 182, 208
Mathey Ram v. Rawa Chend, 45 IA 41 122
195
Mathura Narain v. Est Naikin, (1880) ILR 4 Bom 545
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 182, 204, 208
Mohandas Issardas v. V.N. Sattanathan, 56 Bom LR 1156 192
Motichand v. Gonga Singh, 20 IA 40 101
Muni Subrat Jain v. State of Haryana, AIR 1977 SC 276 133
Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360 191
Natraja lyer (in re:), (1912) 1 LR 36 M 72 97
Neeraja Chaudhary v. State of Madhya Pradesh, AIR 1984 SC 1099 209
192
Orissa v. S.S. Misra, AIR 1168 SC 647
P. Sambhamurthy v. State of Andhra Pradesh, AIR 1987 SC 663 208
Penugonda Venkataratnam v. Secretary of State for India in Council,
(1929) ILR 53 M 979 97
People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1973 209
Presidential Reference (in re:), AIR 1999 SC 1 140, 207
R.K. Poul v. State of West Bengal, AIR SC 863 206
Rajnarain v. Chairman, Patna Administration Committee, AIR 1954 SC 569 189
Ram Dhan Lal v. Radhe Sham, (1951) SC] 307 195
Ramana Dayaram Shetty v. Internation Airport Authority of India,
AIR 1979 SC 1628 182
Ranchhoddas Atmaram v. Union of India, (1961) 3 SCR 718 192
Regina Gunh (in re:), ILR 40 Cal 290 150
Rudul Sah v. State of Bihar, (1983) 4 SCC 141 209
Ryots of Garabandho v. Zamindar of Parlakimedi, 70 IA 129 (1943-43). 97
S.C. Advocates on Record Assn. v. Union of India, AIR 1994 SC 268 140, 207
S.P. Gupta v. Union of India, AIR 1982 SC 149 207,' 209
Sadanandan v. State of Kerala, AIR 1960 SC 1925 206
Sanjeev Coke Mfg. Co. v. Bharat Cooking Coal Ltd., AIR 1183 SC 231 191
Srinivas v. Narayan, AIR 1154 SC 571 192
State of Bombay v. R.M.D.C., AIR 1957 SC 629 191
State v. Dosso, (1958) 2 Pak SCR 180 178
Subhani v. Nawab, (1940) 68 IA 1 195
Sudarshan Sabha Hazard (Miss), ILR 1 Pat 104 150
Sunil Batra I v. Delhi Administration, (1978) 4 SCC 494 209
Sunil Batra II v. Delhi Administration, AIR 1180 SC 1579 209
Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409 152
Tej Pal Singh v. State of Uttar Pradesh, AIR 1986 SC 1814 133
Thakur Devi v. Raj Balak Ram, 11 IA 139 123
Uganda v. Commissioner of Prisons Ex-parte Motovee,
(1966) Eastern Africa LR 514 178
V. Sudeer v. Bar Council of India, AIR 1999 SC 1167
154
Vyas v. Vyas, 24 Bom 367' | 122
Vinay Chandra Misra (in re:), (1995) 2 SCC 584
152
Wooma Devi v. Gokula Nand, 5 IA 40 122
Zamindarini Mandasa v. Ryots of Mandasa Zamindari, (1932) ILR 56 M 579 97
 INTRODUCTION
From the earliest times of their existence all societies have had law. This is a
self-evident truth which requires no proof. No society, whether human or animal,
can be conceived of without any norms for its organization and operation. While
the biologists are engaged in understanding the laws of animal world social
scientists, especially lawyers, have recorded from the very early times the laws
that have regulated or guided human activity within the society. Among them a
class of legal thinkers in the eighteenth and nineteenth centuries has been
categorized as historical jurists. From the historical evolution of law they have
tried to propound certain universal propositions. For example, Friedrich Carl von
Savigny of Germany from his study of Roman and German laws drew the
conclusion that laws are not made but found which evolve with a society like its
language and the best source of law is custom and not legislation. Similarly Sir
Henry Sumner Maine, the Law Member of the Governor-General’s Council in
India from 1862 to 1869 is known for his several legal propositions of general
application laid down among others in his Ancient Law (1861). He drew special
attention to the legal developments in India, albeit his conclusions about law in
India vis-a-vis the West were not encouraging to us. Besides this category of legal
thinkers legal historians around the world have traced the evolution of law in
different societies from the beginning of those societies or as far in the past as the
history of those societies goes. Definitely the laws in the beginning of the societies
were as simple and rudimentary as were the societies. Laws have grown with the
growth of the societies. This evolutionary process establishes evident relationship
between law and society that as the society changes laws also change even
though law has also been an instrument of social change.
In the present context I am not interested in pursuing the discussion on the
relationship between law and society. My central concern at the moment is to
draw attention towards the fact that all societies have started with some sort of
law and legal system at their beginning and therefore the legal history of that
society must also start from the very beginning of that society. It is sad that the
legal history of India starts from the establishment of the East India Company as
if either the Indian society did not exist until the Company began its trading
activities in this country at the beginning of the seventeenth century or whatever
society existed before had been completely wiped out and a new society was
established. Neither of these facts is historically correct. It is true that in some of
the societies extension of the West was either a beginning of the society or was
xVii
xVill
Indian Legal & Constitutional History

accomplished by completely wiping out the existing societies. This is to some

extent true of the two Americas or of Australia. But this is not true about India
or most of the Asian countries which were thickly populated and had long
established civilizations. India for that matter had one of the most ancient and
flourishing civilizations in the world when the Company came in. It is another
matter that with its hidden design of colonizing this country and using its
diversity for the purpose of creating divisions within it, the Company as proxy
for the British Empire succeeded in taking over its reins. The Company backed
by Empire also did everything possible to project to the people of this country
and the rest of the world as if India did not have any traces of a progressive
society. Among all others, Sir Henry Maine’s entire writing was directed towards
such conclusions in designating India as a non-progressive and static society with
no movement from status to contract. Even the general historians like J.S. Mill
also drew a bleak picture of Indian society while the fact is that India was one
of the richest countries in the world in the seventeenth and eighteenth centuries
and a major partner in world trade until the beginning of the nineteenth century.
The process of such a negative projection of Indian society continued throughout
the British rule in India and every possible step was taken to replace the existing
legal traditions and institutions by the British laws and legal institutions. The
process was accelerated by the introduction of British legal education in India
from 1855 onwards. All this was done so persistently and meticulously that
wiily-nilly the Indian intellectual also became an accomplice in the process and
by the time India became independent in 1947 already its elite was convinced
that the British system was the only way to move forward.
For that reason history of law and legal institutions in this country is studied
from the time of establishment of the Company, which implies either non-
existence of any legal traditions in this country prior to that or their complete
wiping out and replacement by the British traditions. But neither of these
implications is well founded. It has now been established by the Western,
including British, legal scholars such as Duncan Derrett, Robert Lingat and
Werner Menski that India had very well established legal traditions capable of
providing a robust alternative to the dominant Western legal traditions. They
have also pointed out that while these traditions were left undisturbed during the
Muslim rule in India they were deliberately destroyed during the British rule. But
nowhere have they admitted that these traditions were completely wiped out by
the British. On the contrary they have projected them as alternative models and
have argued for their preservation and revival. Besides these opinions and
arguments, it is a fact of history that the British legal traditions and institutions
did not penetrate the entire length, breadth and depth of the Indian society.
Indian states were out of their reach and even in the British India they were
confined to metropolis and big towns which represented only a fraction of the
population, even less than twenty per cent. Out of this small proportion of
population only a tiny fraction was conversant with the British legal traditions or
came in contact with them. The rest of the population remained untouched and
unaffected by them. Thus a big gap and cleavage existed between the reality of
the society and its projected legal system. One could at the best say that the state
and non-state legal systems operated simultaneously with the area of operation
Introduction x1x

of non-state legal system being far bigger and intense than the area of state legal
system. This gap between the state and non-state legal systems which is
primarily the creation of the British rule has not been bridged even after sixty
years of independence. Even today what is projected as our legal system is only
the state legal system. Even this limited state legal system does not operate
exactly on those lines on which we consider it operating, i.e. the British legal
traditions. A lot of indigenous element has seeped into them. We cannot gain any
understanding of this indigenous element by confining our study to the laws and
institutions given to us by the British. Naturally it requires a study of the
indigenous law and legal institutions.
As a student of law when I had my first encounter with legal history in LLM
Part I at Lucknow University, I noted that while we studied the British legal
history from the earliest times known to that island we studied our own legal
history only from the time the Company was established in England. Study of the
British legal history from the very beginning had a perfect logic. If one wants to
understand the British or common law and its institutions one must study their
origin and evolution. The reasons for their coming into existence and the
processes and reasons for changes in them in course of time must be studied. It
was exactly for this reason that Oliver Wendell Holmes spoke in those famous
and often quoted words: “The life of law has not been logic: it has been
experience.” He explained: “The law embodies the story of a nation’s
development through many centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of mathematics. In order to
know what it is, we must know what it has been, and what it tends to become.”
If we had to understand the British law and legal institutions introduced in India
and the techniques for their application and adjustment in accordance with the
changing needs of the society we had to know their history. The University was,
therefore, not wrong in teaching Indian legal history only from the time of the
Company if it proceeded on the assumption that the only notions and institutions
of law that we had in India were those which were given to us by the British and
none else. The Law Commission of India in its famous Fourteenth Report in 1958
and several Indian and foreign scholars around that time argued that the current
Indian legal system was nothing else but the common law system of United
Kingdom and even if it were not so in some respects it had to be developed only
on those lines. Any voices for the return to or development of the indigenous
legal system were silenced. Perhaps the legal community did not have any other
option before it. Therefore, while the Bar Council of India and the universities in
nineteen-sixties considered teaching of legal and constitutional history essential
in the law curriculum, they saw no relevance of pre-British history in
understanding our current legal system. For that reason all universities
introduced the legal and constitutional history of India in the law curriculum
from the time of the entry of the Company onwards. The newly established
Meerut University, where I taught at that time, had made an exception by
incorporating legal history of India from the earliest times for which on the
advice of my head of the department I also wrote a small book for the guidance
of the students. But after a while that university also fell in line with the rest.
 a Indian Legal & Constitutional History
That is how, in short, the legal and constitutional history of India has come to
be what it is in the law curriculum of our universities. In my view this is not only
an incomplete histary but it also-produces a skewed picture of our legal and
constitutional system. It is based on assumptions that do not stand empirical
scrutiny. As I have already noted it is based on the assumptions that either India
did not have any law and legal institutions before the arrival of the Company or
whatever law or legal institutions were there they were completely wiped out by
the British. The former of these assumptions is contrary to proved historical facts
and social logic and the latter is only partially correct. Therefore, much of what
existed before continued to exit during the British rule and has been reemerging
since independence. Our Constitution also gives enough leverage and scope for
their survival and reemergence in as much as it gives enough autonomy to
different regions and people within the country to live by their own laws and
legal institutions. Unlike the British or any other Western legal system we are not
enamoured by the monopoly of the state in the creation of law or by the unitary
system of law. Diversity has been our way of life which we have never
abandoned irrespective of any external or internal pressures. Unity in diversity
in all walks of life is our hallmark. Respect for diversity sustains our unity. This
is as much true of our laws and legal institutions as of other aspects of our life.
In view of that fact if we confine our study only to the state legal system as given
to us by the British, not only we study only a part of our legal system but we also
miss its spirit - Unity in diversity. India is a land of numerous ethnic groups,
religious beliefs, languages and ways of life which nobody ever tried or
succeeded in converting into uniformity. Any conception of uniformity in its
legal system is antithetical to its ethos. Accordingly, teaching of legal and
constitutional history of India as a unitary discipline created by the state is also
against the dominant ethos of India which produces wrong signals in young
minds.
For having a wholesome picture of the Indian legal system as to what it is and
what it ought to be we must have a total picture of its evolution from the earliest
times to the present. Then and then only we can effectively use legal history for
understanding the current legal phenomenon and for giving it appropriate
direction for the future. Of course tracing of such a history of laws and legal
institutions of India is a daunting task but it is worth undertaking. I think it
necessary for the creation of an effective and efficient legal system for the country
which brings justice within the easy reach of everyone of us. Whatever legal
system has been given to us by the British is part of our legal system just as
English language is now one of our many languages. Just as we did not discard
English but rather gave it a prominent place among our languages after our
independence from the British rule, we may continue to give prominent place to
the legal system given to us by the British. But just as English is not the totality
of the linguistic scene of India common law system received from the British is
not the totality of the legal system of India. Having said all this it is regrettable
that I have made no effort whatsoever in the following pages of drawing even an
outline of the historical totality of the Indian legal system. For the moment I can
take consolation simply in the fact that I have attempted to draw attention of the
readers to this aspect of our legal history. I will wait for their reactions before
moving further.
 1
THE EAST INDIA COMPANY AND ITS
EARLY SETTLEMENTS
THE EAST INDIA COMPANY
The First East India Company was incorporated in England under a
Charter granted by Queen Elizabeth on 31st December, 1600. Its official
title was “the Governor and Company of Merchants of London trading
into the East Indies”. It was given the exclusive right of trading in all
parts of Asia, Africa and America beyond the Cape of Good Hope
eastward to the Straits of Magellan. The trading area so defined covered
almost every part of the world except Europe. No other British subject
could trade in this area without obtaining a licence from the Company.
The charter was granted for 14 years and it could be renewed for another
15 years only if it did not prejudicially effect the Crown and its people.
The company was managed by Court of Directors. The members of the
Company in a general meeting, called “the Court”, elected annually a
Governor and ee: -four directors to look after and manage the affairs
of the Company.!
Powers of the Company.—By majority vote the Court could make
any reasonable laws, constitutions, orders and-ordinances as it found
necessary and convenient “for the good government of the said
Company, and of all factors, matters, marines, and other officers,
employed or to be employed in any of their voyages and for the better
advancement and continuance of the said trade and traffic”. For any
violation ef these laws the Court could also provide for such pains,
punishments, and penalties as were deemed necessary. These laws and
penalties were subject to the condition that they had to be “reasonable,
and not contrary or repugnant to the laws, statutes or customs” of
1. For a view that Company was not a private corporation for trading purpose only but a
delegation of royal sovereign political power, see B.S. Chowdhury Studies in Judicial
History of British India, Ch. X.
1
y) Indian Legal & Constitutional History

England. llbert has called these powers of the Company “the germ out of
which the Anglo-Indian codes were ultimately developed”', A number of
Charters granted subsequently (Charters of 1609, 1661, 1668, etc.)
preserved these powers of the Company.
A Second East India Company, to which the Commerce of India was
exclusively granted, was incorporated under a Charter of 5th September,
1698 issued by William III. The two companies were wnited into one in
1709 under an award of Lord Godolphin. The new united company came
to be called “The East India Company.” The Charter of 1698 which
formed the basis of the constitution, powers and functions of the new
Company added only few things to the Charter of 1600. Under
the new Charter the total number of members of the Company
constituted the General Court. The General Court elected annually
twenty-four directors, called the Court of Directors, for the purpose of
managing and directing the affairs of the Company. In addition to the
powers granted under the Charter of 1600, the Charter of 1698 also
provided that subject to the sovereign rights of the Crown the Company
shall have the power to govern its factories and forts. To establish the
accountability of the Company to the Crown the Company was required
to submit annually its accounts to the British Parliament. This
constitution of the Company remained unchanged until the enactment of
the Regulating Act, 1773 discussed below.
In addition to the above-mentioned wide general powers, the —
Company acquired from time to time specific powers from the British
sovereign. Among such powers we may mention the Royal Commissions
and the Charter of 1661.
Royal Commissions.—Within a short time of its creation the
Company realised that the powers in its hands were insufficient to
control the lawlessness and disobedience in respect of its functioning and
operations. Therefore, the Company sought the help of the Crown to
punish people for capital offences. This the Crown did by issuing
Commissions. By such Commissions the Crown authorised the
Commander-in-Chief of each voyage separately to punish for serious
offences. The first such Commission was issued in 1601. On 14th
December, 1615 the Crown gave a general power to the Company to
issue such commissions to its Captains. The power of the Company in
this regard was subject to the limitation that in capital offences of murder
and mutiny the trial should be by a jury of twelve servants of the
Company. Subsequently, when the Company established its business at
different places, on 4th February, 1623 King James II granted to the

1. Ibert Government of India, p. 10 (1915).

The East India Company and its Early Settlements 3
Company the power of issuing Commission to any of its Chief Officers
authorising them to punish persons, subject to a jury trial in case of
capital punishment.
Charter of 1661.—The Charter issued on 3rd April, 1661 by Charles II
has a special significance in the Indian legal history. By this Charter the
Company was empowered to appoint a Governor and Council at its
factories. In addition to other powers!, the Governor and Council were
authorised to judge all persons belonging to or living under the
Company “in all cases, whether civil or criminal” according to the laws
of England and to execute judgment accordingly. In places, which had no
Governor and Council, the Chief Factor and Council were empowered to
send offenders for punishment either to a place where there was a
Governor and Council or to England. Thus the Charter of 1661—
(1) authorised the Company to try and punish all persons living
under it, including the Indians,
(2) opened the doors for the introduction and application of English
law in India, and :
(3) conferred judicial powers on the executive, viz., the Governor
and Council.
SETTLEMENT AT SURAT
The Company established its first factory in India at Surat in 1612
during the time of Mughal Emperor Jahangir. To gain the favour and
protection of the Emperor, King James I, sent Sir Thomas Roe to him in
1615 as his Ambassador. The Emperor issued a ‘Firman’ granting certain
facilities to the English people to carry on their activities in a hired house
at Surat; to live according to the laws, religion and customs of England
and to be judged by their own laws in their disputes. But a dispute
arising between an Indian and an English was to be decided by the local
Indian courts.
Constitution and Functions of the Factory.—The factory was
administered by a President and Council who were appointed by the
Company. The decisions of the majority of the members of the Council
were the decisions of the Company. Apart from exercising their powers
for trading purposes the President and his Council also had the power to
administer law and justice. But very little is known about the British
judicial system at Surat. This much is clear that the English people were
governed by a dual system of laws, namely:—
1. The Charter also granted the Company “power and command” over its forts and
factories and empowered it to send out ships of war, men and ammunition, to build
fortifications, to provide men for their defence, to govern the forces by martial law and
to make peace or war with non-Christian power. Ilbert, op. cit., p. 17.
4 Indian Legal & Constitutional History

(a) In their own matters by the laws of England; and

(b) In matters with Indians by the native laws of this country.
The native courts at Surat also did not enjoy good reputation. They
suffered from many evils. According to Dr. U.C. Sarkar! “during this
time the administration of justice by the Mughal emperor also was very
unsatisfactory particularly in cases which were not adjudicated by the
emperors themselves”. There was no set pattern of crimes and
punishments and corruption among the judges was rampant. Many cases
of indiscriminate punishment and letting off of criminals on acceptance
of bribe by the judge are cited by Malabari in his book: Bombay in the
Making and by Kaye in his Administration of the East India Company. Many
English people, therefore, took law into their own hands and did not care
for these courts.
The Surat settlement of the Company remained in prominence until
1617. Due to the transfer of the seat of the President and Council to
Bombay in that year, Surat lost all its importance for the Company.
SETTLEMENT IN MADRAS
Madras was founded by Francis Day in 1639 on a piece of land
granted to him by a Hindu Raja. A fort named as Fort St. George was
established there. The Raja also authorised the Company “to govern and
dispose off the Government of Madras Patnam”—a small village adjacent
to the fort. Inside the fort lived the English and outside in Madras
Patnam lived the native people and accordingly the two were known as
the White Town and the Black Town respectively. The two towns
together later came to be known as Madras.
The legal system that existed in Madras upto 1726 may be divided
into three stages.
First Stage (1639 to 1665).—To begin with, Madras was an agency
subordinate to Surat. Its Chief Officer was called ‘Agent’ who
administered the affairs of the Company with the help of a Council. The
judicial system that existed at this stage was conspicuous by the absence
of any systematic and regular administration of justice. The only system
that existed was—
(a) The Agent and his Council for the White Town; and
~ (b) The Choultry Court for the Black Town.
The jurisdiction and powers of the former were not clearly laid down.
It could not decide serious offences and generally sent them to the
Company’s authorities in England. No decision could be given in such

1. Epochs in Hindu Legal History, p. 301 (1958).

The East India Company and its Early Settlements
5
cases for years due to the lack of effective and expeditious means of
communication. The Choultry Court was a native court presided by the
village headman known as Adigar. In 1652, Company’s two servants
were appointed to sit in this Court, after the dismissal of the then Adigar
on ground of dishonesty. This Court could decide only petty civil and
criminal matters. What happened in cases of serious nature, is hardly
known. Apparently there was no specific and regular procedure to deal
with such matter in the Black Town and the procedure and punishment
differed from case to case. Generally the matter used to be referred to the
native Raja who either gave a specific direction in the case or authorised
the English authorities to decide the matter according to the English law.
Charter of 1661 was granted by Charles H and radical changes were
brought by it as under it the Company could “appoint Governors and
other officers in India”. Company’s authority was excluded over the
natives i.e., non-employees of the company. Justice was to be imparted
according to the English Law.
Second Stage (1665 to 1686).—Although the Charter of 1661 provided
that the Governor and Council could decide every matter according to
the laws of England, nothing was done until 1665, when the Dawes case
arose. Mrs. Ascentia Dawes was brought on a charge of murder before
the Agent and Council. As per practice, the Agent and Council could
only refer the matter to England. To get rid of this procedure the
Company thought it proper that the Governor and Council should be
appointed under the Charter of 1661 so that such cases may be decided
then and there. Accordingly, in 1665 the Company raised the status of
Madras to a Presidency and appointed a Governor and Council who
could also work as Court. The case of Mrs. Dawes was decided by this
Court. Perhaps because of the absence of any legal expert in the Court the
lady got acquitted. Many requests were made by the Governor and the
Council to the Company to send a legal expert, but none was heard. In
1678, the Governor and Council resolved that they would sit as Court for
two days in a week to decide the cases in all civil and criminal matters
with the help of a jury of twelve men. The Court was called as the High
Court of Judicature. This Court decided important cases both in civil and
criminal matters and also heard appeals against the decisions of the
Choultry Court. 1
Third Stage (1686 to 1726)—Admiralty Court—As noted above
proper administration of justice was absent in the Presidency and the
same was the case with other establishments. Crimes were increasing and
occurred more frequently on ships transporting goods from one place to
another. To face this difficulty and to avoid the evils arising from it, it
was found necessary that a Court having the jurisdiction to decide the
0 Indian Legal & Constitutional Histery

maritime cases should be established. Therefore, on 9th August, 1683,

Charles II granted a Charter to the Company making a provision for the
establishment of the Admiralty Courts. Admiralty Court was to consist of
three members, one of whom was to be ‘learned in the civil law,’ and the
other two were merchants, appointed by the Company. The Court had to
hear all cases, mercantile and maritime concerning all persons coming
within the limits of the Charter, e.g., the cases of trespass, injuries,
wrongs, etc. committed at the high seas. The Court had to apply the
principles of equity justice and good conscience and the customs of the
merchants. Subject to the directions of the Crown, the Court could
determine its procedure.
The proposed Court was established in Madras on 10th July, 1686.
The first members of the Court were three civil servants who were also
members of the Governor’s Council. In the year 1687, a lawyer-member
with the designation of Judge-Advocate was appointed to this Court, The
lawyer was Sir John Biggs. On the arrival of the Judge-Advocate,
Governor and Council found that there was no need of the Governor and
Council administering justice separately and they, therefore, relinquished
their job in favour of the Court of Admiralty which henceforth decided
all types of cases whether civil, criminal, maritime or mercantile.
Criminal cases were decided with the help of jury.
In 1689, Sir Biggs died and the post of the Judge-Advocate fell vacant.
In the absence of any lawyer-member, the Governor himself assumed the
charge of the Judge-Advocate. This composition of the Court was against
the nature of the original Charter which required a civil lawyer as the
Judge-Advocate. Hence in 1692, a new Judge-Advocate was appointed
who was dismissed in 1694 on a charge of bribery. In 1696, the Company
directed that the members of the Council would successively work as
Judge-Advocate. But none of them was a civil lawyer, hence the Court
lost its importance. After 1704, the Court ceased to work regularly. In the
meantime other Courts were established to decide the disputes.
Establishment of Corporation and the Mayor’s Court.—Under a
Charter of 30th December, 1687, the East India Company proposed to
establish a Corporation in Madras. The purpose of the Corporation was—
(1) to provide a representative local government.
(2) to impose local taxes, and
(3) to have the powers “for the speedier determination of small
controversies of little importance frequently happening among
the unarmed inhabitants.
The first Corporation in Madras was established on 29th September,
1688. It had one Mayor, 12 Aldermen and from 60 to 120 Burgesses. The
The East India Company and its Early Settlements 7
Mayor was to be elected annually. The Corporation was subject to the
authority of the Governor and Council who could remove any of the
members of the Corporation including the Mayor.
Mayor’s Court.—The Mayor's Court consisted of the Mayor and all
the Aldermen. The quorum for the Court was three—1 mayor and 2
Aldermen. A lawyer member, called Recorder, was appointed by the
Mayor and Aldermen for helping them in deciding the cases of
“considerable value and intricacy”.
The jurisdiction of the Court extended to all civil and criminal
matters. It had power to inflict any punishment on any Indian as well as
Englishmen subject to the condition that no Englishman could be
punished to death. In criminal cases the Court had to take the help of
jury. Appeals against the judgment of this Court both in civil and
criminal matters, went to the Admiralty Court. In civil matters, an appeal
could be filed only when value exceeded 3 pagodas! and in criminal
cases when the loss of life or limb was involved.
The law to be applied by this Court was not specifically laid down.
The only provision made in the Charter was that the Court would decide
the disputes “in a summary way according to justice and conscience,”
and according to the laws made by the Company.
The Court, although provided a forum for deciding the disputes of
the people, it could not enjoy the independence needed by the judiciary.
It always depended on the Governor and Council because they could
remove the Mayor and any Alderman. Moreover, the Mayor and the
Alderman were also the members of the Council and, therefore, they
could not do full justice in the matters related to the Company and its
executive.
Choultry Court.—After the establishment of the Mayor’s Court the
Choultry Court, which used to impart justice to the natives, lost its
importance. Its jurisdiction was limited only to petty criminal cases. It
could impose only minor punishments of fine, imprisonment and
whipping. In civil matters it could hear the cases upto the value of 2
pagodas only.
The Mayor’s Court, the Choultry Court and the Court of Admiralty
were three.Courts which functioned in Madras. The Admiralty Court |
ceased to function after 1704 and its jurisdiction was exercised by the
Governor and Council. They also heard the Mayor Court’s appeals till
1727 when a Mayor’s Court was established under 1726 Royal Charter.
_ Conclusion.—The overall picture of the administration of justice in
Madras was not very good in these early stages. The system suffered
1. Pagoda was the Madras currency at that time.
 8 Indian Legal & Constitutional History

from many drawbacks. The most outstanding of them are the

following:—
(1) Absence of proper judicial system.
(2) Uncertainty of laws.—The Courts and the people did not know
the law applicable to them and their disputes.
(3) Severe punishments.—Usually, the punishments were
barbarous and inhuman. They were based on the mixed idea of
deterence and prevention.'
(4) Lack of facilities in the jails——The inmates lived in inhuman
conditions.
(5) Unfair trial—The English principles of fair trial such as the
principles of natural justice and benefit of doubt to the accused
were not observed. The “benefit of clergy”* was however,
available to the Britishers.
SETTLEMENT IN BOMBAY
The island of Bombay was under the occupation of Portuguese since
1534. In 1661, the Portuguese king gave this island to King Charles II of
England as a dowry in the marriage of his sister. The King (Charles II)
gave island to the East India Company in 1668 at an annual rent of £10.
In the same year Charles II issued a Charter which conferred requisite
authority on the Company for the general administration of island
including the administration of justice and making of laws. The
Company could make necessary laws, ordinances, regulations, etc. for its
good governence and could impose fines and penalties including the
death sentence on those who disobeyed the laws of the Company. But, as
noted in the very beginning of this Chapter, these powers could be
exercised reasonably and consistent with the laws of England. For the
administration of justice, the Company could establish Courts which had
to follow the procedure of English Courts.
In the beginning Bombay was put under the authority of a Deputy-
Governor and Council. The Deputy-Governor and Council were subject
to the Presidency at Surat. The first Deputy-Covernor of Bombay was
Gerald Aungier. He was a good administrator and took much interest in
establishing a good judicial system on the island. Like Madras, the
judicial system in Bombay. upto 1726, may also be divided into three
stages.

1. Jain, M.P. Indian Legal History, p. 31, (1966).

2. “Benefit of clergy” was originally the right of all clerks in religious orders to be handed
over by any lay tribunals before whom they might be accused to an ecclesiastical Court.”
Potter’s Historical Introduction to English Law, p. 361, (4th Edn.), Criminal Law Act, 1827,
abolished this privilege in England.
The East India Company and its Early Settlements 9
First Stage (1668 to 1683).—During this period two judicial systems
were established. The first of them was established in 1670. According to
this, Bombay was divided into two divisions'. Each division had a Court
consisting of five judges. The Custom Officer of the Division was the
President of the Court. Some of the judges in these Courts were Indians.
The jurisdiction of this Court extended to petty criminal cases, e.¢.,
thefts involving the stolen property upto 5 xeraphins? and similar other
cases. The civil cases which came before this Court, were also of petty
nature. It had no jurisdiction to decide cases involving more than 200
xeraphins. Appeals against the judgments of this Court could be filed in
the Court of the Deputy-Governor and Council.
The Deputy-Governor and Council worked as a superior Court
having both original and appellate jurisdiction, in all civil and criminal
cases. In civil cases, it had the jurisdiction to entertain matters of the
value exceeding 200 xeraphins. All the serious offences, which could not
be entertained by the Divisional Court, were tried by this Court with the
help of jury. The appellate jurisdiction of this Court was confined to
appeals against the decisions of the Divisional Courts.
The judicial system established in 1670, was quite elementary and
primitive. No distinction was made between the executive and the
judiciary. Nor was there any provision for a lawyer-member in the
Courts. Many requests were made by the Deputy-Governor to the
Company for providing a man learned in law, but it did not care.
Ultimately it authorised the Deputy-Governor to select any lawyer-
member of its choice available in India. The Deputy-Governor selected
Mr. George Wilcox to be a lawyer-member in the judicial administration.
Soon after the selection of Wilcox, the judicial system of 1670 was
abolished and a new system was established in 1672.
On ist August, 1672, a governmental proclamation was made. By this
proclamation the existing Portuguese law in the island was replaced by
the English law. From then onwards, the English law became the law of
the island in all matters. Under this proclamation a new judicial
system was also established under which three types of Courts were
created.
Court of Judicature—A Court with Wilcox as its judge, was
established to hear all civil and criminal cases. The Court also had_
jurisdiction in matters of probate and testaments. For civil matters the
Court sat once a week. All the cases were decided with the help of jury.
1. One division comprised Bombay, Mazagaon and Girgaon, the other of Mahim, Parel,
Sion and Worli.
2. Xeraphin was a currency approximately equivalent to 3/4 of a rupee.
10 Indian Legal & Constitutional History

A Court-fee at the rate of 5% was also imposed in civil cases. For deciding
criminal cases, the Court used to sit once in a month. For the purpose of
criminal administration of justice, Bombay was divided into four
sections.. For each section one Justice of Peace was appointed who
worked as a committing magistrate. The Justices of Peace sat in the Court
as assessors at the time of the trial.
Court of Conscience.—This Court was also presided over by Wilcox,
it was called as Court of Conscience because it provided quick and
summary justice. It entertained only petty cases and decided civil matters
of value upto 20 xeraphins. There was no provision for any court-fee. This
Court did not have any jury. It could be said that the judge decided the
matter to the best of his judgment.
Court of Appeals.—The Deputy-Governor and Council functioned as
Court of Appeal. They heard appeals against the judgments of the Court
of Judicature in all matters.
The judicial system which was so established under the plan of 1672
worked well. It was quick, inexpensive and efficient. Its main defect was
that the Judges did not enjoy independence required for good
administration of justice. They were not paid properly;* were always
under the subjection of the executive and could be harassed by the
officers of the Company. This system worked till 1683 when the
Keigwin’s rebellion brought it to an end by capturing the island. The
island remained under the rebellions for about a year. It was recaptured
by the Company in 1684. After its recapture the company established a
new judicial system in it.
Second Stage (1684-1693)——Under the new system of judicial
administration, a Court of Admiralty was established in Bombay on the
lines of the Court of Admiralty established in Madras under the Charter
of 1683. Basically the Court had jurisdiction in admiralty and maritime
matters. But due to the absence of any other Court, even civil and
criminal matters went to this Court. After some time dispute arose
between the Governor and Council and the Judge-Advocate of the Court
of Admiralty about their respective jurisdictions. Consequently this
Court was deprived of civil and criminal jurisdiction in 1685.
To deal with the civil and criminal matters, a Court was established
on the lines of the Court of Jurisdicature created under the plan of 1672.
But the jurisdiction of this Court and of the Court of Admiralty were not
clearly demarcated. Therefore, disputes of jurisdiction, between these
1. These sections were Bombay, Mahim, Mazagaon and Sion.
2. Ever Wilcox, who was appointed at a salary of Rs. 2000, was never paid. For other
similar instances see Malabari Bombay in the Making, p. 150.
The East India Company and its Early Settlements 11
two continued to arise. Bitterness between the Judge-Advocate! and the
Governor increased to the extent that after the retirement of the first
Judge-Advocate, no other lawyer-member was ever appointed to the
Court of Admiralty. In the absence of the lawyer-member the Court could
not function on the expected lines.
In 1690, one Siddi Yakub, Admiral of the Mughal Emperor, attacked
the island of Bombay and captured it. It remained under his occupation
till 1718. Nothing is known about the judicial system which existed on
the island during Siddi's occupation. In 1718, when the Administration of
the island again came into the hands of the Company a new judicial
system was established for it.
Third Stage (1718 to 1726).—On 25th March, 1718 a Court with Chief
Justice and 9 judges was established. Out of the 9 judges, five were
English and four were Indians. The Court thus represented the major
Indian communities through the four judges who were known as ‘Black
Justices’.
The Court had jurisdiction in all criminal and civil matters. In the
administration of justice, the Court applied the principles of equity,
justices and good conscience, and the rules made by the Company from
time to time. Application of law, however, had to be in confirmity with
and not contrary to the laws of England. Apart from deciding civil and
criminal matters, the Court also had the jurisdiction in the matters of
probates, and testaments. It also functioned as Registration Office.
The Court used to sit once a week to decide all cases. There was no
specified law which the Court had to apply and, therefore, it gave a
summary and ready justice in all cases which came before it. No rules of
procedure or evidence were prescribed for the Court.
Civil cases which came before the Court were small in number and
petty in nature, not involving any intricate issues. Many of these cases
used to be decided according to the personal laws of the parties or the
customs prevailing among the communities to whom the disputes
related.
Criminal cases which came before the Court were of varied nature.
They extended from minor offences to capital offences. The Court could
give judgment and punishment in every minor or major offence. In
enforcing punishments generally the rules of English law were observed,
yet the punishments were severe and sometimes there was no
relationship between the punishment and the offence. A curious
punishment which no body will support today was the punishment of
1. Dr. St. John, a man learned in civil law, was the first Judge-Advocate to preside over the
Court of Admiralty.
12 Indian Legal & Constitutional History

detention in jail. No time limit of imprisonment was prescribed,

whipping was a common punishment. The presumption of innocence of
the accused and benefit of doubt to him also did not get recognition in
this Court. The jury system which existed earlier was also given up and
the Court decided all cases without jury.
In Ram Kanati’s case, Kanati was arrested on the charge of being
involved with a dacoit Angira on a dancer’s hearsay evidence who told
that dacoit Angira told her the same. Ram Kanatis property was
confiscated and he was granted perpetual imprisonment because of
fictitious charges which the Governor and Council had framed.
Conclusion.—The system established in 1718 was an improvement
upon the earlier system at least to the extent that the participation of
Indian judges was allowed in the administration of justice. This helped
the Court in winning the confidence and respect of the local people. The
internal position of the Company did not, however, allowed the Court to
function properly. A little bit separation of executive from the judiciary
had been introduced by the Court of 1718, yet the executive, i.e., the
Governor and Council always interfered with the independence of the
judiciary. Apart from that many of the English judges in the Court were
the members of the Governor’s Council as well as of the Court. The
judges were also the prosecutors. In many cases the Government of the
company itself was involved. In those cases the judges could not impart
impartial justice. Examples are available where these judges prepared
and procured evidence against the persons who were brought before the
Court for justice. Another anomaly was that being members of the Court
as well as of the Governor’s Council, these judges heard appeals as
Governor and Council against their own decisions. In this way the
judicial system was wanting in so many respects. The canons of natural
justice and the principles of law were violated by the defects which have
been just mentioned.

SETTLEMENT IN CALCUTTA
Job Charnock, a servant of the company, laid the foundation of the
British settlement in Calcutta, on 24th August, 1690. It began with the
establishment of a factory at Sutanati on the banks of river Hugli. A fort
was built which was named as Fort William. Eight years after, in 1698,
the Company secured the zamindari of three villages, namely Calcutta,
Sutanati and Govindpur from the Subedar of Bengal, Prince Azimush-
sher, one of the grandsons of Aurangzeb.
As zamindar the company obtained all the privileges available to the
zamindars. The zamindars enjoyed almost unlimited rights and
The East India Company and its Early Settlements 13
privileges. If the ruler got the revenue in time, he did not care about the
acts of zamindars within their zamindari. Although the Mughal rulers
had established a hierarchy of Courts! and also a good administration of
justice, yet after Aurangzeb, it began to tremble and lost its importance
and prestige. The Nawab had no proper control over them. He became
idle and left his judicial work to his subordinates. Similarly, at the lower
levels the persons to whom the administration of justice was assigned
did not perform it properly unless they were paid some gratification. In
these circumstances it could be assumed that the zamindars, who were
responsible for the collection of the revenue, exercised all those powers
which they thought were necessary in their interest. They could inflict
any punishment on any person without any fear of action. No action
could be taken against them even if they condemn a person to death. In
civil matters they decided as they wished without regard to the claims of
the parties. This was the state of affairs when the company became the
zamindar in Bengal.
Judicial system under the Company.—Company as zamindar
appointed an officer with the designation of Collector to collect the land
revenue from the tenants. He was also given civil, criminal and revenue
powers to decide disputes arising within his jurisdiction. There was no
specific direction to the Collector about how the law was to be applied
in deciding disputes which came before him. Therefore, he generally
decided matters according to his own discretion or according to the
customs and usages applicable in the locality. Appeals against the
judgment of the Collector went to the Governor and Council. If the
Collector gave any death sentence, it was to be confirmed by the
Governor and Council. Serious criminal and civil matters relating to
Englishmen did not come within the jurisdiction of the Collector and
were decided by the Governor and Council.
Although the Company was merely a zamindar under the Mughal
Nawab just like any other zamindars at that time, two important
differences were made. First, while the appeals against the judgments of
other zamindars went to the Courts of the Nawab, the appeals from the
Collector went to the Governor and Council. Second, in the case of other
zamindars the death sentence was confirmed by the Nawab, while in the
case of Company, that job was performed by the Governor and Council
without reference to the Nawab. From these differences it appears that
the Company began to exercise its independence at Fort William from the
very beginning.

1. See M.P. Singh Outlines of Indian Legal History, Ch. 6 (Ancient and Medieval Periods, 2nd
Edn., 1970).
4 Indian Legal& Constitutional
History
The judicial system established by the Company in Calcutta was very
elementary. No specific provision was made about the procedure the
courts had to follow and the canons of law and justice they had to
observe. This arrangement could hardly be called6-year peItwas |
|
:
|
a Presidencies.

SOSORO
 2
ESTABLISHMENT OF CROWN’S
COURTS IN INDIA: THE MAYOR’S COURT
CHARTER OF 1726
The Charter issued by King George I on 24th September, 1726 marks
the beginning of Crown’s courts in this country. The Company under the
previous Charters was finding itself unable to cope up with the problems
which arose due to its extended and enlarged establishments. Therefore,
it requested the King to issue a Charter by which special power could be
granted to the Company. The main reasons for such request appears to
be the following:—
(i) One reason mentioned in the request of the Company was the.
“real want at Madras, Fort William and Bombay of a proper and
competent power and authority for more speedy and effectual
administration of justice in civil cases, and for the trying and
punishing of capital and other criminal offences and
misdemeanours”.' In the preceding chapter we have noted the
kind of poor judicial system that existed at the above mentioned
places.
(ii) Another reason was the lack of jurisdiction with the then
existing courts to grant probates and letters of administration in
cases where the executors of the deceased or his legal ©
representatives if he died intestate, were not in the British
settlements in India. According to the then existing practice, in
such cases the Council took possession of the effects of the
deceased servant and sold them by public auction and deposited
the proceeds in the Company’s treasury for the benefit of the
1. Fawcett disputes the validity of this reason, see C. Fawcett The First Century of British
Justice in India, p. 214 (1934). For a different view see H. Cowell History and Constitution
of Courts and Legislative Authorities in India, p. 15 (1936) and H.P. Dubey. A Short History
of the Judicial System of India, p. 56 (1968).
15
 16 Indian Legal & Constitutional History

deceased’s heirs. But this arrangement sometimes gave rise to

troublesome suits against the Company, which, the Company
not only had to defehd but also had to pay compensation and
costs sometimes.
(iii) A third reason connected with the second was the seizure of
property by the Governor and Council of the covenanted
servants of the Company alleged to be indebted to the Company.
Such seizure of property could be disputed by the concerned
servant in the courts in England. If the courts came to the
conclusion that the seizure was illegal or that the property was
of more value than the amount of debt, the Company had to pay
the penalty for illegal seizure and interest on excessive amount.
The Company wanted to avoid this kind of litigation in England.
Therefore, not only it wanted the establishment of courts “with
civil and testamentary jurisdiction to take cognizance of such
cases, but also to establish them under authority that would be
recognized by the English Courts”.’
(iv) A fourth, but weak, reason mentioned by Fawcett was the
absence of a proper authority to deal with the indiscipline and
the serious crimes committed by the military persons. A court
was needed in India to punish all such acts effectively.
Accepting the request of the Company, the king granted the Charter
’ of 1726 which provided for the following judicial machinery.
Mayor’s Courts.—A Mayor’s Court was established superseding all
the existing courts established in Bombay, Madras and Calcutta. The
Court consisted of a Mayor and nine Aldermen, seven of whom
including the Mayor, were required to be natural born British subjects.
Aldermen were elected from among the leading inhabitants of the
settlement to hold office for life. The Mayor was elected from among the
aldermen.* Subject to appeal to. the King-in-Council they could be
removed from office by the Governor and Council, on the ground of
misbehaviour. The Court was declared a Court of Record and was
empowered to try, hear and determine all civil suits, actions and pleas
between the parties arising within the Presidency towns or factories
subordinate to them and to grant probate of wills and letters of
administration.
The Charter did not specify the law applied by this Court. It simply
said that the Court will try, hear and determine all matters “according to
- 3 Fawcett The First Century of British Justice in India, p. 217 (1934).
2. The quorum was complete with three, the Mayor or the seniormost Alderman being the
one.
Establishment of Crown's Courts in India: The Mayor's Court 17
justice and right”. In view of the past practice and the Charter of 1661
these words were interpreted to mean “according to the laws of
England”. Subsequent history, however, established that the statutory
laws of England passed after the issuance of the Charter of 1726 were not
applicable in India. Since the Court applied the English law, it also
followed the practice and procedure of the courts in England.
Appeals from the decisions of the Mayor’s Court were filed in the
Court of the Governor and Council. A second appeal in cases valued at
1,000 pagodas or more could be made to the King-in-Council in England.
Court of Governor and Council.—The Charter of 1726 also
constituted a Court of Record consisting of the Governor and Council of
each Presidency to hear civil appeals against the decisions of the Mayor’s
court and to decide criminal cases. The Governor and five members of
the Council were appointed Justices of Peace and constituted a criminal
court of Oyer and Terminer, and were authorised and required to hold
Quarter Sessions four times a year for the trial of all offences except high
treason. .
A petty jury of twelve persons for the actual trial and a grand jury of
twenty-four persons for preliminary finding of an offence assisted the
Court in the same manner as did under the Commissions of Oyer and
Terminer and Goel Delivery in England.!
Legislative Powers.—The Charter of 1726 authorised the Governor
and Council of each Presidency to make bye-laws, rules and regulations
for the good governance of the Company and of the inhabitants of the
Presidency. This power was, however, subject to the following
limitations:— |
The laws made by the Governor and Council
(i) must be “agreeable to reason”
(ii) must not be “contrary to the laws and statutes of England”, and
(iti) were ineffective until confirmed and~- approved by the
Company’s Board of Directors in England.
Main Features of the Charter.—The following are some of the main
featurés of the Charter of 1726:—
1. ‘Oyer and Terminer’ and ‘Goal Delivery’ were two types of commissions which find
their place in the English system for the first time in the 14th century “The Commission
of Oyer and Terminer was directed to the persons therein named to hear and determine
all pleas presented by the presenting juries of the country for which the commission
issued”. (Later the scope of these commissions was increased). “The Commission of Goal
Delivery was simply to deliver from the Goals of the country all persons lying of therein
by trying the accusations against them” (This was an inferior type of commission but
later practice developed to issue both types of commissions to the same person of judge.)
Patter, op. cit., p. 114.
 Indian Legal & Constitutional History

- The Charter for the first time established the Crown‘s Court in
India. Hitherto, whatever courts existed had their origin in the
Company. The courts established by the Charter were the Royal
Courts having full recognition in the British legal system.
_ The Charter created a uniform system in all the three
Presidencies of Bombay, Madras and Calcutta. The different
systems existing till then were replaced by the new.
. The judicial system established by the Charter was much more
regular, clear and definite than the earlier systems.
. For the first time the jurisdiction of the King-in-Council was
extended to India. Here lies the introduction of the principles of
English law through judiciary into our land.
. The Charter created a legislature in each Presidency with the
power jof making necessary laws.
. The Charter is also important for the reason that the nieaee
laws of England passed after its issuance did not form a part of
the laws of this country. More important than this is the fact that
this Charter introduced into the Presidency towns the then
existing laws of Englands—both common and statutory.'
Mayor’s Courts under the Charter of 1687 and 1726: Comparison.—
In Chapter 1 we have noted that the Charter of 1687 had also established
a Corporation and Mayor’s Court in Madras. But apart from the apparent
similarity of names there was a vast difference between the two Charters.
The main differences may be enumerated as under:
(1) The Charter of 1687 applied to Madras only while the Charter of
1726 applied to all the three Presidencies.
(2) The Mayor’s Court established under the Charter of 1726 had the
jurisdiction in Civil matters only in addition to its testamentary
and probate jurisdiction, while the court under the Charter of
1687 had the jurisdiction in criminal matters also.
(3) Appeals against the judgments of the Mayor’s Court under the
Charter of 1687 went to the Court of Admiralty while from the
Mayor’s Court under the Charter of 1726, to the King-in-Council.
(4) The Mayor’s Court of 1687 was a Court of the Company while
the court established under the Charter of 1726 was the Court of
the Crown.

1. See Rankin Background to Indian Law, p. 1; Setalvad The Common Law in India, p. 12;
Advocate Gen. of Bengal v. Rannee Surno Moyee Dossee, 9 MLA 387.
Establishment of Crown’s Courts in India: The Mayor's Court 19
(5) The Mayor's Court under the Charter of 1687 was better in one
respect that it had a lawyer-member called Recorder while in the
Court under Charter of 1726 there was no provision for any
lawyer-member.
(6) In procedural matters, the court under the Charter of 1726 had to
observe the technicalities of the courts in England while the
Court under Charter of 1687 was guided by its own procedure of
convenience.
(7 In the Court under Charter of 1687 there was good
~—”

representation of Indians while under the Charter of 1726 in

spite of the provision for two Indian members none was ever
appointed in practice.
(8) Under the Charter of 1726 the criminal jurisdiction was
completely assigned to the executive, i.e, the Governor and
Council, while under the earlier Charter it belonged to the
Mayor’s Court and the Admiralty Court.
Working of the Charter of 1726—The provisions of the Charter were
implemented quickly and the new courts started functioning in all the
three presidencies by February 1728. Requisite independence -was
assured to the Mayor’s Courts and to supervise their functioning the
Company required all the three courts to submit annually the registers of
their proceedings to be scrutinised by counsel appointed by the
Company. “With the Charter the Company had sent each Presidency a
book of instructions and multifarious forms as to the Method of
Proceedings in civil suits, Sessions trials, probate and administrative
work”!. Thus “the Company made considerable efforts to keep the courts |
in straight and narrow path of English law”’. Very soon, however, the
independence of the courts and their strict adherence to English law
became the cause of the following difficulties:—
(1) Hostility arose between the Mayor and the Governor and
Council. Mayor wanted to exercise judicial independence but the
Governor and Council did not like any person to be fully
independent from its authority. Therefore, they began to dictate
their terms to the Mayor’s Court in the exercise of its judicial
functions. Relation between the two worsened and things went
to the stage of breaking down.
(2) About the natives, jurisdiction of the Mayor’s Court was not
clearly specified. It was not clear whether the matters belonging
to the natives were within the jurisdiction of the Court or not. In
a case the Mayor’s Court ordered the release of a Hindu son
1. Faweett op. cit., p. 224.
2. Ibid.
10 Induan Legal & Constitutional
History
from the custody of his father on the application of his mother
who had converted to Christianity. The Court’s order was
reversed by the Governor and Council on the ground that the
Mayor’s Court had no jurisdiction to interfere in the religious
matters of the natives.
(3) In Madras, a dispute arose on the taking of oath before the
Court. A Hindu would like to take oath on the cow or the Gita,
but the Mayor’s Court insisted upon the taking of pagoda
(temple) oath. The Hindus complained to the Governor and
Council on this matter which not only increased the bitterness
between the Mayor’s Court and the Governor and Council but
also compelled the Directors of the Company to write a letter
favouring the Governor and Council.
(4) The Mayor’s Court annoyed the natives by applying the
principles of English law to them without regard to their
personal laws and customs. On each occasion when such issues
arose the natives complained to the Governor and Council who
sided with the natives. The Governor and Council had to
administer the territory and therefore, they never liked that any
court should cause resentment among the natives against the
Company.
(5) The Governor and Council heard appeals from the decisions of
the Mayor’s Court. Whenever the wishes of the former were not
represented in the decision of the- latter they reversed the
decision in appeal.
These are some of the instances of discord and difficulties under the
Charter of 1726. Such was the case almost in all the Presidencies. The
judiciary did not possess expert staff with required training for
administering justice and the executive did not have respect for the.
judiciary which is needed for good administration of justice.
In 1746, the French occupied Madras which remained under their
administration till they surrendered it to the British in August 1749.
During this occupation, the judicial system established under the Charter
of 1726 remained suspended in Madras. The Company availed of this -
opportunity to request the king to remove the difficulties caused by some
of the provisions in the Charter of 1726. Particular attention was drawn
to the application of English law to Indians. Accepting the request of the
Company, King George II issued a Charter on 8th January, 1753.

- CHARTER OF 1753
Except the following few changes the Charter of 1753 left the system
under Charter of 1726 intact.
Establishment of Crown's Courts in India: The Mayor's Court 21
(1) To avoid the disputes between the Governor and Council, and
the Mayor’s Court, the Charter put the latter under the
subjection of the former. The election of Aldermen was
abolished and it was laid down that the Aldermen shall be
appointed by the Governor and Council. The Mayor, instead of
being elected by the Aldermen, was also to be selected by the
Governor and Council out of two names of Aldermen suggested
by the corporation.
(2 Suits and actions between the natives were expressly excluded
—

from the jurisdiction of the Mayor’s Court unless both parties

submitted them to its determination. Natives were also left to
take oath “In such manner as they accorded to their several
castes...to be most binding on their conscience, to oblige them to
speak the truth”.
(3) The jurisdiction of the Mayor’s Court was restricted to suits of
the value of over 5 pagodas.
(4 A Court of Requests was created to hear small civil cases upto
~—

the value of 5 pagodas. The Court used to sit once in a week. The
judges of the court were called Commissioners who were
appointed by the Governor and Council from amongst the
servants of the Company. The number of the Commissioners
were between 8 to 24. Three of these Commissioners used to sit
in the court at one time by rotation. The Court used to give quick
judgments in the cases coming before it. It also had the
jurisdiction to decide the matters of native people.
Criticism.—The judicial plan of 1753 and of 1726, though made some
far-reaching changes, were not enough to provide a _ sound
administration of justice. In many respects it was defective and in some
respects it took retrograde steps. Some of the outstanding defects may be
enumerated as below:—
(1) The judicial system which was established by this Charter was
executive ridden. The Mayor’s Court was fully subjected to the
authority of the Governor and Council by putting the
nomination and appointment of the Aldermen in the hands of
the Council. Being under the pressure of the executive the court .
always worked according to their wishes at the cost of its
independence.
(2 The constitution of the court was such that no impartial justice
~-

could be given in those cases where the dispute was between a

Company’s servant and an Indian, because the members of the
court themselves were servants of the Company and they never
22 Indian Legal & Constitutional
History
liked that their co-brothers should be harassed in their disputes
with the Indians.
(3) There was no difference between the executive and the judiciary
in the criminal matters as all the judges of the criminal court
were the members of the Governor's Council.
(4) The judiciary suffered from lack of legal knowledge. It knew
neither the English law nor did it understand the laws and
customs of the natives. Whatever it decided was the self
interpretation of law and full discretion of its members. The
observation of Kaye is worth noting in this respect. He says
“Justice gained little by the establishment of the Mayor’s Court”
as it was composed of “the Company’s mercantile servants—
men of slenderest legal attainments, and the slightest judicial
training.”
(5) There was no proper control or supervision over courts. The only
control was of the executive, i.e., the Governor and Council,
which was not conducive to the administration of justice.
Provision was made for appeals to the King-in-Council in
matters of high amount but in practice hardly any one took an
appeal to that court. Therefore, the King’s Council also could not
exercise effective control.
(6) The jurisdiction of the court was limited only to Presidency
towns. Even Englishman living outside the limits of the
Presidency towns escaped from the jurisdiction of these courts.
They committed offences inside the country and yet could not be
brought before the Company’s Court as their jurisdiction did not
extend to countryside. On the contrary, many natives living
within the jurisdiction of the courts were subjected to English
law of which they had no knowledge and which was different
from their laws, customs and habits. The natives were, therefore,
put under a law which they could not even contemplate.
(7) There were no. lawyers to defend the parties. Some Attorneys
had been allowed by the court to appear for the parties but these
Attorneys also were not well conversant with the laws of
England and India. Apart from that, they could not defend the
parties independently. Action could be taken against them if
they prosecuted any case against the Company or its
government.

1. J.W. Kaye History of the Administration of East India Company, p. 321 (1853). For the
opposite view see Fawcett, op. cit, p. 217.
Establishment of Crown's Courts in India: The Mayor's Court 23
(8) The representation of Indian judges which had been provided
earlier in some courts in Bombay and Madras was practically
denied in these courts. The non-representation of the Indians
caused much resentment among the natives.
This was the state of affairs under the Charter of 1753. In such
position the House of Commons appointed a Committee of Secrecy in
1772 to scrutinize the affairs of the Company and to report on the
administration of justice and on the relations between the judiciary and
the executive. On an adverse report on the functioning of the Company
the judicial system was overhauled and a Supreme Court was established
in Calcutta in 1774.

COURTS FOR NATIVES

The courts discussed above were created for deciding mainly the
disputes of the Britishers and other foreigners. The natives were
generally excluded from their jurisdiction. For them other courts were
created. In the three Presidencies different types of such courts existed.
The position of each Presidency maybe discussed separately.
(1) Madras.—In Madras, the Choultry Court existed to decide the
cases upto the value of 20 pagodas. This Court continued to decide cases
upto 1774, when some temporary arrangements were made by the
Company’s Directors and the Choultry Court was.temporarily abolished.
But it began to work again in 1775 and continued till 1800 when it was
finally abolished. After it a court under a servant of the Company was
created to decide the disputes between the natives upto the value of 5
pagodas. This Court was replaced in 1798 by the Recorder’s Court.
(2) Calcutta—In Calcutta, the natives had been put under the
jurisdiction of the Zamindar’s Court. The Company as Zamindar
administered justice in their disputes. However, some disputes arose
between the Zamindar’s Court and the Mayor’s Court over their
jurisdiction. The Mayor’s Court contented that it-had jurisdiction in all
civil matters while the Zamindar’s Court did not accept it. In one case
matters went to the extent that one Sada Shiv Dass was put into jail by
the Zamindar for filing a complaint in the Mayor’s Court. Similar
disputes arose with respect to foreigners who were not Englishman or
Indian natives. In 1775, the Zamindar’s Court decided a case relating to
an European, who was not an Englishman: The Mayor’s Court
complained of it to the Governor and Council and ultimately a rule was
made that the Zamindar could decide the cases of Hindus and Muslims
only and not of other foreigners.
24 Indian Legal & Constitutional History
The Zamindar’s Court was manned by a single person and thus one
individual enjoyed many powers. It was thought necessary that some
changes should be introduced. Accordingly, a civil court of Company's
five servants was created: to decide civil suits above Rs. 20 with a right
to appeal to the Governor and Council in cases above the valuation of Rs.
100. On criminal side also some reforms were made. Justices of the peace
were appointed to decide criminal cases. The capital offences were tried
by a Bench of three Justices of peace. The Justices of Peace were entitled
to give any punishment including the punishment of death. However,
death sentence had to be confirmed by the Governor and Council before
it was executed.
(3) Bombay.—In Bombay, no separate courts were established to
decide disputes among the natives. The reason was that the Company
made a claim of full sovereignty over the Island and, therefore, they did
not want to treat the natives differently.

~ROWKO
 3
BEGINNING OF ADALAT
SYSTEM: WARREN HASTINGS
After the battle of Plassey in 1757, the Company became an accepted
political power in Bengal. However, to avoid British Parliament's
interference, ill-will, jealousy of the French and the Portugese, the
Company did not declare itself a de jure political power and continued to
recognise the nominal Nawabs as political heads. In 1765, the Company
obtained the Diwani of Bengal, Bihar and Orissa from the Mughal
Emperor on an annual revenue of Rs. 26 lakhs. For administrative
purposes Mughal empire was divided into Subahs or provinces. Each
Subah was ruled by a Subahdar or Nawab who commanded a body of
troops and was responsible for law, order and security. Next to him but
equally important was Diwan, who was responsible for collecting the
revenue and paying for the troops. The Diwan also decided the civil and
revenue disputes while the Subahdar or Nazim was responsible for the
administration of criminal justice.
The Company as Diwan did not take any responsibility for the
administration of justice and even to facilitate the collection of land
revenue it did not take any serious steps till 1769. In 1769, the Company
appointed English supervisors for each district. The supervisors were
required to supervise the collection of revenue and to protect the ryots
from the oppressions of the Zamindars and collectors. But the office of
these supervisors also could not function effectively in checking the
injustice done to the ryots. It was no secret that the Zamindars and the
collectors were committing all kinds of atrocities upon the ryots and that
there was no effective judicial machinery to check them. The Company
knew this shortcoming in the administration which was aggravated by
worst femine of 1769-70. The femine sapped the economic life of Bengal,
ruined the ryots and forced some of them to lead a life of crime or of
Sanyasi or Fakir. A kind of lawlessness prevailed in the province.
25
2% Indian Legal & Constitutional History

This calamity made the Directors of the Company realise that the
system of double government had failed. Accordingly, in their dispatch
of 28th August, 1771 the Coust of Directors declared their determination
to stand forth as Diwan of the Subah and administer these Subahs
directly.’
The Company authorised the then Governor Warren Hastings to
adopt such regulations and pursue such measures which shall at once
ensure every possible advantage and free the ryots from the oppressions
of Zamindars and petty tyrants. Warren Hastings, accordingly chalked
out a plan of judicial administration in 1772, which could facilitate
collection of land revenue also.
JUDICIAL PLAN OF 1772
The first judicial plan was prepared by the Committee of Circuit
under Warren Hastings chairmanship.
Under this plan the three provinces of Bengal, Bihar and Orissa were
divided into districts. Each district was put under the control of a
Collector, who was responsible for the collection of revenue. The
following courts were established for judicial administration.
(a) Courts of Original Jurisdiction
Mofussil? Faujdari Adalat.—It was the court of criminal jurisdiction
established in each district. The Court was presided over by a Qazi and
a Mufti and assisted by two Maulvies, who expounded the law. The
Collector had a general supervision over the court. The court had full
power to decide and punish all criminal cases. However, in capital cases,
the proceedings of the court had to be submitted to the Sadar Nizamat
Adalat for confirmation and finally to the Nawab for sentence.
Moffussil Diwani Adalat—It was a court of civil jurisdiction
established in each district. The Collector was the Judge of this court. In
suits regarding inheritance, marriage, caste and other religious usages
and institutions the court was required to apply “the laws of the Koran
with regard to Mohammedans, and those of the shastras with respect to
Hindus”. In matters of Hindus and Muslims the court was helped by
pandits and the kazis respectively, who expounded the law to be applied
by the judge. |
Small Cause Adalat.—It was the civil court of the Head Farmer of the
purganah to decide finally the disputes upto the amount of Rs. 10.
1. B.N. Pandey The Introduction of English Law into India, p. 24 (1924); also Cowall, op. cit.,
p. 30.
2. The area under the Company, outside the Presidency limits of Calcutta, Madras and
Bombay, came to be known as Moffussil.
Beginning of Adalat System: Warren Hastings 27
(b) Appellate Courts
The following two appellate courts were established—
Sadar Nizamat Adalat—It was the criminal court of appeals
presided over by Daroga-i-Adalat, assisted by the Chief Kazi, Chief Mufti
and three Maulvies. The Governor and Council exercised a general
supervision over the court.
Sadar Diwani Adalat.—This Court was composed of the Governor
and Council and heard appeals from the Mofussil Diwani Adalat where
the suit value exceeded Rs. 500.
With a view to maintain the impartiality of the courts and to keep
proper supervision, the adalats were required to give judgements in open
and maintain proper registers and records. The district adalats were also
required to send an abstract of their records to the Sadar Adalats. Some
rules of procedure and limitation were also laid down to introduce
efficiency and avoid delay in the legal proceedings.
The plan of 1772, was in many respects a boon to the people at that
time. Prior to that people had no security of their life or liberty; they were
subjected to oppression and harassment by Company’s servants and
zamindars and crimes were rampant. Change in the judicial system
brought back the confidence of the people in the government and the
administration of justice. It was a great achievement for Warren Hastings.
The scheme, however, suffered from two weaknesses:
(1) The court for small cases were very few and they had
jurisdiction only upto a small amount of Rs. 10 which was too
small. For most of the cases the people had to travel to the
district headquarters in those days of difficult communications.
(2) The Collector was given too much authority which he could
easily misuse.
Warren Hastings was conscious of Collector’s powers and so were
the Directors of the Company. The Directors directed the Governor-
General and Council! to withdraw the Collectors as they were
monopolising the trade in the districts. Some other necessary changes
were also authorised. Accordingly on 23rd Novemer, 1773 a new plan
was laid down which came in to force in January 1774.
JUDICIAL PLAN OF 1774
Under the judicial reforms of 1774, Collectors were recalled from the
districts and in their place an Indian officer, called Diwan or Amil, was
1. The Regulating Act of 1773 reconstituted the Company’s Government at Calcutta and
accordingly the Governor-General and Council replaced the Governor and Council. For
details see Chapter 4.
8 Indian Legal & Constitutional History

appointed. He acted as judge of the Moffussil Diwani Adalat and

collected the land revenue. The entire Moffussil area in Bengal, Bihar and
Orissa was divided into six divisions.! Each division had a Provincial
Council consisting of four or five British servants of the Company. The
Council supervised the collection of land revenue, heard appeals against
the decisions of the Moffussil Diwani Adalat and administered original
civil jurisdiction at the place of its seat. An appeal against the decisions
of the Council was allowed to the Sadar Diwani Adalat, if the suit was
valued at more than Rs. 1000.
Although the new system was an improvement over the earlier one,
the change did not give good results for long. The Council took the place
of the Collector in creating the difficulties and monopolising the trade
within its jurisdiction. Warren Hastings soon detected this defect but
could not make any change until 1780 when an entirely new modified
system was established.
JUDICIAL PLAN OF 1780
The defects of the system set up in 1774 were seen in the Patna Case’.
It was found that the Provincial Councils which had been established
under the Plan of 1774 did not work properly. The members of the
Councils had revenue as well as other executive work which was more
important than their work of sitting as a court. They did not care for the
judicial work and left it to be done by the law officers. In that way the
law officers were left free to decide the matters according to their own
wishes. When Warren Hastings came to know of these defects he
removed them by a new judicial plan promulgated on 11th April, 1780.
The main feature of this plan was separation of revenue matters from
judicial matters. Thenceforth, separate authorities were established (a) to
deal with the collection of land revenue and to decide the disputes
arising from it, and (b) for the purpose of deciding other disputes. Under
this system the Provincial Councils were left only with the function of
collecting land revenue and deciding revenue disputes. Other judicial
functions were taken away from their hands.
Diwani Adalat.—For the performance of judicial functions a Diwani
Adalat was established in each of the six divisions of Calcutta,
Murishidabad, Burdwan, Dacca, Dinajpore and Patna. This Court was
presided over by an English Judge who was a servant of the Company.
The Judge was known as Superintendent of Diwani Adalat. The
Superintendent was assisted by native law officers in a dispute related to
1. The divisions were: Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna.
2. See Chapter 4.
Beginning of Adalat System: Warren Hastings 29
a Hindu or a Mohammedan. The Superintendent had to take oath of his
office to work without fear and favour. He was quite independent from
any control of the Provincial Council. Thus an independent civil judiciary
was established in all the six divisions.
The jurisdiction of this court extended to all civil cases of whatever
nature and amount. Cases upto the value of Rs. 100 could be referred to
the local zamindar or any other local public officer so as to avoid -
inconvenience to the parties of coming to the court at the Division
Headquarter. The decisions of Diwani Adalat were final in cases of value,
upto Rs. 100. In cases of higher valuation, appeals went to the Sadar
Diwani Adalat against the judgment of this court.
Working of the Plan of 1780.—The Plan of 1780 separated the
revenue and judicial functions. Now the courts worked more
independently and with better insight into the problems of the litigants
coming to them. However, the system suffered from the following
defects:
(1) The Diwani Adalats were only six in a wide area of Bengal, Bihar
and Orissa, which were too few to cover the entire area and its
judicial work. It led to increase in arrears in the courts and
inconvenience of travelling long distance to reach the courts.
(2) The provision for referring the cases to the local zamindars or
public officers was also not of much help because the parties had
to go at least once to the Diwani Adalat at the Division to file a
plaint and to reply it. Apart from that the local officers and
zamindar did not care much for the cases which were referred to
them. Sometimes they were bribed by the parties or were
influenced by their own interests.
(3) The Superintendent of the Diwani Adalat was not a legally
qualified person. Therefore, he could not take a judicious view of
the issues brought before him.
(4) The Provincial Council, which was given revenue functions and
power to decide disputes relating to revenue matters, worked as
a court in its own cause which was against the principles of
natural justice.
Appointment of Sir Impey as sole Judge of Sadar Diwani Adalat.—
With a view to improve the image of Sadar Diwani Adalats Warren
Hastings thought of some new afrangement so that it could work
properly as a court of law. Until then it was a court of Governor-General
and Council who had little time to sit as judges and hear the cases of the
people. The work mounted and people waited for long to get justice from
30 Indian Legal & Constitutional
History

it. To improve the situation Warren Hastings appointed Sir Impey as its
sole Judge on 18th October, 1780. Sir Impey had become judge of the
Sadar Diwani Adalat while he was also the Chief Justice of the Supreme
Court at Calcutta.
Reforms of Sir Impey.—Sir Impey remained in his office for about a
year. During this period he made very important reforms in the
administration of justice. He issued regulations for the improvement of
all the courts existing in the Moffussil area. The regulations introduced
the following changes:—
(1) The Diwani Adalat at the divisions were directed to hear all the
cases in the open court after administering proper oath to the
witnesses. The law officers could be used only for the purpose of
expounding the law on the facts which the court had decided 1.¢.,
the law officers had no power to decide the facts or hear the
witnesses or the parties. The procedure which was found to have
been followed in Patna case of reporting the matter to the court
by the law officers was stopped.
(2) The number of Diwani Adalats was increased from 6 to 18 so as
to reduce the inconvenience of travelling long distances and also
to curtail the arrears of work.
(3) The Code of Civil Procedure was compiled which was first of its
kind ever introduced in this country. The Code was
promulgated by the Governor-General and Council on 5th July,
1781. Although the Code did not make very farreaching changes,
it put the law on solid and certain grounds so that people could
know the procedure of the courts. The procedure was binding on
the courts.. The Code consisted of 95 clauses. Some of the
important provisions in these clauses were: the separation of
judicial and revenue functions; authorization of the courts to
summon the zamindars and talukdars like any other person;
continuing the provision for the observance of Hindu and
Mohammedan law in disputes arising between them and
introduction of the provision for the application of “justice,
equity and good conscience” in matters which were not covered
by the then existing law'. Various other provisions were made in
the Code for the proper functioning of the law courts and for
keeping their records in order. The Code also provided that the

1. Under the Regulations of 1772, the application of personal law of Hindus and
Mohammedans was limited to few topics. For other matters there was no guidance. The
Code guided the court to observe the principles of “justice, equity and good conscience.’
This provision created much judicial law in India, See Chapter 10.
Beginning of Adalat System: Warren Hastings
31
Sadar Diwani Adalat shall hear appeals in matters of value
exceeding Rs. 1000 and shall also have original jurisdiction in
matters referred to it by the Governor-General and Council. It
was also given the supervisory power of maintaining control
over all the lower courts in the entire Moffussil area. The Code
acquired great popularity and recognition. It was translated into
Persian and Bengali languages also.
Recall of Sir Impey.—Appointment of Sir Impey to the Sadar Diwani
Adalat was a right step towards the reformation of judicial system. Sir
Impey also worked vigorously and sincerely in that direction. But his
holding the twin offices of the Chief Justice of the Supreme Court and
Judge of the Sadar Diwani Adalat was not liked by the authorities in
England. They thought it was a violation of the Regulating Act, which
had established a judicial system at Calcutta independent of all control
from the Company. To them, by accepting the judgeship of the Sadar
Diwani Adalat, Chief Justice Impey had put himself under the
subordination of the Company from which he got his appointment and
also the salary as Judge of the Sadar Diwani Adalat. Although after a few
months Impey refused to draw his salary as Judge of the Sadar Diwani
Adalat unless the Lord Chancellor gave him clearance in this regard, his
sincerity was doubted and he was recalled on 3rd May, 1782 from his
office of judge of the Sadar Diwani Adalat as well as the Chief Justice of
the Supreme Court. After the recall of Sir Impey the Sadar Diwani Adalat
reverted to its previous form, 1.e., the Governor-General and Council
constituted the Adalat. |
ADMINISTRATION OF CRIMINAL JUSTICE
Administration of Criminal justice for the most part was left in the
hands of the Mohammedan officers even after the Plan of 1772. But as the
system had once become loose and the Collector or the Governor-General
and Council could not get enough time to have.an effective control over
criminal courts, these courts failed to provide justice to the people.
Neither they decided matters expeditiously nor did they observe any
principles of fairness. The accused remained in custody for years before
his trial was over. The prison conditions were inhuman. The system
suffered from many defects and required total overhauling. The
Mohammedan law of crimes, which was administered and applied by
these courts, was also defective. Warren Hastings was conscious of all
this. In the year 1781, he drew a scheme for some reforms in the criminal
judicial administration. This scheme made for the following two
innovations:—
32 Indian Legal & Constitutional History

(1) For apprehending the criminals, judges of the Moffussil Diwani,

Adalats were authorised to work as Magistrates. The Magistrates
arrested, chargesheeted and sent the criminals to the criminal
court for trial. As they had merely police functions to perform
they could not ease the problem to any considerable extent,
The trial was still to be held before the existing courts. Again, on
15th April, 1785 Magistrates were empowered by the Governor-
General and Council to try petty criminal cases involving minor
punishments. In cases where life or limb of the accused was to
be affected or he had to be jailed for more than four days the
Magistrate was required to send him to the criminal court.
(2 To look after the working of the criminal courts and to keep a
~—"

proper and effective control over them a department headed by

an officer of the Company called Remembrancer of criminal
courts, was opened. Every criminal court in the moffussil area
was required to send periodical reports to the Remembrancer
about its functioning and show the number of cases brought
before it and of cases decided, punished and discharged by it.
The Magistrates were also required to send similar report to the
Remembrancer on their work. The Sadar Nizamat Adalat was
also brought under the supervision of the Remembrancer which
also had to send its report to him.
Creation of the office of the Remembrancer was a step in the direction
of maintaining control over the criminal courts. But it was difficult fora
single officer to deal with the work of so many courts. Therefore, he
could not create a very effective control. However, this office brought the
defects and irregularities of the courts into light. Nothing more could be
done until 1790, when Cornwallis took the administration of criminal
justice from the hands of Nawab and brought it under the Company.

WWWH
 +
SUPREME COURTS AT CAL MADRAS
AND BOMBAY
By the end of 18th century the Company had extended its activities
to the
consid political matters. After the battle of Plassey, it became
erably
a political power in this country. Its administr
was, however, still in
ation
the hands of the men of commerce who were interested in making money
for themselves than in providing a_good administration to the people
under their jurisdiction. Attention of the British government to this state
of affairs was drawn by the following factors—
(1) Increasing wealth of the Company’s servants and decreasing
income of the Company. The servants of the Company tried to
take themselves rich by any means available to them and on
returning to England led a luxurious and ostentatious life, which
created resentment and doubt_in the minds of the British
people.!
(2) Lesireof the British Parliament not to leave uncontrolled a
concern, which was paying a large amount to the government
and had also become a political power in a country of India’s
size and importance. Adam Smith’s theory that a sovereign must
be concerned with theincreaseof the wealth of persons also
influenced Parliament to take real control from the hands of a
merchant company which was more interested in its own wealth
than that of the nation or its people.
(3) The immediate cause was Com ‘s_fi ial breakdown.
Apart from failing to pay the revenue, the Company expressed
a desire for a loan of_one million pounds from the British
___ Government.
1. B.N. Pandey, op.cit. p. 32 writes, “The attention of the reading public in England had
been drawn towards these abuses in the Company’s administration of Indian territories
by the two editions of Alexander Dow’s History of Hindustan and William Bolt’s
Consideration on Indian Affairs. 33
34 Indian Legal & Constitutional History

These reasons led the British Government to appoint two committees

of the House of Commons — a Select Committee and a Secret Committee.
The two Committees, after making several adverse reports, came to the
conclusion that “the independence of the Company must yield to the
supremacy of Parliament”. Consequently in 1773, the Parliament of
:ngland passed the Regulating Act with a view to remove the evils of the
existing system.
THE REGULATING ACT, 1773!
The Regulating Act which came into force on 21 June, 1773, sought to
achieve the following three objectives:— a
(i) to reform the constitution of the East India Company;
(ii) to reform the Company‘s Government in India; and
(iii) to provide remedies against the illegalities and oppression of the
Company’s servants in India.*
The provisions of the Act relating to the first objective are not
relevant for our purpose but the provisions which were made in
furtherance of the second and third objectives may be summarised as
under:—
1. Governor-General _and_Council.—In place of Governor and
Council, a Governor-General] and Council consisting of four Councillors
was appointed at Calcutta.> The decisions of the Council were taken by
majority. In case of equal division the Governor-General, and in his
absence the seniormost Councillor, had a casting vote.
2. Powers and duties of the Council.—The entire civil and military
government including the ordering, management and governance of all
the territorial acquisitions and revenues of the Presidency of Calcutta and
the provinces of Bengal, Bihar and Orissa, was vested in the Governor-
General and Council. TheGovernor-General and Council were required
to furnish all information relating to the government, commerce and
interest of the Company.
3. Control of Madras and Bombay.—The government of the
Presidencies of Madras and Bombay were put under the superintendence
and control of the
Governor-General and Council to the extent that they
(Madras and Bombay Governments) could not commence hostilities,
declare war or conclude any treaty of peace or other treaty with any
Indian prince or power without their prior consent and approbation of
. The official title of the Act was: “The East India Company Act, 1773”.
. See B.K. Pandey, op.cit. p. 34. 3
. The names
WN of the first Governor-General and Councillors were mentioned in the Act
itself.
Supreme Courts at Calcutta, Madras and Bombay 35
the Governor-General and Council. Prior consent was, however, not
required in case of imminent necessity or if special orders from the
Company had been received. The Governments of Madras and Bombay
were required to obey the orders of the Governor-General and Council
and transmit all information relating to the government, revenues or
interest of the Company in those presidencies.
4. Legislative power of the Council.—The Governor-General and
Council could make any rules, regulations and ordinances they thought
just and reasonable for the order and good governance of Calcutta. In
case of breach of such rules, they could also provide punishment. This
power was, however, subject to the following conditions:—
(i) the rules, regulations and ordinances must not be repugnant to
the laws of England;
(ii) they were not valid and effective unless registered and
published in the Supreme Court; the Court was required to
publish and affix them in the Court building for twenty days
before their registration;
(iii) the rules, regulations, and ordinances could be set aside or
repealed by the King-in-Council on an application presented to
the Supreme Court within sixty days of their registration;
(iv) the Governor-General and Council were required to transmit
copies of all rules, regulations and ordinances to the Secretaryof
State in_England. The King or Crown could disallow any of
them. But if the King did not take any action within two years
they continued to be valid.
5. The Supreme Court.—Sect 13 of the Act made detailed
provisions for the establishment of a nim ee at Calcutta and
authorised the King George II to issue a Charter for that purpose. The
provisions of the Act along with that of the Charter are discussed below.
6. Provision on presents and private trade.—The Governor-General,
the Councillors, Chief Justice and other Judges of the Supreme Court
were prohibited from accepting any present, gift, donation, gratuity or
reward from any person and from carrying on any trade or commerce of
any kind for their personal use, benefit or advantage.
7. Jurisdiction of King’s Bench over Governor-General, Councillor,
udges, Company's s and British subjects.—Any of these persons
overnor-General, Councellor, Judges, Company servants, British
subjects, could be tried at the King’s Bench in England if they committed
any crime or offence against the Act, or against any of His Majesty's
subjects or any of the inhabitants of India.
36 Indian Legal & Constitutional History

THE SUPREME COURT AT CALCUTTA

In pursuance of the provisions of the Regulating Act, 1773 King
George Il issued a Letters Patent for establishing a Supreme Court of
Judicature at Fort William. The composition, jurisdiction and powers of
the Supreme Court were as follows:
Composition of the Supreme Court.—The Supreme Court consisted
of a Chief Justice and three other judges with barristers of England or
Ireland of not less than five years standing were qualified to be
appointed as judges of the Supreme Court. The judges were appointed by
the Crown and held office during His Majesty’s pleasure. The salary of
the Chief Justice was fixed at £ 8,000 and the other Judges at £ 6,000 per
annum which was to be paid from the Company’s treasury.
Jurisdiction of the Supreme Court.—The Supreme Court had five
kinds of jurisdiction.
1. Civil Jurisdiction—The civil jurisdiction of the Court was of two
kinds: (i) territorial and (ii) personal. With respect to the Presidency of
Calcutta the Supreme Court had a territorial jurisdiction and therefore,
civil matters relating to all persons, arising within the Presidency of
Calcutta fell within the jurisdiction of the Supreme Court. Beyond the
Presidency limits and within the provinces of Bengal, Bihar and Orissa,
the Supreme Court had only personal jurisdiction. Therefore, a suit could
be filed in the Supreme Court against the following categories of persons,
irrespective of the location of the cause of action. The categories were:
(i) the East India Company;
(ii) the Mayor and Aldermen of Calcutta;
(iii) any of His Majesty’s subjects who resided or held any property
within the provinces of Bengal, Bihar or Orissa; ,
(iv) the executors and administrators of the persons mentioned in
category (iii);
(v) any other person who was at the time of the filing of the suit or
at the time of occurrance of the cause of action was in the
employment, or directly or indirectly in the services of the
Company or the Mayor and Aldermen of Calcutta; and
(vi) any other person who agreed in writing with any of His
Majesty’s subject that if the cause of action exceeded Rs. 500, the
dispute shall be decided by the Supreme Court.
While in all other matters the jurisdiction of the Supreme Court was
original but in category (vi) a matter pending before or decided by any
of the Company’s courts could be brought to the Supreme Court for
decision on a petition filed by any of the parties in the matter.
Supreme Courts at Calcutta, Madras and Bombay 37
2. Equity Jurisdiction.—The Supreme Court was given the same
equity jurisdiction as that of High Court of Chancery in Great Britain had
that time.
3. Criminal Jurisdiction.—The criminal jurisdiction of the Supreme
Court extended to all British subjects residing in Calcutta and within the
territory of Bengal, Bihar and Orissa. Only the British people and their
servants and persons employed with the Company were covered under
this jurisdiction. Other natives were not subject to the jurisdiction of the
Supreme Court. The Supreme Court had to follow as far as possible, the
procedure of the English courts and worked as a Court of Oyer and
Terminer and Goal Delivery in and for the town of Calcutta, the Factory
at the Fort William and the Factories subordinate to it. Trial was to be
held with the help of a petty jury. The Supreme Court had no jurisdiction
to try the Governor-General and the members of his Council or the
Judges of the Supreme Court except in cases of treason or felony. Mercy
petitions were referred to the Crown in England on the recommendations
of the Supreme Court. 7
4. Ecclesiastical Jurisdiction—The Supreme Court had the same
jurisdiction over British subjects in India as the ecclesiastical’ courts in
England at that time. In that capacity the Supreme Court functioned as
a court of testamentary and probate jurisdicion. It also appointed
guardians and keepers for infants’ and lunatics’ properties.
5. Admiralty Jurisdiction—The Supreme Court had the same
admiralty jurisdiction in all cases civil and maritime and in all maritime
crimes committed upon the high seas at that time. In trying such cases,
the Supreme Court took help of the petty jury.
Other Powers of the Supreme Court.—The Supreme Court was a
court of record. It had the power to punish for its contempt. Its Justices
were appointed Justices of Peace throughout the three provinces of
Bengal, Bihar and Orissa and were given the same jurisdiction and
authority as the Judges of the King’s Bench in England. In the latter
capacity, i.e., of the judges of the King’s Bench, the Supreme Court could
also issue various prerogative writs which the King’s Bench could issue
in England. Finally, all the Governors, Commanders, Magistrates,
Officers and Ministers, civil and military, and all subjects within the
provinces Bengal, Bihar and Orissa were required to assist and obey the
Supreme Court powers, jurisdiction and authority.
Appeals.—Appeals against the decisions of the Supreme Court could
be filed before the King-in-Council in all civil cases valued for 1000
pagodas or more. In criminal matters an appeal before the King-in-
Council could be filed only through the Supreme Court. The Supreme
38 Indian Legal & Constitutional History

Court had absolute power to allow or refuse an appeal or to allow it

subject to the terms laid down by it.
Working of the Supreme Court.—Sir Ehjah Impey was the first Chief
Justice and Robert Chambers, John Hyde and Le Maistre were the first
puisne Judges of the Supreme Court. The Court started functioning
towards the end of 1774. Its establishment was welcome for the following
reasons:—
(i) it was the first British Court in India consisting of lawyer judges;
(ii) it was fully independent of the control of Company's
Government in India;
(iii) its jurisdiction was so wide that every legal wrong of any kind
could be redressed by it;
(iv) subjection of all British subjects to its jurisdiction ensured the
rule of law.
In spite of these attractive features of the Supreme Court, difficulties
started arising in its functioning soon after its establishment. Some of
these difficulties were due to ambiguities in the provisions of the
Regulating Act, 1773 and the Letters Patent establishing the Supreme
Court while the others resulted from circumstances! and the complete
introduction of British legal system in India without regard to its cultural,
social and other considerations. Following are some of the specific
instances of these difficulties:—
(1) Relations between the Supreme Court, and the Governor-
General and Council become strained due to some ambiguities
in the provisions of the Regulating Act and the exercise of
powers by the Supreme Court. Some of them are:—
(a) The relationship between the Governor-General and
Council, and the Supreme Court was not clearly defined.
The only provision made was that the Governor-General
and the members of his Council shall not be liable before the
Supreme Court except for felony and treason suits. It did not
say what would happen in case of other offences or in civil
suits against them. This ambiguity led to the situation that
the Supreme Court would like to entertain matters against
the Governor-General and his Council while the latter
would like to defy the authority of the Supreme Court.
(b) The position of the Governor-General and Council in the
exercise of their Diwani function vis-a-vis the powers of the
1. B.N. Pandey, for example, says: “Mutual distrust, jealousy and ambition lay at the root
of the early conflicts that ensued, on one hand, between the judges and the new
Councillors and, on the other, between the new and old Councillors.” op. cit. p. 43.
Supreme Courts at Calcutta, Madras and Bombay 39
Supreme Court was also not clear. The government
(Governor-General and Council) took the stand that in the
management of Diwani functions and the collection of land
revenue, it was free from the jurisdiction of the Supreme
Court and accordingly, no person working with it in that
capacity could be held liable before the Supreme Court for
any of his acts. The Supreme Court, however, took the stand
that though it would not interfere in “ordering the
management” of Diwani, it would interfere in all cases of
oppression or violence in the collection of land revenue. The
Supreme Court used its power of interference which the
Governor-General and Council did not like. This created
bitterness in their relationships.
(2) The relationship between the Company’s Courts in the moffussil
area and the Supreme Court was also not clear. Whether the
Company’s Courts were subordinate to the Supreme Court or
whether the Supreme Court issue writs or entertain appeals
against the orders of Company’s Courts? These and several other —
questions were left obscure by the Act. The Supreme Court
began to act against the Judges of these Courts if they committed
any illegalities as they did in the Patna case.
(3) The jurisdiction of the Supreme Court was not clearly defined
with respect to territory outside the Presidency limits of
Calcutta. The Supreme Court would issue subpoenas to
witnesses and other connected persons to appear before it on a
particular date irrespective of the fact that they lived outside the
Presidency limits and did not believe that they were not subject
to the jurisdiction of the Court.
(4) Several terms used in the Act and in the Charter which were not
clear. Questions such as who were ‘British subjects’, “subjects of
His Majesty”, “subjects of Great Britain, of us aud our heirs”,
persons employed directly or indirectly in the service of the
Company arose in many cases. The Supreme Court gave its
interpretation to these terms which was neither consistent nor
satisfactory. For example, as per the court's view, farmers of
revenue were indirectly in the service of the company and were
thus under its jurisdiction while the Governor-General and
Council thought it otherwise. This led to the famous Patna case.
(5) Clause 4 of the Charter declared the Judges of the Supreme
Court as Justices of Peace “within and through the districts of
Bengal, Bihar and Orissa” and had such authority as the Judges
of the King’s Bench in England. On that basis the judges began
 Indian Legal & Constitutional History
to issue writs beyond the Presidency of Calcutta which the
people, particularly the British, who previously escaped
jurisdiction of all courts and had for the first time come within
the jurisdiction of this Court, resented. The resentment would
not have arisen but for the ambiguity in the provisions.
(6 The jurisdiction of Supreme Court was not clearly mentioned
about the natives. Although the natives living outside the
—

Presidency limits of Calcutta were not within its jurisdiction, if

any proceedings were started by any one against a native he had
to appear before the Supreme Court to plead the lack of
jurisdiction. For this purpose he had to travel long distance to
Calcutta and had to pay his own costs. Moreover, the Supreme
Court used to issue the process of “arrest on mesne process” under
which a defendant could be arrested and detained till the court
decided the matter or till any one gave security on his behalf.
The Kasijora case is an extreme example of this difficulty.
(7) The Act did not make any clear provisions about the law which
the Supreme Court had to apply in the proceedings before it.
Although it applied English law, it was not clear about the
extent of its application. The Charter of 1726 had introduced
English law as it was till that time but the position of English law
made later was not clear. In this way the position of the parties
coming before the Supreme Court was very strange because they
did not know the law which could be applied to their case. They
had to depend upon the attornies of the Court who charged very
high fee. The fee of plaintiff's attorney in Patna case, amounted
to over Rs. 40,000 in those days.
(8 Position of natives living within the Presidency limits of Calcutta
~~"

was also not clear. Whether they shall be governed by English

law or by their own law in the disputes amongst themselves was
not clearly indicated.
(9) The Supreme Court applied the law of England in criminal
matters which was very harsh and severe. For minor offences a
person could be hanged. There were innumerable capital
offences. The harshness of this law operated more severely on
Indians who neither knew this law nor were accustomed to it. It
was quite foreign to their habits, circumstances and to the
Muslim law by which generally, governed them. The Supreme
Court applied this law with all its harshness and severity to
Indians and thus invited their resentment. The extremity of it
came into picture in the famous case of Raja Nand Kumar.
Supreme Courts at Calcutta, Madras and Bombay 41
Illustrative Cases.—How serious were the difficulties noted above
may be illustrated with reference to the following three cases selected
from a large number of similar other cases decided by the Supreme
Court.
Raja Nand Kumar’s case—Raja Nand Kamar’s case is one of the most
outstanding cases of our modern legal and political history. The
circumstances in which the case was started, tried and executed has led
some historians to call it a judicial murder. The facts leading to that case,
in brief, were: Raja Nand Kumar who had held high positions under the
Nawabs and the Company, made an allegation to the Governor-General
and Council some time in March 1775 that Warren Hastings, the then
Governor-General, had received in 1772 from one Munny Begum a sum
of Rs. 104,105, and from Nand Kumar a sum of Rs. 2,50,000 for
appointing Nand Kumar’s son and Munny Begum to be the Diwan and
guardian of the Nawab, respectively. The majority of the members of the
Council decided that Warren Hastings had received that money and he
should pay it to the Company. After this event in April 1775 Hastings
approached the Supreme Court to prosecute Nand Kumar and two others
for conspiracy. The allegation was that Nand Kumar and two others had
forced one Kamal to make false accusations against Hastings. The case
was fixed for final hearing in the first week of June 1775.
But before the trial of this conspiracy case another case of forgery,
with which we are concerned here, was started against Nand Kumar. For
forgery case, the prosecution was moved by one Mohan Prasad who
alleged that to defraud the executors of one Bulaki Das, Nand Kumar had
forged a bond in his favour in 1770. The trial started on 8th June, 1775
and lasted until the morning of 16th June, 1775 when the Court
condemned Nand Kumar to death. He was hanged on 5th August, 1775.
Some of the legal issues involved in this case are worth noting for its
critical appreciation.
Two broad legal issues that arose in the case were—
(i) whether Nand Kumar was under the jurisdiction of the Supreme
Court, and
(ii) whether the Act of 1729 of British Parliament which made
forgery, a capital offence and under which Nand Kumar was
indicted and tried, extended to India?
The first issue was based on the pleas that Nand Kumar was not a
resident of Calcutta in 1770, when the offence was alleged to have been
committed and that before the advent of the Supreme Court all Indians
wete tried by the Faujdari Adalats. Accordingly, Nand Kumar should be
tried by a competent Adalat. The Supreme Court was not a competent
42 Indian Legal & Constitutional History

Adalat. Therefore, the issue of jurisdiction was withdrawn. On the

second, issue it was argued that the Act of 1729 was designed to deal
with the peculiar crimes committed in England and was not intended to
be applied to India. The Supreme Court rejected this plea also on the
following grounds:—
(i) that the statute of 1729 was introduced in India by the Charter
of 1753 which had replaced the Charter of 1726. Since the
Charter of 1726 had introduced all English statutory laws
existing at that time the Charter of 1753, which replaced it,
introduced the statutes passed till 1753 including the statute of
1729.
(ii) that the statute of 1729 had been applied in 1765 in the case of
one Radhacharan who was also sentenced to death. He was
however, granted pardon.
(iii) that the Judges had no option to try forgery under any other law.
During the course of trial the defence witnesses were severely cross-
examined by the Judges, uncommon in the law courts. The witnesses did
mot in any way contradict their testimony in the cross-examination.
However, the Supreme Court concluded that these witnesses had been
thoroughly prepared to state a cooked up story. A prosecution witness
had also become hostile. Supreme Court thought that he was influenced
by Nand Kumar’s men. But it trusted the two prosecution witnesses—
Mohan Prasad and Kamal. It asked the jury to give its verdict. The jury
gave the verdict of “guilty”.
After the jury verdict Nand Kumar’s counsel moved the Court in
protest of judgment pleading that the bond alleged to have been forged
by Nand Kumar was neither a bond nor a promissory note in terms of
English law. The Supreme Court rejected this plea holding that the bond
could be brought under one or other terms.
In the next step a petition for appeal to King-in-Council was
presented to the Supreme Court alleging that Nand Kumar being a Hindu
of Bengal was ignorant of English law and could not defend himself so
well as a British subject could do. This petition was also rejected on the
ground that the allegations were general and not specific.
The only course now left was a mercy petition and suspension of
sentence until any decision was taken on that petition. However, it seems
that no petition except that of Radhacharan, Nand Kumar’s son-in-Law,
was presented to the Supreme Court. Since it was also based on the plea
of Nand Kumar’s ignorance of law, it was also rejected by the Court.
Before concluding, we may also note that Warren Hastings and Nand
Kumar were enemies and the Chief Jusice of the Supreme Court was a
Supreme Courts at Calcutta, Madras and Bombay 43

school friend of Hastings. Hastings could be suspected of being behind

the prosecution and conviction of Nand Kumar. The Supreme Court also
seems to have been carried away by the desire to teach a lesson to
Indians that English law did not make any distinction between a rich
Brahmin like Nand Kumar and any other person. The Supreme Court also
got agitated by the interference of some of the Councillors in this case.
Otherwise, if the Supreme Court had wanted to spare the life of Nand
Kumar it could have done that by not applying the statute of 1729 or by
accepting any of the three pleas raised in the trial mentioned above. The
attitude of the Supreme Court on all the issues discussed above creates
an impression that it was predetermined. And even if it was not so
determined and it did everything in good faith its decision created a
terror instead of respect for the Court in the minds of the people.
The Patna case.—The Patna case is an example of conflict between the
Company’s courts and the Supreme Court, and finally between the latter
and the Governor-General and Council because of the obscurity of
jurisdiction of the Supreme Court. Of course, the case also throws light
on the bad state of affairs in the Company’s courts and the Supreme
Court’s desire to improve it. ;
In this case a suit for damages was filed in the Supreme Court in the
latter half of 1777 by Naderah Begum, a widow, against her husband’s
nephew, Behdar Beg, the Qazi of Patna and two Muftis of Patna’s
provincial court, for injuries alleged to have been inflicted on her in
consequence of the orders and a degree of the Council at Patna in
exercise of its powers and functions as a court of justice.
The brief facts that led to this case were: one Sahbaz Beg Khan who had
come from Kabul served the Company for sometime. After retirement
from company's service he settled down in Patna and married Naderah
Begum from whom he had no child. After sometime his nephew Behdar
Beg came from Kabul and stayed with him till his (Sahbaz Beg Khan's)
death in 1776. On Sahbaz Beg’s death dispute for inheritance arose
between Naderah and Behdar, each claiming the whole property. Naderah
under a gift (Hibbanama) alleged to have been executed by her husband,
and the nephew as adopted son.
On 2nd January, 1777 Behdar Beg filed a suit in Patna Council alleging
that he was the adopted son of Sahbaz and therefore, entitled to the entire
property. He also prayed that Naderah be stopped from removing the
property and the property already removed be restored. The same day
Patna Council ordered the Qazi and the two Muftis to take an inventory
of the property of Sahbaz and allot the shares of each claimant according
to Mohammedan law. After taking the evidence of both sides the Qazi
and Muftis reported to the Patna Council on 20th January, 1770 that the
44 Indian Legal & Constitutional History

gift deed was forged and that the property of the deceased be divided
into four shares, whereof three should be given to Behdar Beg, because his
father was the legal heir of the deceased and he himself was his adopted
son. The remaining one fourth share should go to Naderah, the widow of
the deceased. Accepting the decision of the law officers the Patna Council
ordered its execution. The law officers started executing the order which
was resisted by Naderah, who feeling humiliated, took refuge in a
Durgah. After some time Naderah came to Calcutta and filed a case for
trespass and assault in the Supreme Court against Behdar Beg, Qazi and
the two Muftis. The Governor-General and Council resolved to defend
the case on behalf of the defendants because they were being prosecuted
in the exercise of their judicial powers.
The legal issues that were raised in the trial, which started in
November 1778, were:
(i) whether Behdar Beg, who lived outside Calcutta was subject to
the jurisdiction of the Supreme Court? and
(ii) whether the law officers could be prosecuted for acts done in
their judicial capacity?
The Supreme Court decided both the issues in affirmative. On the
first issue, the court said that Behdar was a farmer of revenue; he was not
different from the Revenue Collector and was, therefore directly or
indirectly in the services of the Company. On the second issue, the
Supreme Court held that although the Patna Council was, legally
constituted court having jurisdiction to decide the civil disputes between
the Indians, it had no jurisdiction to delegate its functions to the law
officers—the Qazi and the Mutftis.
After the rejection of these jurisdictional issues the defendants
pleaded not guilty. The only question which the Supreme Court had to
decide was whether trespass and assault was committed. Since the Court
found that Naderah was in possession of the property at the time the
defendants proceeded against her, their guilt was established. The
Supreme Court awarded Rs. 30,000 damages and Rs. 9,208-8 annas as cost
to Naderah.
The defendants were brought to Calcutta. Qazi died on way and the
rest of them were put in jail because they failed to pay the damages
awarded by the Supreme Court. They remained in jail till 12th August,
1782 when they were released on a bond executed by the Company in
accordance with the provisions of the Act of Settlement, 1781.
An appeal was also filed in the Privy Council in 1781 which was
dismissed in 1789 for the want of prosecution.
Supreme Courts at Calcutta, Madras and Bombay 4!

Later in March 1779 Naderah filed a similar case against the members
of the Patna Council. Supreme Court, rejecting the plea of the defendants
that they acted in their judicial capacity, held that their entire
proceedings were illegal and corrupt and accordingly, was awarded
Rs. 15,000 as damages.
While this case exposes the irregularities committed by the Provincial
Councils in leaving their function to the law officers and the Supreme
Court's concern to condemn them, it,-also establishes the obscurity of the
Court's jurisdiction and consequent difficulties caused to the Company’s
administration in India. Ultimately, the entire loss fell on the Company
because not only it had to pay the decreed amount but also had to pay
some compensation to the Qazi’s children and Muftis.
The Kasijora case.—This case brought the Supreme Court and the
Governor-General and Council into direct conflict and brought their
relations to the breaking point. In this case one Kashinath filed a debt suit
in the Supreme Court against Sundernarain, the Raja of Kasijora. As
Zamindar, the Raja used to pay annual revenue to the Company. In the
suit it was alleged that he was indirectly in the service of the Company
and therefore, the Supreme Court had jurisdiction over him. The Court
issued a warrant of arrest against the Raja authorising the sheriff to
accept bail in the sum of Rs. 3,00,000.
At this stage the Governor-General and Council sought the advice of
the Advocate-General who advised against the Raja’s appearing in the
Court and doing any act which might amount to a recognition of the
Supreme Court authority. He also advised that “in all similar cases, as
well as in the present, the power of the government shall not if called
upon be employed in aid of the judicature.” Later, on 17th December,
1779 the Governor-General and Council gave a general notice to all
Zamindars that as they were not subject to the jurisdiction of the
Supreme Court they shall not appear, plead or do any such act which
might amount to a recognition of the Supreme Court authority.
Following this advice the Governor-General and Council directed the
Collector of Midnapore not to offer any help to Court’s Sheriff in this
regard. Since the Raja was hiding and the warrant could not be served on
him the Supreme Court ordered for the confiscation of his property. This
time the Governor-General and Council directed the Commander of the
Midnapore Cantonment to intercept Sheriff's men. The Commander,
accordingly dispatched the necessary force to arrest Sheriff's men. They
were arrested and sent to Calcutta as prisoners.
Kashinath, then moved the Supreme Court for a writ against the guilty
officers including Warren Hastings and Councillor Barwell for having
46 Indian Legal & Constitutional History

committed the contempt of the court. The Court issued writs against all
except Hastings and Barwell, but the writs could not be enforced against
any one except the lawyer at Calcutta whom the Court got arrested and
imprisoned as a representative of the Contemner.
Kashinath filed another plaint against the Governor-General and the
Councillors for having assulted the Sheriff's men and rescued the seized
property with an intention to deprive him of the recovery of his debts
from the Raja. The Councillors initially appeared through their counsel
and pleaded that their acts were performed in their public capacity. But
later they decided to withdraw appearance and through their counsel
conveyed to the Supreme Court various reasons in view of which the
Supreme Court should not proceed with the case. Thus a deadlock was
created; the Councillors will not appear before the Court, and Court
could not enforce its orders against them. Suddenly on 12th March, 1780,
Kashinath withdrew his suits against the Raja and the Councillors.
As a consequence of the Kasijora case:
(i) the jurisdiction of the "Supreme Court was reduced to the
territorial limits of the Presidency of Calcutta.
(ii) the dignity of the Supreme Court was adversely affected;
(iii) a moderate improvement was made in the Company’s Courts to
impress upon the people that not only the Supreme Court but
other courts also administered justice; and
(iv) finally, the Settlements Act of 1781 was passed to indemnify the
Governor-General and Council for using force against the
Supreme Court.
THE ACT OF SETTLEMENT OF 1781
It has been seen above, that the Supreme Court had aroused the
dissatisfaction of all persons, whether natives or the servants of the
Company. The Directors of the Company, in these circumstances,
appealed to the King in 1777 that the things should be set right as it had
become very difficult for the Government of the Company at Calcutta to
carry on its Diwani functions. Consequently in 1780, the House of
Commons appointed a Secret Committee to hold a thorough enquiry into
the administration of justice in Bengal, Bihar and Orissa. On the report of
the Secret Cormmittee, the Act of Settlement of 1781 was passed by the
Parliament of England.
The main purpose of the Act were set out in its preamble as:
“(1) to remove doubts and difficulties which had arisen regarding,
the true intent and meaning of certain clauses in the Regulating
Act and the Charter which had created dissensions between the
Supreme Courts at Calcutta, Madras and Bombay 47

Supreme Court and the Government and which, if not removed,

might lead to further mischief and misunderstanding;
(2) to support the lawful Government of Bengal, Bihar and Orissa,
so that revenue might be collected with certainty; and
(3) to maintain and protect the inhabitants in the enjoyment of all
their ancient law, usages, rights and privileges.”*
Changes introduced by the Act—The Act of 1781 did not change the
set up of the government or of the Supreme Court but it made necessary
changes in the Regulating Act and the Charter issued under it, wherever
they were necessary in view of the past experiences. The following are
the relevant features of the Act—
(1) Governor-General and Council were excluded from the
jurisdiction of the Supreme Court for all things done or ordered
by them in their public capacity and as Governor-General and
Council.
(2) Any other person who acted on the written orders of the
Governor-General and Council was also exempted from the
jurisdiction of the Supreme Court.
(3) Revenue matters and the matters arising in the collection of
revenue were totally excluded from the jurisdiction of the
Supreme Court.
(4) The land-owners, landlords, farmers of revenue under-tenants
and surety for payment of rent were expressly excluded from the
jurisdiction of the Supreme Court, so as to avoid any kind of
conflict that had arisen in the Patna case.
(5) No person employed by the Company or by any British subject
was to be liable to the jurisdiction of the Supreme Court in
matters of inheritance, succession or contract unless such an
employee was a British subject or Englishmen or unless he
agreed in writing to refer any matter to the Supreme Court.
However, the jurisdiction to decide all actions against the
inhabitants of Calcutta was retained.
(6) The Act also mentioned it clearly in its section 17 that Hindus
and Mohammedans in all their matters arising out of inheritance
and succession to land and goods and all matters of contracts
and dealings between the parties were to be decided according
to their personal law and if the case was between a
Mohammedan and a Hindu then according to the law of the
defendant.
1. MP. Jain, op. cit., pp. 144-145.
43 Indian Legal & Constitutional History

(7) The Act also recognized the rights of the family heads or
managers to inflict certain punishments and commands on the
members of the family.
The Sadar Diwani Adalat, which had been established under the
Plan of 1772, was declared as a court of record having final
jurisdiction in civil matters. Appeals against its decisions went to
the Privy Council in matters of the value of Rs. 5000 or more. The
Adalat was not in any way subordinate to the Supreme Court.
Offences committed in the collection of land revenue were also
put under the jurisdiction of the Sadar Diwani Adalat and the
Supreme Court was denied jurisdiction to entertain such cases.
(10) The native courts and judicial officers could not be held liable for
any thing done in their capacity as judges or law officers and
consequences taking place in the execution of the decree or
orders passed by such officers. The Supreme Court could take
congizance only of charges of corruption made against such
officers but that too after giving one or three month’s notice to
the law officer concerned, according to the distance of the place
where he was working or residing. If any proceeding was so
taken by the Supreme Court, such officers were not liable for
arrest and detention.
(11) The Supreme Court was authorised to make procedural rules,
regulations, etc., in accordance with the needs of the people to
whom the law was to be applied and, therefore, they were as far
as possible, confirmable to their habit. The rules, regulations, etc.,
were to be laid before His Majesty for approval and His Majesty
had the right to approve, correct or reject them.
(12) The Act gave extensive legislative powers to the Governor-
General and Council for the purpose of making laws for Bengal,
Bihar and Orissa. They could frame regulations for the
provincial courts and Councils, the copies of which were to be
submitted within six months of their enforcement to the Court of
Directors of the Company and to one of His Majesty’s Secretaries
of State. His Majesty-in-Council had the right to allow, disallow
or amend any such regulation within two years. Such rules and
regulations were not to be placed before the Supreme Court.
(13) The last clause of the Act indemnified the Governor-General and
Council and persons who had acted under their orders for acts
done in resisting the process of the Supreme Court during and
after the Kasijora case.
Supreme Courts at Calcutta, Madras and Bombay 49
The 1781 Act removed most of the difficulties and their causes that
existed prior to it. The Supreme Court on the one hand and the
Company’s courts on the other worked smoothly after the passing of the
Act. From all the above-mentioned developments one may conclude that
it was not an easy task to impose a legal system on persons who were
used to a different legal system. These developments also led to the
conclusion in Hamilton’s words “judiciary is the weakest of all the three
organs of the government and unless the people are determined to
preserve its independence it is bound to be a loser.” The whole process
also shows British Givernment's concern for the rule of law and exclusion
of decision making by force. Instead of leaving the scores to be settled
between the Company's Government and the court, they resolved the
existing disputes and excluded the possibility of the future ones through
law so that no one could violate law with impunity. The success or
otherwise of these efforts is another matter.
In the following areas, difficulties were sometimes felt even after the
Act of 1781:—
(i) Ecclesiastical jurisdiction of the Supreme Courts with respect to
Indians was not clear as to whether it had the power to issue the
instruments of administration or probates in the case of a Hindu
or a Mohammedan. In many cases these types of matters were
entertained by the Supreme Court and conflicting opinions were
given by it which always remained matters of controversy and
caused dissatisfaction amongst the people. |
(ii) The jurisdiction of the Supreme Court applied to all inhabitants
of Calcutta. Who was an inhabitant of Calcutta was not defined
in the Act and, therefore, the Supreme Court took a view that
any person coming to Calcutta even for a short span of 24 hours
was constructively an inhabitant of that place and so he could be
subject to the jurisdiction of the Supreme Court. In many cases
it happened that a person came to Calcutta only on a short visit
for some purpose and a suit was filed against him before the
Supreme Court and the court entertained-it without taking into
consideration whether the person was actually an inhabitant of
Calcutta.
(iti) The third aspect of controversy was the writ jurisdiction of the
Supreme Court. The Supreme Court issued such writs against
the decisions of the Courts in Moffussil area and also issued the
writ of habeas corpus to release the persons detained under the
orders of courts. The exercise of such powers was opposed by
the courts as well as by the Government.'
1. For the history of writ and problems associated with them see Chapter VIII.
50 Indian Legal & Constitutional History

The SUPREME COURTS AT MADRAS AND BOMBAY

In the Presidencies of Madras and Bombay, the judicial system
established under the Charter of 1753 operated for a longer time than it
did in Calcutta. However, with the time the activities of the Company at
these places also increased in the volume as well as in space. They
became more complex and varied. In these circumstances the
rudimentary system established under the Charter of 1753 could not
work properly. There was an urgent need of a lawyer-judge to deal with
the new cases. In 1791 the Madras Council brought these matters to the
notice of Directors of the Company who in turn brought them to the
notice of Parliament. In 1797, the British Parliament enacted an Act
authorising the Crown to issue Charter for the purpose of establishing a
Recorder’s Court at Madras and Bombay.
Recorder’s Court.—Under the authority of the Act of 1797, King
George III issued a Charter on 1st February, 1798 which established a
Recorder’s Court each at Madras and Bombay. The Courts started
functioning at the end of that year.
The Recorder’s Court consisted of one Recorder, the Mayor and three
Aldermen of the Corporation. The Recorder was a barrister with at least
five years standing. He was appointed by the Crown and was the
President of the Court.
' The Recorder’s Court had almost similar jurisdiction as that of the
Supreme Court of Calcutta i.e., it could entertain all civil, criminal,
ecclesiastical, admiralty, maritime and equity cases. The Court was also
subject to the same restrictions as the Supreme Court of Calcutta. For
example, it could not deal with matters relating to the Governor-General
and Council in their official capacity, the matters relating to Hindus and
Mohammedans were to be decided by their own laws, etc. Appeals
against the judgments of this Court could be filed before the Privy
Council under the same conditions as they could be filed against the
judgment of the Supreme Court. It shows that except the difference in its
composition and name the Recorder’s Court was a replica of the Supreme
Court.
At the level of lower judiciary, the jurisdiction of the courts. of
requests in all the three Presidencies was increased from 5 pagodas to Rs.
8,000 by the Act of 1797. The importance and usefulness of these courts
was increased. |
The Supreme Courts.—The Recorder’s Court had functioned hardly
for two years when Parliament thought that it should be replaced by a
Supreme Court. Accordingly, in 1800 the Parliament by an Act
authorized the Crown to establish a Supreme Court at Madras. On 26th
Supreme Courts at Calcutta, Madras and Bombay
24493
51}

December, 1800 King George Ill issued a Charter establishing a Supreme

Court at Madras which came into being on 4th September, 1801. In
Bombay the Recorder's Court functioned till 1824 but in the year 1823, the
Parliament authorized the Crown to establish the Supreme Court by a
Charter. The King accordingly, issued a Charter on 8th December, 1823
establishing a Supreme Court at Bombay which came into being on
8th May, 1824.
The Constitutional powers, function, limitations and jurisdiction of
the two courts established at Madras and Bombay were the same as that
of the Supreme Court at Calcutta. The Act of 1823 had specifically
mentioned in section 17 that the Supreme Court at Madras and Bombay,
shall have the power to do, execute, perform and fulfil all such acts,
authority, duties, matters and things whatsoever as the Supreme Court at
Fort William might be authorised or empowered to do, execute, perform
and fulfil within the Territory of Fort William in Bengal or places subject
to or dependent upon its Government. This provision read with other
provisions of the Acts establishing the Supreme Courts at these two
places, placed the three Supreme Courts in the same position.
Working of the Supreme Courts.—The Supreme Courts at Calcutta,
Madras and Bombay were a great advancement over the judicial system
which existed before them at least to the extent that they provided a
purely judicial institution for the purpose of administration of justice in
the Presidencies. Some doubts and difficulties with respect to the powers
and functions of these Courts arose in Madras, Bombay and Calcutta.
Consequently, some conflicts also occurred between the Court and the
executives of the two places. But the conflicts at Bombay and Madras
were not so serious as they had been at Calcutta. The matters never came
to the breaking point. The Supreme Courts at these two places as well as
at Calcutta functioned until 1862 when they were replaced by the High
Courts at all the three places.

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ADALAT SYSTEM UNDER LORD CORNWALLIS
After Warren Hastings, John Macpherson was appointed as the
Governor-General of the Company at Calcutta. His period of twenty
months was not important for the administration of justice. After him in
1786, the year Cornwallis became the next Governor-General who stayed
in that position until 1793. During his tenure he made several important
and far-reaching reforms in the judicial administration, some of which
constitute the foundation of our present legal system. The reforms were —
made in three stages in 1787, 1790 and 1793.
THE JUDICIAL PLAN OF 1787
The judicial plan of Warren Hastings of 1780 continued until the need
for change arose on the arrival of Lord Cornwallis. The Company was
dissatisfied with the existing system for the reason that it had separated
the revenue and judicial functions. This separation of functions was
found to be an expensive affair by the Company. It also created the
conflict of jurisdiction. On 12th April, 1786 the Directors of the company
directed Lord Cornwallis to vest in one person revenue, judicial and
magisterial functions to promote “simplicity, energy, justice and
economy”. This type of arrangement, the company thought would be —
consistent with the Indian tradition in which all the functions were
vested in one department or in body. The company wanted Indians to
remain under the same oppressive system without tasting the fruits of
good administration of justice.
As an obedient servant of the Company, without expressing his
views, Lord Cornwallis introduced a scheme in 1787 in accordance with
the wishes of the Directors of the Company. The judicial plan of 1787 was
introduced in the form of two sets of regulations, one relating to the
revenue matters and the other relating to the general administration of
justice of which were promulgated on 8th and 27th of June, respectively.
By this scheme’ allrevenué and judicial functions
were vested with the
52
Adalat
System under Lord Cornwallis 53
Collector. The functions of the Collector under this scheme could be
divided into three parts.
1, Revenue matters.—-The Collector was given the work of collecting
the land revenue within his district. He had to decide all disputes relating
to the collection of land revenue. The office through which he decided
the revenue matters was called “Mal Adalat’ or “revenue court’. He had
full powers to decide all the disputes arising on this side. An appeal
the decisions of the Collector went to the Board of Revenue at
tta and a second appeal lay with the Governor-General and
Council.
2. Civil matters.--For the purposes of deciding the civil disputes a
court called “Diwani Adalat’ was established in each district. The
Collector was the sole judge of the Diwani Adalat and had the full
ers to decide all types of disputes relating to civil matters. Appeals
the Diwani Adalat went to the Sadar Diwani Adalat at Calcutta in
matters of the valuation of Rs. 100 or more. A second appeal laid to the
King-in-Council and it was allowed in matters exceeding £ 5000 in value.
For the assistance of the Collector in the civil work an officer with the
designation of Registrar was appointed. The Collector had power to refer
cases upto the value of Rs. 200 to the Registrar. The Registrar had the
power to decide the disputes upto Rs. 2000 but his decrees were not
enforceable unless countersigned by the judges of the Diwani Adalat, ic.,
the Collector.
3. Criminal matters.—The Collector was also given some magisterial
powers. As a Magistrate, he had the powers to arrest criminals, hear
evidence against them, charge-sheet them if sufficient evidence was
found against them in his opinicn and commit the case to the criminal
court to be tried by it. In petty matters he was given power to decide and
inflict punishment. The punishment which the Collector could give was
upto 15 stripes or 15 days imprisonment. He had no power to decide
cases of higher punishments, he had to refer them to the criminal court.
Under the previous system the British subjects could not be arrested
except by the orders of the Supreme Court but under the scheme of 1787
the Collector was authorised to arrest even the British subjects if a
complaint was filed before him and was supported by evidence sufficient
to commit that person to the Supreme Court.
The plan of 1787 was in consonance with the wishes of the Directors
of the Company, but it was a retrograde step in the administration of
justice. Whatever good had been done by Warren Hastings by separating
revenue and judicial functions was undone by this plan which reunited
the two functions. :

4
J
 Indian Legal & Constitutional History

JUDICIAL PLAN OF 1790

The next step of Cornwallis, his judicial plan of 1790, mainly
pertained to the criminal administration of justice which was suffering
from many defects. Warren Hastings had tried to remove some of those
defects, but they continued and required a complete overhaul of
administration of criminal justice. The glaring defects before the reforms
ef 1790 were:
(1) The administration of criminal justice was completely left in the
hands of Muslim officers on whom there was no proper control
or supervision. The Nawab, who was given the power to control
the administration of criminal justice, did not care any more
about its functioning. The persons who were appointed as
judges in the criminal courts had no legal education, character
and integrity. Therefore, they could not be expected to inpart
justice. They were also paid very little for their work and the
working conditions were very unhealthy.
(2) The Mofussil Faujdari Adalats had vast powers and they could
inflict any punishment on any person subject to the condition
that the death sentence was to be confirmed by the Sadar
Nizamat Adalat. The existence of power and the absence of
proper control made these courts autocratic and tyrannical.
(3) The administration of justice was very dilatory. Instances of
cases are there which were not decided as long as ten years and
the accused staying in jail waited for trial. The jails were also in
bad condition where the inmates lived an inhuman life and this
left a bad affect on their personality.
(4~—
One of the basic defects of the Muslim administration of criminal
justice was the absence of any connection between the severity
of the crime and its punishment. It gave freedom to the courts to
award whatever punishment they liked. For very henious crimes
of dacoity, murder and the robbery, the criminal went
unpunished or the punishment was so lenient that it hardly
discouraged the criminals from repeating the act. In most of the
cases the punishment was 39 strips, which could be inflicted
without the measure of the offence committed by a person.
Apart from this there was a system of giving punishment at
pleasure or of perpetual detention of a person in prison. This
type of punishment were against the principles of criminal
justice.
(5) In many cases protection was afforded to the criminal by the
Zamindars. Due to their influence over the Muslim judges, they
Adalat System under Lord Cornwallis 55
could let the criminals escape from the clutches of the judiciary.
In this way crimes were encouraged, people became insecure in
their life and property and did not had any faith in the
government or the criminal judiciary of that time.
(6) The judges were paid very low salary out of the amount of
Nawab’s allowance, with such a low salary, there was every
possibility of their accepting illegal gratifications.
In these circumstance Lord Cornwallis decided to introduce reforms
in the administration of criminal justice. He circulated a questionnaire to
all the Magistrates in the Moffussil area to ascertain their views and
about the existing facts the administration of criminal justice. The replies
painted a very grim picture of the system. On the basis of these replies
Cornwallis came to the conclusion that the criminal administration of
justice should be radically changed and overhauled so as to make it
worth its name. With this idea in mind he promulgated the scheme of
1790 on 3rd December. The most outstanding feature of this scheme was
the elimination of the name of Nawab from the administration of
criminal justice which was attached to it until then and resulted in
defects. In the new system the responsibility of administration of criminal
justice was given to English servants of the Company who were to be
assisted by Muslim Law Officers as advisers.
Courts Created under the Plan of 1790
Three types of courts were created to administer criminal justice in
the Mufussil area. At the top was the Sadar Nizamat Adalat, in the
middle the Circuit Court and at the lowest level was the Court of the
District Magistrate. The set up of the courts may be dicussed as
follows:— | |
1. Court of District Magistrate—The District Magistrate was given
almost the same functions which he had under the plan of 1787, i.e., he
arrested the criminals, took evidence against them and committed them
to the Circuit Court for trial. In small crimes, however, he could punish
the criminal up to 15 Rattans or 15 day’s imprisonment. Within his
district he notified the date and time of the visit of the Circuit Court so
that the concerned people could appear before it. He maintained all
records and charts to be examined by Circuit Court about the work he
had done and about the persons awaiting trial.
2. Circuit Courts—The entire Moffussil area was divided into four
divisions.! In each division a Circuit Court was established. The Circuit
Court consisted of two servants of the Company who administered
1. Patna, Calcutta, Murshidabad and Dacca.
56 Indian Legal & Constitutional History —

criminal justice in’ all the matters presented to it by the District

Magistrate. The Circuit Court was a moving court like the itwner
justices in England. It visited every district twice a year to try the persons
charge-sheeted by the Magistrate. The Circuit Court was assisted by a
Kazi and a Mufti for expounding law and proposing Fatwa on the facts
on record. The Circuit Court gave punishment on the Fatwa of the
Muslim Officers. If the Fatwa was not accepted or the sentence related to
death or life imprisonment, the case was referred to Sadar Nizamat
Adalat by the Circuit Court. To maintain the independence of the Muslim
Law Officers they were given security of tenure and they could be
removed by the Governor-General and Council for incapacity and
misconduct.
3. Sadar Nizamat Adalat—The Sadar Nizamat Adalat which had its
seat at Murshidabad was transferred to Calcutta where the Governor-
General and Council were its judges. They were assisted by Muslim Law
Officers i.e., a Kazi and a Mufti. In cases which were referred to the Sadar
Nizamat Adalat by the Circuit Court the advice of the Kazi and Mufti
was taken as to whether the Fatwa given by the officers of the Circuit
Court was confirmable to the facts of the case or not. The statement of
these officers was consulted by the Sadar Nizamat Adatat before it gave
its final judgment. The Sadar Nizamat Adalat had the power to refer the
deserving cases to Governor-General and Council for mercy. |
Some of the other important features of the system of 1790 were the
abolition of the office of the Remembrancer which had been created by
Warren Hastings. Secondly, the salaries of the officers of the courts were
increased so that they could take full interest in their work and could not
be easily bribed.
The system created in 1790 worked well. The only defect which
emerged in this system was the excess of work in the Circuit Courts. The
number of Circuit Courts was small for the area and number of cases
were very large. For this reason the arrears of work began to increase.
Therefore, in 1792 Cornwallis gave some more powers to the Magistrates
to give punishment in cases punishable upto 30 strips or one month’s
imprisonment. Some more reforms were introduced on the criminal side
before the final plan of 1793. There was provision for allowance to the
prosecutors and witnesses who came to the law courts. The provision for
the attachment of the property of an accused during the trial was
abolished. Finally, provision was made for the payment of an amount not
exceeding five rupees to the convicts on their release from jail for meeting
their necessary expenses for one month. This was‘done for the purpose
of rehabilitation of a criminal so that he may not be compelled again to
commit crimes and could start a new life. .
Adalat System under Lord Cornwallis

THE JUDICIAL PLAN OF 1793

The scheme introduced by Lord Cornwallis during the last year of his
tenure has been an outstanding achievement of his life and a great step
in the development of the Indian legal system. In the words of M_P. Jain,
“This scheme forms the high water mark in the whole of Indian Legal
History, as it was based on certain postulates which are regarded as
essential and fundamental for the organisation of the judicature in any
civilised country."!
The scheme introduced by Lord Cornwallis in 1787 was
fundamentally unsound and it proved to be so in practice. The Collector,
who had been vested with so many powers very soon became an autocrat
and neglected his judicial functions. Actually, his main function was the
collection of land revenue on which his future prospects, promotion and
remunerations depended. Therefore, he was more concerned with the
collection of land revenue and hardly cared for judicial work.
Consequently the judicial work suffered and arrears increased. The
Diwani Adalat had 30,000 cases pending for several years. The Collector
also had the power to decide the revenue disputes in the Mall Adalat.
The disputes generally related to the collection of land revenue. The
Collector being responsible for the collection of land revenue could not
be expected to give impartial justice in his own case. This arrangement
was against the principles of natural justice. Because of these defects it
was necessary that a new and reformed system be devised. Therefore, the
scheme of 1793 made farreaching and fundamental changes for the first
time in the legal history of the Company and the country.

FEATURES OF THE SCHEME OF 1793

The scheme of 1793 made extensive reforms in the entire legal system
which may be discussed as follows:
A. General Features
The General Features of the scheme of 1793 may be called as the basic
postulates of that scheme. They related to those aspects of the judicial
administration which lay at the root of proper judicial system. The
following were the features introduced by this scheme.
1. Separation of Executive and Judiciary.—The most important part
of this scheme was the separation of the judicial and executive functions
which had been blended together under the scheme of 1787. The
Collector who had been vested with all the judicial powers in civil,
criminal and revenue matters was divested of those powers and was left
1. Op. cit., p. 20.
38 Induan Legal & Constitutional History

only with the power to collect land revenue. Henceforth, he would not
decide any dispute relating to land revenue, civil or criminal matters.
2. Control of Judiciary over Executive.—By Regulation III, section 10,
all executive officers including,the Collector were made amenable to the
jurisdiction of the courts personally, i.e., a person could file a suit in the
Diwani Adalat against any officer personally, if he committed any wrong
or violated any regulation made by the Government. In this way for the
first time a privilege was given to the people against the Company’s
Officers who committed any wrong against them. Prior to it the only
remedy available to them was to move a petition to the Governor-
General and Council at Calcutta. It could hardly be availed of by the
people living at far off places.
3. Governmental Liability——For the first time the liability of the
Government for its wrongs and for the wrongs of its officers committed
during the course of their duties was recognised. Any person could file
a suit for damages in the Diwani Adalat against the Government in the
same way as he could file against any private person. This provision
made the Government more responsible towards the people and it
carried its work in a more responsive way.
4. British subjects made amenable to Diwani Adalat.—The position
uptil now was that if a British subject committed any wrong in the
moffussil area, the only remedy available to an Indian was that he should
inform the Collector who could refer the matter to the Supreme Court or
he could file a suit in the Supreme Court against the concerned British
subject. The position concerned was very hard for the native people, who
could hardly reach the Supreme Court because of their poverty and
difficult means of communication. Therefore, in practice native Indians
did not had any remedy against the British subjects for the wrongs of the
latter. To change this inequitable position, the Diwani Adalat was given
power for not allowing any British subject to live beyond 10 miles from
Calcutta unless he executed a bond to the effect that he shall be liable to
the jurisdiction of the court in cases upto the value of Rs. 500. Apart from
this if a British subject filed a suit in a Diwani Adalat he was subject to
the jurisdiction of that Court for all consequences that would follow in
that suit or in an appeal against the decision of the original court. In this
way a much needed provision was introduced by the scheme though its
effect and extent was limited.
B. Reorganisation of Courts
The Courts, particularly the courts of civil justice, were fully
reorganised. The changes may be expressed under two broad headings of
Civil and Criminal judiciary.
Adalat System under Lord Cornwallis 59
1. Civil Judiciary.—A complete hierarchy of courts was established to
deal with civil matters. In this hierarchy at the top was the Sadar Diwani
Adalat and in the bottom were the Courts of Munsifs and Ameens. The
jurisdiction and constitution of these courts may be mentioned in brief.
(a) Sadar Diwani Adalat—The Sadar Diwani Adalat was the
highest court in the judicial hierarchy which consisted, as usual,
of the Governor-General and Council. It heard appeals against
the decisions of the Provincial Courts of Appeal in matters
exceeding Rs. 1,000. An appeal against the decisions of this
Court could go to the King-in-Council in matters exceeding £
5,000.
The changes introduced in the powers and functions of this
Court related to the supervision and control of the lower
judiciary. In that capacity the court could receive any original
suit to be referred to the Provincial Court of Appeal or to the
Diwani Adalat, if either of them had neglected to entertain the
matter. It also heard and decided charges of corruption and
incompetency against the judges of the Provincial Appellate
Courts and the Diwani Adalats and gave proper punishments.
In this way the lower courts were fully and directly subjected to
the control of the Sadar Diwani Adalat.
(b Provincial Courts of Appeal—Before the scheme of 1793, the
—

only appellate court was the Sadar Diwani Adalat with its seat
at Calcutta which was hardly accessible to the people living in
the interior. The court did not had enough time to decide the
appeals which came before it and generally, they remained
pending for several years. So in practice very few appeals were
made to the Sadar Diwani Adalat and that too only by those who
could afford to go to Calcutta. Indirectly it amounted to the
absence of any appellate court. To avoid all these defects and
increase efficiency a court of first appeal was established in each
of the four divisions of Patna, Dacca, Calcutta and Murshidabad
with the name of Provincial Court of Appeal. The Provincial
Court of Appeal consisted of three British servants of the
Company as its judges. The Provincial Court of Appeal had the
jurisdiction to try civil suits referred to it by the Government or
the Sadar Diwani Adalat; to entertain and refer back to Diwani
Adalat those cases which it had refused to entertain; to hear
appeals in all matters against the decisions of the Diwani Adalat,
if filed within three months, and lastly, to receive charges of
corruption against the judges of the Diwani Adalat and send
them to the Sadar Diwani Adalat with its report. In this way the
 Indian Legal & Constitutional History
court, apart from being Court of Appeal in all matters, also had
direct control over the subordinate courts, ie, the Diwani
Adalats.
(c Diwani Adalat—At
—- the district level the Diwani Adalat was
reorganised by dislodging the Collector from its judgeship and
appointing a civil servant of the Company in his place as its
judge who had no other work except deciding the civil and
revenue disputes. The judge was required to take an oath of
impartiality and was also required to keep proper records of all
the proceedings and hold the court in open so that it could be
seen by the people that justice was actually being administered.
(d Registrar’s Courts—The Diwani Adalat could refer the suits
—

upto the value of Rs. 200 to the Court of Registrar which was
held by a servant of the Company. The decrees and orders of the
Registrar were countersigned by the Judge of the Diwani Adalat
before they came into effect.-This Court gave an opportunity to
the Diwani Adalat to concentrate on more difficult and
important cases.
(e) Munsif’s Courts—To bring justice nearer to the people and to
avoid inconvenience in matters of small value, provision was
made by Regulation XI for issuing Commissions to Zamindars,
Landholders, Tehsildars and other respectable persons
appointing them as Munsifs to try suits upto the value of Rs. 50.
Munsifs were appointed in such a number that no person was
required to travel more than 10 miles to file a suit. Suits could
be filed directly in the Munsif’s Courts but they could be
executed only by the Diwani Adalat. The first appeal against the
decision of the Munsifs went to the Diwani Adalat and then to
the Provincial Court of Appeal. The institution of Munsif’s Court
was undoubtedlv a great boon to the people as they, being
natives, had better knowledge of the local customs, usages and
circumstances.
(f) Ameen’s Courts—A Court of Ameen, junior to Munsif, was
created which had almost the same composition and powers as
the Court of Munsif with the exception that it could not entertain
a case directly unless referred to it by the Diwani Adalat.
The above scheme of the civil judicial administration was actually the
most extensive one and the people were benefitted by it as they got an
easy approach to the courts to get justice and could also expect impartial
and fair treatment.
2. Criminal Judiciary.—On the side of criminal administration most
of the reforms had been introduced under the scheme of 1790. Other
Adalat System under Lord Cornwallis 61
necessary defects had been removed by subsequent changes introduced
from time to time, Therefore, under the plan of 1793 only the following
two important changes were introduced:—
(a) The Magisterial powers and functions of the Collector were
transferred to the judge of the Diwani Adalat. The powers of the
Magistrate were extended to punish criminals in petty offences
with 15 days imprisonment or fine of Rs. 100.
(b) The Circuit Court created under the scheme of 1790 were
replaced by the Provincial Court of Appeal. From then onwards
the Provincial Court of Appeal became the main court of
criminal jurisdiction.
C. Other Reforms.—Among the other reforms which are important
for legal history following may be mentioned.
1. Abolition of Court Fee.—The court fee which had been imposed
by Warren Hastings at the rate of 2 to 5 per cent was abolished under the
scheme of 1793 so that the people could approach to the court without
much expense’. Poor people who did not have enough to pay court fee
were deprived of justice under the existing scheme.
2. Legal Profession.—Until then the legal profession was completely
unorganised. Persons in legal profession were neither skilled in law nor
were they men of character and integrity. They were subject to no
supervision or control. By Regulation VII of 1793, the Sadar Diwani
Adalat was authorised to appoint pleaders and issue Sunnuds. Only
person having legal knowledge and good reputation and character could
be appointed as pleader. If any pleader was found guilty of corruption,
fraud or gross-misconduct he could be suspended or even dismissed. A
schedule of moderate fee to be charged by’ the caida was also
provided. They could not charge more than that.
3. Legislative Reforms.—The Governor-General and Council had
been given power to make Regulation as early as 1773, but there was no |
provision for proper publication, binding and circulation of the
Regulations. Consequently, they were either not available to the people
or to the courts. Some of them were lost in transit and could not be traced
even by the Government. To change this state of affairs, Lord Cornwallis -
made certain provisions in the scheme of 1793. According to these
provisions every Regulation had to have a preamble and title by which
the nature and purpose of the Regulation could clearly and easily be
ascertained. The Regulations were to be produced in the form of sections
1. A court fee at the following scale had been introduced under judicial plan of 1780 by
Warren Hastings—5% upto Rs. 1000; 4% upto Rs. 5000; 3% upto Rs. 10,000, 2% over Rs.
10,000.
 62 Indian Legal & Constitutional History

and clauses were to be numbered serially. Each section was to have the
marginal note to show the subject given within it. Regulations of each
year were to be recordered properly, printed, published and circulated
regularly so that they could be made available to the people and the
courts and authorities to whom they were concerned. At the end of the
year all the Regulations passed in that year were compiled into volumes
and an index was prepared for all of them. The Regulations introduced
by Cornwallis were collected together which later came to be called as
“Cornwallis Code”. To make the regulations accessible to the native
people they were also translated into Persian and Bengali languages.
4. Position of Native Law Officers Improved.—Help of native law
officers was taken from the very beginning of the Adalat system under
the rule of the Company, to expound the principles of Hindu and
Mohammedan law. But the reputation and position of these officers was
not good. They were generally found indulging in corrupt practices. To
improve their lot Regulation XII of 1793 provided that the law officers
shall be appointed by the Governor-General and Council from amongst
the people of good character, integrity and skilled in law. They were
given security of tenure and could be dismissed only for incapacity or
misconduct in their public duty, proved to the satisfaction of the
Governor-General and Council. They were required to take an oath
before they assumed their office. These provisions gave self-confidence
and self esteem to the law officers as well as reposed people's faith in
them. These provisions had salutary and long lasting impact on the
position of the Indian Law Officers of the judiciary and the legal system.
Evaluation of the Plan of 1793.—In the light of the legal
developments since, the establishment of the East India Company, it is
clear that the judicial scheme of 1793 introduced by Lord Cornwallis was
the most logical, comprehensive, well planned and foresighted. He
expressed to the Court of Directors of the Company: “Having, during the
_considerable period that I have presided over their affairs, had ample
opportunities of observing how inefficient the various arrangements of
former governments have proved ... I have considered it to be one of the
most valuable services which I could render to the Company to devise
remedies for such pernicious detects...No motive could have induced me
to undertake a laborious and complicated arrangement at the close of my
administration, but a conviction of its being essential for the national
honour and the future prosperity of their dominions.”
An additional expense of rupees four lacs was involved in the
implementation of this scheme. Knowing that the Company would not
like to share it, Lord Cornwallis implemented it at his own risk before
leaving the country in that year. The scheme worked well particularly
Adalat System under Lord Cornwallis 5

because of its separation from judiciary and executive, establishment of

a large number of courts, and introduction of proper supervision and
control over each court creating a system of checks and balances. Many
of the defects that existed in the earlier schemes disappeared and the
courts functioned with greater efficiency, independence and judicious
outlook. For the first time the ‘rule of law’ was established in the
Mofussil area. In spite of all these advantages a few defects were found
in the scheme in course of time. They were—
(1) The provision for two or three appeals in civil cases increased
the arrears of work in the appellate courts. The provision for
appeals made with a purpose of avoiding any and every chance
of injustice made the process very slow. The overcautiousness,
thus proved to be a curse instead of a blessing.
(2) Indians were excluded from the judiciary except at the level of
munsif. Such distrust in Indians generated the dissatisfaction
amongst them as well as made the system less efficient and to
some extent artficial because the English servants did not know
or understand the customs, usages, needs and circumstances of
the people. Cornwallis laboured under the impression that
Indians were unreliable and could easily be influenced. This
impression reflected his attitude for lack of understanding of the
people of this country. If Indians were paid the same
remuneration as British, they would have worked with the same,
if not more, integrity and responsibility as the British. The
Directors of the Company realised it and had expressed as early
as 1786 that “when the talents of the more respectable native can
with propriety and safety be employed in the management of
the country, we think it both just and political to carry that
principle into effect. The natives in general are most competent
to the duties of detail in that climate and in fact have always
conducted that laborious part of them.” Slowly the government
came to realize it and in due course employed more and more
Indians successively. tt
(3) Cornwallis did everything on structural and procedural side but
he could not do much to reform the substantive law particularly
the criminal law which ‘was based on Muslim law and suffered
from a number of defects. Absence of any law on many points
left the courts to be guided by their own discretion. Had
Cornwallis stayed for some more time perhaps he would have
done something in this regard also. But as he had to leave in
1793, this part of the matter was left to be attended by his
successors.

CROW
 b |
ADALAT SYSTEM AFTER CORNWALLIS
Several Governors-General came after Lord Cornwallis left in 1793.
During their tentures they took necessary steps to effectively implement
the scheme of 1793 or to make necessary modifications or improvements
in it. Let us examine these developments under different Governors-
General.
SIR JOHN SHORE
Lord Cornwallis was not able to see the working of his scheme of
1793. After him, Sir John Shore became the Governor-General of Calcutta.
It was he who had to see the working of the system. He had all praise for
the system introduced by Lord Cornwallis which he expressed in these
words: “the judicial system proceeds well. I am satisfied that His
Lordship’s plan was solid, wise and proved beneficial to the country”.’
Because of such conviction he never thought of making any change in the
system even though difficulties arose in the execution and working of
that scheme. He made only a few changes here and there without
affecting the basic scheme.
The most important difficulty caused by the scheme of 1793 was
arrears of work in the courts. In 1795, in the Diwani Adalat of Burdwan
30,000 cases were pending and the institution of the fresh cases was
increasing with speed, that it could never be expected that a case will be
decided in 8 to 10 years. The reason for the increase in arrears were—
(1) Provision for several appeals—Provision was made for at least
two appeals and in some cases even for three. Due to this the
higher courts were always overworked with the appellate work
and could not deal with the work coming to them within their
original jurisdictions.

1. Letter of the Governor-General in Council, dated 29th December, 1794.

64
Adalat System after Cornwallis
65
(2) Limited powers of lower courts—The lower courts could decide
disputes of very low valuation. Moreover, their decisions were
not final unless countersigned by the higher courts. To illustrate,
Munsif’s court had the jurisdiction to decide the cases only upto
the value of Rs. 50 and its decision could not be executed except
through the Diwani Adalat. Similarly, the Registrar’s court had
the jurisdiction upto the value of Rs. 200, but its decisions were
to be referred to the Diwani Adalat and unless countersigned by
that Adalat they were not effective. These limitations on the
powers of the lower courts kept the Diwani Adalat busy in
minor disputes and left little time for concentrating on important
cases which came directly to them. |
(3 Lengthy procedure—The procedure of the courts was lengthy
—

and dilatory. No distinction was made between intricate and

simple cases for this purpose. So all the cases were decided by
the same procedure. No provision was made for any summary
disposal of the cases in those matters which were simple and less
important.
Increase in the number of cases not only created difficulties in the
administration of justice but it also hindered the collection of land
revenue. The Diwani Adalat also had the power to decide revenue
disputes. Delay occurred in such cases also. This difficulty pinched the
Company because it was concerned more with the collection of land
revenue than with any other thing.
The solution to the problem of the arrears of cases in the courts would
have been to increase the number of courts, but the Governor-General
thought that the arrears were merely a temporary phase and the number
of cases would be reduced automatically after some time when the courts
would begin to work properly and effectively. Therefore, instead of
increasing the number of courts, he only made certain changes here and
there in the existing system in the years 1794, 1795 and 1797. The changes
were the following:— | “d
Changes introduced in 1794
Through regulations made in 1794, Sir John Shore introduced the
following few changes in the Judicial Administration:
(1) The decree of the Registrar was made final upto Rs. 25 in money
suits and the suits relating to personal property. However, if the
decision of the Registrar was unjust and erroneous on its face, a
revision could be filed before the Diwani Adalat which could set
aside the Registrar’s decision. In matters of real property and
those exceeding Rs. 25 in value, provision was made for direct
 Indian Legal & Constitutional History

appeal against the decisions of the Registrar to Provincial Court

of Appeals; the first appeal to the Diwani Adalat was abolished.
Thus the work of Diwani Adalat was to some extent reduced.
(2) To relieve the Diwani Adalats of some of the revenue work,
power was granted to them to refer to the Collector any accounts
for his report, the adjustment of which was necessary for the
determination of the cases relating to rent or revenue or other
matters which were cognizable by the Mall Adalats. The
Collector had to report the matter and then the matter was
finalized by the court. However, no matter in which Collector
himself or any of his officers or servants or the government was
a party could be referred to the Collector by the Diwani Adalat.
The changes which had been so made in 1794 gave little relief to the
courts but the number of cases did not decrease and the arrear continued
to increase as before. Therefore, the Governor-General thought of making
more changes within the same frame-work. The changes which were
introduced in 1795 are mentioned below:
Changes introduced in 1795
By Regulation XXXVI of 1795, the following changes were made to
relieve the court from the increasing arrears of work:—
(1) Provision for appeal to the Provincial Court of Appeals against
the decisions of the Registrar which had been introduced under
the scheme of 1794 was abolished, and in its place the Diwani
Adalat was given the power of final appeal against all the
decisions of the Registrar. The change relieved the Provincial
- Courts of Appeals from the simple and ordinary appeals arising
from the decisions of the Registrar.
(2 The provision existing for two appeals—first, to the Diwani
~”

Adalat and then to the Provincial Court of Appeals against the

decisions of the Munsif was abolished and it was provided that
there will be only one appeal to the Diwani Adalat whose
decision shall be final.
(3) The supervisory powers of the Sadar Diwani Adalat were
increased by Regulation XXXVII of 1795, by which it was
provided that the Registrar of the Sadar Diwani Adalat would
prepare each month a general report specifying the number of
suits determined by the judge of the Diwani Adalat, Registrar
and the Munsifs, and the appeals decided by the Provincial
Courts of Appeals. After every six months a report was to be
compiled showing the number of cases pending before the above
Adalat System after Cornwallis 67
courts. A comparative figure was also given showing the
number of pending cases in the previous six months and the
courts were asked to give reasons as to why the old cases were
pending before them. The supervisory power of the Sadar
Diwani Adalat made the courts more cautious and efficient in
their work.
(4) Sir John Shore had a wrong conception in his mind that the
number of cases coming before the court was largely due to the
abolition of court fee. Therefore, an unfortunate and the most
important change was made by Regulation XXXVIII of 1795, by
which the court fee, which had been abolished under the scheme
of 1793, was re-imposed. The rate of fee was quite high as per the
standards of those days, of small earning!. The fee was levied at
the initial stage as well as appellate stage. Fee and stamps were
required during several stages of a trial before the court.
Changes introduced in 1797
In the year 1797, Regulation XII restricted the appellate jurisdiction of
the Sadar Diwani Adalat to the matters of the value of above Rs. 5,000.
Upto the value of Rs. 5,000 the decision of the Provincial Court of
Appeals was made final. This provision eased the problem of arrears in
the Sadar Diwani Adalat.
Adalat System Extended to Benaras
The scheme which was working in Bengal, Bihar and Orissa since
1793 was extended to Benaras province in 1795 with the concurrence of
Raja of Benaras. The whole of province was divided into four districts of
Benaras, Mirzapur, Ghazipur and Jaunpur. The same courts as existed in
other provinces were established in this province and the appeals were
heard ultimately by the Sadar Diwani Adalat at Calcutta. One interesting
provision of the Benaras scheme required special consideration to be
given to the Brahmins who could at the most be sentenced to
transportation for life and could not be given death sentence for any
offence however grave it might be. Again in a suit in which any of the
parties was Hindu, Hindu Law was to be applied and not the law of the
defendant, as was the position in other provinces.

1. The rate of court fee in the suite filed before the Diwani Adalat was—
(a) From Rs. 50 to Rs. 2000—half an anna in the rupee.
(b) From Rs. 1000 to Rs. 50,000—at a gradually decreasing rate of 3% to %%.
_ (c) And on sums over Rs. 50,000—at the rate of 4%. The same was the rate of fee for
appeals.
68 Indian Legal & Constitutional History

Evaluation of Sir John Shore’s Reforms

As is apparent from his reforms, Shore made no basic policy changes.
Whatever he did was to make adjustments within the existing system so
that the courts could be relieved from the arrears of work and the people
could get quick justice. Changes which he made were, however, not
enough to bring the desired results. It still took several years for a person
to get justice from a court. One thing which goes to the credit was the
extension of the Adalat System to the Province of Benaras. It extended
the authority of the Company to that province as well as brought it into
closer contact with the people of that province.
Most unfortunate thing which John Shore did was the imposition of
court fee. This was a retrograde step. Court fee was abolished under the
scheme of 1793 but was reintroduced under the enthusiasm of reducing
the arrears of work. The step was so unfortunate that ever since that the
court fee has been a permanent feature of the Indian administration of
justice and even till this day a person cannot expect justice without
paying the fee to the State. The imposition of court fee was criticized
during the time of Sir John Shore and even afterwards. The Judge of
Midnapore said.
“Litigations may possibly have been checked by the fees and stamp
duty, but I confess, I consider the charges too high. It will not ... be
denied that it is desirable that the least tedious and the least
expensive mode of obtaining redress should be open, where an injury
has really been suffered. When a poor man has been oppressed, he
should be free from trouble and expense, and assisted and
encouraged as far as possible in prosecuting his complaint. He is not,
in such a situation a fair object for taxation. It does not behove the
ruling power, to add to his misfortune by levying impositions upon
him. It is clear that a ryot, from whom an ‘increase of rent has been
exacted, and instituting a suit for the same, must feel the charge of
stamps and fees, to be a severe aggravation of his distress; nor can he
console himself under the reflection that the impositions are intended
to check litiguousness; or that, for certain reasons of finance, it is
expedient he should submit to new exactions. The expense and delay
to which ryots are subject in prosecuting their suits, are to my
knowledge, excessive ... It must, I am sure, constantly happen, that a
ryot gives up his prosecution in despair on finding the expense of
continuing it, beyond his power to sustain. It is not the original fee on
the institution of the suit, but the subsequent charges on exhibits and
witnesses, that appear to me intolerable. I have often seen a suitor
when stripped of his rupee, and called upon for the fee on a
document, produced in court a silver ring or other trinket, and beg
Adalat System after Cornwallis 69

that it might be received as a pledge; and after all, perhaps he was

cast for want of money, to bring proof, I confess, I think such scenes
in a court of justice, unpleasant to those who are entrusted with the
administration of laws; and not very creditable to Government’:
Similar views were expressed by Lord Macaulay in his minutes of
25th June, 1835 where he said:
“They are desirable, it seems, because they diminish the quantity of
litigation. Litigation is an appeal to the court of law and is a good
thing or a bad thing according to the laws and the courts are good or
bad. If what the courts administer, be injustice, these taxes are
defensible or are objectionable only as being far too low. They ought
to be raised till they amount to a prohibitory duty; or rather the courts
ought to be shut up, and the whole expense of our judicial
establishment saved to the State”.
LORD WELLESLEY
Sir John Shore was succeeded by Lord Wellesley in 1798. He was also
of the view that the basic framework of the scheme of 1793 was sound
which did not require arity change but adjustments were necessary so that
the problem of arrears in the courts could be tackled. With this goal in
view he made the following reforms:—
1. Restriction on Appeals to Sadar Diwani Adalat
Regulation V of 1798, laid down that the decisions of the Provincial
Court of Appeal would be final in all cases relating to land or other real
property upto the value of Rs. 5,000. By this Regulation the Sadar Diwani
Adalat was spared of small appeals and its time was saved for more
important appeals.
2. Constitution of the Sadar Adalat Changed
The Sadar Adalats — Sadar Diwani Adalat and Sadar Nizamat
Adalat, which were the final courts of appeal in India in civil and
criminal matters, — consisted of the Governor-General and Council. No
change was made in their composition even by Lord Cornwallis in his
scheme of 1793. While in the lower judiciary distinction was made
between the executive and judicial functions and persons performing
those functions, the Sadar Adalats did not represent that principle
because the executive authority exercised the judicial powers also. The
Sadar Adalats suffered from several defects, some of which were—
(a) Paucity of time—The Sadar Adalat, being constituted of the
Governor-General in Council had little time to hear the cases
coming before it. Most of its time was consumed by executive
work and other administrative problems. That work being the
70 Indian Legal & Constitutional History

main responsibility of the Governor-General and Council they

cared little for the judicial work and, therefore, it suffered.
(b) Concentration of all powers—This is against the principle of
good government ‘that the same authority should exercise
executive, judicial and the legislative powers. The functioning of
persons of Sadar Adalats performed all the three functions. It
could hardly be expected that such a body will be unbiased in
their judicial work, in those matter in which the Government or
the Company or any of its senior officers were involved. Thus,
one of the basic principles of natural justice that one cannot be
a judge in his own cause was violated by the constitution of
Sadar Adalats.
(c Camera Proceedings—The Sadar Adalats being constituted by
—

the highest authority of the Government of the Company did not

meet in the open and their proceedings were something like
camera proceedings. The parties were always suspicious of the
proceedings even if in fact there was nothing wrong with the
working of the Adalat. Apart from that the pleaders who
represented the parties also remained fearful in presenting
properly the appeals in which the Government was the opposite
party. It remained in their mind that they were arguing
something against the very body before which they were
standing and which had to decide the matter. In these
circumstances many times they did not say many things which
they could have otherwise said.
To remove these defects Lord Wellesley changed the constitution of
Sadar Adalats by Regulation II of 1801. By that Regulation it was
provided that the Sadar Diwani Adalat and the Sadar Nizamat Adalat
shall consist of three judges selected and appointed by the Governor-
General in Council. The Chief judge of the Adalat was a member of the
Council not being the Governor-General or the Commander-in-Chief.
The other two judges were covenanted servants of the Company having
some experience of judicial work in the Provincial Court of Appeal. The
Court had to work in open and it was necessary that at least two judges
must hold the court. The Sadar Adalat was also empowered to suspend
any judge of any of the lower courts for wilful disobedience or negligence
in any process or order of the Sadar Adalat or for any misconduct or
negligence in the discharge of his official duty. After proper enquiry a
report was submitted to the Governor-General in Council for necessary
action.
Adalat System after Cornwallis

Assistant Judge for Diwani Adalat

To ease the burden of work of the district Diwani Adalats, by
Regulation 49 of 1803, a provision was made for an ad hoc appointment
of an Adalat judge to assist such Diwani Adalats in which the number of
pending suits required such an appointment. The Assistant Judge
decided such cases which were referred to him by the Diwani Adalat.
After the arrear of work was reduced, the ad hoc appointment was
terminated.
Registrar’s Jurisdiction enhanced
To give further relief to the Diwani Adalat the jurisdiction of the
Registrars was enhanced from Rs. 200 to Rs. 500. The decisions of the
Registrar were appealable in the Diwani Adalat. Single appeal upto Rs.
100 and above a further appeal lay to the Provincial Court of Appeal
could be made. :
Appointment of Sadar Ameens
A new cadre of Indian judges known as Sadar Ameen was created to
deal with cases upto the value of Rs. 100 relating to money or presonal
property. The Sadar Ameen was appointed by the Diwani Adalat with
the approval of the Sadar Diwani Adalat. The qualification for a Sadar
Ameen was that he should be a person of good character and ability. To
give him security of tenure he could not be removed from his office
except for sufficient causes proved to the satisfaction of the Sadar Diwani
Adalat. The Sadar Ameen was not a regularly paid servant of the
Company. He was paid a commission of one anna per rupee in each case
decided by him. Appeals from the decisions of the Sadar Ameen went to
the District Diwani Adalat.
Appointment of Munsifs
The cadre of Munsifs which had been created by Lord Cornwallis
under the scheme of 1793 was working quite satisfactorily, but the
appointment of Munsifs was limited. only to Zamindars, land-holders
and other property holders. In 1803, Lord Wellesley made a more flexible
provision for the appointment. It was provided that the Munsifs were to
be appointed by the Diwani Adalats with the approval of the Sadar
Diwani Adalat from amongst the persons of good character, sufficient
ability and who were duly qualified and experienced. No change,
however, was made in the powers and jurisdiction of the Munsifs.
Extension of the Adalat system to Oudh and other areas
The Adalat system was introduced in the province of Oudh on 24th
March, 1803. The same courts were created in this area as in other areas.
Appeals against the decisions of these courts went to the Sadar Adalat at
72 Indian Legal & Constitutional History

Calcutta on the same terms and conditions as from the other areas. In
1805, the scheme was also extended to the territories of Aligarh,
Saharanpur, Agra and Bundelkhand.
Among the judicial reforms of Lord Wellesley, the most important
was the change in the constitution of the Sadar Adalat. Although the
Chief Judge of the Adalat was still a Councillor, step was taken for
further reforms. The creation of Sadar Ameen’s Court and employment of
more Indians in judicial work also adds to his credit.
LORD CORNWALLIS
In July 1805, Lord Cornwallis again came to India as the Governor-
General. This time he did not return to England and died here in the
following October. During this short time he could not make any
farreaching judicial reforms except the one which was made in the
constitution of the Sadar Diwani Adalats. The Chief Judge, who was a
Councillor so far, could from now onwards be any person otherwise
qualified to be a Judge of the Sadar Adalat.
LORD MINTO
After the death of Lord Cornwallis in 1805, Sir George Barlow, who
was the then Senior Member of the Council, succeeded as the acting
Governor-General. In July 1807, Lord Minto was made the Governor-
General who held that office until 1813. During his tenure only a few
changes were made which were as follows:—
A. Changes in Sadar Diwani Adalat—By Regulation XV of 1807, the
number of the judges of the Diwani Adalat was increased from 3 to 4.
The Chief Judge of the Adalat was to be a member of the Council not
being the Governor-General or the Commander-in-Chief. This provision
reversed the policy of Lord Cornwallis who had completly separated the
executive from the judiciary in 1805. In 1811, by another regulation the
number of judges of the Sadar Adalat was again increased and it was
provided that the number of the judges in the Adalat will be “as may
from time to time appear necessary for the despatch of business of these
courts”. In this Regulation nothing was mentioned about the Chief
Judgeship as to whether it was to be conferred on a Councillor or on any
other person. However, it seems that the absence of the provision in this
regard indicated that it was not necessary that the Chief Judge should be
a member of the Council. |
B. Change in Criminal Judicature—The position of theadministration
of criminal justice was not in any way better than that of the civil. The
courts for administering criminal justice were very few and the number
of cases coming before them was very large. So far it was only the Circuit
Court which had the power to try criminal cases when it came on the
Adalat System after Cornwallis 73
circuit twice a year. The accused had to wait for long in jails for the
arrival of the court and when it did arrive it was so much over burdened
that many of the cases could not be tried by it in one round. To ease the
problem of arrears on the criminal side, Lord Minto made the followimg
changes in the Criminal Judicature:—
(1) Enhancement the Powers of the Magistrate—By Regulation
IX of 1807, powers of the Magistrates were enhanced. The judge
of the Diwani Adalat, who worked as a Magistrate, was
empowered to award sentences upto six months imprisonment
with corporal punishment upto thirty Rattans and fine upto Rs.
200, and if the fine was not paid then a period of imprisonment
was extended upto six months.
(2) Appointment of more Magistrates—By Regulation XVI of 1810,
it was provided that there shall be appointed Joint and Assistant
Magistrates. Any person could be appointed as a Joint or
Assistant magistrate by the Governor-General-in-Council to do
the work on the criminal side. The Superintendent of Police of
Calcutta, Dacca, Murshidabad, Patna, Benares and Bareilly could
be appointed, as Magistrates, in any district whenever the
Governor-General-in-Council deemed it advisable to invest them
with such powers. Whenever any such person was appointed as
the Magistrate, the Governor-General-in-Council could direct as
to whether he could exercise the concurrent powers with the
Judge of the Diwani Adalat. In some cases the District Magistrate
of any district could be appointed as Joint Magistrate in the
contiguous district. The Assistant and Joint Magistrate could
be appointed in any district or part thereof whenever the
Governor-General-in-Council were of the view that for the
business or any other purpose it was necessary to make such
appointment. The Magistrates had to work as subordinates to
the District Magistrate.
C. Original Jurisdiction of the Provincial Court of Appeal created—
With a view to avoid two appeals in cases of Rs. 5,000 or more in value
the original jurisdiction was given to the Provincial Courts of Appeal by
Regulation XII of 1808, by which it was provided that all civil suits
having a subject-matter of more than Rs. 5,000 were henceforth to be
instituted and decided by the Provincial Court in its original jurisdiction.
The District Diwani Adalats were left to decide the cases below that
amount. By this change, the previous position in which in cases valuing
Rs. 5,000 or more, an appeal could be first made to the Provincial Court
of Appeal and then to the Sadar Diwani Adalat was abolished and thus
the time of the two courts was saved.
74 Indian Legal & Constitutional
History

D. Reference in Revenue Matters—By Regulation V of 1812, it was

provided that the whole of the suit instituted in the Diwani Adalat and
relating to revenue matter should be referred to the Collector for his
report as soon as it is instituted. Those cases, which were filed by the
aggrieved persons in the case of distraint, proceedings taken by the
zamindars, the Diwani Adalat had to refer it to the Collector. However,
the final disposal of the cases was to be made by the Diwani Adalat and
not by the Collector. The only change which had been made by this
Regulation was that much of the revenue work was transferred to the
executive authority, i.e., to the Collector.
The reforms introduced by Lord Minto though were not in any form
far-reaching, yet they eased the position of the arrears before the courts
and the justice was made a little quicker than what it was so far. The only
steps for which he can be criticised and which were contrary to the basic
policy of 1793, were that firstly in 1807 he made a provision for a
Councillor to be the Chief Judge of the Sadar Adalat and secondly, the
power in revenue matters was again transferred to the Collectors. These
steps vested the executive authorities with judicial powers which was
basically wrong and was against the principles of fair administration of
justice.
LORD HASTINGS |
Lord Hastings became the Governor-General in 1813 in place of Lord
Minto. He made some very important changes in the administration of
justice ever since the scheme of 1793 had been introduced. When he came
the system was still suffering from various defects. The main defects
which attracted the mind of Lord Hastings and required immediate
changes were:—
1. The delay in the disposal of cases—As had been the position in
the regime of the other Governor-Generals, the same position existed
before Lord Hastings. The Courts were having a large number of arrears
pending before them for several years and litigants saw no chance of
getting any justice in the near future. Because of the delay in the disposal
of the cases many other defects arose. The defects which arose from the
delayed justice may be mentioned below:
(a) Breach of Peace—As the people had lost all chances of getting
any justice or at least the quick justice from the law courts, they
began to take law into their own hands. They did all those acts
by which their person and property could be saved. This created
problem of general administration. There were always cases of
breach of peace, murder, dacoity, robbery and all other types of
crimes which the people could indulge into without fear because
Adalat System after Cornwallis 75
they thought it was the only remedy available to them to retain
their rights.
(b Difficulty for Ryots—The Ryots were put in another and more
_—

difficult position by Regulation VII of 1799 made by Lord

Wellesley by which the zamindars were authorized to sell the
property of the Ryots or to keep them in detention for the
collection of the land revenue. To get justice against the
oppressions of the zamindars, the Ryots had the only remedy to
file a suit before the Diwani Adalat and the Diwani Adalat was
so much over-burdened with work that it could hardly hear the
complaints of these people in time which left Ryots without any
means of livelihood for long time waiting for justice from the
Diwani Adalat.
(c) Corruption—With a desire to get early justice, parties to the
suits made the judiciary corrupt. They were ready to offer bribes
and illegal grantification to the judicial authorities so that their
cases could be disposed of early. This was a grave situation
created in the administration of fair justice.
(d) No execution of decreas—Because of the arrears of work the
Diwani Adalat which was the executing court, hardly had the
time to execute the decrees passed by it and passed by other
courts. The decress could not be executed for a number,of years
as the courts did not had the time to look into the execution
work and thus, the very purpose of the decision was frustrated.
2. Large territiorial jusrisdiction of the courts—The main Adalats
were situated at the district Headquarters and these districts were very
big, e.g., there was no district between Kanpur and Allahabad which
were 129 miles away from each other. Similar was the position of other
districts. Because of the big districts the parties had to travel for long
distances for going to the courts which put them under many difficulties
in those days because of scanty means of communication and also put
them under heavy expenses. The courts also had to take up the work of
the entire district. The main court for the entire district was the Diwani
Adalat which had to deal with civil, criminal and revenue work. It could
hardly be expected from an Adalat consisting of only one Judge to cope
up with the huge work of big district. The problem to the solution create
more districts and more courts, but the Company did not actually take
any steps because of financial reasons. The Company did not want that
the expenses should be increased on the administration of justice; it
actually wanted the expenses to be reduced.
76 Indian Legal & Constitutwnal History

3. Limited Criminal Courts—The only criminal court having substantial

powers to decide the criminal matters was the Circuit Court and the total
number of criminal courts was four in Bihar, Bengal and Orissa one in
Benaras and one in Oudh. The Circuit Court had to deal with all the
criminal work of the circuit and it also had to deal with civil work as the
Provincial Court of Appeal. It can be imagined very easily by an ordinary
mind that how it could be expected that a court of three judges going
from one place to another could deal with the entire work. The result was
that the number of cases was increasing before these courts and the delay
was causing injustice in criminal matters. Due to the delay the prisoners
had to remain in jail for long and in many cases, it was the innocent
persons who remained in jails. Evidence was lost and the witnesses were
not available when the case came for trial after a long time. The
deplorable condition of the criminal justice may be shown by the
observations made by the Select Committee of the House of Commons.
It observed that “the goal delivery is made once in six months; the
commitment of offenders for the purpose of investing the charges against
them, at future period, is productive of inconvenience to the natives, and
of expense to the Government in India from the necessity it imposes of
summoning the witnesses, and maintaining them, while in attendance a
second time. But the greatest objection noticed by some of the judges of
circuit to this delay, is the advantage it gives for conspiracy, either to
involve the innocent or to shelter the guilty, by artifices, in the practice
of which some of the depraved classes of the natives have acquired a
proficiency, that threatens to turn the administration of justice into a
scourge to the rest of the inhabitants”.
4. Difficulty with English Judges—Administration of criminal justice
was fully equipped by English Judges and no power, howsoever small,
was given to any Indian Judge. This created two difficulties: first, the
Indian people felt dissatisfied with the working of the courts with
English Judges and many of them did not even like to go before these
courts either as witness or as prosecutors. Secondly, the English Judges,
being less familiar with the local conditions, could not, in all cases,
provide efficient justice and in many cases it happened that the criminals
escaped punishment. This point is clear from the observation of a Circuit
Judge who reported that “We cannot study the genius of the people, in
its own sphere of action. We know little of their domestic life, their
knowledge, conversation, amusements, their trades, castes, or any of
those national and individual characteristics which are essential to a
complete knowledge of them. Every day affords us examples of
something new and surprising; and we have no principle to guide us in
Adalat System after Cornwallis 77
the investigation of facts, except an extreme difference of our opinion a
consciousness of inability to judge of what is probable or improbable.”
This was the state of affairs when Lord Hastings became the
Governor-General. This position could not escape the sight of Company
Directors. They were also very much dissatisfied with this state of affairs
and they wanted some immediate solution to change it. Accordingly, the
Court of Directors of the Company appointed a Special Committee of
itself and issued a questionnaire to those persons who had worked in
judicial capacity in India and were living at that time in England. Many
solutions were suggested for the problem of arrears of work in the reply
to the questionnaire. Some of the suggestions were for the increase in the
number of courts, better salary to the Judges, separation of criminal work
from civil work simple procedure to be adopted in the trial of civil and
criminal cases, simplification of the regulations made by the Governor-
General-in-Council, the publication of the judgments of the Sadar
Adalats and giving them the binding force upon all the courts
subordinate to them.
Convinced with these suggestions the Directors wrote a letter to the
Governor-General on 9th November, 1814 in which among other things,
they recommended the resumption of Panchayat system for the purpose
of administration of justice which according to them was more consonant
with the nature of the Indians. They also expressed a wish to increase the
number of courts but were not ready to put it into practice for financial
reasons as the Company was not ready to increase its expenses on the
administration of justice.
Reforms of Lord Hastings
In the background of the situation discussed above, the reforms made
by Lord Hastings may be examined. As has been mentioned above, so far
no Governor-General made any basic policy change in the scheme of 1793
introducted by Lord Cornwallis. Lord Hastings, however, made some
basic changes in the scheme of 1793 by introducing reforms. The reforms
were introduced in different spheres of the judiciary in two stages in 1814
and 1821 which may be discussed as below:—.
Reforms in Civil Judicature
1. Increase in Court Fee.—Like Sir John Shore, Lord Hastings thought
that arrears of work could be reduced by the imposition of court fee and
other stamp duties, and therefore, by Regulation I of 1814 he increased
the existing rates of court-fee and also made provision for different duties
and stamps at all stages of the proceeding in a case. A party had to pay
for producing any document, any exhibit and for getting any process
78 Indian Legal & Constitutional History

issued from the court, without which the court could not provide him
with any remedy’.
2. Court of Munsifs and Sadar Ameens.—Several changes were
made in the position of Munsifs and Sadar Ameens. They were put under
the supervision and control of the Provincial Court of Appeal. The
number of Munsifs was increased to correspond with the thana or local
police jurisdiction, i.e., there was to be one Munsif for the area of every
thana. In 1821, it was provided that even more than one Munsif could be
appointed for a thana if it was necessary to deal with the judicial work.
Jurisdiction of the Munsif was enhanced in the beginning in 1814 from
Rs. 50 to Rs. 64. In 1821, it was raised upto Rs. 150. Other provisions with
respect to Munsif remained the same as before.
The jurisdiction of the Sadar Ameens was raised from Rs. 100 to 150
in 1814. They were also authorised to hear appeals from the decisions of
the Munsifs if referred to them by the Diwani Adalat. In 1821, the
pecuniary jurisdiction of the Sadar Ameen was raised upto the valuation
of Rs. 500. They were also authorised to hold their court at any, place
within their territorial jurisdiction without being bound to hold their
court at the district headquarters.
The enhancement of the powers of Munsifs and Sadar Ameens and
also in their number shows an upward trend to take increasing help of
the Indians in the judicial administration. But these officers were not
equal to their English counterparts. They had no powers to deal with case
of real property of whatever value. Their powers were limited only to
cases of money and personal property. Apart from that they had no
jurisdiction over the British subjects or Europeans or Americans.
Wherever any of the party was an European, British or American, the
only courts to entertain the matter was the District Diwani Adalat. This
was a new limitation created by Lord Hastings which did not exist
before. Moreover, the Indian Judges were not regularly paid as servants
of the Company and had to rely upon the commission which was given
to them on the valuation of the suit decided by them. These inequitable
provisions with respect to Indian Judges were deplorable and against
good administration of justice. The Indian Judges worked better, more
efficiently and in difficult circumstances in which an English Judge could
not work and even then they were not treated as equals to the English
Judges.
3. Provincial Courts of Appeal—To increase the efficiency of the
Provincial Courts of Appeal, the number of their Judges was raised from
1. The rate of court fee was 1 anna a rupee in the suits of lower valuation and went upto
Rs. 1,000 in suits between 63,000 and 1,00,000 and upto Rs. 2.000 in suits over Rs.
1,00,000.
Adalat System after Cornwallis 79
three to four. With more Judges the court could handle its work more
efficiently and even if any of the Judges was absent for some reason the
remaining judges could continue the work of the court. For the first time
qualifications were laid down for the judges of the Provincial Courts of
Appeal. It was provided by a Regulation that no person would be
appointed a Judge of the Provincial Court of Appeal unless he had
previously acted as Judge or a Magistrate in the District Court for at least
three years or had been in any judicial department or in any office
requiring the discharge of the judicial function of civil or criminal nature
for a period of at least 6 years. It was also provided that the Provincial
Court of Appeal shall have the original jurisdiction in cases exceeding Rs.
5,000 in value.
4. Sadar Diwani Adalat.—Cases of the value of Rs. 50,000 or more
could directly be filed in the Sadar Diwani Adalat so as to avoid the
duplicity of appeals. In such cases, a direct appeal could be made to the
King-in-Council in England.
5. Diwani Adalat—The provision which had been earlier made for
the appointment of Assistant Judges was abolished by Lord Hastings as
it had not worked properly. For financial reasons the requisite number of
such judges could not be appointed. To maintain the expenses within
limits he abolished this office and in its place, as is mentioned above, one
more judge was appointed in the Provincial Court of Appeal.
Qualifications were laid down for the appointment of judges of the
Diwani Adalat. No one could be appointed as judge unless he had
previously acted as an Assistant Judge or a Registrar or as Joint or
Assistant Magistrate for a period of at least 3 years or unless he had been
employed in other positions in the judicial department, or in any office
where the judicial functions of civil or criminal nature were performed
for a total period of not less than 3 years. By Regulation XXV of 1814, the
Sadar Diwani Adalat was authorised to refer to the Provincial Court of
Appeal the cases beyond the value of Rs. 1,000 pending before the
Diwani Adalat. The Provincial Court of Appeal could hear and decide
these cases. Appeals against these decisions went to the Sadar Diwani
Adalat.
6. Court of Registrar—The number of the Registrars was increased so
that they could deal with the increasing work. They were authorised to
hold their court at any place within the district and were not bound to
stay at the headquarters, as was the case till then. The Governor-General
in Council could invest the Registrars with powers to hear cases beyond
the valuation of Rs. 500 in which case appeal could be directly made to
the Provincial Court of Appeal instead of being made to the Diwani
Adalat. The decision of the Provincial Court of Appeal was final in such
30 Indian Legal & Constitutional History

cases. The Registrars could also be authorised to hear appeals from the —
decisions of the Sadar Ameens. Qualifications were laid down for the
appointment of Registrar also. A person could not be appointed as
Registrar unless “he shall have obtained a certificate from the Council of
the College of William, signifying that he is duly qualified to enter upon
the public service in confirmation with the statutes of the College.” The
provision for the qualification brought only qualified persons to the
judicial posts.
Arbitration in Land Disputes
For the first time by Regulation IV of 1813, Lord Hastings made a
provision for arbitration in matters relating to land. Any parties to a
dispute could either get it referred to the arbitration through the court or
the parties could themselves decide to refer it to the arbitrators and the
court was to give full force and effect to it. In this way many of the
disputes relating to land could be avoided. The matters which were so
referred, generally related to possession and dispossession of land. The
system provided quick justice and lightened the work of Diwani Adalats.
Reforms in Criminal Judicature
Following reforms were introduced by Lord Hastings in the Criminal
Judicature in 1818 and 1821.
(1) Enhancement of powers of Magistrates—By Regulation x of
1818, the powers of Magistrates were enhanced and it was —
provided that they shall have the power to award a sentence of
imprisonment upto two years along with hard labour and
corporeal punishment upto 50 strips. Earlier by an Act of 1813 of
the British Parliament, the District Magistrates were authorised
to punish the resident British subjects for assaults on Indian
natives. The Regulation of 1818 was in furtherance of that Act.
(2) Conferment of Magisterial Powers on Indians—The most
important thing which Lord Hastings did was that for the first
time he authorised the District Magistrates to refer petty criminal
offences to Hindu and Muslim Law Officers attached to the
Diwani Adalat and to Sadar Ameens. They could try and decide
the matters referred to them. Their power of punishment was
limited to one month’s imprisonment and the corporeal
punishment not exceeding 30 rattans. This was a step taken to
reduce the arrears of work pending in the criminal courts.
(3) Magisterial Powers conferred on the Collector—Under
Regulation IV of 1821, the Governor-General in Council was
empowered to authorise the Collector or any other officer
engaged in the revenue administration to exercise the whole or
Adalat System after Cornwallis
81
any powers and duties of the Magistrates and similarly, to
employ the Magistrates in the collection of land revenue, or to
confer any powers of the Collector or any other officer engaged
in the revenue administration. The Regulation itself did not
authorise Collectors or Revenue Officers to exercise Magisterial
powers but it authorised the Governor-General in Council to
issue necessary direction in this regard.
Appraisal of the Reforms of Lord Hastings
Lord Hasting's reforms were of far-reaching importance. Their most
important aspect was the increased participation of Indians in the
administration of civil and criminal justice. It was he who for the first
time, relied on the native for the exercise of criminal powers. The other
reforms which he had made in the administration of civil and criminal
justice proved a boon to the extent that the number of cases pending
before the court was to some extent reduced. Changes which went to the
discredit of Lord Hastings were the increase in the court fee and the
conferment of magisterial powers on the Collector. As criticism has been
made earlier regarding imposition of the court fee by Sir John Shore, it is
enough to mention here that there can be nothing more pernicious than
to think of relieving the courts of the arrears by imposing a tax in the
name of court fee on the person who is in need of justice. The conferring
of magisterial powers on the Collector went against the basic policy of
1793 under which the revenue work had been separated from other
judicial work of civil or criminal nature. But here an intermingling was
again made by conferring judicial powers in criminal matters on the
Collector. It was this step which laid down a strong foundation for
further powers being conferred on the Magistrates which like the
institution of court fee, became a permanent feature of the Indian
judiciary and continues even after the commencement of the Constitution
of India.!
$ LORD AMHERST
Although Lord Hastings had made many- provisions for the
participation of Indians in the administration of justice, the Directors of
the Company were not satisfied with the existing state of affairs. So,
when Lord Amherst succeeded Warren Hastings, they wrote to him in
1824 that two things must be given special consideration in the
administration of justice. Firstly, the Indians must be employed as far as
possible for administering justice and secondly, they must be given
adequate salary and allowances for their work. The directions given by
1. Article 50 of the Constitution of India directs the State to take steps to separate the
judiciary from the executive. By now most of the States have brought in such separation.
82 Indian Legal & Constitutional History

the Directors of the Company were kept in mind by Lord Amherst and
a few reforms which he made were based on that policy.

REFORMS OF LORD AMHERST

Lord Amherst made only the following reforms:—
1. Position of Sadar Ameens Improved—Regulation XIII of 1824
provided that the Sadar Ameens shall be paid regular salaries in
future and that the system of providing commission to them
NN
Q
aie
——_

according to the valuation of the suit was to be abolished. Their

jurisdiction was also increased upto the valuation of Rs. 1000, if
the case was referred to them by the Diwani Adalat. The
Europeans were also subjected to the jurisdiction of the Sadar
Ameens who had been earlier excluded during the time of Lord
Hastings. In this way substantial powers were given to the Sadar
Ameens and their position was improved by making them as
regularly paid servants of the Company.
2. Number of judges in Provincial Court of Appeals Increased—
Regulation I of 1826 provided that there shall be no limit on the
number of judges to be appointed in the Provincial Court of
Appeals and as many judges could be appointed as were
required in view of the volume of work in the court.
3. Collector authorised to decided revenue disputes—So far the
Collector could make only a report to the Diwani Adalat on
those revenue matters which were referred to them by the
Adalat and the decisions used to be given by the Adalat itself.
But Regulation 14 of 1834 authorised the Collectors to try
summarily and finally decide all suits pertaining to arrears of
rent referred to them by the Adalats. No suit could be directly
filed in the court of the Collector; it could be referred to him by
the Diwani Adalats. The execution of the orders of the Collector
was also in the hands of the Adalat, 1.e., no order of the Collector
could be made except through the Diwani Adalat. A party
aggreived by the decision of the Collector could file a regular
suit in the Diwani Adalat with respect to the same matter which
-had been decided by the Collector.
Appraisal of the Reforms of Lord Amherst
Very little was done by Lord Amherst for the reformation of the
judiciary. The matter which goes to his credit was fixation of the salary
of Sadar Ameens and enhancement of their jurisdiction. But his
authorising the Collectors to decide revenue disputes was to some extent
against the principles of good administration of justice to the extent that
an executive officer was vested with judicial powers.
Adalat System after Cornwallis 83

LORD WILLIAM BENTINCK

Lord William Bentinck became the Governor-General of India in July,
1828 and held that office upto till March, 1835. During this period he
made several reforms in the judicial administration which in many
respects were original and many of the institutions created by him forms
the basis of our present judicial system. They figure as an outstanding
mark in our legal history next to those made by Lord Cornwallis. Various
reforms made by him may be discussed as follows:—
Creation of a Sadar Adalat at Allababad—So far there was only one
Sadar Adalat at Calcutta. People had to travel long distances to seek
justice from that court. In those days of meagre means of communication
it was very difficult for the people to travel such a long distance from
Agra or from Allahabad. Therefore, in many cases people instead of
going to the Adalat preferred to suffer injustice. It was necessary that a
Sadar Adalat should be created in those farsituated places which had
now come under the jurisdiction of the Company. By Regulation VI of
1831, Lord William Bentinck met that demand and established a Sadar
Diwani and Sadar Nizamat Adalat at Allahabad from 1st January, 1832.
The constitution and powers of the Adalat were the same as that of the
Adalat at Calcutta. The territorial jurisdiction of the new Adalat extended
to Banaras province and other conquered areas including the districts of
Meerut, Saharanpur, Muzaffar Nagar and Bulandshahr.
Reforms in Criminal Judiciary
In the administration of criminal justice Bentinck made farreaching
changes which may be discussed as follows:—
(i) Abolition of Circuit Court—The Circuit Court which was the
main court of criminal jurisdiction was suffering from many
defects, the most outstanding of these defects were that court
had heavy work load and therefore, the arrears went on piling
and the justice was delayed. Secondly, in many cases reference
was to be made to the Sadar Nizamat Adalat which did not
entertain the matter for years and the accused had to wait for
long in the jail for their turn. Thirdly, the number of Circuit
Courts was very limited with large territorial jurisdiction. They
could not easily travel the entire territory to hold the circuit at
different districts and some times the Court could not arrive on
time to hear the pending cases. Fourthly, the territory being large
and the turn of the Court being hardly twice a year, these Courts
did not understand the nature of the people and the local
circumstances and therefore, many times innocent people were
punished while the real culprits were set free. It was necessary
 Indian Legal & Constitutional
History

to devise a new system replacing the existing one. Accordingly

in 1829 Lord Bentinck replaced these courts by the Court of
Commissioner.
(ii) Creation of the Court of Commissioner.—Regulation 1 of 1829
which replaced the Circuit Court by the Court of Commissioner
also provided for the appointment of Commissioner. The
Commissioner was called as the Commissioner of Revenue and
Circuit and had the power of superintendence and control over
the Magistrates, police, Collectors and other revenue officers.
The entire area was divided into divisions and for each division
a Commissioner was appointed. The Commissioner was subject
to the control of the Sadar Nizamat Adalat in his judicial
functions and to the Board of revenue in his revenue functions.
Apart from exercising the powers of the Circuit Courts in the
like manner as those courts did, the Commissioners were also
authorised to hear appeals against the decisions of the
Magistrates and the Joint Magistrates. The decision of the
Commissioner in the appeal was final and there was no further
appeal or revison in the Sadar Nizamat Adalat.
The creation of the Court of Commissioner gave relief to the
people to the extent that the Commissioner was more easily
available and his territorial jurisdiction being smaller than that
of the Circuit Court, he could more easily and better understand
the needs the people. But the problem of arrears and the delay
in justice was not fully solved. Therefore, it was necessary that
some new courts were created to deal with the arrears and delay.
Accordingly, in 1831 a new Regulation created a new system of
courts. ;
(iii) Creation of the Court of District and Sessions Judge—
Regulation VII of 1831 authorised the Government to invest the
judges of the District Diwani Adalat with the duties of the
Sessions. As the judges had to meet in session (generally 4 times
in a year) they were called as Sessions Judges. During the time
in which they did not conduct the criminal work they were
called as District Judges. The Sessions Judges tried those cases
which were committed to them by the Magistrates. The creation
of this new court gave very efficient and immediate justice to the
people and the problem of arrears was also solved to a great
extent.
(iv) Creation of Collector-Magistrates—Lord Hastings under his
scheme of 1821 authorised the Government te confer upon the
Collectors Magisterial powers but that authority was not actually
Adalat System after Cornwallis 85
exercised during the time of Hastings. However, during the time
of Bentinck that provision was fully utilized and the Collectors
were authorized to exercise Magisterial function and thus the
institution of Collector-Magistrates was created. It may be called
a change in the criminal judicature but it hardly deserves to be
called a reform in the sense that, the authorising a revenue
officer with the power to determine the fate of the people in
criminal matters was against the principles of justice.
(v Increased participation of Indians—The participation of Indians
~~

was increased in the criminal administration of justice by Lord

Bentinck through a Regulation of 1831, which authorised the
Magistrates to refer any criminal case to a Sadar Ameen or a
Principal Sadar Ameen for investigation. But they could not be
authorized to make any commitment. The powers of these
Indian Officers were declared in 1832 and they could award
punishment upto a period of one month along with hard labour
and corporal punishment not exceeding, 30 Rattans. Further,
provisions were made for Indians to associate as assessors and
jurors in criminal trials.
Reforms in Civil Judicature -
More important reforms were made by Bentick in administration of
civil justice than those made in the administration of criminal justice. The
most important aspect of these reforms was the increased participation of
the Indians with substantial powers given to them. The reforms so made
were:

(i) Enhancement in the powers of the Munsifs and Sadar

Ameens—The number of Munsifs and Sadar Ameens employed
in the civil judicature was increased by Bentinck to a great extent
by specifying the local jurisdiction of those officers. But more
important was the increase in their powers. By Regulation
V of 1813, the jurisdiction of the Munsifs was raised to Rs. 300
in all matters whether they related to money, personal property
or real property. A monthly salary was also fixed for the Munsifs
and the existing system of giving them commission or fee per
case was abolished.
The jurisdiction of the Sadar Ameen was extended upto the
value of Rs. 1,000 in cases referred to him by the District Diwani
Adalat. These cases could relate to any matter whether of money
or personal property. In 1832, they were also authorised to
execute their decrees and orders.
 Indian Legal & Constitutional History

(ii) Court of Principal Sadar Ameen—A Court of Principal Sadar

Ameen with a native officer was created. Principal Sadar Ameen
was to be appointed by the Governor-General-in-Council and
was given powers to’decide cases of civil nature of the value of
Rs. 1000 to Rs. 5,000 if referred to him by the District Diwani
Adalat. He was also authorised to hear appeals against the
decisions of the Munsifs and Sadar Ameens if those appeals
were referred to him by the Diwani Adalat after obtaining the
permission of the Sadar Diwani Adalat. The provision for
appeals to the Sadar Ameen against the decisions of the Munsif,
existing so far, was abolished. Appeals against the decisions of
the Principal Sadar Ameen were heard by the Diwani Adalat
and in special cases by the Sadar Diwani Adalat.
(iii ) Judicial Powers of the Registrar abolished—The Registrar was
deprived of all the judicial powers which he was exercising so
far. His powers were transferred to Sadar Ameen and Principal
Sadar Ameen.
(iv ) Abolition of Provincial Court of Appeals and enhancement of
powers of the Diwani Adalat—By Regulation V of 1831, the
Governor-General-in-Council was authorised to abolish the
jurisdiction of the Provincial Court of Appeals in any district and
authorise the Diwani Adalat to exercise jurisdiction of the
Provincial Court of Appeal. The Diwani Adalat was given an
unlimited jurisdiction to hear civil cases of any amount. By
Regulation II of 1833, the Governor-General-in-Council was
specifically authorised to abolish all the Provincial Court of
Appeals which were so abolished in that year. Regulation VII of
the same year authorised the Governor-General-in-Council to
appoint additional Judges to help the District Judge in his civil
work with the same powers of deciding cases as the District
Judge.
(v Introduction of Jury System—Regulation VI of 1832 authorised
—

the Governor-General-in-Council to empower any Judge of the

Diwani Adalat to take the help of Jury in any civil case. The jury
could be of three types, i.e., either a case could be referred to
certain prominent members of the locality who gave their report
after an enquiry of the dispute or he could take the help of two ©
persons as assessors who had to hear evidence with the judge
and give their separate reports on the facts or he could select
certain prominent persons of the area to work as jurors. These
provisions were made for the purpose of helping the English
Adalat System after Cornwallis 87
Judges to understand the Indian circumstances and to arrive at
a just decision.
Reforms in Revenue matters
So far the Diwani Adalat was having substancial powers in the
revenue matters and the Collector was mainly concerned with the
collection of land revenue. In some cases he was also authorised to report
to the Diwani Adalat in any dispute. Regulation VIII of 1831 changed this
position and the Collector was authorised to entertain and try summarily
all claims connected with arrears of rent or their exactions. He was also
authorised to execute all the orders and decrees passed by him. The
Diwani Adalat was deprived of all powers in these subjects except that
it could revise the judgment of the Collector if a fresh regular suit was
filed before it. The revising power was also given to the Principal Sadar
Ameen, Sadar Ameen and Munsif according to their pecuniary
jurisdiction. Thus, a power was granted to these native officers to change
the decision of the Collector.
This Regulation eased problem of arrears and delay in the Diwani
Adalat, but was a retrograde step as it abrogated the scheme of Lord
Cornwallis which was based on separation of the executive and the
judiciary.
Appraisal of the Reforms of Lord William Bentinck
Lord William Bentinck made very important contribution to the
édministration of justice and it can be said with certainty that the main
outlines of the present Indian legal system were settled during his time.
According to Dr. M.P. Jain,’ “The key note of Bentinck’s judicial reforms
was Indianisation and economy. Decentralisation was achieved through
the use of Munsifs interspersed throughout the district. Indianisation and
decentralisation reduced pressure on highly paid English Judges and this
led to economy as it lessened the necessity to increase the number of
senior judges on big salaries”!. Similar view has been expressed by
Dr. U.C. Sarkar.” He says: “In many respects the reforms of Lord Bentinck
were more far-reaching in effect and vouchsafed greater efficiency within
quite reasonable pecuniary limits, specially in view of the augmentation
of the native elements in the administration of justice in the country”.
No doubt the most distinguished of all these reforms was the
increased employment of Indians in civil and criminal judicature with
substantial powers given to them. However, it may be noted that these
officers were not on the same footing as the English Judges. In criminal

1. Jain M.P., op. cit., p. 318.

2. U.C. Sarkar, op. cit., p. 339.
38 Indian Legal & Constitutional History
matters they had very little powers to deal with petty cases and in civil
matters also they suffered from many drawbacks, ¢.g., they had a limited
monetary jurisdiction and the highest jurisdiction extended upto
Rs. 5,000, beyond which no Indian Judge could entertain a case. Secondly,
the suits of high amount which were decided by the Principal Sadar
Ameen were not filed in his court but they were merely referred to him
by the Diwani Adalat. Thirdly, the Americans and British were excluded
from the jurisdiction of the courts of Indian Judges. Lastly, no power of
final adjudication was given to any court presided over by an Indian
Judge. In all matters their decisions were appealable to the court of
English Judges.
JUDICIAL REFORMS MADE AFTER BENTINCK
Minor reforms were made after Lord William Bentinck in the judicial
system established by him. The reforms which took place in various areas
of administration, of justice upto the establishment of High Courts in 1861
may be mentioned here.
Civil Judiciary—On the persuasion and strong advocacy of Lord
Macaulay, an Act of 1837 authorised the Principal Sadar Ameen to hear
cases of any amount if referred to him by the Diwani Adalat. An appeal
against his decisions went to the Diwani Adalat in cases upto the value
of Rs. 5,000 and to the Sadar Diwani Adalat in cases of value exceeding
Rs. 5,000.
Criminal Judiciary—In criminal matters powers had already been
given to Collector to work as Magistrate. The work of the Collector
suffered due to his engagement with revenue collection and settlementof
revenue disputes. To relieve the Collector of these onerous duties Lord
Aukland in 1837, got the permission from the Directors of the Compiny
to separate the offices of the Collector and the Magistrate and he dif it,
but in 1859 the offices were again united. Indians were appointed as
Deputy Collectors to exercise Magisterial powers and powers on revenue
matters from 1843 onwards.
Revenue matters—By an Act of 1859, the Collector was authorised to
hear all the revenue cases of any type. In 1869, these cases were again
transferred to civil courts, and in 1885 the Bengal Tenancy Act authorised
the civil court to decide disputes between the landlord and tenants.
Revenue officers were left with the power of only deciding disputes
arising in the course of preparation of records of rights.

WWW
 7 ,
JUDICIAL SYSTEM BEYOND BENGAL
In the beginning of Chapter XVI of his book Dr. M.P. Jain mentions
that “The rise, progress and the development of the judicial system in the
provinces of Madras and Bombay followed practically the same course as
in Bengal.” Much of the discussion of the judicial system in other parts
of the country i.e., the presidencies of Madras and Bombay will be a
repetition of the system which has already been discussed. It is, therefore,
proposed to discuss below. merely some characteristics of the judicial
system in those places. , |
Madras .
The judicial scheme of Lord Cornwallis was introduced in Madras in
1802 with almost the same courts and with the same designation and
powers. Some changes were introduced in 1806 and 1807 in that system
to cope up with the increasing workload. In 1808, court fee was also
levied with retrospective effect from 1802 to discourage the litigation.
In 1814 the Directors of the Company criticized the heavy
expenditure on judicial administration and apart from giving various
directions, appointed a Commission under Thomas Munro to enquire
into the defects of the judicial system and suggest reforms.
On the recommendations of the Commission many Regulations were
passed to introduce the required changes in the judicial system. The
changes mainly related to giving more powers to Indian Judges.
Provision was made for the appointment of a Village Munsif in each
village to hear cases upto Rs. 10 and even upto the value Rs. 100, if the
parties agreed to that. The Panchayat system was revived by authorising
the Panchayats to decide any dispute of any amount whatsoever. The
Panchayats were revived on the strong advocacy of Munro who
suggested that in the Indian circumstances the Panchayats could best
serve the needs of the people.
89
90 Indian Legal & Constitutional History

Several other renovations were made in subsequent times but none

was so outstanding in principle or practice which is not covered by those
which have already been discussed with respect to Bengal.
Bombay
In Bombay, the scheme of 1793 of Cornwallis was introduced in the
year 1799. Only one innovation was made in this scheme with respect to
the application of criminal law. Mohammedan criminal law was to be
applied to Mohammedans and Hindu criminal law to Hindus while the
Christians, Parsees, etc. were to be governed by English law. All other
aspects of judical system were the same as in Bengal. In the judicial
system no provision was made for Provincial Court of Appeals as they
existed in Bengal. Appeals against the decisions of the Diwani Adalat
directly went to the Sadar Diwani Adalat.
In 1829, by the efforts of Governor Malcolm, position of the native
judges, who were known as Commissioners, was improved and as early
as in 1830 they were given the original jurisdiction to try any case of any
amount excepting those relating to Americans and British. The native
officers were also given appellate powers in 1831. In the year 1836, these
officers were given the same designation as in Bengal and the Principal
Sadar Ameen was authorised to hear cases even against the Europeans or
Americans.
Judicial Administration in non-regulation Provinces
The provinces of Bombay, Madras, and Bengal including Bihar and
Orissa were called as “Regulation Provinces” because the Government of
these Provinces had the power to make the laws for these territories.
These laws were made in the form of Regulations and, therefore, the
provinces came to be called as Regulation Provinces. However, in due
course many more territories were acquired by the Company beyond
these provinces. They were governed by the executive orders of the
Government of the regulated provinces and not by Regulations, because
no such regulation making power was given with respect to these
territories. Therefore, these territories came to be called as “Non-
Regulation Provinces.” Such Provinces were the Punjab, Assam, Central
Provinces and Oudh.
As the Non-Regulation Provinces were governed merely by executive
orders and not by the regulations. “The system of administration in these
provinces had certain palpable and glaring defects. The method followed
for the administration of justice was rough, irregular, summary and
executive in nature.” All judicial, executive and magisterial powers were
vested in the chief officer of the district commonly known as the
Collector. It was on his whims, character and personality that much of
Judicial System Beyond Bengal 91
the judical administration was carried out. The position of law was also
not clear till the Indian Council Act of 1861 provided that “No rule, law
or regulation which prior to the passing of this Act, shall have been made
by the Governor-General, Governor-General-in-Council and Lieutenant-
Governor for and in respect of any such Non-Regulation Province be
deemed to be invalid only by reason of the same not having been made
in conformity with the provisions of the Act regarding powers and
Constitution of Council and other authorities.”
Efforts were made to gradually introduce the same system of judicial
administration as existed in Regulation Provinces. But it was not
introduced for a long time. The position of these provinces remained very
uncertain till the disparities were removed by codification.’

WWW

1. U.C. Sarkar, op. cit., at 339.

2. Sir James Stephen, the then Law Member made strong recommendation in 1872 for the
equation of Non-Regulation Provinces with regulation provinces but very little was done
till the High Courts were established in such provinces.
 8
HIGH COURTS AND THE PRIVY COUNCIL
After the abortive attempt of the people of India in 1857 to regain
independence, the Company’s government in British India was replaced
by the direct rule of the Crown in 1858. An immediate and quite
significant effect of this political change in the administration of justice
was the move to abolish the duality of the courts that existed under the
Company. The Sadar Adalats, which were the Courts of the Company,
and the Supreme Courts, which were the Courts of the Crown, were
proposed to be replaced by the High Courts.
The then existing system was defective in many respects. The
respective jurisdictions of the Company’s Courts and the Supreme Courts
were not clearly marked out. Nor a clear relationship was established
between the two sets of courts. The procedures and laws applied by them
were quite different — one following the English law and the other
following the local regulations made by the Company. Therefore, dispute
with respect to jurisdiction frequently arose which put the parties and the
Government in awkward position and to difficulty. The criticism of the
existing system began to stem from the very beginning of the 19th
century, but nothing could practically be done till the Second Law
Commission of 1858 was authorized to suggest the ways and means for
amalgamation of the two systems. On the recommendation of the
Commission the Parliament passed the Indian High Courts Act, 1861
providing for the establishment of the High Courts in the three
Presidencies in place of the Supreme Courts and the Sadar Adalats.
HIGH COURTS
The Act of 1861, titled as “an Act for establishing High Courts of
judicature in India”, was a short legislation of 19 sections only. It
authorized Her Majesty the Queen of England to establish High Courts
by issuing Letters Patent to Presidency towns wherever and whenever
She deemed fit. The High Court was to consist of a Chief Justice and the
92
_

High Courts and the Privy Council 93

other puisne Judges not exceeding 15 in number. The qualifications of the
Judges were laid down in the Act. A person could be appointed Judge of
High Court if he was either:—
(1) a barrister of not less then 5 years standing, or
(2) a member of the covenanted civil service of at least 10 years
standing who had served as Zila Judge for at least 3 years in that
period, or
(3) a person having held judicial office not inferior to that of
Principal Ameen or Judge of a Small Cause Court for at least 5
* - years, or
(4) a person who had been a pleader of a Sadar Court or a High
Court for at least 10 years.
At least one third of the Judges of the High Court, including the Chief
Justice, had to be barristers and the other one third of the Judges had to
be members of the covenanted civil service. The Judges held their office
during the pleasure of Her Majesty.
The jurisdiction of each High Court depending on the Letter Patent
issued by Her Majesty. She could give them power to exercise all civil,
criminal, admirality and vice-admirality, testamentary, intestate and
matrimonial jurisdiction. She could also confer on them original and
appellate jurisdiction and all such powers and authority with respect to
the administration of justice in the presidency, as she thought fit. The
Letters Patent could restrict the original jurisdiction of the court to the
Presidency town. Unless the Crown (the Government of England)
otherwise provided the High Courts had to exercise the jurisdiction of
the courts abolished by the Act of 1861.
The High Courts were given supervisory powers on all courts subject
to their appellate jurisdiction. The High Courts could call for returns
from any court subordinate to them or could transfer any suit or appeal
from one court to another and could make ecm rules for regulating
the procedure of lower courts.
Her Majesty was authorised: to establish the High Courts even
beyond the territory of Presidency limits and could also transfer any
territory from the jurisdiction of one High Court to another High Court.
After issuing one Letter Patent Her Majesty could rescind it within three
years and could issue new Letters Patent to bring change in any High
Court.
Under the Act of 1861, the Crown established High Courts by issuing
Charters on 14th May, 1862 for Calcutta and on 26th June, 1862 for
Madras and Bombay. These Charters were further modified by issuing
94 Indian Legal & Constitutional History

fresh Charters on 28th December, 1865. The three Charters contained

identical provisions and established the High Courts with like powers
and jurisdiction. The jurisdiction of these Courts could be understood by
considering the illustrative case of Calcutta. The High Court of Calcutta
was given the following original and appellate jurisdiction.
A. Original jurisdiction
The Court had original jurisdiction in the following matters—
(1) Civil jurisdiction—The original civil jurisdiction of the Court was
of two types ordinary and extraordinary. The ordinary civil jurisdiction
extended to the town of Calcutta or to such local limits as from time to
time could be prescribed by law of a competent legislature in India. All
suits of the value of Rs. 100 or more and which were not cognizable by
the Small Cause Courts at Calcutta were cognizable before the High
Court under this jurisdiction. The original jurisdiction could be invoked
only if—
(a) the immovable property was situated within the town of
Calcutta; or
(b) the cause of action wholly or partly arose in Calcutta; or
(c) the defendant was dwelling, or carrying on business, or WRENS
for gain in Calcutta.
Under its extra-ordinary civil jurisdiction the High Court could call a
case pending in any lower court subject to its superintendence and could
decide that case itself. This jurisdiction could be exercised in a case where
the parties agreed to such exercise or the High Court thought it proper
to impart justice.
(2) Criminal jurisdiction—The ordinary original criminal jurisdiction
of the High Court was almost the same as that of the Supreme Court
which was replaced by the High Court and extended to the local limits
to which civil jurisdiction of the High Court extended. However, an
extra-ordinary original criminal jurisdiction was given to the High Courts
which was not available to the Supreme Court. Under that jurisdiction
the High Court could hear any criminal case against any person within
the cognizance of any court, which was subject to the superintendence of
the High Court, if such case was referred to the High Court by the
Advocate-General or by any Magistrate or any other officer specifically
empowered for that purpose.
_ (3) Revenue jurisdiction—The High Court was given jurisdiction to
hear revenue cases also, which were precluded from the jurisdiction of
the Supreme Court, by the Act of Settlement, 1781.
High Courts and the Privy Council 95

(4) Admirality jurisdiction—The Admirality and Vice-Admirality

jurisdiction was also given to the High Court. It could hear all civil,
criminal, maritime and prize cases.
(5) Testamentary and Miscellaneous jurisdiction—The High Court
was given similar testamentary, intestate and probate jurisdiction as was
enjoyed by the Supreme Court. It also worked as the Court of Wards for
the administration of the estate and person—lunatics, idiots, and minors.
B. Appellate jurisdiction
The appellate jurisdiction of the High Court was of two types—
(1) Civil jurisdiction—The High Court could hear appeals in all cases
authorised by any law or Regulation. It could also hear Letters Patent
Appeal against the judgment of a single Judge of the High Court, or a
Division Bench of the High Court in which the views of the Judges were
equally divided.
(2) Criminal jurisdiction—The High Court had criminal jurisdiction
in all cases decided by the courts subordinate to it. It could also entertain
revisions against the decisions of the lower courts and references from
them.
Application of law
As regards the law to be followed and applied by the High Courts,
the position was as follows:—
In original civil jurisdiction the High Courts applied the same law as
was applied by the Supreme Court in similar matters. In the
extraordinary original civil jurisdiction or in appeals coming from the
courts outside the Presidency limits of Calcutta the High Court applied
the similar law which should have been applied by the court within
whose jurisdiction such case arose. The High Court was also authorised
to apply the principles of equity, justice and good conscience to
administer justice in such cases.
In criminal law, the position was settled by the Indian Penal Code of
1860 which became the law of the land for all cases.
The procedural law which the High Court observed in civil matters
included the Code of Civil Procedure, 1859 and Rules and Regulations
made by the Court. In criminal matters on original side the High Court
observed the same procedure which its predressor Supreme Court
observed. In other cases, it followed the procedure given in Code of
Criminal Procedure, 1861.
Later Changes
Subsequently, as times went on, several other High Courts were
established in the country. A High Court was established at Agra on
96 Indian Legal & Constitutional
History

17th March, 1868 which was subsequently shifted to Allahabad in 1875.

A Court of Judicial Commissioner was created in Oudh which was
united with the Allahabad High Court on 26th July, 1948.
In 1911, the Indian High Courts Act brought in some changes in the
Charter and the Act. The major change was that the number of Judges in
a High Court was increased from 15 to 20 including the Chief Justice.
The Act also authorised the Crown to establish more High Courts,
wherever and whenever it thought fit.
In 1915, the Government of India Act introduced a restriction on the
jurisdiction of the High Courts of Calcutta, Madras and Bombay that they
“may not exercise any original jurisdiction in any matter concerning
revenue, or concerning any act ordered or done in the collection thereof
according to the usage and practice of the country or the law for the time
being in force”. No reason was assigned for the introduction of this
restriction on the jurisdiction of these three High Courts. Perhaps it was
done to restore the restriction that existed on the jurisdiction of their
predecessor Supreme Courts.
In February 1916, a High Court at Patna, on 21st March, 1919 a High
Court at Lahore and 2nd January, 1936 a High Court at Nagpur were
established.
The Government of India Act, 1935 also provided for the High
Courts. It removed limitation on the number of Judges in the High
Courts, the age of the Judges was fixed at 60 and the Indian advocates
with 10 years’ practice were made qualified to be Judges of the High
Court. The quota system for the appointment of judges from different
categories of persons provided under and since the Act of 1861, was also
abolished. The High Courts were brought under the administrative
jurisdiction of the Provincial Governments. However, any law affecting
the position of any Judge required the assent of the Governor-General of
India before coming into force.
On the partition of the country in 1947, the Punjab High Court and
in 1948, two High Courts for Assam and Orissa each were established.
Lastly, the Constitution of India, makes detailed provisions about the
High Courts. It brings uniformity among them by removing the
difference between the High Courts in the Presidency Towns and others.
Writ Jurisdiction of the High Courts
The writ issuing power of the High Courts has a confusing history.
The reason is that the Act of 1861 had made no express provision in-this
regard but the High Courts of Calcutta, Bombay and Madras had
assumed the power of issuing the writs as the inheritors of the
High Courts and the Privy Council 97
jurisdiction of the respective Supreme Courts! at these three places and
therefore, all questions relating to the jurisdiction of a High Court were
determined with reference to the jurisdiction of the respective Supreme
Court. The position of the Supreme Courts themselves was not very clear
in this regard. The relevant provision in different Charters establishing
the Supreme Courts simply said that the justices of the Supreme Court
shall have same jurisdiction and authority as the justices of the Court of
King’s Bench had in England’. It was under this provision that the
Supreme Courts were exercising the power of issuing writs. And as far
as our information goes, they were issuing only the writ of habeas corpus
and no other writ. In the beginning, it seems, this writ was being issued
to all persons within the Presidency town and to those who were under
the personal jurisdiction of the Supreme Court even though they lived in
the Moffussil area or beyond the territorial limits of the Presidency. But
after the Act of Settlement of 1781, the Court confined this power only to
the territorial limits of the Presidency. Beyond those limits the writ was
issued only to a person who was otherwise subject to the jurisdiction of
the Supreme Court.
It is this kind of uncertain jurisdiction which the High Courts of
Calcutta, Madras and Bombay inherited from the respective Supreme
Courts. As late as 1912 in In re Nataraja Iyer’ the two Judges of the Madras
High Court-could not agree whether a writ of certiorari could be issued
to the Revenue Divisional Officer Ariyapur. One of the Judges said that
“Supreme Court did not had the power to issue the writ on any one
beyond the limit of Madras, unless he was a British subject” and that
“there has apparently been no case in which any of the High Courts
issued a writ of certiorari on an officer beyond the limits of its own
original jurisdiction”. The other Judge, however, said that the “power to
issue the writ of certiorari to judicial proceedings passed by persons in the
Mofussil does belong to the High Court”. The latter view seems to have
found support in some latter decisions* though there is no clear case
where the writ was issued following that line of approach.
That this view did not settle the position is clear from the long
opinion of the Privy Council in Ryots of Garabandho v. Zamindar of
Parlakimedi.° In that case the appellants, ryots of three villages included in
The Chapter V of Part VI of the Constitution of India.
See, for example, clause 4 of the Charter of 1774 and clause 8 of the Charter of 1800.
. (1912) ILR 36 M 72.
Pen
. See, for example, Penugonda Venkataratnam v. Secretary of State for India in Council. (1929)
ILR 53 M 979; M.M. Chetty v. Board of Revenue, Madras, (1931) ILR 55 M. 137 and
Zamindarini Mandasa v. Ryots of Mandasa Zamindari; (1932) ILR 56 M 579.
5. 70 IA 129 (1942-43).
98 Indian Legal & Constitutional History

the Parlakimedi estate of Ganjam district, had applied to the Madras High
Court to issue a writ of certiorari to the Board of Revenue to quash an
order of the Collective Board by which that Board, on the application of
the respondent Zamindar, had raised the existing rents by 37% per cent
which was three times more than the 12% per cent the maximum
enhancement permitted by section 90(1)(b) of the Madras Estates Land
Act, 1908. The Board of Revenue had its office within the Presidency
town of Madras. The High Court held that the writ could be issued but
in its views the Board had not exceeded its power and therefore, no writ
on merits could be issued. On appeal to the Privy Council, question arose
whether the High Court was right in holding that a writ of certiorari
could be issued to the Board. After referring to the provision of various
statutes, Charters, decided cases, and general practice, the Privy Council
held that even if the Board of Revenue had exceeded its powers in
enhancing the rent by 37% per cent, the High Court had no jurisdiction
to issue writ. It said that the jurisdiction to issue the writ did not depend
upon the location of the Board but on the fact whether the subject-matter
of dispute was such which fell within the jurisdication of the High Court.
And since the High Courts did not have the jurisdiction over the revenue
matter concerning parties and property situated in Ganjam district, it
could not issue the writ simply because the Board was stunted within the
Presidency town of Madras.'
Although this decision settled that the writ jurisdiction was
dependent upon the substantive jurisdiction and not upon the location of
the body to which the writ was, to be issued, the question whether the
writ could be issued to British subjects or the servants of the Government
on the ground that the Supreme Courts had personal jurisdiction over
such subjects or servants even though they lived or worked beyond the
Presidency town, still remained open. This question was settled by the
Privy Council in Hamid Hasan v. Banwarilal Roy’. In that case the
appellant a Deputy Magistrate, was appointed administrator of Howarh
Municipality after superseding the Chairman and Commissioners of that
municipality. The respondents applied for a writ of quo warranto in the
High Court of Calcutta. The High Court issued the writ against the
1. To quote Viscount Simon L.L.:—
Their Lordships that the question of jurisdiction must be regarded as one of substance,
and that it would not have been within competence of the Supreme Court to chain
jurisdiction over such a matter as the present by issuing certiorari to the Board of
Revenue on the strength of its location in the town. Such a view would give jurisdiction
to the Supreme Court, in the matter of settlement of rents for ryoti holdings in Ganjan
between parties not otherwise subject to its jurisdiction, which it would not have had
over the Revenue Officer who dealt with the matter at first instance.
2. AIR 1947 PC 90.
High Courts and the Privy Council 99
appellant. He filed an appeal in the Privy Council. One of the grounds for
appeal was that the High Court did not have jurisdicion to issue a writ
to a person in Howrah because Howrah was beyond the territorial limits
of the Presidency town and therefore, outside the ordinary original civil
jurisdiction of the High Court.
After quoting section 8 of the High Courts Act, 1861 and clause II of
the Letters Patent of 1865, the Privy Council reached the conclusion that
the High Courts had not inherited the personal jurisdiction of the
Supreme Courts and therefore, they could not issue writ against a person
unless he fell within the ordinary original civil jurisdiction of those
Courts. Howrah, being outside the Presidency limits of Calcutta, was
outside the ordinary original civil jurisdiction of the High Court and
therefore, writ could not be issued simply because the appellant was a
Government or Crown servant!.
Two legislative provisions are also relevant in this regard. Section 45
of the Specific Relief Act, 1877 specifically provided that the writ of
mandamus could be issued by the High Courts of Calcutta, Madras and
Bombay only within the local limits of their ordinary original civil
jurisdiction to a public officer, corporation or an inferior court of justice.
Another important provision was section 491 of the Code of Criminal
Procedure, 1898 which was introduced in 1923 giving general power to
all High Courts to issue the writ of habeas corpus within the territorial
limits of their original as well as appellate jurisdiction. Section 45 of the
Specific Relief Act and section 491 of the Code of Criminal Procedure
have now been repealed.
It may be noted that High Courts other than the High Courts of
Calcutta, Bombay and Madras not being the successors of any Supreme
Court, did not have any writ jurisdiction except to the extent provided in
section 491 of the Code of Criminal Procedure. The disparity between the
different High Courts was done away with by the Constitution of India
in 1950 by giving equal powers to all the High-Courts to issue the writs
in the nature of habeas corpus, mandamus, certiorari, pohibition and quo
warranto.
1. Sir John Beamount, writing for the Privy Council, said:
“Their Lordships feel no doubt on the Construction of s. 9, High Courts Act, 1861 and
the Letters Patent of 1865, that the Original Civil Jurisdiction which the Supreme Court
of Calcutta possed over certain class of persons outside the territorial limits of that
jurisdiction has not been inherited by the High Court, that the process to grant an
information in the nature of quo warranto arises in the exercise of the Ordinary Original
Civil Jurisdiction of the High Court, that such jurisdiction is confined to the town of
Calcutta and that, the appellant does not reside and the office which he is alleged to have
usurped is not situated within those limits, the court had no power to grant the
information in this case.” Ibid. at p..93.
100 Indian Legal & Constitutional
History

To sum up, the pre-Constitution writ jurisdiction of the High

Courts:—
(i) All the High Courts had the power to issue the writ of habeas
corpus throughout the territory falling under their original and
appellate jurisdiction. (S. 491, Cr. P.C.)
(ii) Only the High Courts of Calcutta, Madras and Bombay had the
power to issue other writs.
(iii) The jurisdiction of these High Courts to issue writs was limited
to the territorial limits of their ordinary original civil jurisdiction
and that too, with respect to those matters which fell within that
jurisdiction.

THE PRIVY COUNCIL

The King has been regarded as the fountain of justice in English legal
system and in that capacity he could hear any petition filed by a party
with respect to any matter. This was called the prerogative power of the
King which he exercised with the help of his Council, a body which
came to be known as King-in-Council or more specifically the Privy
Council, although the King was not personally present in that body. The
subjects of the British colonies were also regarded as the subjects of King
and, therefore, the King could exercise his prerogative to hear their cases
also.
The above prerogative of the King was exercised in later time in the
form of appeals only and not otherwise. The King exercised this power
by special leave taken by him. However, subsequently people began to
assert this discretion of the King as of right and the law made provisions
in what cases appeals of right could be preferred to the King-in-Council.
However, it did not affect the power of the King-in-Council to admit any
appeal by its special leave and such appeals came to be called as appeals
by special leave.
Appeals from India
Appeals from India could be filed as of right or with the special leave
of the Privy Council.
(1) Appeals as of Right—For the first time the Charter of 1726, which
established the Mayor’s Courts made a provision for a second appeal to
the Privy Council against the decisions of the Mayor’s Court in those
cases where the valuation of the suit was above 1000 pagodas. Then in
1774, after the establishment of the Supreme Court at Calcutta an appeal
could be made to the Privy Council in all cases with the leave of the
Supreme Court. The King-in-Council could refuse such appeals.
In Madras and Bombay provision was made for an appeal to the
High Courts and the Privy Council 101

King-in-Council against the decisions of the Recorder’s Court and when

they were replaced by the Supreme Courts, then against the decisions of
the Supreme Courts, almost on the same grounds which were against the
decisions of the Supreme Court at Calcutta. However, in case of Bombay
an appeal could go to the King-in-Council only in the cases valuing 3000
pagodas or more.
In 1781, a provision for appeal from Mofussil area was also made
which provided an appeal to the King-in-Council against the decisions of
the Sadar Diwani Adalat in the suits of £5000 or more or of
Rs. 50,000 or more. In 1812 and 1818, provision was made for such
appeals from the Sadar Diwani Adalats of Bombay and Madras,
respectively. No limitation of the valuation of suit was prescribed in case
of Madras and in Bombay also the limitation of £5000 or more was done
away in 1811. Thus, an appeal could be made against the decisions of the
Sadar Diwani Adalat of Bombay and Madras even in cases of less
amount.
In 1862, when the High Courts were established at Calcutta, Bombay
and Madras provision was made for an appeal to the Privy Council in
civil and criminal matters. In civil matters an appeal could be made (1)
in cases of the value of Rs. 10,000 or more or (2) in other cases if the High
Court gave a certificate to file such appeals. An appeal could be filed
even against the interlocutory orders of the High Courts. In criminal
cases, an appeal could be filed against the decisions passed by the High
Courts (1) in their original jurisdiction or (2) in those cases where a point
of law had been referred to the High Court by a lower court. Similar
provisions were made for appeals from other High Courts.
2. Appeal by special leave—As has been observed earlier, the
King-in-Council always reserved a right to allow an appeal by special
leave. The right was exercised in case of India also. However, the
King-in-Council did not encourage such appeals and the discretion was
exercised in very exceptional cases where non-exercise of such discretion
was likely to cause some grave injustice to any party.’
In criminal cases where “this jurisdiction was frequently approached
by the people, it was exercised on more strict terms. The following lines
from Ibrahim v. Rex? clearly depict the attitude of the Privy Council.
“Leave to appeal is not granted except where some clear departure
from the requirements of justice exists, nor unless by a disregard of the
forms of legal process, or by some violation of the principles of natural

1. See Hull v. Macknna, 1926 IR 402; Motichand v. Gonga Singh, 20 IA 40.

2. 1914 AC 599.
102 Indian Legal & Constitutional History

justice of the otherwise substantial and grave injustice has been done ...
There must be something which, in the particular case, deprives the
accused of the substance of fair trial and the protection of the law, or
diverts the due and orderly administration of the law into new course,
which may be drawn into an evil procedure in future”.
Working of the Privy Council
In the beginning very few appeals from India were filed before the
Privy Council. There were several reasons for that. The Indian people
either did not know the procedure to file an appeal before the Privy
Council or they did not know the nature and working of the Privy
Council; or because of financial reasons they could not afford to file such
appeal and last, but not the least, was the delay which the Privy Council
made in deciding an appeal. The organisation of the Privy Council also
suffered from many drawbacks. It was not a duly constituted court with
law members, nor was there any provision for the regular sittings of the
Council, nor was there any procedure properly known to the people and
lastly, the decisions of the Council also lacked uniformity.
The early appeals which were filed from India in many cases were
not prosecuted. by the appellants or even if they tried no relief could be
given by the Privy Council. Many criticisms were also made of this state
of affairs by the Court of Directors of the Company and other
distinguished persons and people concerned. However, nothing took
place till the criticism and the effort of Lord Brougham, who later became
the Lord Chancellor, got the Judicial Committee Act passed on 14th
August, 1833.
The Act of 1833 constituted a Committee of the Privy Council which
consisted of specified members. The quorum of the committee was fixed
with four members. Provision was also made for the sitting of two
members as assessors, who had held the office of a Judge in India or any
other dominion. In 1843, the quorum was reduced to three members and
in 1876, provision was made for the appointment of Law Lords to the
Judicial Committee of the Privy Council. The number of colonical Judges
was increased from two to five in 1895 and in 1908, the Judges from India
were allowed to be authorised by His Majesty, the King to work as
members of the Judicial Committee. After 1915, the Judicial Committee
set in two divisions. One of the divisions with at least five members
exclusively heard appeals from India.
After re-organisation the Privy Council worked as a regular court.
With respect to Indian appeals a uniform limit of Rs. 10,000 was fixed to
bring a case for appeal to the Council. Some provisions were also made
to dispose of the pending work.
High Courts and the Privy Council 103
On the establishment of the High Courts in 1862 provision was made
for appeal in civil and criminal matters. In civil matter, if the value of the
suit was Rs. 10,000 or more or the High Court gave a certificate of fitness
then an appeal could be made to the Council. In criminal matters, only
those cases decided in the original jurisdiction of the High Court or those
in which a law point was referred to the High Court by a lower court and
was decided by the High Court, an appeal could be made. The same
provision applied to High Courts established later.
Under the Government of India Act, 1935 a Federal Court was
established in 1937 which had original and appellate jurisdiction in
constitutional matters only. An appeal could be made against its
decisions to the Privy Council in cases decided in original jurisdiction or
with the leave of the Federal Court or by His Majesty even in other cases.
The appeals, from the High Courts could go as before. In 1948, the
Federal Court (Enlargement of jurisdiction) Act empowered the Federal
Court to hear appeals in which the Privy Council could hear an appeal
and direct appeals to the Privy Council were prohibited. However, it did
not touch the appeals in criminal cases and even in other cases an appeal
could be made to the Privy Council with special leave of the Federal
Court of His Majesty. The remaining jurisdiction of the Privy Council
was abolished on 24th September, 1949 by an Act of the Constituent
Assembly, and thus a two centuries old relation with the Privy Council
came to an end. On 26th January, 1950 the Supreme Court of India
became the Court of last resort under the Constitution of India.
Appraisal of the Privy Council
The Privy Council has been a unique judicial institution of its type in
the world. It has contributed much in unifying the Commonwealth
countries and their relations by giving them common law and common
traditions!. It made the maximum contribution to the legal development
of India. At the same time when it began to work for India, there existed
a vast, varied and most uncertain law. By exercising its jurisdiction the
Privy Council gave national character to our law in contradiction to local
character which differed from place to place in different parts of the
country.
In the field of Hindu and Mohammedan law, the Privy Council
played a unique role. At times mistakes also occurred due to the foreign
character of the Privy Council, yet in comparison to its contribution
towards the development of law, the mistakes stand no where. Nothing

1. Even the origin of the institution of judicial review of legislation well-entrenched in the
common law countries, is attributed to the Privy Council. See E. Mc Whinney, Judicial
Review in the English Speaking World (4th Edn. 1969).
104 Indian Legal & Constitutional
History
could
be a better tribute to the Privy Council than what was paid by
K.M. Munshi in the following words:—
“The British Parliament and the Privy Council are the two great
institutions which the Anglo-Saxon race has given to mankind. The
Privy Council during the last few centuries has not only laid down
law, but coordinated the concept of right and obligations throughout
all the dominions and colonies in the British Commonwealth. So far
as India is concerned, the role of the Privy Council
has been one of
the most important. It has been a great unifying force and for us
Indians it became the instrument and embodiment of the rule of law,
a concept on which alone we have based the democratic institutions
which we have set up in our Constitution”.

COWOWO
 9
THE LAW AND ITS CODIFICATION

At the time of British settlement in India, law was in a very bad

shape. The ancient Indian law, though progressive and comprehensive,
had been eclipsed during the Muslim period and its growth had stopped.
The interception of Muslim period made that law outmoded in the
changed circumstances. On the other hand, the Muslim law in itself was
too insufficient to cover all the legal problems arising in a developing
world. Apart from that its various aspects, particularly criminal law and
the law of evidence, were so illogical and absurd that a civilised society
would not like them to continue.!
In spite of this fact the Hindus were being governed by their own law
in most of the civil matters and Muslims by their own law. The law of
crimes, procedure and evidence was the Mohammedan law and it
applied to all.
The British rulers knew about this bad state of law from the very
beginning but they did not like to make any revolutionary changes in it
for policy reasons. However, in due course they introduced changes
either by legislation or through adjudication. The changes which were so
brought were mainly visible in those aspects which were not specifically
assigned to the personal law of Hindus or Mohammedans. Changes took
place in Hindu law, and Mohammedan law also but those changes will
be discussed in the next Chapter. In this Chapter mainly the changes
brought about in the general law of the land either through codification
or through adjudication will be discussed.
Law through legislation developed in two stages—firstly, by
Regulations made by various Governors-General in their Councils and
secondly, by codification done by the legislature after 1833. These two
stages are discussed here separately.
1. See Chapters on the law of crime and law of evidence during the Muslim period in
M.P. Singh’s Outlines of Indians Legal History (Ancient Medieval Periods) (1968).
105
106 Indian Legal & Constitutional History

1. LAW AND THE REGULATIONS

The changes which took place through Regulations may be discussed
separately with respect to civil and criminal law.
(a) Criminal Law—It has already been discussed’ that the
Mohammedan law of crimes, which was the law of the land suffered
from many defects. The criminal administration of justice was also left to
the Muslim officers even after the introduction of the Adalat system in
1772. Though Warren Hastings was very much perturbed with the state
of affairs, he could not make any changes except the one which he made
in 1773, which provided heavier punishment for dacoity, a usual crime in
those days.
[t was Lord Cornwallis who, for the first time, changed some of the
rules of the existing law of crimes. Firstly, by a Regulation of 1790 he
abolished the distinction between the murder caused by injuring some
one and the murder in other form such as drowning in the water.
Intention was made the criterion of the offence of murder. Secondly, the
right of the kinsman to pardon a murderer was also taken away and it
was provided that the law would take its course in such cases. Thirdly,
the punishment of mutilation was changed to imprisonment and fine.
Fourthly, the Governor-General in Council authorised the Circuit Courts
to prosecute a murderer even if the heirs of kinsmen of the deceased did
not want such prosecution.
Further reforms were made in 1797 by which the Muslim system of
blood money (Diya) was abolished and a person was to be punished by
the court. If fine was imposed, it was to go to the Government treasury
and not to the kinsmen. Regulation VIII of 1798, abolished the theory of
‘justifiable murders’ under Muslim law and provided punishment in all
cases of wilful murder. Distinction was drawn between an intentional
and accidental murder which did not exist under the Muslim law.
Infanticide was declared murder with punishment of death in 1802 by
Regulation VI of that year.
The system of discretionary punishments (Tazeer) in Mohammedan
law was regulated by Regulation LIII of 1803 and in the same Regulation
the law of robbery was made punishable without regard to its nature and
the amount involved. By Regulation XVII of 1817, the law of adultery was
also reformed by providing that the offence could be proved by
confession, creditable testimony or circumstantial evidence and the
system of Mohammedan law which required four eye-witnesses to prove
the case of adultery was abolished. The punishment was also fixed at
30 stripes and rigorous imprisonment for seven years in case of adultery.
1. Chapter 8, supra.
The Law and its Condification 107
In 1829, the Sati system prevalent amongst Hindus, was also abolished
and it was declared as illegal homicide.
In 1832, by a Regulation of that year the Muslim law, which was the
law of the land, was abolished indirectly by authorising the judges not to
seek the advice and Fatwa of Muslim law officers and by giving an
option to the criminal to take exemption from a trial according to Muslim
law.
Similar developments stated above with respect to Bengal also took
place in other provinces. However, in Bombay since the Muslim criminal
law was not the law of the land, Hindu, Mohammedan and English law
were prevalent at the same time. The Hindus and Muslims were
governed by their own laws and other persons by English law. In 1827,
Elphinston, the Governor of Bombay, made a Code of Regulations called
as Elphinston’s Code which consolidated the whole law and remained in
force till the Indian Penal Code was passed in 1860.
(b) Civil Law—Although much of the civil law of the native people
was left untouched, there were more complications on this side of law.
The reasons were that apart from Hindus and Muslims many other
people such as Parsis, Christians, Americans Jews, etc., also lived in the
country for whom there was no law. The position was very confusing
with respect to these people as well as to Hindus and Muslims. In
Presidency towns the position was different from Mofussil and at neither
place the position was clear. A short summary of the law as it existed
prior to the codification may be given here.
Presidency Towns—In Presidency Towns the position of the law was
somewhat as below:—
1. The common law and statutory law of Britain as it existed in
1726 and which was not made inapplicable to India either by
Parliament of England or by Governor-General in Council. But
such a law of Britain was to be applied to the extent to which it
suited Indian conditions.
2. The Acts of British Parliament passed after 1726 and made
applicable to India either expressly or by necessary implication.
3. The Regulations made by the Governor-General in Council.
4. The law of the Hindus for Hindus and of Mohammedans for.
Mohammedans or of the defendant, if only one party was a
Hindu or Mohammedan, in all matters regarding inheritance,
succession to land, goods and rents, and all matters of contract
and dealings between parties.
5. English law for persons other than Hindus and Mohammedans.
108 Indian Legal & Constitutional History

6. The law of the ecclesiastical and admirality courts in the matters

concerning those aspects.
Law in Mofussil—The law in Mofussil area particularly in Bengal,
Bihar and Orissa was as:—
(1) The Acts of British Parliament extended to such area either
expressly or by necessary implication. However, hardly any law
of British Parliament was extended which related to substantive
aspect of civil law.
(2) Regulations made by the Governor-General in Council were
very few. ;
(3) Law of the parties in case of Hindus and Mohammedans or of
the defedant if only one party was a Hindu or Mohammedan, in
all cases of succession, inheritance, marriage, caste and others
religious institutions.
(4) In all other cases the matter was to be decided on the principle
of ‘justice, equity and good conscience’ which was applied from
the very beginning. |
Practically very little substantive law was made with respect to
Mofussil area and most of the cases were decided either by the personal
laws of the parties or with the help of English law moulding it to Indian
circumstances. Almost the same system of law as existed in Bengal
existed in other provinces also. In Bombay some of the basic principles
with respect to the applicability of law were compiled in the Elphinston’s
Code of 1827.
2. THE CODIFICATION OF LAWS
The position of law as we have stated above was very fluid and
uncertain. The courts, the lawyers and the people, all were in darkness
with respect to various forms of law. The English law, whose help was
generally taken, was itself very uncertain. It was because of the efforts of
Bentham that after the Reformation of Parliament in 1832, the process of
codification and legislation was started. The advocacy of Bentham and
his disciple James Mill had an influence on Indian codification also and
accordingly, in 1833 the Charter Act was passed by the efforts of James
Mill and Macaulay. Lord Broghem said of Benthem:
“The age of law reform and the age of Jereny Benthem are one
and the same. He is the father of the most important of all branches
of reform. No one before him had ever seriously thought of exposing
the defects in one English system of Jurisprudence.”
Macaulay spoke in Parliament in 1833 that “I believe that no country
ever-stood so much in need of a Code of law as India, and I believe also
that there never was a country in which the want might be so easily
The Law and its Condification 109
supplied.” In his detailed and the most appealing speech Lord Macaulay
deprecated the then existing confused system of law and advocated
codification of Indian law by a committee of few jurists on the following
lines!:—
“We must know that respect must be paid to feelings generated
by the differences of religion, nation and caste. Much, I am
persuaded, may be done to assimilate the different systems of law
without wounding those feelings. But whether we assimilate those
systems or not, let us ascertain them, let us digest them. We propose
no rash innovation, we wish to give no shock to the prejudices of any
part of our subjects... Our principle is simply this — uniformity where
you can have it — diversity where you must have it — but in all cases
certainty.”
“What is administered is not law but a kind of rule and capricious
equity. I asked an able and excellent judge lately returns from India
how one of our Zillah courts would decide several legal questions of
great importance, questions not involving consideration of religion or
caste-mere questions of commercial law. He told me that it was a
mere lottery. He knew how he should himself decide them but he
. knew nothing more......”
The Charter Act, 1833
The Charter Act was passed on 28 August, 1833 and came into force
on 23 April, 1834. The Act has been described by Rankin as an Act which
“forms a watershed in the legal history of India.” The Act created a single
Legislative Council for India at Calcutta with Governor-General and four
members, one of whom was a law member. The Legislative Council was
given power to make all laws with respect to Indian territory under the
Company. The Court of Directors of the Company could signify their
disallowance to any law and in that case the Legislative Council had to
repeal such law. The Governments of Madras and Bombay were
deprived of all legislative powers. They could,-however, send their
proposals to the Governor-General in Council at Calcutta for
consideration.
A very important provision was made in section 53 of the Act which
has been called the “mainspring of law reform in India” “as regards
policy though principles and ideas were still to seek.”’ The section
authorised the Governor-General in Council to appoint a Law
Commission of not more than five members at a time, as the Court of
1. Hansard’s Debate, Ilrd Series Vol. XIX. p. 53.
2. Background to Indian Law, p. 17.
3. Background to Indian Law, p. 135.
110 Indian Legal & Constitutional History

Directors with approbation of the Board of Commissioner thought fit.

The policy indicated in section 53 was that subject to such special
arrangement as local circumstances may require, a general system of laws
applicable in common to all classes of the inhabitants, should be
established in British India with due regard to the rights, feelings and
peculiar usages of the people. And that laws and customs having the
force of law in India should be ascertained, consolidated and amended.
The First Law Commission—The first Law Commission was
appointed in 1835. Lord Macaulay was its Chairman. The first thing the
Law Commission had to do was the codification of the criminal law. Next
was the ascertainment of the position of law for Anglo-Indians and lastly,
it was asked to draft a law of procedure and pleadings.
The Commission prepared the draft on all these subjects but could
not impress the Government to get them passed. It has been rightly said
by Kaye that the Commission, “left behind it only an impression that it
was a failure as costly as it was complete,” Most of the reasons of the
ineffectiveness were related to the misunderstanding between the
Government and the Commission.
The most important thing which the Law Commission did was the lex
loci report in which it proposed an Act making a declaration that except
Hindus and Muslims all others in Mofussil should be put under English
substantive law as much as it suited to. Indian conditions. The
Commission asserted that the English substantive law was already the
law of the land (lex loci) in Mofussil and there was nothing new if it was
so declared. On this assumption the Commisstion submitted a draft of lex
loci Act. The main provisions of the Act in a nutshell are as given
below:—
1. The English law as suited to Indian condition and as far as it is
not contrary to any Regulations, be made lex loci.
2 Immemorial custom and usages of the people should be
preserved.
3. No law of Parliament of England passed after 1726 should
extend to India.
4. “Justice, equity and good conscience” should be interpreted in
terms of English law.
5. The English law of property was to apply to Mofussil.
6. Appeal in all cases coming under /ex loci Act be made to the
Supreme Court instead of Sadar Diwani Adalat.
7. Status quo was to be maintained in matters which arose before
the lex loci Act.
 The Law and its Condification 111
8. Nothing in lex loci Act was to apply to Hindus and
Mohammedans or their property except that'so much of those
laws which resulted in forefeiture of property by conversion to
another religion should become inoperative.
9. Where in a case of Hindus and Muslims, the provision of
forefeiture, etc, was likely to ourtrage the religious feeling the
court could exercise its discretion.
10. Nothing in the Act was to apply to non-Christians in matters of
marriage, divorce or adoption.
As the conclusion drawn by the Commission the English law was
already the law of the Mofussil was itself-wrong, the entire lex loci report
received such a stiff opposition from the Government that no action
could be taken on it. The Commission was ready to prepare even a digest
of English law for India yet the Government did not accept its
recommendations. The acceptance of the report would have been a far-
reaching step which was never acceptable to the people nor it was
practically possible to follow the recommendations.
However, one of the recommendations of the Commission was
accepted in 1850. The Caste Disabilities Removal Act, 1850 was passed
which abrogated the Hindu and the Mohammedan laws to the extent to
which they affected any right of inheritance on the ground that a person
had renounced his religion or caste.
The Charter Act, 1853
The position and composition of the Legislative Council was
reformed by the Charter Act of 1853. It made the law member a full
member of the Governor-General in Council and the legislative council
was expanded by including more members in it. The Act also made
_ provision for the appointment of a Law Commission in England to
consider the various reports of the First Law Commission and to
recommend to His Majesty within three years as to how the Indian law
was to be codified. The Commission was appointed in England because
of the ineffectiveness of the First Law Commission and because there
were better jurists available in England. Cowell stated:
“Such a system had many advantages over that which preceded it,
even while the Indian Law Commission was in full operation, for the
Legislative counsellors had the power which the Law Commission
had not of proposing any law which they considered necessary or
beneficial, of opposing any law which they deemed unnecessary or
injurious, of supporting this opinion by argument in Council, and of
voting on every subject which is under discussion.”
112 Indian Legal & Constitutional History

The Second Law Commission.—The Second Law Commission,

which was appointed on 29 November, 1853 in England, consisted of
varied types of members having the knowledge of English and Indian
laws and also of social conditions. The Commission submitted two
reports. The first report related to the reforms of the judiciary and the
second related to the reforms in law. The majority of the Commission
made the following recommendations for the law reforms:—
(1) That a substantive civil law for the whole of India is needed.
(2) The English law should be made the basis of such law.
(3) The personal laws of Hindus and Mohammedans should not be
codified.
(4) Some other exceptions for the codification of some aspects of law
with respect to some people and some localities could be made
according to the needs and requirements.
“In short”, Dr. M.P. Jain says, “the Commission advocated the idea to
have a general and uniform codified law, based on the English law
throughout the length and the breadth of the country, to the extent it was
possible keeping in view the susceptibilities of the people.”!
On the recommendations of the Second Law Commission the Code of
Civil Procedure of 1859, Indian Penal Code of 1860, Code of Criminal
Procedure of 1861 and the Limitation Act of 1859 were enacted.
The Third Law Commission.—In the words of Rankin, the Third
Law Commission, which was formed on 2 December, 1861, “set on foot
the work of drafting and may be taken as the end of the discussion on
policy and as closing — if not a chapter — at least a paragraph of British
—

Indian History which may be entitled, “The Codes are Coming.”* As the
policy set out by the Second Law Commission had already been accepted
by the Government, the Third Law Commission prepared the drafts of
several codes in its seven reports. These reports successively submitted
the draft of Indian Succession Act, Law of Contract, Law of Negotiable
Instruments, Law of Specific Performance, Law of Evidence, Law of the
Transfer of Property and the revised Code of Criminal Procedure.
The Third Law Commission, however could not see all its proposals
being concretised before it resigned in 1870 because of differences with
the Indian Government. During this period the Companies Act, 1866, the
General Clauses Act, 1868, the Indian Succession Act, 1865 and the
Divorce Act, 1869 were passed. Later the Indian Contract Act, 1872 and
the Indian Evidence Act, 1872 were also passed.
1. Op. cit. 536.
2. Background to Indian Law, p. 45.
The Law and its Condification 113
The Fourth Law Commission.—After the abrupt end of the Third
Law Commission in 1870, a Fourth Law Commission was appointed on
11 February, 1879 to carry on the work further. The Commission was in
favour of codification suited to Indian conditions. It thought it better to
codify the law as far as possible. Although the entire scheme suggested
by the Commission could not be carried out, yet under Dr. Whitley
Stokes much of codification and revision of existing code took place. In
the year 1881, the Negotiable Instrument Act and in 1882, the Transfer of
Property Act, the Easement Act, the Trusts Act and later on the revised
Code of Civil Procedure and Code of Criminal Procedure were enacted.
With the expiry of the term of the Fourth Law Commission, there
came an end of a large scale codification undertaken by the British
Government. Much legislation has undertaken since then but there is no
comparison with these fundamental codes enacted long back. Nobody
can deny the fact that in a state of uncertainty and bewilderness the codes
gave a unity and certainty to our law extending from one end of the
country to the other and thus providing a legal integrity to our people.
LAW REFORMS SINCE INDEPENDENCE
To keep pace with the changes in the society law must also change.
Otherwise law cannot respond to the changing needs of the society and
will ultimately fail as an effective instrument of social order. Our people
could not have much to say in the formation and reformation of our law
during the British rule. But soon after independence, on 2 December, 1947
Dr. Sir Hari Singh Gaur moved a resolution in the Constituent Assembly
(legislative) recommending the establishment of a statutory law revision
committee” to clarify and settle questions of law which required
elucidation”. The resolution was, however, withdrawn on the assurance
of the then Law Minister Dr. Ambedkar that a more suitable machinery,
may be permanent law commission, will be devised for revising law.
In the absence of any step by the Government to establish such a
machinery, on 27 June, 1952 Shri N.C. Chatterjee again stressed in the
Lok Sabha the need of creating a Law Commission. In reply Shri C.C.
Biswas, the Law Minister stated that “the Government recognised that
work of keeping the law upto-date was one of vital importance and he
gave an assurance that the question would be examined by Government
and necessary steps would be taken”.’ ;
Recognising the need of a Law Commission the All-India Congress
Committee on 26 July, 1954 resolved that “a Law Commission should be
appointed as in England to revise the laws promulgated nearly a century

1. Law Commission of India, Fourteenth Report, V. I, p. 1 (1958).

 114 Indian Legal & Constitutional History

back by the Law Commission of Macaulay and to advise on current

legislation from time to time”. Finally, a non-official resolution in the
following words was moved in the Lok Sabha on 19th November, 1954:—
“This House resolves that a Law Commission be appointed to
recommend revision and modernization of laws, criminal, civil and
revenue, substantive, procedural or otherwise and in particular the
Civil and Criminal Procedure Codes and the Indian Penal Code, to
reduce the quantum of case-law and to resolve the conflicts in the
decisions of the High Courts on many points with a view to realise
that justice is simple, speedy, cheap, effective and substantial.”*
’ The resolution was, however, withdrawn after a statement in the Lok
Sabha on 3 December, 1954 by the then Prime Minister Shri Jawaharlal
Nehru that “the Government had accepted the resolution in as far as the
appointment of law commission was concerned and that Government
were even then ‘engaged in considering the steps to be taken towards
that end”? Acting upon this statement the then Law Minister Shri
C.C. Biswas on 5 August, 1955 announced in the Lok Sabha the
Government of India’s decision to appoint a Law Commission, its
membership and the terms of reference.
The Commission consisted of seven members with Shri M.C. Setalved
as its Chairman.’ Initially the Commission was appointed upto
31 December 1956 but its term were extended from time to time upto
30 September 1958. The Commission was asked—
Firstly, to review the system of judicial administration in all its
aspects and suggest ways and means for improving it and making it
speedy and less expensive.
Secondly, to examine the Central Acts of general application and
importance, and recommend the line on which they should be
amended, revised, consolidated or otherwise brought up-to-date.
With regard to the first term of reference the Commission was asked
to make comprehensive enquiry into the system of judicial
administration including the operation of laws with a view to eliminating
unnecessary litigation, delay and expenses, the organisation of civil and
criminal courts, recruitment of the judiciary, and the level of the bar and
Law Commission of India, Fourteenth Report, V. I, p. 1 (1958).
Ibid. Emphasis supplied.
Law Commission of India, p. 2.
>
PPOther members of the Commission were: Sarvashri M.C. Chagla, K.N. Wanchoo. G.N.
Das, P. Satyanarayan Rao, V.K.T. Chari, Narasu Raju, S.M. Sikri, G.S. Pathak. G.N. Joshi
and Dr. N.C. Sen Gupta, Later on 1st October, 1956 Shri N.A. Palkhivala was appointed
a member of the Commission and Shri G.N. Das resigned in December 1956 for reasons
of health.
 The Law and its Condification 115
of legal education. With regard to the second, the principal objective in
the revision of the legislation were to be: simplification of the laws;
ascertainment of provisions inconsistent with the Constitution and
suggestion of alternations or omissions; removal of ambiguities created
by conflicting High Court decisions, considerations of local variation
introduced by State legislations in the concurrent field and introduction
of uniformity; consolidation of Acts on the same subject; and suggestion
or modifications for implementing the Directive Principle of State Policy.
Under the terms of reference, the Commission was split into two
sections: one, consisting of the Chairman and first three members to look
into the reform of judicial administration and the other, consisting of the
remaining seven members to look into the statute law revision. But the
two sections had to.work in coordination. The Commission submitted
_ fourteen reports in all. While the first thirteen were on statute revision on
such subjects as tortious liability of the Government; Central Sales-tax
legislation, Limitation, Partneyship, Registration, Sale -of Goods, Specific
Relief, Negotiable Instruments, Income-tax, Contract Act, etc., the famous
fourteenth report running into two volumes relates to reform of judicial
administration. Fourteenth report is a monumental work of the
Commission on our entire legal system and provided good insight into
the past and existing position alongwith guidelines for future. The report
was prepared after considering the responses to a long questionnaire and
holding long deliberations in different parts of the country.’ It covers a
very wide canvass divided into fifty-seven Chapters spread over two
volumes consisting of about thirteen hundred pages. It is impossible even .
to give a bare summary of thousands of recommendations made by it.
However, in short it may be mentioned that while the Commission has
made wide ranging recommendations on all subjects touching the
judicial administration in this country, it did not suggest any
revolutionary break from the past. On the other hand, it came to the
conclusion that we have to improve our existing legal system inherited
from the British which in course of time have been adopted by us. One
of the important recommendations of the Commission was that Hindi
should be the common language for all legal work throughout the
country and regional languages for district and lower courts.
In its fifth report, the Commission suggested repeal of hundreds of
British statutes applicable to India as a result of which Parliament passed
the British Statutes Repeal Act, 1960 repealing 258 British Statutes.
After the expiry of the term of the first Law Commission the
Government of India appointed the second Law Commission under
the Chairmanship of Shri T.L. Venkatarama Aiyer with effect from
1. For details see [bid., pp. 5-9.
116 Indian Legal & Constitutional History

20th December, 1958 for three years. The terms of reference of this
Commission were the same as under second head of the first Law
Commission mentioned above. It submitted eight reports (15th-22nd),.
Among them twentieth and twenty-first reports on the law of hire-
purchase and marine insurance are more notable. The third and fourth
Law Commission were chaired by Shri J.L.Kapur with the same terms of
reference as of the preceeding commissions. During their course of six
years they submitted sixteen reports (23rd-38th) of which twenty-sixth
(Insolvency laws), twenty-seventh (C.P.C. 1908), thirty-fifth (capital
punishment) and thirty-eighth (Indian Post Office Act, 1898) are
more notable. Shri K.V.K. Sundaram headed the fifth Law Commission
(with no change in the terms of reference) and signed six reports
(39th-44th) of which forty-first
(Cr. P.C. 1898), forty-second (I.P.C., 1860)
and forty-third (offences against the national security) reports are quite
important.
Sixth and seventh Law Commissions, were chaired by Shri P.B.
Gajendragadkar! which during their tenure of six years gave twenty-six
reports (45th-70th). Among these: reports forty-seventh ‘(trial and
punishment of social and economic offence), fifty-fourth (C.P.C., 1908),
fifty-eight (Suppression of Immoral Trafic in Woman and Girls Act, 1856).
Sixty-sixth (Married Women’s Property Act, 1874) and sixty-seventh (The
Indian Stamp Act, 1899) are very important. As already noted, while the
terms of reference of the Second to Fifth Law Commissions were mainly
confined to the second major term of reference of the First Law
Commission, the terms of reference of Sixth and Seventh Commissions
were enlarged in so far as they were asked—
(a) to consider the advisability or need for any fresh legalisations to
effectuate Directive Principles; and
(b) to review the working of the Constitution and suggest any
amendments from the point of view of enabling the different
authorities under the Constitution more effectively to implement
the Directive Principles.
By virtue of these extended terms of reference the Commission gave
forty-sixth report on the Constitution (Twenty-fifth Amendment)
Bill, 1971 and also some other suggestions in some other reports.
Shri H.R. Khanna was appointed the Chairman of the eighth Law
Commission in 1977. But he resigned in 1979 to become the Minister of
Law, Justice and Company Affairs and his place was later taken by
1. To begin with the Sixth Commission consisted only of three members in addition to the
Chairman. The other two members were Shri V.R. Krishna Iyer and Professor P.K.
Tripathi. While Professor Tripathi continued till the expiry of the Seventh Commission
other members went on changing.
The Law and its Condification 117
Shri P.V. Dixit. This Commission submitted fifteen reports
(71th-85th). Among these reports seventy-sixth (Arbitration Act, 1940)
seventy-seventh (delay and arrears in trial courts), seventy-ninth (delay
and arrears in High Courts and other appellate courts) are notable. While
the amendment of the Constitution was removed from the terms of
references of this Commission, the other terms were retained with minor
variations. More emphasis was laid on the review of the system of
judicial administration to ensure that it is responsive to the reasonable
demand of the*time. Under a new terms of reference the Govenment
could seek the view of the Commission on any subject relating to law and
judicial administration. The next Law Commission under the
Chairmanship of Justice Mathew took the number of reports to hundred.
Among them is also the report on the controversial issue of restructuring
the higher judiciary, particularly the Supreme Court. The Commission is
now a regular feature and has so far produced nearly two hundred
reports.
Though the Law Commission is not yet a constitutional or statutory
body and is appointed by the Government of India every three years
(from 1st September to work for the next three years ending on
31st August), its continuity so far has given it an almost permanent
character. The Commission has been doing good work and made many
important recommendations some of which have been acted upon by the
Government which have helped our law to keep pace with our changing
social needs. However, everything is not well with the Commission and
its relationship with the Government. Though the Commission has
appointed professionals, it is not that always the most suited persons are
appointed to serve. Political considerations play their part at many times.
It is dominated by the retired judges and does not properly represent all
sections of the legal community. With the exception of Professor
P.K. Tripathi no academic lawyer has ever been made a full time member
of the Commission. Moreover, the Commission rarely employs the
objective research method for making its recommendations and most of
the time they are based on the subjective assessment of its members. The
Commission must employ the scientific methods of research for any
conclusions. That would bring its work closer to reality and give more
credibility and strength to its recommendations. Non-employment of
these methods may be one of the reasons that many of the quite
important reports of the Commission have not found favour with the
Government and have gone into oblivian.

WWW
 10
DEVELOPMENT OF PERSONAL LAWS
DURING BRITISH PERIOD
As has been observed earlier the policy of the British rulers was very
significant in matters of conditions of the personal laws of the Hindus
and the Mohammedans. “They began with the policy of non-interference
and generally allowed the then existent system of law to prevail; but
gradually they began to assert themselves being, of course, backed by a
strong fraction of the public opinion.”! The same view has been further
explained by Dr. U.C. Sarkar that “though as a matter of fact the British
Rule was introduced into India by the assumption of Diwani by the East
India Company in 1765, the actual influence of the British administration,
particularly in the development of the Hindu law, could not take place
so prominently before the middle of the 19th century. Constitution of the
legislature and the establishment of the High Courts with their
subordination to the Privy Council served as impetus for the
developments of the Hindu law. The legislature began to introduce new
laws modifying old ones and the courts of justice also began to
pronounce judgments which were not always with the genious of the
orthodox Hindu system of law.”* The changes which took place were
more in Hindu law than in Muslim law and the reason was the flexibility
and the liberalism of Hindu law and the Hindu community vis-a-vis the
orthodox and rigid attitude of Muslims and their law.
The early policy of non-interference in the personal law is clear from
the earliest Judicial Regulation of 21 August, 1772 made by Warren
Hastings which provided that “in all suits regarding inheritance,
marriage, caste and other religious, usages, or institutions, the laws of the
Koran with respect to the Mohammedans and those of the Shastras with
respect to the Gentoos shall be invariably adhered to”. Similar
terminology was used in the Act of Settlement of 1781, which provided
1. U.C. Sarkar op. cit., p. 357.
2. Ibid., p. 358.
118
Development of Personal Laws During British Period 119
that “all matters arising out of inheritance and succession to land and
goods and matters of contract and dealing between parties, shall be
determined, in case of Mohammedans, by the laws and usages of
Mohammedans and in case of Gentoos, by the law and usages of
Gentoos”.’ But the slow change is evident from the Regulation such as
that of Sth July, 1781 made by Sir Elija Impey which provided that in
those cases where there was no specific directions the Judges had to act
according to “justice, equity and good conscience” or that of 1831
authorising the Munsifs to act according to “justice, equity and good
conscience” where there was no clear direction. Such vague formulae as
the ‘justice equity, and good conscience’ gave enough latitude to the courts
to deviate from the strict principles of Hindu law and to introduce
various provisions of English law into it.
According to Dr. U.C. Sarkar “legislation and adjudication were the
two most conspicuous instruments that were vitally responsible for the
steady and systematic development of Hindu law during the British rule,
particularly from the later part of the 19th century”.* To have a clear view
of the position the changes introduced by the two instruments are being
discussed here separately.
Personal Laws and Legislation
The legislation effected more changes in Hindu law than in
Mohammedan law and the reason for that has already been stated. The
following legislations were passed during the British period which
changed many of the provisions of the existing personal laws of Hindus
and Mohammedans:—
1. The Cast Disabilities Removal Act, 1850—This Act abolished
the principle of the Hindu and Mohammedan laws according to
which on conversion from his religion a man had to forfeit his
all rights in the property. .
2. The Native Convert Marriage Dissolution Act, 1866—As its
name shows, it related to matrimonial relations according to
which the matrimonial obligations were to continue even after
conversion from one’s religion unless~ the marriage was
dissolved under this Act. —
3. The Hindu Widows Re-marriage Act, 1856—The Act allowed
remarriage of the widows under certain circumstances.
4. Act III of 1872, Act XXX of 1923 and the Arya Marriage
Validation Act, 1937—All these Acts in effect provided for inter-
1. The word ‘Gentoo’ meant ‘a native of India’ i.e. a Hindu. According to Halhed, the term
‘Gentoo” is a portuguese word adopted by Europeans in order to comprise for sects of
Hindus - Brahmin, Kshatriya, Vaishya and Shudras. On the other hand, Hyde East
expressed a doubt whether this team comprised of four sects of Hindus.
2. U.C. Sarkar op. cit., p. 336.
120 Indian Legal & Constitutional History

caste and inter-religion marriages and a Hindu would not

deemed to have renounced his religion merely because he
married a Mohammedan or a Christian lady.
. Laws of Wills—The System of Wills unknown to Hindu law was
introduced into it by Act XX1 of 1870, Act V 1881 and the Indian
Succession Act of 1925.
. The Majority Act, 1875 and the Guardian and Wards Act,1890—
The first Act fixed the age of majority at 18 except in case of
marriage, divorce and adoption. and the provisions of the later
Act were made applicable to a Hindu, if his guardian was
appointed by the court.
. The Hindu Inheritance (Removal of Disabilities) Act, 1928, the
Hindu Law of Inheritance Act, 1928 and the Hindu Women’s
Right to Property Act, 1937—The first of these Acts abolished
the disability for which a Hindu was excluded from inheritance
or a share at the time of partition. The second Act changed the
order of inheritance and succession among Hindus and the third
created a life interest of a widow in the property of her husband
after his death. This right had never been recognised in the
Hindu law before passage of this Act.
. Child Marriage Restraint Act, 1929—The original Act and as
amended in 1938 specified the minimum age of marriage for a
child although the original Hindu law did not make any such
provision and particularly, in case of girls it preferred early
marriages.
. Hindu Gains of Learning Act, 1930—According to the old
Hindu law if a man had acquired some special knowledge at the
expense of the joint family property then his earning by that
knowledge became the part of the joint family property. But
this Act has abolished that rule and establishes that all such
property belongs to the person, who earns it, as his self-
acquisitions.
10. The Wagqfs Act, 1913, the Shariyat Act of 1937 and the
Dissolution of Muslim Marriage Act, 1939—All these three
Acts exclusively relate to’. Muslim law. The first Act was in
conformity to the rule of Muslim law and only changed a
decision wrongly given by the Privy Cotincil,! in which it had
held that Waqf for family was void. The Shariyat Act put the
Khojas, Memons and Vohras under the Muslim law in all
matters and the last Act gave the Muslim wife the right of
1. Abdul Fata Mohamed Ishaq v. Roosomoy Dhar Chowdhary, 22 1A 76.
Development of Personal Laws During British Period 121
judicial separation from her husband which was uncertain in
Muslim law.
11. Other Legislations—The various codes and laws which have
been discussed in the previous Chapter relating to codification
also indirectly changed all the provisions of Hindu and
Mohammedan law at least to the extent they were contrary to
them and thus created a law of the land in place of personal laws
of the parties.
Adjudication
“If legislation played an important part in the development of Hindu
law, a still more important part was played by the decided cases in its re-
orientation.”’ With respect to the effect of adjudication two theories are
advocated. According to one various principles of English law have been
introduced into Hindu legal institution and according to the other view
the development of Hindu law was arrested by the English judges and
they made it a tough and rigid system, devoid of natural growth.
However, both views are to some extent correct. The changes were
needed and the courts and the legislatures introduced them. The changes
made by the courts may be discussed under the following heads:—
(i) Justice, equity and good conscience—Much of the Inglish law
was introduced in this country under this provision which for
the first time found place in Sections IX and XCIII of the
Regulation of 1781 introduced by Impey. The Regulation read
that “in all cases within the jurisdiction of the Mofussil Diwani
Adalats, for which no specific directions are hereby given, the
respective judges thereof do act according to justice, equity. and
good conscience.” No specific case is worth citing on this point
as regards Hindu and Mohammedan laws but no doubt, the
Privy Council had to observe that ‘justice, equity and good
conscience’ had been generally interpreted to mean the rules of
English law if found applicable to Indian society and
circumstances”? It was introduced in India‘to cover the gaps left
in law. In lower courts, such cases were daily decided where the
courts took help of this vague discretion.*

1. UC. Sarkar, op. cit., p. 374.

2. U.C. Sarkar, op. cit., p. 380.
3. Fora very incisive and informative discussion on the notion of “justice. equity and good
conscience” see J.D.M. Derrett, “Justice, Equity and Good conscience”, in J.N.D.
Anderson (Edn.), Changing Law in Developing Societies, 114-53; also reproduced in the
Bom. L. ReporterJ. of 15th Aug. and 15th Sept. 1962.
122 Indian Legal & Constitutional History
(2) Factum valet—/imutvahana in Dayabhaga has mentioned at one
place that “a fact cannot be altered by hundred texts” and
applied this principle to the absolute right of the father to
alienate the family property till he is the owner of it. Right of
ownership itself created the right of disposition irrespective of
contrary view in any text. This statement of Jimutvahana has been
applied by the courts to other aspects of law also such as
marriage and adoption.'
(3 Gains of Learning—According to the principles of Hindu law
—

earnings from learning were part of joint family property, if the

learnings was from the expense of the joint family property and
they were self-acquired property, if they were not at the expense
of joint family property.
But the courts introduced an idea of learning of science and
ordinary learning, according to which in the first case the gains
of learning were regarded as joint family property and in the
later case, they were regarded as self-acquisitions.* The
controversy was set at rest by the Hindu Gains of Learning
Act, 1930 which has already been referred to above.
(4) Debts—The Mitakshara School of Hindu Law exempts the joint
family property from any liability of personal debts of any
member of the family. But the courts have changed this law by
introducing the principle—
(a) that sons are under a legal duty to pay the debts of their
father out of the entire joint family property unless the debts
are incurred for immoral purpose,? and
(b) that the interest of a coparcener in the undivided
coparcenary PRORSHY. is saleable in execution of a money
decree against him.*
(5) Adoption—According to some Hindu texts the pals son could
not be given or taken in adoption but the Privy Council has held
that even the only son could be adopted.°
(6) Theory of Spiritual Benefit—The British courts have interpreted
that the Pinda theory or the theory of spiritual benefit is the only
. Wooma Devi v. Gokula Nand, 5 IA 40; Balusu v. Balusu, 26 IA 113.
. Mathey Ram v. Rawa Chend, 45 IA 41.
Gokul Chand v. Hukam Chand, 48 IA 162.
. Girdhari Lal v. Kantoo Lal, 1 IA 132.
. Din Dayal v. Jagdeep, 4 IA 247.
. Balusu v. Balusu, 26 IR 113; Vyas v. Vyas, 24 Bom 367.
Development of Personal Laws During British Period 123
guide for inheritance in Dayabhaga School of Hindu law,! while
according to Dr. Bhattacharya and Sarvadhikari, it was never the
intention of either the Dayabhaga or of the Mitakshra.
(7 Wills—Hindu law never recognized any from of wills, but the
—

British courts introduced this principle into Hindu law and the
wills became its part.”
(8 Stridhana
~_~ and Hindu Women’s _ Estate—According to
Mitakshara law the property inherited by a widow from her
husband was regarded as stridhana, though it was not her
absolute property. The meaning of it was that although the
women shall not enjoy complete ownership over it, yet the
property would devolve upon the heirs of the widow and her
husband as her stridhana. However, the Privy Council by
developing the concept of ‘Women’s Estate’ with respect to such
property changed the entire law and such property was declared
inheritable by the heirs of the husband after the death of the
widow’.
Many more changes were introduced in the field of Hindu law either
in interpretation of a term or by interpreting a principle which lay in the
numberless cases decided by the courts. Most of the changes have been
for good and have served the ends of the modern Hindu society. In the
words of Dr. U.C. Sarkar. “It can be generally asserted that the
modifications, effected during the British period through adjudication on
the original Hindu law were largely in consonance with the spirit of the
society, resulting from the contamination of the Western and the Eastern
civilization. Orthodox-adherence to the pure Sanskrit law would clearly
be an anachronism at this day.”* He goes on to say that “As a matter of
fact, to an impartial observer, the spirit of Hindu Code Bill and the
ultimate fragmentary Act had been virtually for the acceleration of the
tendencies that had already become manifest in the modifications,
effected during the British rule. In the history of Hindu law, the changes
never appeared to be too violent for the genius of its system, as it was
always accommodating and subservient to the spirit of the age and the
society.”°

1. Guru Gobind v. Anand Lal, (1870) Bengal IR 15.

2. Bir Partap v. Rajendra Pratap, 12 MIA 137
3. Thakur Devi v. Raj Balak Ram, 11 1A 139; Bhagwan Din Dubey v. Maina Bai, MIA 487.
Now the widow has been made full owner of such property by section 24 of the HIndu
Suceession Act, 1956
4. Op. cit., p. 389.
5. Ibid., pp. 389-90.
124 Indian Legal & Constitutional History

The legal works on personal laws

For ascertaining the actual position of the laws of the Hindus and
Mohammedans and to make them available to English judges it was
necessary that the authoritative works should be compiled and produced
in English language. On that side the first and most important step was
taken by Warren Hastings, who got prepared a Code of Hindu Law in
1775 with the help of ten learned Brahmins of Bengal. The Code was
translated into Persian and then into English by Halheid which came to
be known as Code of Gentoo Laws. Similarly, for ascertaining the position
of Mohammedan law, apart from translation of Fatuwa Almgiri, he got
H{edaya translated into Persian with the help of four Moulvis which was
translated into English by Hamilton.
Next was Justice Jones of the Supreme Court of Calcutta who
produced a work on Mohammedan Law of Succession and the Institutes of
Hindu Law in 1794. He also wanted to prepare a digest of Hindu law
which he could not complete due to his sudden death. The work was
later on completed by Pandit Jagannath which was translated by
Colebrooke into English.
After that came many works such as Considerations Upon Hindu Law
(1824) by Sir Francis Macnaughtan, Principles and Precedents of
Mohammedan Law (1825) by Sir Willian Hay Macnaughtan, Mayne’s
Treatise on Hindu Law and Usage (1887) \and Neil Daille’s Treatise on the Law
of Inheritance (of Muslims). Many more works were produced later by
Indian and foreign jurists but none of them has a match to these works
prepared by foreign scholars with respect to a system of a contry of
whose the law, language and custom were quite strange to them.

WWW)
 11
RACIAL DISCRIMINATION IN THE
JUDICIAL ADMINISTRATION
The advent of Muslim rule in this country created two different
system of laws in place of one depending for their application upon the
personal status of the parties 1.e., Hindu law for Hindus and Muslim law
for Muslims subject to a theoretical exception in matters of crimes where
the Muslims law applied to all.’ When the Britishers entered this country
they also brought their own law with them and through a treaty with the
Moghul Emperor in 1618, got the privilege of being governed by their
own law in their settlements in different parts of the country.’
In the beginning this was a sort of immunity from the general law of
this land but in subsequent years it developed as a claim of superiority
not only of being governed by their own laws but also of being amenable
to the jurisdiction only of different courts both in civil as well as in
criminal matters. How far? in what manner? and for how long? this
discrimination existed in the administration of justice which shall be
discussed here briefly in civil and criminal matters.
Civil Matters
From the very beginning the position was that while, all other natives
within the Company’s territory were subject to the jurisdiction of the
courts established by the Company, the British born subjects were
1. For details see M:P. Singh—Outlines of India Legal History (Ancient & Medieval periods),
Ch. 5, (1968).
2. The reason for such privilege has been so stated in Adv. Gen. of Bengal v. Rane Surnomoyee
Dossee, 9 MIA 387:
The laws and usages of eastern countries where Christianity does not prevail are so
at variance with all the principles, feeling and habits of European Christians that they
have usually been allowed by the indulgence or weakness of the potentiates of those
countries to retain the use of their own laws and their factories have for many purposes
been treated as part of the territory of the sovereign from whose dominions they come.
125
126 Indian Legal & Constitutional History

amenable only to the jurisdiction of the Crown’s courts. In 1787, for the
first time in Bengal it was provided that if a British subject filed a suit in
a Company’s court, which had the jurisdiction with respect to the other
party but did not have the jurisdiction over a British subject, then he had
to write a bond to be bound by the decision of such court. In 1793, Lord
Cornwallis prohibited the British subjects from residing beyond ten miles
of Calcutta unless they executed a bond to be bound by the jurisdiction
of the Mofussil civil courts in matters upto the value of Rs. 500. However,
in matters beyond that amount they were subject only to the jurisdiction
of the Supreme Court at Calcutta. This scheme was followed in Bombay
and Madras also in 1799 and 1802 respectively.
The Charter Act of 1813 provided that the British subjects residing,
trading or holding immovable property beyond ten miles from the
Presidency limits could be sued in the Company’s civil courts of the place
subject to a benefit that the appeal against the decision of such court
could be filed ~ in the Crown’s Court and not in the Sadar Diwani
Adalats.
Lord Hastings in his reforms of 1814, however, provided that cases in
which British subject, European or any American was a party, could not
be heard in the courts of Munsifs and the Sadar Ameens i.¢., the matter
could be heard only by the district court usually presided over by an
English judge. But in 1827, on the petition of certain British subjects, this
provision was amended and the courts of Sadar Ameens were authorised
to take cognisance of such cases. In 1831, Lord William Bentink again
reversed the position prohibiting the jurisdiction of the courts with
Indian judges over such persons.
The Charter Act of 1833 was to bring many changes one of which was
that the doors were being opened for the British subjects to settle within
the countryside. The Company’s Court of Directors envisaged the
dangers of such influx and, therefore under section 85 of the Act an
obligation was put upon the Company’s Government in India to provide
for the protection of the natives from insult and outrage in their persons,
properties, religions, and opinions. The Act made no reservations in -
favour of British subjects so far as civil matters were concerned. At the
same time the first Law Member of the Government — Lord Macaulay —
was very much critical of any favour to British subjects in the
administration of justice. He was opposed even to that provision of the
Act of 1813 according to which a British subject had the privilege to take
an appeal to the Crown’s Courts against the decisions of the Company’s
courts.
Racial Discrimination in the Judicial Administration 127
To achieve the object of codification and for creating necessary
apparatus, the Charter Act of 1833 was passed. It aimed at establishing
legislature with legislative jurisdiction through British India and the
Governor-General of Bengal became the Governor-General of India and
the Governor General-in-Council directed and controlled the whole
Indian Government.
In pursuance of the policy of the Act of 1833 and the wishes of
Macaulay, in spite of opposition from many British people, the
Legislative Council of India passed the Act of 1836, section 107 which
abolished the privilege enjoyed under the Act of 1813. It also extended
the jurisdiction of all civil courts, except that of the Munsifs in Bengal and
of Sadar Ameens and District Munsifs in Madras, to all persons without
any distinction of birth or of descent.
By an Act of 1839, the Munsifs were also given jurisdiction against all
persons but only in matters connected with arrears or exactions of rent.
The only exceptions left in civil matters, in the courts of munsifs in
Bengal and Sadar Ameens and the District Munsifs in Madras were also
abolished in 1843 and 1850 respectively in Bengal and Madras. Thus the
racial discrimination in civil matters came to an end in 1850.
Criminal Matters
In the sphere of criminal justice, the discriminations continued
throughout the British Rule and ended only after the independence.
Under the provisions of the Regulating Act, British subjects were
within the criminal jurisdiction only of the Supreme Court at Calcutta.
The courts in the Mofussil had no jurisdiction over them. In 1790, Lord
Cornwallis authorised the Magistrates in the Mofussil to send the British
subjects before the Supreme Court for trial if on enquiry they found any
prima facie case against them. Similar was the position in Bombay and
Madras.
An Act of 1793 of the British Parliament authorised the Governor-
General-in-Council to appoint Justice of the Peace who could be given
the power to apprehend the British criminals, take evidence against them
and commit them for trial in the Supreme Court at Calcutta. Under the
authority of this provision by Regulation II of 1796, all Magistrates were
appointed as Justices of Peace. Similar policy was adopted in Bombay
and Madras in 1807.
The Charter Act of 1813 authorised the Magistrate of the districts to
Act as Justice of Peace and also to punish British offenders in case of
assault, forcible entry, or other injury accompanied with force with a fine
not exceeding Rs. 5000, and failing the payment of fine, two months’
128 Indian Legal & Constitutional History

imprisonment. However, such convictions could be removed by the

courts of Oyer and Triminer and Goal Delivery’ by a writ of certiorari.
So far only covenanted servants of the Company or other British
inhabitants could be appointed as the Justice of Peace. But in 1832
provision was made by which Indian natives were also qualified to
become Justice of Peace but only within the Presidency towns, Outside
Presidency towns these provisions were extended only in 1923.
The Charter Act of 1833 by section 46 enacted that the Government of
India could not make a law, without the previous sanction of the
Directors, which authorises any court other than the Supreme Courts to
sentence British subjects or their children to death or which abolishes the
courts so chartered. This provision implied the extinction of all other
privileges in favour of British subjects. The Directors in their despatch of
10th December, 1834, on the support of this provision, urged the
Government to bring equality in the administration of criminal justice.
Lord Macaulay also pleaded for such equality, yet the reforms of 1836,
discussed above could not cover the criminal jurisdiction. In 1841, the
Directors again criticised the disparity and in 1843, the First Law
Commission in its report also made several arguments to put the
disparities to an end. However, nothing took place till 1843 when an Act
of the Indian Legislative Council abolished the privilege of removing by
certiorari to the Supreme Court the convictions of the British subjects by
the Justices of Peace in Mofussil and provided that an appeal would lie
against such convictions to the same courts, and according to the same
rules, as were provided in case of convictions made by the Magistrates in
the exercise of their ordinary jurisdiction. Beyond this nothing happened
even after the establishment of the High Courts in 1865.
In 1849, then Law Member Mr. Bethune made an unsuccessful effort
in drafting a bill to extend the jurisdiction of the Company’s courts to all
British subjects except in case of death penalty. It was rejected on the
ground that how the Mofussil courts administrating Muslim criminal law
could try the English people.
In 1872, the revised Code of Criminal Procedure came but it also
maintained the disparities in so far as only the court presided over by the
British judges could try the British criminals and that also in minor
offences involving punishment not exceeding imprisonment for one year
or fine or both. The more serious offences could be tried only by the High
Courts. This disparity brought a sense of inferiority and distrust among
the Indian judges. However, the position continued.
1. The Supreme Court at Calcutta and later the Supreme Courts at Madras and Bombay
also were given the jurisdiction of the Courts of Oyer and Terminer, supra, Chapter 4.
Racial Discrimination in the Judicial Administration 129

Lord Ripon, the Governor-General, also made certain concrete

proposals to abolish the disparity but due to opposition from British
community he also failed. In 1884, the Ilbert Act made a provision for
mixed jury consisting of Indians and Europeans or Americans for the trial
of British subjects.
It was in 1923 only the Criminal Procedure (Amendment) Act of that
year put all persons subject to the jurisdiction of the same courts and
abolished all the disparities existing so far. However, the only disparity
still left was the right of Birtish subject to be tried by a jury consisting of
a majority of Europeans or Americans.'! This last vestige of racial
discrimination went away only with the passing of the Criminal Law
(Removal) of Racial Discriminations Act, 1949.

WWWH

1. A reciprocal right was given to Indians also to claim a jury consisting of a majority of
Indians.
 12
MODERN JUDICIARY
The present day judicial system in India is quite complicated and not
easy to be explained in brief in a type of work as the present one is. The
reason is that apart from the judicial system which the constitution
establishes, there are many laws which define and regulate the
composition, powers and the jurisdiction of various courts. However, a
beginner in the field of law needs, if not a detailed picture then at least,
an outline of the judicial system in which he is living. With that idea in
mind, it is proposed to give a brief but a clear description of the
judicial system avoiding the details which may make the whole thing
confusing.!
The topic “Administration of justice, constitution and organisation of
all courts, except the Supreme Court and the High Court” includes power
to create courts below the High Courts and thus includes “the power of
defining, enlarging, altering, amending and diminishing the jurisdiction
of the courts and defining their jurisdiction territorially and pecuniarily.
The Constitution of India which forms the basis of all Governmental
forms, organs and institutions, establishes a federal form of government.
A federal government requires double sets of executive, legislature and
judiciary — one each for the Centre and the States. But our Constitution
makes an exception to this general rule in so far as it establishes single
set of judiciary which administers both Central as well as State laws. To
put in one sentence our judiciary consists of a Supreme Court at its top,
High Courts in the middle and the subordinate courts at the bottom. The
Supreme Court is the creation of the Constitution therefore, its
composition, powers, jurisdiction, etc. all are given exhaustively in the
Constitution itself. But that is not the case with the High Courts and the
subordinate courts and with the exception of few basic matters the
1. Those who are interested in details may read M_P. Jain op. cit. Chapters XVIII to XX; J.K.
Mittal Introduction to Indian Legal History Chapter XIX to XXI or may refer to the
Constitution of India and other laws relating to these courts.
130
Modern Judiciary 131
Constitution leaves them to be governed by the existing laws or the laws
which may be passed in future. Briefly stated the position of the different
courts is as given below.
The Supreme Court!
The Supreme Court, with its seat in New Delhi, is the highest court
of the land. It consists of one Chief Justice and twenty-five other judges
to be appointed by the President of India from amongst the Indian
citizens who have been in one or more High Courts, as judges for 5 years
or advocates for ten years or are distinguished jurists in the opinion of
the President. A judge holds his office upto the age of sixty-five years
unless he resigns earlier or is removed. The jurisdiction and powers of
the Supreme Court are very wide. Its jurisdiction may be classified as
below:—
Original—(i) Exclusive original jurisdiction—in any dispute between
the Centre and the States or the States interse.?
(ii) Original jurisdiction but not exclusive—to enforce fundamental
rights.
Appellate*—Ordinarily, it has the jurisdiction to hear appeals against
the decisions of the High Courts only on the certificate of the High Court,
if—
(i) in any proceedings substantive question as to the interpretation
of the Constitution is involved, or 7
(ii) in civil proceeding if the case involves substantial question of
law of general importance and the High Court thinks that the
question needs Supreme Court ruling,
(iii) a criminal case is, fit to be heard by the Supreme Court.
In criminal matters, an appeal can be filed even without the certificate
of the High Court if the High Court has sentenced a person to death
either after reversing the orders of acquittal passed by a lower court or
after withdrawing any case from the lower court. Above all the Supreme
Court can allow an appeal by its special leave in any matter against the
decision of any court or tribunal in India except the tribunals relating to
Armed Forces.
Advisory—The President may seek the advice of the Supreme Court
in any matter of public importance and also in the matters relating to
treaties etc. executed before the commencement of the Constitution.
1. See Chapter IV Part V of the Constitution of India.
2. Art. 131.
3. Art. 32.
4. Articles 132-136.
 132 Indian Legal & Constitutional History

Apart from these specific jurisdictions the Supreme Court has the
power to review its own decision. The jurisdiction of the Supreme Court
may further be enlarged by a law of Parliament.
The Supreme Court is a Court of record having the power to punish
for its contempt. The law declared by it is binding on all courts within the
territory of India.
Apart from its power to hear appeals against the decisions of the
High Courts, the Supreme Court has no administrative or supervisory
powers over them or over other lower courts. However, recently it has
been empowered to transfer or withdraw cases from the High Courts.
Supreme Court too faces the problem of mounting work load and
arrears of cases.'
THE HIGH COURTS?
We have already discussed the creation and establishment of various
High Courts? and, as has been stated in the beginning of this Chapter, the
composition, powers and jurisdiction etc., of the High Courts, subject to
the provisions of the Constitution, is governed by the laws establishing
these Courts or the Constitution. Without going into the details it may be
stated that the High Courts in the Presidency towns differ from the other
High Courts because as the successors of the Supreme Courts they have
original jurisdiction also* while other High Courts have only appellate
jurisdiction.
According to the provisions of the Constitution there must be a High
Court for each State but a common High Court may also be established
for two or more States and also the jurisdiction of any High Court may
‘be extended to any Union Territory. The Parliament may by law establish
separate High Courts also for the Union territories. Every High Court
consists of a Chief Justice and such other judges as the President may
from time to time deem necessary to appoint. An Indian citizen who has
been for ten years either in the judicial service or an advocate in any High
Court can be appointed as a judge and holds this office till the age of
sixty two years unless he resigns earlier or is removed.
Apart from protecting the existing jurisdiction of the High Courts the
Constitution removes all the restrictions on certain High Courts relating
_ to revenue matter which were in existence as a result of the Act of

. Keshinath Dikshita v. India, AIR 1986 SC 2118.

. Chapter V Part VI of Constitution of India.
. Chapter 8.
wnIbid.
Modern Judiciary 133

Settlement.’ It also confers on all High Courts the power of issuing the
five prerogative writs for the enforcement of fundamental rights or even
for redress of substantial injury or injustice.
Every High Court is a Court of Record and can punish for its
contempt. It has the power of superintendence over all courts within its
territorial jurisdiction. The decisions of a High Court and the laws laid
down by it are binding upon all courts subordinate to that High Court,
although for other High Courts and the courts subordinate to such High
Courts, these decisions or laws have only persuasive value.
SUBORDINATE COURTS
With respect to subordinate courts, the Constitution only mentions
that the district judges in the States shall be appointed by the Governor
in consultation with the High Court of the State and the judicial servants
below the rank of the district judge shall be appointed by the Governor
in accordance with the rules made in consultation with the Public Service
Commission and the High Court of that State. The High Court has been
given full control over the District Courts and the subordinate courts.
Beyond this the constitution and organisation of the large number of
courts spread over the country has been left as it existed at the time of the
commencement of the Constitution and it may be modified or formulated
by the various State Legislatures within their own territories. It was ruled
by the Supreme Court that district judges were to be appointed on High
Court’s recommendation. Consequently, the district judge appointment
on Selection Committee recommendation consisting of two High Court
judges and Judicial Secretary to the State Government was held not
constitutional.* Under the Constitution, consultation by the Governor
with the High Court was contemplated as High Court can express views
on judicial functioning of persons, recommended for district judges post.°
Consultation between the State Government and the High Court must be
“meaning and purposive”. High Court can recommend compulsory
retirement of a district or subordinate judge and.a Governor approves
such recommendation.* If a Governor passes a premature retirement
order without the High Courts’ recommendation’ the same is void and
ineffective.’ Because of the various laws on the aspect and the power of
the State to make their own laws, this nomenclature and the jurisdiction

. See Chapter 4.
. Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987.
. Muni Subrat Jain v. State of Haryana, AIR 1977 SC 276.
Brij Behari Lal v. High Court of Madhya Pradesh, AIR 1981 SC 894.
Ae
ON Tej Pal Singh v. State of Uttar Pradesh, AIR 1986 SC 1814.
134 Indian Legal & Constitutional History
etc., of these courts differ from State to State. Apart from that Parliament
has full power with respect to the subordinate courts within the Union
territories. Discussion of the whole position would extend beyond the
purpose, aim, and scope of this work. Therefore, we shall just illustrate
the position by one or two situations. Before doing that it may be
mentioned that here also there is a distinction between the position in the
Presidency towns and outside those towns and, therefore we briefly
discuss the position by choosing one of the States, viz., Uttar Pradesh one
hand and the Presidency towns on the other.
Subordinate Civil Courts
State of Uttar Pradesh—According to the provisions of Bengal, Agra
and Assam Civil Courts Act, 1887, as modified by Act IV of 1936 which
deals with the Constitution and jurisdiction of the subordinate civil
courts in the State. There are four types of civil courts in U.P. at the
district level—-The court of district judge, additional judge, civil judge
and munsif. The court of munsif is the lowest in the judicial cadre and
ordinarily has jurisdiction to hear suits upto the value of Rs. 2,000 and by
extended authority upto the value of Rs. 5,000. The other three courts
have unlimited pecuniary jurisdiction but to start with a suit is filed in
the court of the civil judge, if the suit is upto the value of Rs. 20,000 is
appealable before the district judge which may be heard by him or by an
additional judge or if the appeal is against the decision of munsif even by
a civil judge. An appeal in the suits of more than Rs. 20,000 in value and
a second appeal in other suitable suits goes to the High Court.
The district judge, subject to the power of the High Court, has full
supervisory authority over all courts subordinate to him. The additional
judge is to help the district judge and has the same judicial powers as the
district judge and may act as district judge in his absence.
In addition to the above courts, there is a small cause court in each
district which ordinarily has jurisdiction in matters upto the value of
Rs. 500, but the State Government may extend its jurisdiction upto 1,000.
This is’ a court of summary justice. Its decisions are final and are not
appealable, they can be only revised by the High Court. But the small
cause court cannot hear every type of suit e.g., it cannot hear cause
relating to immovable property.
Presidency Towns—The basic point that differentiates the position of
the Presidency towns from other places is the ordinary original civil
jurisdiction of the High Courts of these places within the territorial limits
of the town concerned. From this difference various other differences
have arisen which are mentioned below.
Modern Judiciary 135
City Civil Courts—To relieve High Courts from the suits of small
amounts there is a City Civil Court in each of the three Presidency towns
which has a pecuniary jurisdiction upto the value of Rs. 50,000, Rs. 25,000
and Rs. 10,000 in Madras, Bombay and Calcutta respectively. The appeals
against the decisions of the City Civil Courts lie to the High Court of the
place. With the distinctions made in the Acts establishing these courts in
different towns they have similar constitution, organisation and the
powers.
Small Cause Courts—These courts have their historical origin in the
Courts of Requests established in 1753, and got their present name under
an Act of 1850 and are now governed by the Presidency Small Cause
Court Act, 1882. The territorial jurisdiction of this court corresponds with
the ordinary civil jurisdiction of the High Court concerned. Excluding a
few types of matters these courts have the jurisdiction to hear suits upto
the value of Rs. 2,000 and with the consent of the parties, even the suits
of higher value.
Subject to the supervision of the High Court, every decree and order
passed by the Small Cause Court is final and conclusive. A reference to
the High Court can be made in those cases where the two judges of the
court differ on some point of law or usage or if the court entertains a
doubt on any point of law or usage in a suit above the value of Rs. 500.
Subordinate Criminal Courts
The Code of Criminal Procedure, 1973 deals with the criminal courts.
According to the Code, every State is divided into sessions divisions
generally, corresponding to a district but sometimes a division may
consist of more than one district. There is a court of sessions judge for
each division but according to the needs additional sessions judges and
assistant sessions judge may also be appointed. The Sessions courts have
the jurisdiction to try any offence and inflict any punishment provided
by law subject to the condition that the death sentence given by that court
is to be confirmed by the High Court. ,
Below the sessions court, there are judicial magistrates of the first
class or metropolitan magistrates in the metropolitan areas, judicial
magistrates of the second class and executive magistrates. Bombay,
Calcutta, Madras and Ahmedabad are designated as metropolitan areas
in the Code. The concerned State Government may by notification
designate any other town, whose population exceeds one million, as
metropolitan area. The judges of the courts of session, judicial
magistrates of the first and second classes and the metropolitan
magistrates are appointed by the respective High Courts. The High
Courts also appoint from amongst the magistrates of the first class a chief
136 Indian Legal & Constitutional History

judicial magistrate and an additional chief judicial magistrate and in

metropolitan areas a chief metropolitan magistrate and an additional
chief metropolitan magistrate. The High Courts may also appoint special
magistrates on the request of the Central or State Governments, The
executive magistrates, including the district magistrate, additional district
magistrates and special magistrates, are appointed by the concerned State
Governments. All the offences under the Indian Penal Code are tried
only by a judicial magistrate of the first or second class or by a
metropolitan magistrate. An executive magistrate tries no offence. They
perform only non-judicial functions such as arrest of criminals, security
for keeping peace and good behaviour, removal of public nuisance,
dealing with urgent cases of nuisance or apprehended danger, etc. Thus,
the judiciary in criminal matters has been completely separated from the
executive throughout the country.
NYAYA PANCHAYATS
With the advent of independence the village panchayats, which had
strong roots in our ancient politico-legal system! and remained at a very
low ebb during, the British rule, were revived with full zeal. A provision
was made in Article 40 of the Constitution asking the State to “take steps
to organise village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self
government.” The Nyaya Panchayats (NP) are the judicial component of
the panchayat system, They are the lowest ring of our judiciary created
for the dispensation of justice at the local rural level. According to the
latest information available, fifteen State laws provide for the NP. They
are, however functioning only in eight States. Their composition and
powers differ from State to State and it would be unsafe to make any
generalisations in that respect beyond stating that they are generally
based on a system of nomination or election or a combination of both and
have jurisdiction to decide petty civil and criminal matters. They are
1. See M.P. Singh, Outline of Indian Legal History (Ancient & Medieval Periods). Chapter 10
(1968). |
2. According to the Report of the Committee on Panchayati Raj Institutions, 1978 (Ashok Mehta
Committee), the eight States in which the Nyaya Panchayats are working are Bihar,
Gujarat, Jammu and Kashmir, Manipur, Rajasthan, Tripura, Uttar Pradesh and West
Bengal. In the State of Haryana, Himachal Pradesh and Punjab the village panchayats
have been vested with judicial function in addition to the municipal and executive
functions. Madhya Pradesh has abolished in Nyaya Panchayats but intends to
reintroduce shortly. Andhra Pradesh, Assam and Karnataka have either kept the law
relating to the Nyaya Panchayats in abeyance or not implemented. Maharashtra and
Orissa have abolished the Nyaya Panchayats while Kerala and Tamil Nadu as well as
Meghalaya and Nagaland do not provide for such a system. When the Committee
reported there were 29.942 Nyaya Panchayats (including 7.292 nyaya up-samitis in
Rajasthan) working in the country.
Modern Judiciary 137

intended to provide inexpensive and expenditious justice through

informal and simple procedures including compromise and conciliation
between the parties wherever it is possible.
To illustrate the position with reference to Uttar Pradesh, the U.P.
Panchayat Raj Act, 1947 provides for the division of every district in the
State into circles consisting of contiguous villages. Each circle has a NP
with a Sarpanch at its head, a Sahayak Sarpanch and ten to twenty-five
panchas. The panchas are appointed by the State authorities (normally,
the district collector) from amongst the members of the village
panchayats falling within a circle, who elect a Sarpanch and a Sahayak
Sarpanch from amongst themselves. Each member of the NP must be able
to read and write Hindi and must have attained the age of thirty years.
The term of the panchas is the same as that of the panchayat which they
represent. The Sarpanch and the Sahayak Sarpanch remain in the office
till their successors take over.
The jurisdiction of the NP extends to minor civil and criminal matters
such as contracts, recovery of movable property compensation for injury
to property, cattle trespass etc., upto the value of rupees one hundred and
to criminal cases such as affrey, simple hurt, wrongful restraint, assault,
theft, misappropriation etc. While in civil matters, the Nyaya Panchayat
can grant any appropriate relief in criminal matters, it can only impose
fine upto rupees one hundred but no imprisonment. It can also take
security proceedings against a person likely to commit breach of peace
and may bound him upto fifteen days on a security upto rupees one
hundred. The NP may also have special jurisdiction with respect to any
dispute arising within its area and not pending in any court, in
accordance with any settlement, compromise or oath in writing between
the parties. The Nyaya Panchayat functions in benches of five panchas,
each one of whom acts as a Chairman. In the absence of consensus the:
decision is taken by majority.
The procedure in the Nyaya Panchayats is very simple and regulated
by the rules made for that purpose. They are not-required to follow the
Codes of Civil or Criminal Procedure or the law of evidence. But they
have the power to call witnesses and the parties for recording their
evidence or producing any relevant documents. Unlike courts, the NP
may investigate the facts of a case independently to arrive at the truth.
The NP also have the power to punish for their contempt. Lawyers are
not allowed to appear in the NP.
Decisions of the NP are final subject to revision by the munsif, sub-
divisional magistrate or the sub-divisional officer in civil, criminal and
revenue matters respectively. These officers also have the power to
138 Indian Legal & Constitutional History

transfer a case from one bench of the Nyaya Panchayat to another or to

withdraw and decide themselves.
The working of these panchayats has been evaluated from time to
time with mixed results. Generally, the NP’s have failed to inspire the
confidence of the people in them as impartial and effective instruments
of justice, among others, for the reason that the panchas are susceptible
to local pressure and are ignorant of law. For this reason they have also
not been able to relieve the courts of their burden. The Rajasthan
Committee on Panchayati Raj 1973, found that the NP’s were languishing
for want of funds, secretarial assistance, adequate powers and people's
faith in them. It recommended their abolition. The Maharashtra
Committee 1971, was of the opinion that entrustment of judicial function
to the NP on the basis of democratic elections or otherwise is both out of
place and unworkable. It also recommended their abolition. The Badal
Team in Punjab 1969, recommended withdrawal of judicial powers from
the village panchayats so that they could pay greater attention to the
development work. Sahu Committee for Orissa felt that the NP’s were
not able to discharge their duties as full fledged courts and worked only —
as a compromising body. |
On the other hand, central bodies like the Law Commission of India
(14th Report, 1958), the Study Team on Nyaya Panchayats 1960, Bhagwati
Krishna Iyer Report on National Juridicare: Equal Justice-Social Justice
1978, and the Ashok Mehta Committee 1978 have reported favourably
recommending the continuance and improvement of NP’s as institutions
of inexpensive and expeditious justice in simple matters at the doorsteps
of the villagers. Some of the important recommendations which the Law
Commission made were: The constitution of NP for a group of villages
situated in a nearby area with Nyaya Panchas nominated by a suitable
authority out of those elected Nyaya Panchas who posses certain
prescribed qualifications of like literarcy; training of Nyaya Panchas
before they exercise any judicial function; bar on the appearance of the
legal practitioners in the NP, efforts to effect amicable settlement between
the parties; special officer to supervise the working of NP; publication of
detailed information about the working of panchayats, etc. The Bhagwati
Iyer Committee recommends that the NP should consist of three
members including the Chairman. The Chairman must be a man having
the knowledge of law. According to it a cadre panchayat judge is
essential to eliminate the possibility of arbitrary or irrational decision and
to ensure that justice is done objectively and rationally without any
prediliction or prejudices. The Mehta Committee did not get very
enthusiastic response on the continuance and working of the NP though
many advocated their relevance and revival to settle disputes. The
Modern Judiciary 139
Committee found lack of faith in the NP as constituted today. It opposed
the combination of judicial and executive functions in one body and
therefore recommended that the people be elected for the Nyaya
Panchayats. “It would be more appropriate”, the Committee felt, “if
judicial work is done by qualified persons but with local assistance”.
Finally, it showed its favour for a qualified judge to preside and elect
Nyaya Panchas to be associated with him. The Nyaya Panchas should be
barred from seeking re-election and should serve in an area other than
that from which they have been elected. Looking at the findings and
recommendations of various central bodies, Professor Baxi, who has
succinctly analysed the constitution and working of the Nyaya
Panchayats and brings out the confusion in the ideology behind them,
sees the emergence of a new national policy on the decentralised
popular bodies". Let us hope that the NPs become an effective instrument
of inexpensive and expeditions justice at the door steps of the
villagers.
A Legal Aid Committee was constituted by the Government of India
on October 27, 1972 and Justice V.R. Krishna Iyer was the Chairman of
this Committee. The main object of this committee was “to consider the
question of making available to the weaker sections of the community
and persons of limited means in general and citizens belonging to the
socially and educationally backward classes in particular. It was
emphasized by the Supreme Court upon the State Government, the great
need for supporting and encouraging voluntary organisations and social
action groups for the operation of legal aid programme.”
The Government of India seems to be taking a fresh initiative for
making the Nyaya Panchayats an effective vehicle of justice. Although an
initiative of the Law Ministry for the establishment of Gram Nyayalaya
has been shelved, the Panchayati Raj Ministry has constituted a
two-member committee to examine the issue and make its
recommendations.?
Separation of Judiciary and Executive
There is a theory of separation of powers according to which rights
of the people are better protected if legislative, executive and judicial
1. U. Baxi, The Crisis of the Indian Legal System, p. 327 (1982). Some of the features of the
ideology behind the Nyaya Panchayats, according to him are: revival of traditional
village community life in India, democratic decentralisation, easy access to justice,
carriers of secular equalitarain modernistic legal ideology, lowest rung of State judicial
system, combination of judicial system and local self-government, extension of State
legal system in rural areas.
2. Centre of Legal Research v. Kerala, AIR 1986 SC 2195.
3. See, Times of India of 26-6-2006, p. 9.
140 Indian Legal & Constitutional History

powers are separated. During the British rule such separation was not
done for long even in the highest judiciary such as Sadar Adalats and at
the lower judiciary such separation, particularly in the field of criminal
matters, could not be created even upto the independence irrespective of
many calls for such separation. With the independence people wanted to
create separation between the judiciary and the executive and
accordingly, introduced a Directive Principles of State Policy in the
Constitution to separate the judiciary from the executive.’
As regards the separation of the higher judiciary, i.e., the Supreme
Court and the High Courts, the Constitution fully ensures that it is in no
way under the influence of the executive. Even the provisions in the
Constitution for the appointment of the judges of the Supreme Court and
the High Courts and the transfer of the judges of the latter, which the
Constitution requires the President to do in consultation with the Chief
Justice of India, have been interpreted by the Supreme Court to mean in
effect the concurrence of the Chief Justice. Thus even the appointments
and transfers of the judges are also now free from executive control. As
regards higher judiciary separation from the executive had been achieved
before independence. Even at the level of lower judiciary - district courts
and below - so far as the civil side of the judiciary was concerned it had
been separated from the executive almost from the time of Lord
Cornwallis in 1793 onwards. The district judge in the pre-independence
India held higher status and commanded greater respect than the highest
executive, i.e. the collector at the district level. Whatever little chances of
the executive influencing the civil judiciary at the lower level existed,
were plugged by the Constitution* Except in the matter of some
budgetary allocations, which theoretically are within the domain of
legislature and not of the executive, the lower civil judiciary stands
completely separated and independent from the executive. The lowest
court in the hierarchy of civil courts and the pettiest matter of civil nature
lies exclusively within the domain of the judiciary under the
administrative control of the respective High Courts.° Even the
determination of service conditions, age of retirement, salaries,
1. Article 50.
2. See, Constitution of India, Arts. 124, 217 & 222 and S.C. Advocates on Record Assn. v.
Union of India, AIR 1994 SC 268 Presidential Reference (in re:), AIR 1999 SC I.
3. See E. Stokes The English Utilitarians and India, 7 (1959, 3rd impression 1992). Also All
India Judges’ Assn. v. Union of India, AIR 1992 SC 165 (167).
4. See, Const. of India, Arts. 233-237.
5. The revenue matters relating to agricultural land are still in the hands of the executive.
But title suits can be brought in the courts. Revenue matters in general are in the hands
of the administrative and quasi-judicial bodies even in other matters subject to the
supervision of the High Courts.
Modern Judiciary 141
allowances and other facilities for the members of the lower judiciary is
now in the hands of the judiciary.’ Although some of the states are facing
some budgetary difficulties in enforcing uniform standards in this
regard, but no difference of opinion exists on the desirability of the
independence of the judiciary and its separation from the executive.
The position of the lower judiciary on criminal side has, however, not
been so clear. We have already noted that the separation of judiciary on
criminal side from the executive introduced by Lord Cornwallis was soon
reversed by his successors and the magisterial powers were vested in the
executive officers with the collector as district magistrate heading all the
district magistracy. This arrangement was later incorporated in the
Criminal Procedure Code, 1898, which applied to the whole of British
India. The magistrates were divided into several classes as class I,
class II, class Ill, special magistrates, honorary magistrates, etc. having
power to try and punish people for different offences except the serious
offences, which they had to commit to the sessions courts after holding
enquiry into the charges. The sessions courts were also the civil courts.
Therefore, they were as much insulated from the executive in the
criminal matters as in the civil. Thus separation of the judiciary at the
level of sessions courts existed even before the independence and the
commencement of the Constitution. It was absent only at the level of
magistrates. The national leaders and the Constitution makers were, as
we have already noted, primarily concerned about this absence.
Accordingly the command to separate the executive from the judiciary
was incorporated in the Constitution.”
The States of Madras and Bombay led the implementation of the
constitutional command. The former appointed a committee even before
the independence in 1946 to suggest separation of the judiciary at the
magisterial level from the executive. Following the committee’s
recommendations, which classified the various functions assigned to the
magistrates under the Criminal Procedure Code and other laws into
police, administrative and judicial functions, the State of Madras shifted
the judicial functions to magistrates who were removed from the control
of the collector or the executive. The State performed this task by a
Government Order in September 1949 instead of doing it by legislation.
The State of Bombay achieved the same goal by legislation in 1951.°
Different States and Union Territories in the country adopted these two
models at different times in pursuance of the constitutional command.
1. See cases in n. 72 above.
2. See, n. 5 above.
3. See The Bombay Separation of Judicial and Executive Functions Act, 1951 and its
subsequent revisions in 1954 and 1958.
142 Indian Legal & Constitutional History

However, several States had not taken adequate measures in this

direction until the Law Commission examined the matter in its Fourteenth
Report in 1958.! The Commission expressed its dissatisfaction with the
then existing position and emphasised the importance and urgency of the
matter and recommended that out of the two available models the
Bombay model should be implemented all over the country.’ The
Commission continued to pursue this matter in its subsequent reports
until its Forty-First Report,? which led to the revision and replacement of
the Criminal Procedure Code of 1898 by the Criminal Procedure Code of
1973 by Parliament. The new Code provides for the uniform separation
of the judicial magistrates from the executive throughout the country,
Under the Code, as we have already noted, subordinate criminal
courts throughout the country are courts of session, judicial magistrates
of the first class or metropolitan magistrates in the metropolitan areas,
judicial magistrates of the second class and executive magistrates.*
Bombay, Calcutta, Madras and Ahmedabad are designated as
metropolitan areas in the Code. The concerned State Government may by
notification designate any other town, whose population exceeds one
million, as metropolitan area.° The judges of the courts of session, judicial
magistrates of the first and second classes and the metropolitan
magistrates are appointed by the respective High Courts.° The High
Courts also appoint from amongst the magistrates of the first class a chief
judicial magistrate and an additional chief judicial magistrate and in
metropolitan areas a chief metropolitan magistrate and an additional
chief metropolitan magistrate.” The High Courts may also appoint special
magistrates on the request of the Central or State Governments.’ The
executive magistrates, including the district magistrate, additional district
magistrates and special magistrates, are appointed by the concerned State
Governments.’ All the offences under the Indian Penal Code are tried
only by a judicial magistrate of the first or second class or by a
metropolitan magistrate. An executive magistrate tries no offence.'° They
1. See, n. 2 above.
2. For the adoption of this model see e.g., The Punjab Separation of judicial and Executive
Functions Act, 1964: and The West Bengal Separation of Judicial and Executive Functions
Act, 1968 and The Union Territory (Separation of Judicial and Executive Functions) Act,
1969.
3. Law Commission of India, Forty-First Report (Ministry of Law, Government of India,
1969). Among other also see the Thirty-Seventh Report (1967).
Gr. F.C, see. 6.
Ibid., sec. 8.
Ibid., secs. 11 & 16.
Ibid., secs. 12 & 17.
Ibid., secs. 13 & 18.
. Ibid., sec.
SeCMNaUSs
es. Tbid., sec. 26 and the First Schedule.
Modern Judiciary 143
perform only non-judicial functions such as arrest of criminals,! security
for keeping peace and good behaviour,? removal of public nuisance,
dealing with urgent cases of nuisance or apprehended danger,’ etc. Thus
the judiciary in criminal matters has been completely and uniformly
separated from the executive throughout the country.°
The separation of the judiciary from the executive does not mean that
it has been left to fend itself without support from the other two branches
of the State. When it appeared that the lower judiciary was not being
given its due an informal organisation of the judges —- The All India
Judges’ Association — filed a petition in the Supreme Court for directing
the Union of India and the States to ensure the’ independence of the
judiciary which is part of the basic structure of the Constitution.°® In its
judgment the Supreme Court directed that the Union of India should set
up an all India judicial service, uniformity in the designation of the
judicial officers must be brought and their retirement age must be raised
to sixty years of age, the question of appropriate pay scales of judicial
officers be specifically referred to and considered by the pay commissions
appointed by the Union and the States, a working library at the residence
of every judge and sumptuary allowance must be provided, residential
accommodation with provision for office room must be provided for
every judicial officer, every district judge and chief judicial magistrate
should have a State vehicle and other judicial officers should have a pool
vehicle and facility for loans for acquiring vehicle and in-service institute
should be set up at the Central, States and Union Territories levels.’ Half
of these directions had a time limit set, which was in no case longer than
one year. On a review-petition by the Union of India, upholding its main
judgment and rejecting the argument of the Union that it was
interference in the powers of the legislature or executive and that it will
involve unbearable financial burden, the Supreme Court clarified and
modified some of these directions.’ It directed that the service conditions
of the judicial officers should be laid down and reviewed from time to
time by an independent commission reflecting adequate representation
of the judiciary exclusively constituted for this purpose, three years legal
1. Cr. P.C., sec. 44.
2. Ibid., secs. 106-110.
3. Ibid., sec. 133.
4. Ibid., sec. 144.
5. The State of Jammu and Kashmir has been excluded from the application of the Code.
Some parts of the Code also do not apply to the Stale of Nagaland and tribal areas. See
ibid., sec. 1(2).
6. All India Judges’ Association v. Union of India, (1992) 1 SCC 119.
. Ibid., 140-41.
™“
8. All India Judges’ Association v. Union of India, (1993) 4 SCC 288.
L44 Indian Legal & Constitutional History

practice must be an essential qualification for recruitment to a judicial

post and in the recruitment even at the lowest position a representative
of the High Court must be associated, incompetent and unsuitable
judicial officers could be compulsorily retired at the age of 58, sumptuary
allowance to district judges and chief judicial magistrates was
withdrawn, library allowance should stand withdrawn after
establishment of court libraries, provision for free petrol not exceeding
one hundred litres per month for vehicles used by judges. State judicial
academies were optional in view of the establishment of National Judicial
Academy, and extended time for compliance with the directions in the
original judgment in view of the time taken in the disposal of the review
petition. It reiterated the need of higher salary and improved service
conditions for the judicial officers.
Pursuant to the directions of the Court the Government of India
appointed the First National Judicial Pay Commission with Justice Shetty
as Chairman on 21 March 1996. The Commission submitted its final
report on 11 November 1999. On 14 December 1999 the Supreme Court
directed the States and the Union Territories to send their response to the
Union of India so that it could correlate the responses and indicate its
own stand on the recommendations of the Commission.' The main
recommendations of the Commission included: framing of the rules by
the High Courts for the retirement of judges specifying particular age,
appropriate nomenclature for the judicial officers, the Chief Judicial
Magistrate to have the same position as District Judge, recruitment and
promotion norms for different cadres of judicial officers, and steps for
judicial education and training. Following the principles laid down by
the Supreme Court in the All India Judges’ Assn. case that the judges
should be at par with the political executive and legislature and not with
the administrators, the Commission recommended the following pay
scales for the judicial officers:
(i) Civil Judges (Jr. Divn.) Rs. 9000 — 14,550
(ii) Civil Judges (Jr. Divn.. I Stage) Rs. 10,750 — 14900
(iii) Civil Judges (Sr. Divn. II Stage) Rs. 12,850 — 17550
(iv) Civil Judges (Sr. Divn. I Stage) Rs. 14.200 — 18350
(v) District Judges (entry level) & Civil Judges (Sr. Divn., II Stage)
Rs. 16,750 — 20,500
(vi) District Judges (selection grade) Rs. 18,750 — 22,850
(vii) District Judges (super time scale) Rs. 22,850 — 24,850
The Commission could not recommend salaries higher than the above
because it had to keep in mind that the salary of a High Court Judge is
1. All India Judges’ Association v. Union of India, (2002) 4 SCC 274.
Modern Judiciary 145
fixed at Rs. 26,000. These salaries were given effect from 1 January 1996
and their burden had to be shared by the Centre and States. It also
recommended several allowances and facilities. The recommendations
also included raising of the age of retirement from 60 to 62 years of age,
domestic help allowance for retired judicial officers and creation of all
India judicial service,
Pursuant to the Court orders several States expressed to the Union
their willingness to immediately implement the recommendations subject
to the condition that the Union shared fifty percent of the financial
burden and implemented them with some modification in the Union
Territories. The Supreme Court rejected the modification in the scales of
salary even though in some respects they were higher than of the IAS
officers on the ground that they were just, fair and reasonable.' It directed
the respective governments to implement the new scales with effect from
1 July 1996 and their payment from 1 July 2002. But it refused to uphold
the recommendation that the Union must share the financial burden. The
lower judiciary was a State subject and they should generate the
necessary resources for the purpose. The Court also directed the raising
of strength of judges from 10.5 to 50 per 10 lakh people within a period
of 5 years. But it rejected the recommendation for raising the age of
retirement from 60 to 62 on the ground that 62 was the age of retirement
for the judges of the High Courts and the judges of the lower courts
should retire earlier than the High Court judges. It also rejected the
requirement of 3 years of legal practice for new entrants into the lower
judiciary on the ground that bright candidates will be discouraged from
entering the judiciary. But it upheld the distinction between the higher
judicial service and judicial service in the lower judiciary and held that
while in the former 75 per cent posts should be filled by promotion 25 per
cent should be filled by direct recruitment from amongst practicing
lawyers. The Court also left the question of uniformity of nomenclature
open but directed that the nomenclature for each scale must be different.
Most of the States and Union Territories have implemented the
recommendations of the Shetty Commission as modified by the Supreme
Court. Those, which have failed to do so until now, are in the process of
implementing them. Thus not only the separation of the judiciary from
the executive but also its independence, efficiency and dignity have also
been ensured.

WWW

1. All India Judges Association v. Union of India, (2002) 4 SCC 247.

 13
LEGAL PROFESSION
A well-organised and independent legal profession is an essential
condition for proper administration of justice.’ It is also a necessary
ingredient and guarantor of the rule of law’. Its proper organization and
maintenance of its independence are therefore, necessary for a good and
just society. This Chapter, traces the history of our efforts in that
direction. It will be too ambitious to trace that history from the time of
ancients or even Muslim rulers because firstly, we have very little
information about that and secondly, our present legal profession, like
most of the other legal institutions, is based on British model. Therefore,
we trace that history from the advent of British rule.
Early Development
In the first two Chapters we have seen that though various kinds of
courts were established by the East India Company for the
administration of justice within the territory under their control, no clear
provision was made regarding lawyer-judges or legal profession till the
establishment of the Supreme Court at Calcutta. Clause 11 of the Charter
of 1774 empowered the Supreme Court “to approve, admit and enrol
such and so many advocates and attorneys at law” as it thought proper
and also to remove them on reasonable cause. No other person could
appear, plead or act in the Supreme Court for or on behalf of any party.
Only the English ‘and Irish barristers and members of the Faculty of
Advocates in Scotland or British attorneys fell within the terminology of
clause 11 and therefore, no Indian had the right to appear in the Court.
Similar provision was made later in the Charters establishing Supreme
Courts at Bombay and Madras which in effect kept Indians out of the
profession.
1. The Law Commission in its Fourteenth Report observed: “A well-organised system of
judicial administration postulates a properly equipped and efficient Bar”, p. 556 (1958).
2. “It is essential for the maintenance of the rule of law that there should be an organised
legal profession free to manage its own affairs....” The Rule of Law in a Free Society. A
Report on the International Congress of Jurists, New Delhi, India, 1959, p. 311.
146
Legal Profession 147
The position in the Company’s courts in moffussil area was different.
In these courts local vakils, who were working in the local courts before
the Company took over, continued to work. But there was no proper
organisation, cadre or code for these lawyers till Lord Cornwallis in 1793
by Regulation VII authorised the Sadar Diwani Adalat to enrol pleaders
for the Company’s Courts in Bengal, Bihar and Orissa and also to fix their
scale of fee. Under this regulation only Hindus and Muslims could be
enrolled as pleaders'. Pleaders were empowered to act as arbiters and
gave legal opinions by Bengal Regulation XXVII of 1814. Subsequently,
Bengal Regulation of 1833 empowered the Sadar Diwani Adalat to enrol
any qualified person as pleader without regard to his nationality or
religion.
In 1846, the Legal Practitioners Act enabled all persons certified by
the Sadar Adalats as persons of good character and duly qualified, to
become pleaders. Attorneys and barristers were authorised to appear in
the Sadar Adalat and pleaders were permitted to enter into agreement
with the clients for their fee. Subsequently, the Legal Practitioners Act,
1855, allowed the barristers and attorneys to appear before any of the
Courts of the Company. In 1861, the High Courts Act provided for
replacement of the Supreme Courts and Sadar Adalats by the- High
Courts. Clause 9 of the Letter Patent of 1865, establishing the High Court
at Calcutta authorised that Court “to approve, admit and enrol such and
so many Advocates, Vakils and Attorneys as to the said High Court shall
seem meet”. They were entitled to appear and plead before the Court
subject to its rules and directions. Similar provisions were made in the
letters patents establishing the High Courts at Bombay and Madras.
The Legal Practitioners Act, 1879
The foregoing provisions of law did not apply to other High Courts,
which were established later. Therefore, a comprehensive legislation to
consolidate and amend the law relating to legal practitioners was passed
as the Legal Practitioners Act, 1879. The Act gave wide powers to the
High Courts to enrol lawyers for different courts and also to take
disciplinary proceedings against them. It authorised all High Courts
other than the three chartered High Courts to make rules, with the prior
sanction of the respective provincial governments with respect to
qualifications and admission of suitable persons as advocates and vakils
of the courts. Power to dismiss the advocates, after giving them an
opportunity to defend, was given to these High Courts.
The High Courts were also authorised to make rules with respect to
qualifications and admission of pleaders and mukthars in the subordinate
1. For details see supra Chapter 5.
148 Indian Legal & Constitutional History

courts and revenue offices. Though different High Courts provided

different qualifications for the pleaders and mukthars, generally former
were law graduates while ‘the latter were not. While pleaders could
practice in all subordinate courts, mukthars were allowed to appear only
in the criminal courts, and at some places even before revenue officers.
A pleader or mukthar could be suspended or dismissed by the High
Court if he was convicted of an offence implying bad character or if he
was found guilty of fraudulant or improper conduct in the discharge of
his professional duties.
The three chartered High Courts added to the category of advocates
and attorneys, the category of vakils. The former two categories were of
persons qualified in England, while the latter were Indian law graduates.
However, under amended rules the Bombay and Madras High Courts
had permitted even Indian law graduates to be advocates after passing a
prescribed test. While an advocate could appear on original as well as
appellate side of these High Courts, the Vakil could not appear on the
original side or even in appeals from original side. The Madras High
Court had, however, done away with this distinction as early as 1886.
Since in other High Courts there was no original side, there was no
practical difference between a vakil and an advocate. :
The Act of 1879 also empowered an advocate or vakil on the roll of
any High Court to plead in any subordinate court in British India and
also, before any High Court with the permission of that Court. Similarly,
attorneys were permitted to practice in any subordinate court in British
India and also, before any High Court other than the one in which he was
enrolled. This enlargement of the area of work for the advocates, vakils
and attorneys, provided them mobility and also a chance to come closer
with their brethren at other places.
An important provision of the Act which continues to exist even now
was section 36 which empowered the district judges, session judges,
district magistrates, presidency magistrates, collector and the Chief Judge
of a Presidency Smali Cause Court to publish the list of touts. The touts
could be debarred from entering the premises of the courts and could
also be subjected to fine and imprisonment. In spite of this provision and
the concern shown by different legal reforms committees, including the
Law Commission of India, touts continue to flourish in the legal
profession.
The Chamier Committee and the Indian Bar Council Act, 1926
Although the Act of 1879 was a long step in streamlining the legal
profession, the foregoing description still shows incoherence and lack of
uniformity. The dissatisfaction over the distinction between vakils and
Legal Profession 149
advocates with respect to appearance on the original side of the chartered
High Courts, some privileges enjoyed by the British barristers and
solicitors, and also a demand for an all India Bar led to the appointment
of the Indian Bar Committee under the Chairmanship of Sir Edward
Chamier in 1923.
The Committee was asked to report on—
(1) the possibility of constituting an all India Bar, whether on an all
India or provincial basis, and its structure etc.,
(2) the possibility of removal of distinction between advocates,
barristers and vakils.
On the first point, the Committee reported that the constitution of an
all India Bar was not possible. Alternatively it recommended the
establishment of a Bar Council for each High Court. On the second point,
the Committee could not make any specific recommendation because of
sharp division amongst its members.
To implement the recommendations of the Committee the Indian Bar
Councils Act, 1926 was passed. The most important change brought
about by the Act was the establishment of a Bar Council for each High
Court consisting of fifteen members and including the Advocate-General
as ex-officio member. Each Bar Council had an elected Chairman and a
Vice-Chairman. In the Chartered High Courts of Madras, Calcutta and
Bombay, the Advocate-General was made ex-officio Chairman of the Bar
Council. The roll of all the practitioners enrolled under a High Court was
to be maintained by that High Court. With the prior sanction of that
Court, the Bar Council was empowered to make rules regulating the
admission of advocates, prescribing their qualifications, rights, duties
and norms of discipline and professional conduct and providing for legal
education and training and the conduct of examinations by the Bar
Council. According to the rules of different Bar Councils a barrister or
attorney or a law graduate after some training, could be admitted as an
advocate. Though the application for the enrollment was presented to the
Bar Council, final decision was taken by the High Court which could
refuse admission to any one. In addition to this, full power was reserved
to the Calcutta and Bombay High Courts to control admission of
advocates on their original side.
Power to take disciplinary proceeding against a practitioner on a
reference from the High Court was given to the Bar Council. The
proceedings were conducted by the Council according to the rules
framed by the High Court in this regard. Final orders in the proceedings
were also passed by the High Courts.
150 Indian Legal & Constitutional History

To give full effect to that provision of the Legal Practitioners Act,

1923!, which prohibited discrimination on the basis of sex in the matter
of enrollment, the Act of 1926 also provided that a specific rule be made
by every Bar Council that a woman will not be disqualified to be an
advocate on the ground of sex alone.
From the provisions of the Act of 1926, it is apparent that it did not
achieve what was desired. The Bar Councils were simply advisory bodies
and the real powers vested in the High Courts. Even the rules passed by
the Councils required approval of the High Courts. The distinction
between the advocates on original side and other advocates in Calcutta
and Bombay High Courts was left untouched. Similarly, the attorneys
were left undisturbed by this Act. Nor did it make any provision with
respect to legal practitioner in subordinate courts. Even the right of an
advocate of one High Court to appear in another High Court was subject
to the rules of High Court.
The All India Bar Committee, 1951
Dissatisfaction with this kind of arrangement continued to mount
among the legal practitioners. They got a new stimulus on the
establishment of the Supreme Court in 1950. The Supreme Court
Advocates (Practice in High Courts) Act, 1951, gave a right to every
advocate of the Supreme Court to practice in any High Court. But that
was not enough. Lawyer community wanted unified autonomous bar
with no class distinctions among lawyers. In view of their demand, in
1951 the Government of India appointed the all India Bar Committee
under the Chairmanship of Justice S.R. Das to report on the desirability
of an all India Bar Council and a separate Bar Council for the Supreme
Court; abolition of the distinction between counsel and solicitors existing
in Calcutta and Bombay High Courts; abolition of different classes of
lawyers; consolidation of the existing laws on the subject; and all other
connected matters.
The Committee in its report submitted in 1953, recommended
creation of an all India Bar Council with common roll of all advocates
and also the Bar Councils for States with larger autonomy. But it did not
feel the need for a separate Bar Council for the Supreme Court. It justified
the continuation of the distinction between counsel and solicitors in
Calcutta and Bombay but recommended that all other classes of
practitioners be abolished and be put under one common nomenclature
of advocates, and that only law graduates should be enrolled as
advocates.
1. This Act was passed to abrogate the decision given by the Calcutta and Patna High
Courts in Regina Guhn (in re:), TLR 40 Cal 290 and in the Matter of Application by Miss
Sudarshan Subha Hazard, ILR 1 Pat 104 respectively, by which they had refused to admit
women as pleaders.
Legal Profession 151
No action was taken on the recommendations of the Committee til]
they were again repeated and endorsed by the Law Commission in 1958.
To implement these recommendations a bill was introduced in
Parliament in 1959 which became the Advocates Act, 1961.
The Advocate Act, 1961
The Act extends to the whole of India. Its main features as expressed
in the Statement of objects and reasons are: (1) the establishment of an all
India Bar Council and a common role of advocates, an advocate on the
common role having a right to practice in any part of the country and in
any court, including the Supreme Court; (2) the integration of the bar into
a single class of legal practitioners known as advocates; (3) the
prescription of a uniform qualification for the admission of persons to be
advocates; (4) the division of advocates into senior advocates and other
advocates based on merit;* (5) the creation of autonomous Bar Councils
one for the whole of India and one for each State. The Act organises legal
profession on federal lines. It provides for a number of State Bar Councils
and a Bar Council of India. An advocate is initially enrolled with a State
Bar Council and a common roll of all the advocates in the country is
maintained by the Bar Council of India.
No advocate can get himself enrolled with more fan one State Bar
Council, but he can get himself transferred from one State Bar Council to
another and is also entitled to appear before any court or tribunal
throughout the country.
State Bar Councils.—The State Bar Councils are named after their
States though a few Bar Councils are common to two or more States* and
in some cases union territories have also been covered by a State Bar
Council*. Union territory of Delhi, now called the National Capital
Territory of Delhi, has a separate Bar Council. A State Bar Council
consists of fifteen to twenty five members (depending upon the total
1. See the Fourteenth Report of the Law Commission, pp. 556-586 (1950).
2. An advocate may be designated as “Senior Advocate”-if the Supreme Court or a High
Court is of the opinion that by virtue of his ability he is deserving of such distinction.
But for practical purpose all advocates stand in the same position except that a senior
advocate has a right of pre-audience over other advocates. Apart from that Bar Council
may, in the matter of practice, subject the senior advocates restrictions prescribed in the
interest of legal profession. (Sec. 16). It may be noted that even the distinction between
attorneys and other advocates and between advocates of original side and other
advocates maintained by the Calcutta and Bombay High Courts has also been recently
abolished. (Act 107 of 1926).
3. For example, for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura to be known as the Bar Council of Assam, Nagaland,
Meghalaya, Manipur and Tripura, Mizoram and Arunachal Pradesh.
4. For example, Union Territories of Lakshadweep, Minicoy and Amindivi Islands
included in the Bar Council of Kerala and Union Territories of Pondicherry included in
Bar Council of Madras.
152 Indian Legal & Constitutional History

number of advocates enrolled with that Bar Council) elected from

amongst advocates on the electoral roll of that Bar Council.’
Advocate-General for the State concerned and Additional Solicitor-
General! of India in case of Delhi are ex-officio members of the Council.
Every State Bar Council has a Chairman and a Vice-Chairman elected by
the Bar Council. The term of elected members of State Bar Council is five
years.
Every State Bar Council has an executive committee consisting of five
members, an enrollment committee consisting of three members and one
or more disciplinary committees consisting of three persons two of whom
must be the members and the third, a co-opted advocate, of ten years
standing. A Bar Council may also constitute one or more legal aid
committees and such other committees as it may deem necessary for the
purposes of carrying out the provisions of the Act.
The functions of a State Bar Council are: (i) to admit advocates on its
roll; (ii) to prepare and maintain such roll; (iii) to entertain and determine
cases of misconduct against advocates on its roll; (iv) to safeguard the
rights, privileges, and interests of advocates on its role; (v) to promote the
growth of bar associations for the purposes of effective implementation
of welfare schemes;* (vi) to promote and support law reform; (vii) to
conduct seminars, organize talks on legal topics by eminent jurists and
publish journal and papers of legal interest; (viii) to manage and invest
the funds of the Bar Council; (ix) to provide for the election of its
members; (x) to perform any other functions conferred on it under the
Act; (xi) to organise legal aid for the poor; (xii) to visit and inspect
universities in accordance with directions that may be given; (xiii) to
perform any other function enjoined by the Advocates Act, 1961,
including all other work which is necessary to carry out the functions
listed above. Detailed provisions have been made in the Act itself
regarding disciplinary proceedings which are conducted in a judicial
manner and in connection with which Councils possess powers of a civil
court under the Code of Civil Procedure as regards summoning of
witnesses, production of documents, issuing commissions, etc. The
punishment may be reprimand, suspension or removal from the role.
These powers can be exercised only by the Bar Council and not by the
Courts including the Supreme Court in the exercise of their power to
punish for their contempt.?
The Bar Council of India—The Bar Council of India is constituted for
the whole of India. Prior to Advocates Act, 1961 there was no all India
1. Thus Bar Councils upto the strength of 5000, 10,000 and above 10,000 have 15, 20 and
25 members respectively.
2. Ins. by Act 70 of 1993, sec. 2(i)(a).
3. Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409; see also Vinay Chandra Misra
(in re:), (1995) 2 SCC 584.
Legal Profession ws
Bar Council.' The Bar Council of India consists of (a) the Attorney-
General for India, (b) the Solicitor General, and (c) one member elected
from each State Bar Council from amongst its members. They elect a
Chairman and a Vice-Chairman of the Council. The term of the elected
members is co-terminous with their membership of the State Bar Council
except that ex-officio members of the State Bar Council elected to the Bar
Council of India, cannot remain members for more than two years.”
The Bar Council of India has an executive committee consisting of
nine members elected by the Council from amongst its members and a
legal education committee consisting of ten members of whom five are
persons elected by the Council from amongst its members and other five
non-members co-opted by the Council. The Council may constitute any
other committees if necessary for the purpose of carrying out the
provisions of the Act.
Among the functions entrusted to the Bar Council are: (i) laying
down standards of professional conduct and etiquette for advocates and
the procedure to be followed by its disciplinary committee and the
disciplinary committees of each State Bar Council: (ii) promoting &
supporting of law reform; (iii) supervision and control over State Bar
Councils; (iv) promotion of legal education and laying down standards of
education in consultation with universities and State Bar Councils; (v)
recognition of universities whose degree will qualify a person to be
enrolled as an advocate as well as recognition of foreign qualifications for
the same purpose; (vi) conducting of seminars and talks on legal matters
and publication of legal journals; (vii) managing and investing of its
funds (viii) election of its members; (ix) organising legal aid for the poor;
(x) to safeguard the rights, privileges and interests of advocates; (xi) all
other functions conferred by the Act or which are necessary for the
discharge of the aforesaid functions. |
The Advocates Welfare Fund Act, 2001 makes provision for the
creation of the fund to be used among others for making ex-gratia grant
to a member in case of a serious illness; payment of a fixed amount on
cessation of practice and in case of death, to his nominee or legal heir;
medical and education facilities for members and their dependants;
purchase of books and for common facilities for advocates.
The Bar Council of India and subject to its approval State Bar
Councils, have been given wide powers to frame rules for the successful
implementation of the provisions and objectives of the Act. The rules
must, however, be consistent with the Act. The Supreme Court has
invalidated a rule made by the Bar Council of India which required law
graduates to take one year training with a practicing lawyer on the
1. Ins. by Act 70 of 1993, sec. 2(i)(a).
2. Sec. 4(3).
154 Indian Legal & Constitutional
Histery

ground that under the Advocates Act, 1961 legal education must be
imparted by universities and not by legal profession. Parliament may
amend the Act to provide for such training. But so long as it does not do
so the Bar Council could make any arrangement for training only
through the universities and not otherwise.’ The Court has also
invalidated the bar on evening law colleges imposed by the Bar Council
of India as being outside its powers.
The Act materialises a long held dream of the members of legal
profession to have an all India Bar and professional autonomy. Not only
that, the Act also achieves other connected objectives including the
improvement of legal education and uniformity of standards. So far the
State Bar Councils and the Bar Council of India have been doing good job
in the direction of achieving the objectives underlying the Act. Let us
hope that the day is not far when they will be able to establish a really
autonomous we independent legal profession badly needed for
upholding the rule of law and which is alive to the needs and demands
of a developing country which is struck by extreme poverty and
inequalities.’
The hope expressed above has, however, not yet been realised in
many ways, a general discontentment continues about the quality of the
Bar and its adverse effect on the administration of justice. The Law
Commission in its 138 report on the role of the legal profession in the
administration of justice, 1988, has expressed great concern on the
declining standards of the legal profession. It has emphasised and
highlighted the importance of legal profession in the administration of
justice and in ensuring the rule of law in the country and has
recommended several measures to redeem the situation. It has drawn the
attention of the lawyers towards their role enshrined among others in
Article 39A of the Constitution, high standards of professional ethics
required of the lawyers, standardised fee, support in efficient disposal of
cases, non-resort to strikes and assurance of justice to everyone
particularly the weaker sections of the society through legal aid. Lawyer's
strikes have been decried by the courts also that they are against the
rights of the litigants and obligation of the lawyers.°
WWW

1. V. Sudeer v. Bar Council of India, AIR 1999 SC 1167.

2. Some attempts were made in 1976 by the Government to curtail the autonomy of
profession by making government officials as ex-officio Chairman or Vice-Chairman of
the Councils and by inducting Government nominess into them. But the process was
reversed in 1977 and status-quo restored.
3. See Mahabir Prasad Singh v. Jacks Aviation (Pot.) Ltd., (1999) 1 SCC 37; B.L. Wadhera v.
State (NCT of Delhi), ATR 2000 Del 266.
 PART II

14
CONSTITUTIONAL HISTORY OF INDIA
Like the legal history the history of our modern constitutional system
is also traced only since the time of British rule. The reason is that almost
all our present constitutional institutions are traced back to British or
other Western constitutional systems even though our Constitution has
several features which may be called Indian.
The East India Company which was established in 1600 as
commercial company was never expected to gain the governmental
powers in this country. However, in the torn conditions of the country
the Company which entered at the mercy of the Moghul Emperor
Jahangir in 1612,’ soon began to make acquisitions and became the
Dewan of Bengal, Bihar and Orissa in 1765 and began to exercise an
effective rule over the territories under it. Various powers were acquired
by the Company during this period from the Crown in England to
administer its acquisitions in this country. In 1773, the Regulating Act
provided for the appointment of a Governor-General and his Council of
four members at Calcutta. This Act and the Settlement Act of 1781
authorised the Governor-General-in-Council to make Regulations for the
territories under the Company. The Governments of the Company and
Madras were made subordinate to the Government at Calcutta.
Meanwhile various regulatory provisions were made for due exercise of
the powers of the Government.
The Charter Act, 1833 ‘made certain sweeping changes in the
constitutional structures of the Company’s government in India. A
central legislature with the Governor-General-in-Council was established
at Calcutta and the legislative powers of the Governments at Bombay and
Madras were withdrawn. The laws made so far used to be called
Regulations but the laws to be made after the Charter Act of 1833 would
be called as Acts. The laws so made by the Governor-General-in-Council

1. See supra, Chapter 1.

155
156 Indian Legal & Constitutional History

were subject to disallowance by the Court of the Company, but unless so

disallowed they were to have “the same force and effect” as an Act of
British Parliament.
The Charter Act, 1853 further improved the constitutional position by
making the law member of the Council, who for the first time was
appointed under the Act of 1883 a full member of the Council and by
making provision for six legislative members in addition to four
Councillors. The legislative business was made public and subject to a
free right of discussion among the members. The Bills were required to
be assented by the Governor-General before becoming an Act. According
to Archbold!, the Charter Act of 1853 “represents the beginnings of a
parliamentary system in India”.
The Indian Councils Act, 1861
The events of 1857 brought the Company’s Government to an end
and the administration of the country was placed in the hands of the
Crown through the Secretary of State for India. No internal constitutional
change, however, took place till the passing of the Indian Councils Act,
1861. By this Act the number of the members of the Governor-General’s
Council was raised from, four to five, the fifth member being necessary
for expert financial advice. Power to make rules as to the conduct of
business was also given to the Governor General-in-Council under which
portfolio system on the cabinet lines was worked out. The Governor-
General was given the power to overrule the Council if in his opinion a
measure affected essentially the safety, tranquility or interests of the
British possessions in India.
For legislative purposes the executive i.e., the Governor-General and
Council had to be reinforced by not less than six and not more than
twelve persons to be nominated by the Governor-General for two years.
Out of them at least one half were to be non-officials, i.e., those who did
not hold any Government office. The powers of the legislature were
confined to legislation. But the powers were not independent of the
executive. Sanction of the Governor-General was required to introduce
any Bill affecting the public revenue or debt, religion, military or naval
matters, or the relation of the Government with foreign princes or States.
The Governor General also had the power to assent, reserve or refuse
assent to a Bill. A Bill assented to could be disallowed by the Crown. The
Act, for the first time also empowered the Governor-General to
make ordinances for the peace and good government for the provinces in
India.

1. W.A.J. Archbold Outlines of Indian Constitutional History, 149 (1926).

Constitutional History of India 157
The legislative powers of the Councils of Madras and Bombay
Presidencies were restored. The Governors of both places were
authorised to nominate for two years the Advocate-General and not less
than four and not more than eight other persons (out of whom at least
half were to be non-official) to form the Legislative Council along with
the other members of the Governor-in-Council. The powers of these
legislatures were subject in some cases to the consent of the Governor-
General and in some cases of the Governor before a Bill was introduced
and in all cases the assent of the Governor and the Governor-General was
required to give validity to a legislation. Above all, the Crown could
disallow any legislation.
Under the Act the Governor-General was also directed to establish
Legislative Councils in other parts of the country which he did by
proclamations at different occasions.
From the foregoing picture of the Act, it is clear that though the
Legislative Councils had been enlarged but they were nothing more than
the advisory committees to help the executive. Moreover, no provision
was made for the inclusion of any Indian in these councils. This kind of
arrangement was unsatisfying for the emerging Indian leadership. In
1885, Indian National Congress was born which among other things,
demanded elected members in the Councils, and the right to discuss the
budget and to ask questions. The rulers, however, were not ready to
accept the elective principle immediately! and therefore, compromise
was found in the Councils Act of 1892.
The Indian Council Act, 1892
Act of 1892 increased the number of additional members in all the -
Legislative Councils. For the Central Legislature the Governor-General
could nominate not less than ten and not more than sixteen additional
members and similarly, the Governors of Bombay and Madras were
authorised to nominate not less than eight and not more than twenty
additional members. Mode of nomination could be determined by the
Governor-General with the approval of the Secretary of State for India
and the plan adopted for Central Legislature was that five of the ten non-
official members were chosen by the non-official members of the
Legislatures of Madras, Bombay, Bengal, North-West-Frontier Province
(N.W.F.P.) and Oudh. Some of the nominated members in these local or
Provincial Legislatures were elected by different associations,
organisations or local bodies. Thus, the principle of indirect election was
introduced. The Act also permitted the discussion, though not voting, of
the annual budget and asking of questions which added strength to the
1. For reasons for non-acceptance of elective principle see ibid., pp. 157-159.
 158 Indian Legal & Constitutional History

legislative members in the Council. But the overriding powers of the

Governor-General or Governors continued to be as before.
Although the Act of 1892 was a step towards the participation of
Indians in the Government, it was too small a measure to satisfy the
growth and organised demand for self-government by the Congress,
provoked by the writings of Tilak and some other radical elements
within the Congress. The situation was aggravated by natural calamities
such as famine and plague in 1896. The propaganda of hatred against
British rule had been intensified. With the efforts of moderates in the
‘congress a specific demand was put in 1904 and 1905 for extension of
representation in the Legislatures and for the inclusion of Indians
selected by the elected members of the Councils in the Governor's
Councils in India and in the Secretary of States’ Council in London.
THE MINTO MORLEY REFORMS OF 1909
To pacify the growing unrest of the people, an Act was passed in 1909
which is popularly known as the Minto-Morley Reforms after the names
of the then Governor General and the Secretary of State respectively.
“The most important aspect of the measure carried”, according to Keith,
“was the increase of the representative element in the Legislative
Councils and the extension of their powers”.! It made no changes in the
composition or powers of the executive councils. The main changes
were;—
(1) The number of legislative members in the Central Legislature
were increased from sixteen to a maximum of sixty. The number
of such members in the Legislature of Madras, Bombay, Bengal,
U.P., and Eastern Bengal was raised to fifty and in the Punjab
and Burma to thirty.
(2) Though the non-elected members continued to be in majority
but an elaborate scheme was prepared for indirect election of
members for the Provincial Councils. These members
represented diverse interest of the society such as universities,
tea plantation, traders, municipalities and also Muhammadans.
The non-official members in the Provincial Council elected the
members for the Central Legislature.
(3) The powers of the Legislature were extended for serious
discussion on budget. Any members could move resolutions
proposing alteration in the budget though the Government was
not bound by such resolution, even if passed. Some matters such
as military, political and provincial affairs, relation with foreign
1. A.B. Keith A Constitutional History of India 1600-1935, pp. 229 (1937). See also M.V.
Paylee, Constitutional History of India 1600-1950, p. 45.
Constitutional History of India 159
countries and Indian States, and matters sub-judice were
excluded from the discussion. Questions and supplementary
questions could be asked in the Legislatures on matters other
than foreign affairs, Indian States and sub-judice matters. The
President of the Legislative Council could always disallow a
question and also disallow a resolution in the public interest or
on the ground that it was a matter to be raised in the Provincial
Council.
The Act was also accompanied by a declaration that an Indian be
included in the Governor-General’s Council but it could never be
implemented, though in 1907 the Secretary of State had admitted two
Indians to his Council and simultaneously, one Indian each was included
in the Governors’ Council at Bombay and Madras.
Though the Act of 1909 made a considerable improvement in the
legislative business and output, it failed to check the propaganda for self
government and did not afford any answer to the Indian political
problems.! Even within its limited objective it suffered from a number of
defects some of which are:
(i) The people were not truly represented in the Legislatures. Only
dominant groups, particularly lawyers, found entry into them.
(ii) The overriding powers and control over legislation and finance
continued to be with the executive.
(iii) No autonomy was given either to the Provincial or Central
Government because the former was subject to the powers of the
Secretary of State for India.
(iv) The Act did not provide for any kind of responsible Government
which was the main demand of Indians.
These defects magnified by Indian movement for self-government led
the government within less than a decade of the passing of the Act of
1909, to seriously consider the question of constitutional reforms which
finally resulted in Government of India Act, 1919.
THE GOVERNMENT OF INDIA ACT, 1919
On August 20, 1917 Montagu, the then Secretary of State for India,
announced in the House of Commons that “the policy of His Majesty's
Government, with which the Government of India are completely in
accord, is that of the increasing association of Indians in every branch of
the administration
—_—— —_
and the gradual
nace
development of self-governing
actors —— PO Pan eet Ree OTT

1. Keith Says: “The reforms of 1909-12 were clearly unlikely to satisfy the extremists for
self-government, and in fact went but a small way to conciliate the moderates”. [bid.,
p- 237.
160 Indian Legal & Constitutional
History
institutions, with a view to the progressive realisation of responsible
government in India as an integral part of the British Empire.” After this
historic announcement, Montagu along with Lord Chelmsford, the then
Viceroy, toured India and studied her political problems and then in 1918
submitted a report known as Montagu Chelmford Report. On the basis of
this report a Bill was introduced in Parliament which after being
examined by the Joint Select Committee became the Act of 1919,
The Act was the first comprehensive constitutional document of
India. Its preamble, reasserting Montagu’s policy statement quoted
above, specifically emphasised maximum autonomy to the provinces as
a step towards self-government. It made considerable changes in the
constitution, powers and position of the Secretary of State and his
council, the central government and the provincial governments.
Autonomy was granted to the provinces by making provision for the
classification of all the subjects into central and provincial subjects.’ The
classification was done by “Devolution Rules”. The subjects of general or
common interests such as defence, foreign affairs, coinage and currency
etc., were assigned to the centre while the subjects of local importance
such as local self-government, health, education, land revenue etc., were
assigned to the provinces’. Residuary subjects belonged to the centre. The
functioning of the centre and the provinces may be better understood by
mentioning them separately.
The Central Government
Central Executive.—The superintendence, direction and control of
the Government of India was vested in the Governor-General-in-Council
and the limitation as to the number of members of the Council was
removed. All the decisions of the Council, as before, were to be taken by
majority though the Governor-General could overrule the majority, if in
his opinion a matter affected “the safety, tranquility or interests of British
India”. No specific provision was made for the inclusion of any Indian in
the Council. Similarly, there was no provision that the executive will be
responsible to the legislature.
Central Legislature—The legislature styled as “the Indian
Legislature” consisted of the Governor-General and two houses, namely,
the Council of State and the Legislative Assembly. The members of the
two Houses were to be elected or nominated in accordance with the rules
to be made in that regard. But it was provided that out of the total
membership of sixty in the Council not more than twenty could be

1. Sec. 45A.
2. For a complete list of these subjects see M. Gwyer and A. Appadorai, Speeches and
Documents on the Indian Constitution 1921-47, 153, (1957).
Constitutional History of India 161
official members and that out of 140 members of the Assembly 100 will
be elected while the remaining forty will be nominated of whom twenty
six were to be official members. The term of the Council was five years
and of the Assembly three years subject to early dissolution or further
extension by the Governor-General.!
The legislature was given wide powers of legislation including,
subject to certain limitations, the power to amend or repeal laws of
British Parliament.* But wide control over legislation was left in the
hands of the executive. For example, legislation on certain matters such
as public debt, religion, military, etc., could be introduced in either house
only with the previous sanction of the Governor-General; he could
prevent proceedings on any Bill by certifying that it would affect
tranquility of British India and he could pass a legislation affecting safety,
tranquility or interests of British India if rejected by the Legislatures.*
Similarly, in financial matters though the budget was to be presented to
the legislature and it had the power to assent or refuse to assent to any
demands or grants, the Governor-General could restore such grants if it
was essential to the discharge of his responsibilities. Moreover, no
proposal for appropriation could be made without the recommendation
of the Governor-General. Again, certain heads of expenditure were
exempted from voting in the legislature.* Finally, every Bill to become an
Act required the assent of the Governor-General which he could give or
withhold. He could also reserve the Bill for His Majesty’s assent.° No Bill
could become an Act unless assented by the Governor-General. The
Governor-General could also legislate through ordinance during
emergency.” |
Thus, we see that the executive was not only unanswerable to the
legislature, but could also bypass and overrule it.
Provincial Governments
In tune with the idea of provincial autonomy the Presidencies of
Bengal, Bombay: and Madras and the provinces of Assam, Bihar and
Orissa, the Punjab and U.P. were declared as the “Governors’ province”
while the rest of the territory was put under a Lt. Governor as in the case
of Burma or under a Chief Commissioner as in the case of Delhi, Coorg,
etc. While the idea of autonomy was implemented in the Governors’
1. Sec. 63D.
Sec 65.
Sec. 67.
Sec. 67A.
Sec. 168.
Sec. 69.
NQQewN
Sec. 72.
162 History
Indian Legal & Constitutional

provinces the other territories were left under the direct control of the
centre. Here, therefore, we shall discuss the position only of the
Governors’ provinces. ;
Provincial Executive: The Dyarchy.—Dyarchy or dual government
was introduced in the provinces. The legislative subjects assigned to the
provinces were divided into reserved and transferred or, to be more _
specific, certain subjects were declared as transferred subjects while the
rest of them were treated as reserved subjects.' Subjects of vital
importance such as revenue, administration of justice, mineral resources,
police etc., were kept reserved while subjects like local self-government,
public health, education etc. were transferred.* The provinces were to be
governed, in relation to reserved subjects, by the Governor in Council,
and in relation to transferred subjects by the Governor acting with
ministers. The Governor and his Councillors were appointed by His
Majesty the King of England. The number of Councillors could not
exceed four, one of whom had to be one who had been in Crown’s
service in India for at least twelve years. The decision of the majority in
the Council was binding on the Governor though he could overrule the
majority if a decision essentially affected the safety, tranquillity or
interests of his province.
The Ministers were appointed by the Governor from amongst
persons who were neither the members of his Council nor other officials.
They held their office during the pleasure of the Governor and required
to be elected members of the State Legislatures, if not at the time of
appointment then within six months of such appointment. The Governor
was guided by the advice of the Ministers unless for sufficient cause he
dissented from it. Thus he was not bound by their advice nor at the same
time Ministers were answerable to the legislature.
This was the kind of dual executive devised by the Act of 1919, in
which certain matters were administered by the Governor-in-Council, the .
Councillors being answerable to the King and certain others were
administered by the Governor on the advice of Ministers answerable to —
him. Prima facie and as stated by the Muddiman Committee, inherently
this division of the Government into two halves was unsound and in fact
it proved to be so, among others, for the following reasons:—
(i) Absence of collective responsibility—In the kind of
arrangement stated above it was not possible to apply the
1. For the list of transferred subjects, see Gwyer and Appadorai, op. cit., p. 15.
2. Keith says that “the choice of topics was dictated by the consideration of matters which
most easily could be entrusted to ministers and which offered then the greatest scope for
social and economic development the nation-building activies, and the sphere of social
reform”. Keith, op. cit., p. 254.
Constitutional History of India 163

principle of collective responsibility of the executive. If there was

any collective responsibility it was of the Governor to the Crown
but not of the entire executive either to the Crown or to the
elected representatives of the people.
(ii) Financial Problems.—Finance was in the control of the
Governor-in-Council while the heads of expenditure were in the
hands of the Ministers. No Ministry could function well unless
it got money or at least there was a coordination and
consultation on financial issues. The result was that even
inefficiency in a Ministry could be attributed to lack of finances.
(iii) Non-cooperation of civil servants.—Civil servants held their
offices during the pleasure of the Crown and were not subject to
ministerial control. They had a direct say with the Governor and
not necessarily through the Minister. This created inefficiency in
the administration.
(iv) Mutual interference.—In many cases a fine distinction between
reserved and transferred subjects could not be drawn and
though the Governor had the final say in deciding whether a
matter fell in one category or the other, frequent disputes
between Ministers and the Governor’s Council could not be
avoided or ruled out.
(v —
Minister’s Office.—Since Ministers held their office during the
pleasure of the Governor and not during the confidence of the
legislature they cared less for the people’s representatives in the
legislature and more for the Governor.
(vi) Absence of party system.—There being no strong party system
and the boycott by Congress in elections, Ministers were chosen
not on the basis of their policy outlook but on the consideration
that they represented some group interest of the society.
Although the last two of the above mentioned reasons were not
inherent in dyarchy but they clearly demonstrated that how impractical
it was to expect results in the preamble of the Act. The result was total
failure of the system.
Provincial Legislature—Provincial Legislatures, called Legislative
Councils, consisted of members of the Executive Council and such other
elected or nominated members as provided by the Act. The membership
of the Councils was fixed by the Act which ranged from 139 members in
Bengal to 50 in Assam.' Out of these members at least 70 per cent had to
be elected and not more than 20 per cent were to be officials.* The elected
1. Sch. L of the Act.
2. Sec. 72A.
164 Indian Legal & Constitutional History

members represented various communities according to the fixed quota.

Electoral qualifications were based on sex, age, soundness of mind,
property and army service.;
The life of the Council was three years subject to its early dissolution
or extension by one year by the Governor.’
The Legislative Councils were given wide powers of legislation
including control over finances in relation to provincial matters similar
to the central legislature in relation to central subjects and also subjected
to similar limitations. For example, some measures required prior
sanction of the Governor-General.* Legislations rejected by the
Legislature could be passed by the Governor, if it related to a reserved
subject and was essential for discharge of his responsibility, he could
prohibit the passing of any bill if he thought it would affect the safety or
tranquility of his province:* and in financial matters he could restore the
grants rejected or reduced by the Legislature? if they related to a reserved
subject and were essential to the discharge of his responsibility. No
legislation passed by the Legislature became law unless it was assented
to by the Governor and also by the Governor-General.° The Governor
could also reserve a Bill for the consideration of the Governor-General’.
Finally, an Act assented to by the Governor and Governor-General could
be disallowed by the King.’ Thus we find that like centre the Legislatures
in the provinces also were subject to the overriding powers of the
executive which again was a denial of self government.
People of India had somehow reconciled to the proposals of
Montagu-Chelmsford before they were implemented but the Jallianwalla
Bagh tragedy and publication of Turkish peace terms had entirely
changed the scene when the Act of 1919 was inaugurated on ist January,
1912. Congress boycotted the provincial elections and in subsequent
elections though the Swarajist Party got majority, in some provinces it
refused to accept Ministry. Consequently, persons without much support
in the Legislature were appointed as Ministers. These factors in
association with the weakness of dyarchy led to the complete failure of
the Act and therefore, soon after its enforcement the Government had to

72B.
80A(B).
72E.
72D(5).
72D(D).
81.

RERRE
CER
81A.
82.
Constitutional History of India 165
take steps for reforms which ultimately resulted in the Government of
India Act, 1935.
THE GOVERNMENT OF INDIA ACT, 1935
The dissatisfaction with the working of the Act of 1919 and the non-
cooperation of the people led to the appointment of a Reforms Enquiry
Committee in 1924 under the Chairm Alexand
ofSiran sh er Muddima
ipn._
‘The Committee was asked to suggest ways and means for the efficient
working of the Act. The majority of the Committee reported in 1925 to
give a fair trial to the Act while minority felt that system was inherently
defective and a Royal Commission be appointed to suggest constitutional
reforms. In the beginning, the government did not agree with the
minority view but finally on 8th November, 1927, it appointed a Royal
Commission known as Simon Commission. The Commission submitted
its report in 1930 in which it recommended no change to federal
constitution or responsible government. It left all these things to be
discussed among the people till the Indian princes were ready to merge
in a federation. However, in the meantime the demand of the people for
a federal and responsible government was put forth in the Nehru
Committee report and also the Indian princes showed their willingness
to join the federation. To discuss the constitutional reforms three Round
Table Conferences were held in England out of which first two failed but
in the last some agreement was reached and at the end of it a White
Paper of 202 paragraphs was issued. The substance of the White Paper -
was—
(i) The establishment of a federation with autonomous provinces,
‘. and
(ii) The creation of responsible government at the Centre as well as
in the provinces. .
Some controversies arose over the Paper and to satisfy them a Joint
Select Committee was appointed under the Chairmanship of Marquess of
Linlithgow. On the recommendations made by the Committee in
November, 1934 the Government of India Act, 1935 was passed by the
British Parliament which received the Royal assent on 2nd August, 1935.
Basic Features of the Federalism.—”The federal system which the
Act of 1935 aimed to establish was perhaps the most complex ever
known in the history of federalism.”! The main characteristics of the
federalism may be summarised as below—
(1) All the units in the country were divided into two parts—the
Governor’s Provinces and the Indian States. The former were
bound to be the members of the federation but the latter were
1. Pylee, op. cit., p. 78.
106 Indian Legal & Constitutional History

given freedom to become such members by executing an

Instrument of Accession.
(2) The Governor's Previnces were to have uniform constitutional '
status while the Indian States were to be governed by the terms =

of the Instrument of Accession.

(3 The natural consequence of the Instrument of Accession would
—

have been the existence of so many constitutional documents as

Instruments. There were about 600 Indian States at that time.
(4 The subjects of legislation were divided into exclusive centre
—

subjects, exclusive provincial subjects and concurrent subjects.

Very peculiarly, the residuary subjects of legislation could be
assigned by the Governor-General either to the Provinces or to
the Centre.
(5) No responsible Government was provided at the centre and the
Governor-General was given certain powers over and above the
advice of the Ministers. In the provinces, responsible
government was established as the Governor had to act,
generally on the advice of his Council of Ministers.
(6) The Central Government had large control over the provinces
bringing the structure to a quasi-federal system.
(7) The Central Government could exercise more administrative
powers with respect to provinces than to Indian States.
(8) The Federal Legislature, as will be discussed below, was also a
peculiar body insofar as there’was a direct election for the upper
House and indirect for lower House.
(9) The pre-condition for federation was the consent of half of the
Indian States which meant at least 300 States.
The Structure of the Government.—Although the provisions of the
Act relating to Central Government never came into practical operation,
yet the proposed form of Governments at the Centre and in the provinces
was as given below—
Federal Government
The executive.—A kind of dyarchy was introduced at the centre. The
executive was to consist of the Governor-General and a Council of
Ministers. The Governor-General had to act on the advice of the Council
of Ministers except in matters which were either left to his discretion
such as, external affairs, defence, eccletsiatical affairs and administration
of tribal areas or matters which were in his special responsibility.’ For the
1. Sec. 9. Among the subjects in his special responsibility were: pace and tranquility of
India, financial stability, minorities, dependents of ex-servicemen, Indian States and their
rulers etc. (Sec. 12).
Constitutional History of India 167
exercise of his discretionary functions he could appoint three
Councillors.’ He could also legislate temporarily by Ordinance or
permanently by an Act with respect to discretionary subjects in his
special responsibility.* In the event of constitutional breakdown the
Governor-General could assume all or any powers vested in the federal
authorities.
The Governor-General had to act in two different capacities for the
Governor's Provinces and the Indian States. With respect to the former,
he was the Governor-General and with respect to the latter, he was the
Crown's Representative. The Crown’s paramountcy over the Indian
States was to be exercised not through the Federal Government but
directly through the Crown’s Representative.
The Legislature.—The Federal Legislature was to consist of—
(a) The King, represented by the Governor-General,
(b) the Council of State, and
(c) the Legislative Assembly.
The Council of State was to consist of 156 representative of British
India and not more than 104 representatives of the Indian States. The
Legislative Assembly was to consist of not more than 125 representatives
of the Indian States nominated by the rulers of the States and 250
representatives of British India elected by the provincial Assemblies.
The election was on communal basis and the method was
proportional representation with single transferable vote.* The two
Houses were to have equal powers except in financial matters where the
Legislative Assembly could exercise more powers.
The Council of State was to be a permanent House with the one-third
of its members retiring every third year. The normal duration of the
Legislative Assembly was to be five years, unless dissolved earlier.
“A most striking feature of the Central Legislature was _ its
relationship with the Governor-General. In fact, the powers of Governor-
General in relation to the Legislature were so overwhelming that the
latter had hardly any power which could be claimed as its own. Thus, the
Legislature contemplated under the constitution Act of 1935 was more a
Legislature by courtesy than by its powers.”° It has been seen above that
1. Sec. 11.
2. Sec. 44.
3. Sec. 55.
4 . It was curious arrangement that the members of the Upper Home (Council of State) were
to be elected directly while that of that Lower House indirectly. See Gwyer and
Appadorai. op, cit., p. xiiv.
5. Pylee, ibid., pp. 85-86.
168 Indian Legal & Constitutional History

the Governor-General could himself exercise legislative powers to a large

extent and could also prohibit the Legislature from exercising its
legitimate powers by the exercise of his veto power.
The Federal Court.—A Federal Court was set up in Delhi by the Act.
“In fact, of all the institutions set up under the Act, it was the Federal
Court which proved to be the most successful in operation.”’ The Court
was to consist of a Chief Justice and not more than six other judges who
were appointed by a warrant under the Royal Sign Manual and who held
the office until the age of 65 years unless removed earlier on the ground
of misbehaviour or infirmity of mind or body, if the Judicial Committee
of the Privy Council, on reference by His Majesty, recommended the
removal on that ground. A person could be appointed a Judge of the
Federal Court if he had been a Judge of a High Court for 5 years or had
been a pleader in an Indian High Court for 10 years or a barrister for 10
years.” Full security of tenure was given to the Judges.
The Federal Court had original, appellate and advisory jurisdictions.
The Court had exclusive original jurisdiction in all disputes between the
federation and the units or between the units inter se, in so far as the
dispute involved question on which the existence or the extent of a legal
right depended or where the interpretation of the Constitution or of any
constitutional document was involved. The Federal Court issued only
declaratory decrees under original jurisdiction.
An appeal could be made by the Federal Court against the judgement
of a High Court, if the High Court certified that the case involved the
interpretation of the Constitution or of any Order-in Council made
thereunder.
In its advisory jurisdiction, the Governor-General could seek its
advice on any question of law which was of public importance.
An appeal could go to the Privy Council without leave, against the
judgments of the Federal Court given in its original jurisdiction and in
any other matter with the leave of the Privy Council or of the Federal
Court.
The Provincial Government
The composition of the government in the eleven Governor's
Provinces was to be as below—
The Executive—The executive consisted of the Governor and his
Council of Ministers. The Governor was given powers on the pattern of
Governor-General i.e., some subjects were reserved for the Governor and
1. Pylee, ibid., p. 86.
2. Sec. 200.
Constitutional History of India 169
no advice was sought from the Ministers in the exercise thereof. Some of
the subjects were left to the special responsibility of the Governor where
he was not bound by the Ministerial advice and lastly, there were some
subjects on which he acted upon the advice of his Ministers. Like the
Governor-General he could make an Ordinance or an Act on the subjects
falling in his special responsibility and on the advice of his Ministers, he
could legislate through Ordinance, on any subject. He could also exercise
various legislative and financial powers at his discretion. In case of
constitutional breakdown in the province, he could, by proclamation
assume all powers vested in or exercisable by any provincial body or
authority, except the High Court. “The Governor’s powers as a whole
presented a formidable list seldom found in the case of an executive head
functioning under a responsible system of government.”!
The Legislature—The composition of legislature varied from
province to province. Out of the eleven provinces there were bicameral
legislatures in six and unicameral in five. The legislature was called as
Legislative Assembly. Where there were two Houses, the Upper House
was called as Legislative Council and the lower as Legislative Assembly.
The members of the Assembly were directly elected by the people on the
communal basis or through various bodies and associations. Members of
the Council were elected by the general constituencies and Assemblies
and some of them were nominated by the Governor. The duration of the
Assembly was normally 5 years. The Council was a permanent body, one
third of its members being renewed at the end of every third year.
The right to vote was restricted on the basis of economic and
educational qualifications and only about 14% of the total population
enjoyed this right.
Working of the Act of 1935—The Act of 1935, as already noted, never
came into operation so far as the Central Government was concerned.
Only the legislative and the executive powers of the Central Government
were restricted by the Act. In regard to provinces the Act came into force
in April, 1937. Elections were held in that year for provincial legislatures
and in several provinces the Congress secured majority. The Congress,
however, agreed to form Ministries in eight out of the eleven provinces
only when an assurance was given to its leaders by the Secretary of State
and the Governor-General that the Governors would not interfere in their
proper functioning. The Congress Ministries worked till the end of 1939
when the World War II broke. On the unilateral declaration of the British
Government that India was at war against Germany, these Ministries
resigned and the provincial administration was taken over by the
Governors of the provinces.
1. Pylee, op. cit., p. 90.
170 Indian Legal & Constitutional History

During their two years of working, the Ministries had shown enough
ripeness to work on the principle of joint responsibility. They worked so
smoothly that there was no question of dismissing any ministry or
refusing any legislation by the Governor.’
Constitutional Developments after the Act of 1935
After the declaration of World War II and the resignation of Congress
Ministries in the provinces in 1939, the opposition to the federation as
contemplated by the Act of 1935 grew and in October 1940 it was
announced by the Viceroy that the coming into operation of the federal
part of the Constitution would be indefinitely postponed. In the same
year the Muslim League passed its “Pakistan Resolution” at Lahore
demanding the setting up of a separate sovereign Muslim State
consisting of the Muslim dominated provinces of India. Due to the
pressure of War, efforts were continued by the British Government to
reach at some understanding with the political parties in India and in
1942, it appointed Sir Stafford Cripps to try for a settlement through
direct negotiations with the Indian political parties and communities.
The Cripps Mission.—Sir Stafford Cripps, who arrived in India on
22nd March, 1942, put the following proposals for the consideration of all
the concerned parties:
(1) Indian Union should be made an independent Dominion in the
British Commonwealth.
(2) After the cessation of hostilities, steps should be taken to set up
in India an elected body to frame a new Constitution for India.
(3) Indian States should also — in the Constitution-making
body.
(4) The Constitution made by the Constitution-making body shall
be accepted by Her Majesty’s Government subject to the
conditions— |
(i) the provinces shall be free to accede to the Union
immediately or later, and if they refuse accession then they
will be free to continue their existing Constitutions or adopt
a Constitution on the pattern of the Constitution of Indian
Union, and
(i a treaty will be made between the British Government and
~"”

the Constitution-making body to deal with the disputes

arising with respect to the transfer of power and also
providing for the safeguards for racial and linguistic
minorities.
1. “During the period Congress Ministries were in power, their relations with the
Governors were remarkably smooth” Gwyer & Appadorai, op. cit., XL VII.
Constitutional History of India 171
(5) The members of the Constitution-making body shall be elected
by an electoral college, formed by the provincial Legislatures,
with the system of proportional representation and_ their
strength would be about one tenth of the members of the
electoral college. The Indian States would send _ their
representatives in proportion to their population.
(6) Till the framing of the new Constitution the British Government
would bear the responsibility and would retain the control and
direction of the defence of India as a part of their World-War
effort. The Indian leaders, however, will be invited to join hands
to share the responsibility to carry on their Government by
themselves in other matters.
In spite of its opposition to the Cripps proposals, Congress agreed to
cooperate if a purely national Cabinet was appointed at the Centre.
Cripps raised many constitutional objections to it. On the other hand, the
Muslim League totally rejected the proposals. Ultimately the proposals
and the negotiations made by Cripps totally failed.
In August 1942, All India Congress Committee passed the famous
‘Quit India’ resolution demanding complete freedom from British rule.
The Wavell Plan.—In June 1945 Lord Wavell, the then Viceroy of
India announced his proposals on radio, “to ease the present political
situation and to advance India. towards her goal for full self-
government.” A conference was held at Simla in that year and Lord
Wavell proposed to make his Executive Council purely of Indian
Councillors except the Viceroy and the Commander-in-Chief. However,
no agreement could be reached on the formation of the Executive Council
and therefore, all the proposals failed.
The Cabinet Mission 1946.—In 1945 important changes took place.
The war ended and in Britain Labour Party formed the Government.
Labour Party was in favour of Indian independence and therefore, the
Viceroy went to London to talk on that matter and remained in constant
touch with the Government even after his return. With the changed
approach of the British Government, the then Secretary of State for India
Lord Pethik Lawrence announced on 19th February 1946 that a Cabinet
Mission consisting of himself, Sir Stafford Cripps and A.V. Alexander
would visit India to reach a settlement on the Constitutional issue with
the help of the Viceroy.
The Cabinet Mission arrived in India on 24th March 1946 and
immediately started negotiating with the Indian political parties and
leaders. No final agreement could be arrived at because of the strong
demand of the Muslim League for partition. However, the Mission put
172 Indian Legal & Constitutional History
the following proposals on constitutional tangle, in its statement of 15th
May 1946.
(1) There should be Union of India consisting of the provinces and
the Indian States and it should have the power to deal with
subjects of defence, foreign affairs and communication with the
ancillary powers to raise the finance for the above subjects.
(2 —"
The Union should have an executive and a legislature consisting
of the representatives of British India and of the Indian States.
Any question involving a major communal issue in the
legislature should require for its decision a majority of the
representatives present and voting of each of the two major
communities and also the majority of all the members present.
(3) All subjects other than the Union subjects and all residuary
powers should vest in the provinces.
(4) The Indian States would retain all subjects and all powers other
than those ceded to the Union.
(5) The Provinces would be free to form group with executives and
legislatures, and each group would determine the PR eee
subjects to be taken in common.
(6) The constitutions of the Union and the groups should contain a
provision whereby any province could, by a majority vote of its
Legislative Assembly, call for a consideration of the terms of the
Constitution after an initial period of 10 years and at 10 year’s
intervals thereafter.
(7) A constitution-making body elected indirectly, should be formed
immediately. The indirect election was to be held on the
principle that each province should be allotted a number of seats
in proportion, roughly to the ratio of one to a million. The total
number of seats so arrived should be distributed among the
major communities in proportion to their population and the
representatives allotted to each community were to be elected by
the members of the same community in the Legislative
Assembly.
(8) The representatives of the Indian States should be elected in the
manner determined after consultations.
(9) All the representatives should meet in New Delhi as a
Constitution-making body or Constituent Assembly.
(10) The members of the Constituent Assembly from the provinces
would be separated into three following sections—
Constitutional History of India 173
Section A—Madras, Bombay, U.P., Bihar and Orissa.
Section B—Punjab, N.W.F.P. and Sind,
Section C—Bengal and Assam.
Each of these sections would frame Constitutions for the
provinces included in that section and would also consider
whether a Group Constitution could be made for those
provinces.
(11) After the Constitution’s different sections are settled, the
representatives of the three sections and of the States would
meet together to settle the Union Constitution.
(12) The paramountcy of the Crown over the Indian States would
lapse.
(13) A treaty should be made by the Constituent Assembly with the
British Government to deal with the matters arising from the
transfer of power.
(14) An interim government having the support of the major political
parties be set up till the Constitution is framed.
The proposals of the Cabinet Mission were accepted almost by all the
parties subject to certain reservations. Although Congress denounced the
grouping of the provinces made in the proposals, yet it agreed to join the
Constituent Assembly, election for which were completed in 1946. On
27th July, 1946 Muslim League, which had accepted the Cabinet Mission
proposals by its resolution of 6th June, 1946, reiterated its demand for a
sovereign Pakistan and decided to draw up a plan of ‘direct action’ and
to observe 16th August, 1946 as ‘Direct Action Day.’ The effect of all this
was the violence in the country and non-participation and non-
cooperation of the Muslim League in the Constituent Assembly which
held its first session on 6th December, 1946. In the meantime a national
Government under the leadership of Pt. Jawahar Lal Nehru was formed
on 2nd September 1946. The number of the Ministers was fixed at 14 of
which 6 were to be the representatives of the Congress, 5 of the Muslim
League and 3 of the Minorities. Muslim League did not join the
Government in the beginning but on 26th October, 1946, it sent its
representatives. The Government, however, could not work successfully
due to the non-cooperation of Muslim League.
The attitude shown by the Muslim league gave an opportunity to
Prime Minister, Lord Atlee to make a statement in the House of
Commons on 20th February, 1947. In that statement he said that His
Majesty’s Government wanted to transfer the power over British India to
the Indian people by June, 1948 and that if the Muslim League did not
cooperate then the British Government would have “to consider to whom
the powers of the Central Government in British India should be handed
174 Indian Legal & Constitutional History

over, on the due date, whether as a whole to some form of Central

Government for British India, or in some areas to the existing Provincial
Government, or in such other way as may seem most reasonable and in
the best interest of the Indian people”. The statement was pregnant with
the idea of forming a sovereign Pakistan.
The Mountbatten Plan—In March 1947 Lord Mountbatten replaced
Lord Wavell as Viceroy. On the basis of the declaration of Lord Atlee,
Lord Mountbatten issued a statement on 3rd June, 1947 that partition was
the only solution to solve the problem of India. The Constituent
Assembly was to be divided into two according to the territorial division
and the members representing the divided territory would join their
respective Constituent Assemblies for India or Pakistan. The boundaries
of the divided provinces were finally to be fixed by a Judicial
Commission. Final shape was given to the Mountbatten Plan by enacting
the Indian Independence Act, 1947.
The Indian Independence Act, 1947
The Indian Independence Act was passed by the British Parliament
within less than a fortnight and got the Royal assent on 18th July, 1947.
The main provisions of the Act were as below— |
(1) India and Pakistan, two independent Dominions, shall be set up
in India as from 15th August, 1947.
(2) The territory of Indian Dominion shall include all the British
Indian provinces except those that comprise Pakistan i.e., the
areas covered by the provinces of East Bengal, West Punjab Sind,
Baluchistan and N.W.F.P.
(3) The Indian States shall be free to accede to either of the two new
Dominions.
(4) In each Dominion there shall be a Governor-General appointed
by the King. |
(5) The Legislatures of each of the two Dominions shall have the full
powers to make all laws, including extra-territorial laws, and no
law shall be invalid on the ground that it is inconsistent to the
laws of England or any provision of any existing or future Act
of Parliament of the United Kingdom nor an Order-in Council
shall extend to the new Dominions.
(6) As from 15th August, 1947 the Government of the United
Kingdom shall have no responsibility with respect to the
territories included in British India.
(7) The paramountcy of the British Crown over the Indian States
shall lapse and all the treaties, etc., with them existing at the date
of the passing of the Act shall cease to be in force.
Constitutional History of India 175
(8) The powers of the Dominion Legislature shall be exercised by
their respective Constituent Assemblies.
(9) Till the new Constitution is framed the Act of 1935, with
necessary modifications and adaptations, shall be the
Constitutional law of India.
(10) The Governor-General'shall by his orders make such provisions
for the effective operation of this Act and all matters incidental
to it as seem to him to be necessary or expedient.
The Act came into force on 15th August, 1947 bringing to an end 182
years old British rule in this country with a colourful ceremony in which
Lord Mountbatten himself was sworn in as the first Governor-General of
free India.
The making of the Constitution.—The Indian Independence Act,
1947 made the Constituent Assembly, already elected in 1946, a sovereign
body free from all limitations. In an atmosphere of independence, the
Constituent Assembly began to frame the Constitution of India after
adopting an “Objective Resolution” moved by Pandit Nehru. The
Resolution expressed the desire to establish a federal, sovereign
democratic republic in India safeguarding the freedom of all people and
the interests of the minorities. The extract of the Resolution is expressed
in the Preamble to the Constitution of India.
A number of Committees were appointed under the Chairmanship of
able leaders and constitutionalists to report on different aspects of the
Constitution. Dr. B.R. Ambedkar was appointed Chairman of the
Drafting Committee. On the reports of various committees the
Constitutional Adviser, Shri B.N. Rau, prepared a draft of the
Constitution which was presented in the revised form by the Drafting
Committee to the Constituent Assembly. The Draft Constitution
consisted of 315 Articles and 13 Schedules. It was considered and
discussed at length in the Constituent Assembly. After giving full
opportunity to the members of the Assembly to express their views the
present Constitution of India was adopted and enacted on 26th
November, 1949. It, however, came into force on the Republic day 2..,
26th January, 1950.
 PART Ill
ELEMENTS OF INDIAN LEGAL SYSTEM
The object of this part of the book is to familiarise the readers with
some basic elements of Indian legal system. We have chosen concept and
sources of law and the rule of law for that purpose. These elements in
themselves are so indeterminate and controversial that it is not possible
even to introduce them in all their aspects in this kind of work. However,
our purpose will be more than served if the readers are simply
acquainted with some of the ideas and controversies associated with
them in the hope that they make a beginning towards thinking about
them independently.

176
 15
CONCEPT AND SOURCES OF LAW
I. CONCEPT OF LAW
Law is a complex phenomenon. It defies all efforts towards a
commonly agreeable definition or even explanation. The reasons for this
defiance are obvious. The confusion is inherent in the very question:
“What is law?” The questioner is not sure of what he expects in the
answer and certainly the person to whom the question is addressed
cannot know at all what the questioner expects from him. And even if he
knows he will answer what he thinks of law. A person may think
differently about law according to his own perception. For example, an
ordinary citizen may think that it is something which he must obey, a
policeman or administrator may think that it is something which gives
him power to do certain things or actions and a lawyer may think that
it is something which is applied to settle the disputes between man and
man. Not only that, a thinker like Karl Marx or Angels may find law as
a means of oppression by the rich or dominant class, of the rest of the
people. There may be others who would like to achieve an object through
the instrumentality of law and therefore, they would like to define law in
terms of its purpose. This is evident in the concepts of law handed down
by the natural law thinkers since the earliest times till this day and even
by such sociological jurists as Roscoe Pound who said “social engineering
is the end of law”. Others like Holmes, Cordozo, Llewellyn and Frank
might define law in terms of what it does in the form of actual court
decisions. Some others like Austin and Kelsen may like to lay down a
general definition of law in terms of formal criterion of validity, while
others might like to confine their definition to a particular society. There
are others who look at law only in terms of State legal system while still
others look at it also in terms of non-State legal systems and multiple
legal systems.
Thus, there is no end to these variations. In view of these variations
some people have started doubting the importance of an attempt on the
177
 :
178 Indian Legal & Constitutional History
definition of law. For example, Jerome Frank observes that while the
definition of law is possible, the activity is neither necessary nor
worthwhile, resulting in a futile, time-consuming contest, a silly word
battle. Frank and others who hold views similar to his, argue that all
practical legal questions can be entertained and answered withouta
formal definition of law. A lawyer hardly ever meets the direct question:
“What is law?” in abstract. He is asked to tell “the law” on the point
which he is pleading before the court and he can do that by referring
either to the Constitution, or statutes, or precedents or customs or some
other source of law. That is what we are required to do as laymen in
different walks of life. And if there are any areas or situations such as
overthrow of an existing legal system in a coup or by revolution when
reliance upon the abovementioned sources of law may not be decisive, as
for example, happened in Rhodesia (now Zimbabwe) in 1965 after
unilateral declaration of independence by Ian Smith or in Pakistan in
1956, after the overthrow of the constitutional Government by Marshal
Ayub Khan, a definition of law is of no avail to answer the practical
questions.'
However, there are others who do not agree with this assessment of
the utility of a definition of law. They argue that a definition is necessary
even from practical point of view insofar as it helps in attaining clarity
and avoiding unnecessary and futile disputes. A rigorously defined
terminology is absolutely necessary for the growth of any science.
Secondly, a definition of law clearly helps in understanding the legal
phenomena insofar as it may provide an overall picture and lay down
certain key criteria for its testing. Thirdly, a discussion on definition
creates a bridge between theory and practice and helps practical lawyers
to think upon the jurisprudential questions in their day-to-day dealings
with law. Fourthly, a discussion of the meaning and structure of law
would remain incomplete without reference to it i.e., without a definition
of Law.?
For these reasons we may attempt to define law. A definition may be
preceeded either by “naming a thing” i.e., “defining a word as equivalent
to naming or denoting the thing for which it stands” or by “essentialism”
“the notion that every class or group of things has an essential or
fundamental nature, common to every member of the class and that the
process of defining consists in isolating and identifying this common

1. See Madazimbamuty v. Lardner Burke, (1968) 5 SA 284 and (1969) 1 AC 646; State v. Dosso,
(1958) 2 Pak SCR 180; Uganda v. Commissioner of Prisons Ex-parte Motovee, (1966) Eastern
Africa LR 514.
2. See J. Stone Legal System and Lawyers’ Reasonings, 166 (1964).
Concept and Sources of Law
179
nature or intrinsic property.” The first method can properly be applied
only to the definitions of proper nouns and is therefore, inappropriate for
the definition of a concept like law. We may, therefore, employ the
second alternative as has been done by most of the legal thinkers such as
Austin, Kelsen, Salmond, Paton, Stone, etc., who have attempted a
definition of law. Supporting that approach Lloyd suggests:
The requirements of a “good” definition of law should therefore
include (a) what is generally accepted as proper within this sphere;
(b) exclude which is universally regarded as not being “law”
(e.g., the rules of a rubber band); and (c) include or exclude borderline
case in the light of a reasoned comparison of the phenomena in
question.”
We may take Julius Stone’s attempt to define law as representative of
that approach. He finds that the definitions of law from Austin to the
present, converse on the following seven cumulative steps:
(1) Law is a complex whole of many phenomena. The meaning of
this whole and the factors that make it a reality can only be
elaborated and not defined.
(2) These phenomena within this whole include norms regulating
human behaviour, that is, prescribing what the behaviour ought
to be, forbidding what it ought not to be, or declaring what it is
permitted to be.
(3) The norms are social norms, that is, they generally regulate
behaviour of a member of a society vis-a-vis others, and only
exceptionally, as the norm against suicide, in relation to himself.
(4 These social norms have an order, that is, they are systematically
~-

arranged and not thrown together chaotically. It is in short a

“legal order”.
(5) The social norms of which law consists are coercive, that is,
authority of law is supported by acts of external compulsion
such as deprivation of life, liberty or property or withholding of
similar benefits.
(6) The coercion supporting these norms is institutionalised, that is,
the coercion operates according to established norms, even when
it consists of the self-help of the aggrieved party. The coercion is
not merely spontaneous and capricious, as in lynching or an act
of vengeance.
1. L. Lloyd Introduction to Jurisprudence, 43-44 (4th Edn.), (1979).
2. Ibid., p. 46.
3. J. Stone, op. cit., pp. 179-182.
180 Indian Legal & Constitutional History
(7) This institutionalised coercive order of social norms should have
a degree of effectiveness sufficient for the order to maintain
itself. The legal order must, in other words, by and large regulate
in fact the behaviour of its subjects, and not merely purport to do
sO.
A possible eighth step emphasized by Kantorowicz that the
institutionalised effective coercive order of social norms must be
considered to be judicially cognizable by the “judicial organs” and the
subjects who obey them, is, according to Stone, more debatable though
quite important.
Though the foregoing seven steps outlined by Julius Stone do not
constitute a definition in the traditional sense and rather constitute an
index or table of contents of those matters which require to be discussed
for an understanding of “law”, no definition of law can be complete if it
ignores any of these matters. Therefore, any definition of law must take
account of all these elements. These elements are fairly represented in the
following definition of law given by Paton:!
Law may shortly be described in terms of a legal order tacitly or
formally accepted by a community. It consists of the body of rules
which are seen to operate as binding rules in that community, backed
by some mechanism accepted by the community by means of which
sufficient compliance with the rules may be secured to enable the
system or set of rules to continue to be seen as binding in nature.
He adds that a “mature system of law normally sets up that type of
legal order known as the State, but we cannot say a priori that without the
State no law can exist.”’ Nor should we assume that in mature systems
all laws are State laws. Non-State law and non-State legal systems such
as tribal laws, family laws and other local laws subsist and even flourish
at various levels alongwith the State law and State legal system.”
Law may also be defined in terms of criterion of validity. The
criterion of validity may be laid down with respect to a particular society
or a general scheme. In the former sense, we can say that the Constitution
is the ultimate criterion of validity of all laws in this country and
therefore, all norms of social behaviour laid down by or having express
or tacit approval of the organs recognised by the Constitution, are laws
in this country so long as they conform with the Constitution. In the
latter sense, however, we are not confined to any particular legal system
but look for a criterion which may be applied to any system to find out
whether a social norm is law or not. This is what Austin did in the last
1. GW. Paton Jurisprudence, 93 (3rd Edn., 1964).
2. See Veena Bakshi, “Book Review”, 6 & 7 Det. L. Rev. 204 (1977-78).
Concept and Sources of Law 181
century and Kelsen and Hart have done in the present. Austin told us
that if we could find a society as he defined it, in which a relationship of
sovereign and subjects existed, then all commands of the sovereign
prescribing a course of conduct would be laws. Similarly, Kelson says
that every legal system has a Grundnorm (basic norm) which has to be
determined a priori. But once we are able to determine the Grundnorm of
a system, then all norms that emanate from the Grundnorm or can be
traced back to the Grundnorm, are law so long as they are in conformity
with the norms higher to themselves and ultimately with the
Grundnorm.? In contrast to monolithic model of Austin and Kelson, Hart
suggests a dual system consisting of two types of rules—the ‘primary’
and ‘secondary’ rules. Primary rule lays down standards of behaviour or
impose duties while the secondary rules are those by which the primary
rules may be ascertained, introduced, eliminated or varied or their
violation may be ascertained. The union of the primary and secondary
rules constitutes the core of a legal system and it is the relationship of
citizens and officials to primary and secondary rules, which according to
Hart is the criterion for the existence of a legal system.°
What Austin, Kelsen and Hart have defined are formal criterion of
validity, that is, if certain formal criteria have been satisfied any social
norm is law, irrespective of its intrinsic worth or quality. But there have
been others from the beginning of this civilization who have insisted that
every norm cannot be a law simply because it has been laid down by
someone who is competent to do so or, in other words, because it satisfies
the formal criterion of its validity. They insist that no social norm can be
called law unless it satisfies a criterion of intrinsic worth. The criterion of
intrinsic worth may be either religion or ethics or morals or social good.
But it must be there. Otherwise, there will be no difference between the
kind of social norms which a tyrant like Hitler or a democratic parliament
makes. To recognise norms laid down by tyrants, conferring legitimacy
on such regimes would amount to direct conflict with the basis of human
society, that is, the co-existence. Therefore, satisfaction of a criterion
which goes to the quality of law is inherent in the idea of law. This latter
approach is broadly called the natural law approach. Though this
approach may be traced back to ancient Greeks in the West and to the
relationship between Dharma and Rajdharma in our ancient scriptures,
among its recent proponents is Lone L. Fuller, who says that good law is
a precondition of law and avoiding all speculative criteria lays down
See J. Austin The province of Jurisprudence Determined.
See H. Kelsen The Pure Theory of Law, (1967).
. See H.L.A. Hart The Concept of Law, (1961).
Pp
PP See R. Lingat The Classical Law of India, (1973).
 182 Indian Legal & Constitutional History
eight sine qua non of a legal system: the law must be promulgated,
intelligible, prospective, non-contradictory, general, avoid impossible
demands and frequent change, and official action must be congruent
with promulgated rules. We could also add in this category Ronald
Dworkin, one of the foremost jurist of our time, who finds the essence of
law in its integrity, which it derives from several factors.’
Since our present state legal system and its laws are based on the
Austinian positivist traditions, we are accustomed to see law in terms of
formal criterion of validity.2? However, recently we have seen a change in
attitude in sofar as our courts have started looking beyond the formal
criterion of validity of law. For example, in the area of constitutional
amendments they have developed a concept of “basic structure” to which
all constitutional amendments must conform.’ In Article 21 of the
Constitution read the requirement of fair, reasonable, just procedure as
distinct from any procedure whatever* and are insisting upon the
administration to be just, fair and reasonable in their dealings with the
citizens.° More examples may be traced in other areas of our law. Our
experience with the functioning of our legal system so far teaches us that
there is a need of such an approach in a well guarded form. The danger
in this approach is that it may degenerate into a judges’ paradise leading
_ to all kinds of speculations about the laws and their validity resulting in
confusion and chaos.
ll. LAW AND MORALITY
Ever since law has been recognised as an effective instrument of
social ordering there has been an ongoing debate on its relationship with
morality. Morality has been defined to include “all manner of rules,
standards, principles, or norms by which men regulate, guide and control
their relationships with themselves and with others.”° Morality has a
common object or end with law insofar as both of them direct the actions
of men in such a way so as to produce the greatest possible sum of good
or aim at maximum social and individual good.’ Thus, with regard to
1. See, amongst others, his: Law’s Empire.
2. For an extreme example see A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207.
3. See Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 and its application in Indira
Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 and Minerva Mills Ltd. v. Union of India,
AIR 1980 SC 1789.
See Maneka Gandhi v. Union of India, AIR 1978 SC 597 and its expansion in other areas.
See Ramana Dayaram Shetty v. Internation Airport Authority of India, AIR 1979 SC 1628.
. A.L. Harding Religion, Morality And Law, 28.
NOs
. See J. Bentham The Theory of Legislation, 36 (N.M. Tripathi Ltd., 1975 Edn. U. Baxi).
Bantham says: “Morality in general is the art of directing the actions of men in such a
way as to produce the greatest possible sum of good. Legislation ought to have precisely
the same object.”
Concept and Sources of Law 183
their object law and morals are indistinguishable. They are also
indistinguishable insofar as both of them regulate the external human
behaviour of actions and have nothing to do with state of mind unless
translated into action. They also share commonness insofar as they are
backed by social or external sanction. But they differ in their extent. The
extent of morality is much wider than law insofar as the former
commands each individual to do all that is advantageous to the
community and to himself. Morality “is a guide which leads the
individuals, as it were by the hand through all the details of his life, all
his life, all his relations with his fellow”.' Law does not go to that extent
nor it ought to. That is why Bentham has said that “legislation has the
same centre with morals, but it does not have the same circumference”?
and that is why he and his follower, Austin, argued for maintaining a
distinction between law and morals.
The points of difference, commonly recognised between law and
morals, are:
(1) Morality, as noted above, is wider than law asit regulates both
one’s relationship with others as well as himself.
(2) As a corollary to the above, the contents of law and morality
differ although they often coincide. Morality is generally the
basis of law, that is, what is illegal is also immoral. For example,
all offences recognised such as murder, rape, theft, etc., are at the
same time immoral acts. But there are many immoral acts
such as, sexual relationship between two unmarried adults of
opposite sex or hard heartedness, ingratitude, etc., which are
immoral but are not illegal. Similarly, there may be some laws
which “are morally indifferent, for instance, the rule of the
road”? or which are not guided by any clear moral
considerations such as the choice “to be made whether a loss is
to fall on one or other of the two innocent persons.”4
Similarly, there are laws on technical and: other matters which
may not be relatable to any moral principles. Generally
1. See J. Bentham The Theory of Legislation, 36 (N.M. Tripathi Ltd., 1975 Edn. U. Baxi).
Bentham says: “Morality in general is the art of directing the actions of men in such a
way as to produce the greatest possible sum of good. Legislation ought to have precisely
the same object.”
2. Ibid. Cf. G.W. Paton A Text Book of Jurisprudence, 73 (4th Edn., 1972) wherein he says:
Law, positive morality, and ethics are overlapping circles which can never entirely
coincide, but the hand of man can move them and determine the content that is common
to all or two or confined to one.
3. L. Lloyd, op. cit., p. 53.
4. L. Lloyd, op. cit., p. 53. For example, on what consideration the claim of an innocent
purchaser as against the lawful owner of stolen goods be decided.
184 Indian Legal & Constitutional
History

speaking, however, while all laws may be directly or remotely

traced back to some, moral considerations, all morals are not
translated into law.
(3 Morality, as already noted, presses for good life for all both as
—

regards one’s relations with others as well as himself. Morality

is not necessarily relatable to material social gains and therefore,
may require a man to do more than what he or even society
gains in return. Thus, it confers greater burden than the benefits.
For example, benevolence, kind heartedness, honesty may cost a
man more (at least in the short run) than what he gets in terms
of materials. Since law on the other hand, is concerned only with
one’s relations with others. It always tries to balance between the
restrictions on the individual and gains available to him or to the
society. It will not put a greater burden than the resultant
benefits. It is on this consideration that in recent years laws
which made suicide or homo-sexuality between the consenting
adults or adultery an offence have in some countries been
changed.
(4) In self-regarding morality one is free to observe and practice but
as regards laws whether they are self-regarding or other
regarding one is bound to obey—both are equally binding. Thus,
attempt to suicide is as much an offence as murder or attempt to
murder.
(5) Though law and morality both have social sanction while there
is an organised and regularised machinery of the State to enforce
the laws, there is no such organised and regularised body to
enforce the morals.
(6) The method of expression of law and morals is different. While
laws are expressed in a precise technical language and are
properly assembled, it is not true about morals. Neither are they
anywhere expressed precisely nor can they be found assembled
at one place.
These differences between law and morality should, however, be not
taken to mean that there is complete dichotomy between the two and that
they do not overlap or influence each other.
Most of the laws, as we have already noted, are based on some moral
considerations and considerations which play an important role in the
operation of legal system and the judicial process.’ To this extent there is
1. For a recent example of this see Justice Bhagwati’s exhortation for a close relationship
between law and morality and ultimate decision in M.P. Sugar Mill v. State of U.P., AIR
1979 SC 621. For a comment on the case see M.P. Singh, “Estoppel Against the
Government: Is Equity Running Wild?” 6 & 7 Del. L. Rev. 145 (1978-79).
Concept and Sources of Law 185
no disagreement between the thinkers. The disagreement only arises
when some thinkers, following a natural law approach, argue that moral
content is a pre-requisite of a law and an immoral law is no law and the
others, following the positivist approach, say that once a rule is laid
down or determined by the body competent to do so it does not cease to
be law because it may be said or shown to be in conflict with morality.!
Since, as we have already noted, our legal system is based upon the
positivist traditions inherited from Austin, the position in general is that
so long as the laws satisfy the formal criterion of validity they cannot be
invalidated on the ground of conflict with some morals, although:
recently the Supreme Court has invented the doctrine of “basic structure”
to test the validity of constitutional amendments and has insisted on
fairness and reasonableness of laws and their administration.?
How far law should enforce morals is another controversial question
in the relationship of law and morality. Long back J.S. Mill had argued
that since every legal coercion is an infraction of individual liberty it
should not be imposed except for preventing harm to others. Bentham
also said precisely the same thing and something more when he gave the
following two reasons for not enforcing morality through law. First, law
can have no direct influence upon the conduct of men, except by
punishment. Since punishments are evils, they are not justified unless
resulting in greater good. Second, law is often arrested by the danger of
overwhelming the innocent in seeking to punish the guilty. This danger
arises from the difficulty of defining an offence clearly such as hard-
heartedness, ingratitude, perfidy, etc.? To the question of what morals
should be converted into law he found the solution in a classification of
moral duties into the duties towards oneself (prudence) and duties
towards others. He further classified it into negative (probity) and
positive (beneficence) duties. He suggested that while law must fully
keep off from the enforcement of the first kind of moral duties
(prudence), it should enforce the negative (probity) duties of the second
kind and exceptionally also the positive duties such as refusal or
omission “of a service to humanity where it would be easy to render it
and when some distinct ill clearly results from the refusal.”*
Bentham’s and Mill’s views were criticised in the past but the
Wolfenden Committee Report on Prostitution and Homo-sexuality in
1. For a lively discussion on the controversy see H.L.A. Hart Positivism and the separation of
law and Morals, 71 Harv 593 (1958) and L.L. Fuller Positivism and Fidelity to Law—A reply
to Professor Hart, 71 Harv. L. Rev. 630 (1958).
2. Set supra text accompanying footnotes 14 to 16 and 23.
3. J. Bentham, op. cit. p. 36.
4. Ibid., p. 39. He also suggests a legislation against cruelty to animals.
186 Indian Legal & Constitutional History

England which recommended abolition of home-sexuality as an offence

upheld the same on the ground that law should not punish what may be
called sin as against the harmful social acts. Criticising the report, Lord
Devlin said that there is something like public morality and, therefore
“conduct which arouses a widespread feeling of reprobation, a mixture of
‘intolerance, indignation and disgust’ deserves to be suppressed by legal
coercion in the interests of the integrity of society.”’ Disagreeing with
Devlin and following Mill and Bentham, Hart suggests that though “the
moral notions of the majority are matters to which the legislature must
pay close account...but what Mill had in mind was that at all costs the
idea that the majority had a moral right to dictate how everyone else
should live, was something which needed to be resisted. It is essential,
therefore, from a libertarian point of view, that public indignation, while
given due weight, should be subject to the overriding tests of national or
critical appraisal.”
However, Hart comes quite close to Devlin when he admits that there
is something like “universal values” of each society which are essential
for its survival. He admits that every society has “central core of rules or
principles which constitute its pervasive and distinctive style of life” and
that it is “an open and empirical question whether any particular moral
rule is so organically connected with the central core that its preservation
is required as a vital bastion.” Thus, no society can afford to free the
murderer even with the consent of the victim nor many societies can
approve polygamy or polyandry, even if the parties to it have no
objection. Thus, there are certain central areas where there is little scope
for disagreement but the same cannot be said about matters falling at the
periphery and therefore, each society must have full freedom to discuss
them and decide whether it would like to bring law into those areas.
lil SOURCES OF LAW
Like law, the term sources of law also has many meanings and has
been used by different writers to denote different things. To an extent it
will not be incorrect to say that the meaning of sources of law will
depend upon the meaning one gives to law. In its primary sense,
however, a source of law means either the manufacture or origin of a law
or the ability to impart to a rule or norm the quality of law. Taking this
meaning Salmond distinguished between legal and historical sources.*
“The former”, he said, “are those sources which are recognised as such
by the law itself. The latter are those sources which are such in fact, but
1. L. Lloyd, op. cit. p. 55.
2. Ibid., p. 57.
3. Legal and historical sources are also called respectively formal and material sources.
Concept and Sources of Law 187
are nevertheless destitute of legal recognition.”! For example, an
immediate source of a rule of law may be a court decision though
ultimately the descent of that rule may be traced back to same moral or
ethical principles or writings of great thinkers who may have influenced
the course of our life. The decision of the court is a legal source while the
ultimate materials on which it is based are simply historical sources. The
chief difference between the two is that while the court decision
(precedent) is a source not only in fact but also in law, the others are its
sources in fact only and have no legal recognition. The legal source of law
are authoritative and are so recognised by our law. We can cite them with
right and, our system is bound to recognise them so. Such is the case with
the Constitution, statutes, precedents and even customs (provided the
custom satisfies certain conditions to be mentioned below). But this is not
so about historical sources such as legal writings, juristic opinions or
even foreign Constitutions, statutes or precedents.
Since law goes on growing and changing, we have to lay down or
recognise some sources for its growth and change, that is, for the
elimination of old rules and incorporation of new ones. Our legal system
recognises that the Constitution, statutes, precedents and customs only
may perform that task. The principles of such recognition establish the
sources of law. “A source of law, then”, in the words of Salmond, “is any
fact which in accordance with the law determines the judicial recognition
and acceptance of any new rule as having the force of law. It is the legal
cause of the admittance by the judicature of any new principles as one
which will be observed for the future in the administration of justice.”
Sources of law may differ from system to system and society to
society. Thus, while in common law system Constitution, legislation,
precedents and custom are recognised as the legal sources of law, in civil
law countries legislation, customary law and under certain circumstances
treaties are often declared to be the only legal sources of law. In
theocratic or totalitarian systems there may be still different sources of
law. Since in India we have common law system, Constitution,
legislation, precedents and custom are our legal sources of law. However,
in addition to the general law of the land Hindus and Muslims are still
governed in some matters by their personal laws. Personal laws have
some sources in addition to the general sources mentioned above. For
example the Koran, Hadis, Ijma and Qiyas are the additional sources of
Muslim law and Sruti, Smritis, mimansakas, digests and commentaries are
the additional sources of Hindu law. In the discussion that follows, we
will however confine ourselves only to the general legal sources of law.

1. J.W. Salmond Jurisprudence, 133 (11th Edn., 1957).

188 Indian Legal & Constitutional History

1. Constitution —Constitution as a source of law may be covered

under the generic term, ‘legislation’ but it differs from legislation insofar
as legislation finds its authority in the Constitution while the
Constitution is the ultimate source and its authority lies in the political
fact that it has been so accepted by the people. Constitution differs from
other legislations insofar as validity of the latter is determined with
reference to the former but the validity of the former cannot be
determined with respect to any higher law. It has to be accepted as such’,
A constitution may be the fundamental law of the land or it may simply
be a political document. Our Constitution is the fundamental law of our
country. Its provisions lay down binding rules, violation of which can be
checked and remedied through court action. But there are Constitutions
like that of China, which simply lay down the rules for the guidance of
the governance and their violation may be checked only at the political
level and not in the courts at least to the extent that such violation is by
the highest organs of the State. .
2. Legislation.—In the present day society legislation is the most
important and biggest source of law. Legislation consists in making of
law by the formal and express declaration of new rules by some authority
in the body politics which is set up for this purpose and which gives
articulate expression to such rules in a formalised legal document. Thus,
for example, Parliament and State Legislatures are such authorities in our
country and their Acts are legislation.
Legislation is divided into supreme and subordinate (delegated).
Supreme legislation is one that proceeds from an authority which derives
its power directly from the Constitution while subordinate or delegated
legislation is the one which proceeds from an authority which derives its
power from the supreme legislation. Thus, in our legal system Acts of
Parliament and the Ordinances and other laws made by the President
and Governors insofar as they are authorised to do so under the
Constitution”, are supreme legislation while the legislation made by
various authorities such as corporations, municipalities, universities,
government departments etc., under the authority of the supreme
legislation are subordinate legislation. There is no end to the category of
bodies to whom power to make subordinate legislation can be entrusted
by the supreme legislation. But there is a limit to the extent of such
entrustment. In our system, supreme legislation cannot delegate the
1. For a thorough discussion on the distinction between legislation and the Constitution, see
P.K. Tripathi Some Insights Into Fundamental Rights, 14 ff (1972). Also Kesavananda case,
supra n. 14.
2. See Articles 123, 213, 240 and 371(5)(d) and para 5(2) of the Fifth Schedule to the
Constitution. Also see M.P. Singh Legislative Power in India: Some Clarifications, 4 & 5 Del.
L. Rev. 73, 97 (1975-76).
Concept and Sources of Law 189
“essential legislative functions” to any other body!. The “essential
legislative functions consist of laying down of the policy and the
guidelines by the supreme legislation within which subordinate
authority can legislate. The supreme legislation is not superior to the
Constitution and while it is subject to all other constitutional limitations,
it is also subject to the limitation that it cannot delegate its legislative
functions to an unlimited extent.*
It may, however, be mentioned that the kind, quality and amount of
legislation that is needed today cannot be supplied in the form of
supreme legislation and therefore, the amount of subordinate legislation
exceeds the amount of supreme legislation. Subordinate legislation has a
long list of nomenclature and has such titles as statutes, rules,
regulations, ordinances, orders, notifications, instruments, instructions,
directions, bye-laws, etc.
3. Precedent.—In the common-law system like ours precedent
constitutes a very important source of law. Generally speaking, a
precedent is any pattern upon which future conduct may be based. In
law, it means the employment of past decisions as guides in the
moulding of future decisions. Salmond defines precedent as “the making
of law by the recognition and application of new rules by the courts
themselves in the administration of justice”. It differs from legislation as
a source of law in several respects.
First, legislation is a formal declaration of law in abstract while
precedent law is created by its application to a specific situation. Second,
legislation is of general character and does not take into account the facts
of any particular situation, while precedent is of particular nature insofar
as it is created by application of certain principles to specific fact
situation.’ Third, legislation is generally made for future transactions and
is, only exceptionaliy made applicable to past transactions. But precedent
is always created with respect to past transactions and always operates
retrospectively unless in very exceptional-cases court gives it a
prospective operation.* |
Sometime back some people like Blackstone doubted whether
precedent was in reality a source of law because according to them
judges did not create any new principles of law through their decisions
1. See Rajnarain v. Chairman, Patna Administration Committee, AIR 1954 SC 569.
2. For further details see discussion on delegated legislation in any standard work on
constitutional or administrative law. For example M.P. Singh, Shukla’s Constitution of
India, Art. 245 (9th Edn., 1994).
3. Legislation made with respect to a particular fact situation may not be legislation at all.
See Indira Nehru Gandhi v. Rajnarain, AIR 1975 SC 2299.
4. See I.C. Golak Nath v. Punjab, AIR 1967 SC 1643.
190 Indian Legal & Constitutional History

but simply put a stamp of authority on the already existing principles of

law in the society in an unassimilated form. The judges either apply the
Constitution or a legislation Or a custom to come to a conclusion, They do
not apply to the case before them with a law which does not exist at the
relevant time. This is called the declaratory theory of precedent.
Apparently this theory sounds good but it has been contested by many
jurists such as Gray, Holmes, Cordozo, Frank and others who have
proved beyond doubt that judges not only declare law but also make it
through their decisions. Our laws are full of such instances. The most
glaring instance is of the law of tort, which is almost entirely a creation
of judges through their decisions. The entire English common law was so
created by the judges. In everyday life the courts quite often face
questions for which there is no answer either in the Constitution or
legislation or even in the existing precedents. The courts have to decide
the case for or against a party and in whatever way it decides it makes
a law. Not only this, the judges have their own philosophies and |
predilections and in accordance with it may give a new meaning to the
existing law which becomes a new law. A whole lot of literature has been
written on this aspect and now it is a well recognised and commonly
accepted fact that the judges not only declare but also make the law
through their decisions.
However, finding law from the long pronouncements of a judge is a
very difficult process. It becomes more difficult when in the superior or
appellate courts different judges write separate and conflicting opinions.
The question is what part of the judicial opinion or opinions constitute
the precedent or makes law? In the course of his long opinion judge says
number of things such as the statement of facts, issues involved, matters
of evidence, statements of law, reasons for such statement and ultimate
decision. Which one of them should be taken as precedent. Certainly it
cannot be the whole of the opinion. Then what part of it? Dealing with
this problem long ago Sir George Jessel said, “The only use of authorities
or decided cases is the establishment of some principle, which the judge
can follow in deciding the case before him.”! Following him Salmond
said that “A precedent is a judicial decision which contains in: itself a
principle. The underlying principle which forms its authoritative element
is often termed the ratio decidendi. The concrete decision is binding
between the parties, but it is the abstract ratio decidendi which alone has
the force of law as regards the world at large.”* Thus for Salmond only
that portion of a judicial opinion which lays down a principle of general
application not confined to the facts of that case constitutes the precedent
1. Hallet (in re:), (1879) 13 Ch D 712.
2. Salmond, op, cit., p. 223.
 Concept and Sources of Law 191
or the ratio decidendi. But what according to Salmond is a ratio may in
reality be just an obiter dicta, that is, things said by the way without being
relevant for the decision of the case. Then how to distinguish the obiter
dicta from the ratio? Moreover, how to.find out the general principle out
of the conflicting opinions of different judges?!
Professor Goodhart diverted himself to this problem and, differing
from Salmond, he said that the ratio of a case can be known only by
looking at the facts of a judicial opinion and distinguishing the material
facts from the immaterial ones. Court’s conclusions on the material facts
constitute the ratio or the precedent and the rest is simply obiter. Thus,
statements about material facts or facts which were not in disputes are
simply obiter. Professor Goodhart made a progress over Salmond but it
was not enough. There is no clear test to distinguish material facts from
immaterial ones. How to find the material facts when courts of different
levels have stated facts differently and when different judges in the same
court have taken or stated the facts differently? Moreover, it is not always
a totality of material facts that determines the ratio. Each set of material
facts and a statement of law thereupon may constitute ratio.
This aspect was taken up by Simpson and some others who were of
the view that one case may lay down more than one ratio and each
combination of facts in that case is relevant for knowing it. The main
contribution which they have made is that the ratio or precedent is not set
and known just by one decision or case but by a series of them. How the
courts have treated and applied their own precedents in subsequent
decisions is the guide to determine what actually the precedent is. Thus,
for example, the fact that the ratio of State of Bombay v. R.M.D.C,? is
confined only to gambling activities can be known only after going
through its application in Krishna Kumar Narula v. State of Jammu &
Kashmir,? and the ratio of Krishna Kumar that it did not create or recognise
a fundamental right to trade in liquor can be known only after going
through Nashirwar v. State of Madhya Pradesh.* Similarly, the ratio of
Kesavananda Bharti> case got settled only after Mrs. Gandhi’s® case and
_ Minerva Mills’. Thus for knowing the precedent we cannot rely on only

1. For example in the Kesavananda case the thirteen judges of the Supreme Court wrote
eleven long opinions.
. AIR 1957 SC 629.
AIR 1967 SC 1868.
AIR 1975 SC 360.
. AIR 1173 SC 1461.
AIR 1175 SC 2211.
SeWN
NQa AIR 1980 SC 1789. For further developments see Sanjeev Coke Mfg. Co. v. Bharat Cocking
Coal Ltd., AIR 1183.SC 231.
192 Indian Legal & Constitutional

one judgment but will have togo through a series of them to ¢

understand the direction of law towards which it is moving.’
For a successful operation of the doctrine of precedent as a source
law it is absolutely necessary that there should be a hierarchy of cc
and a proper reporting of their decisions. The hierarchy of courts4
the precedents of the higher courts binding on the lower ones and t
system of reporting makes those precedents easily accessible. In
though we have dual system of government, that is, the
Government and State Governments but there is no duality in
judiciary. All courts administer all laws within their jurisdictic
irrespective of the consideration whether the law is made by the Uni
or by a State. At the apex is the Supreme Court, below that the
Courts and below that the district and other courts. The High Courts
not subject to the administrative control of the Supreme Court t
certainly they are inferior to it while the lower judiciary is also within t :
administrative control of different High Courts within whose jurisc
they fall.
The law laid down by the Supreme Court has been made
all courts in India by express provision in Article 141 of the Constitutior
Following the pre-independence Privy Council policy’, it has been
that not only the ratio but even the considered obiter of the Suprer
Court is binding upon all the courts in India. However, | ¢ Sic

obiter of the Supreme Court does not constitute law and is not, therefore
binding on any court.’ The Supreme Court sits in benches and
judge is free to give his separate opinion. It is the majority opinion
makes the precedent and not minority although in course of t
minority opinion may be adopted as majority opinion in some futt
cases. The Supreme Court itself, however, is not bound by its «
previous* decisions or any other court including the pre-independenc
decisions of the Privy Council or Federal Court.°
All the High Courts are bound by the decisions of the
as well as decisions of the Privy Council and the Federal Comet ;

1. For a detailed discussion see Lloyed. op. Cit. ch. 11 and Stone op. cit., p. 267. For a plain
and simple discussion on precedent also see, Gelanwille Williams, Learning the Law, 67
(11th Edn., 1982).
2. See Mohandas Issardas v. V.N. Sattanathan, 56 Bom LR 1156. The policy was putting as
much law into black and white as possible.
3. See Ranchhoddas Atmaram v. Union of India, (1961) 3 SCR 718; Orissav. S.S. Misra, AIR.
1168 SC 647.
4. See Bengal Immunity Co. Ltd. v. State of Bihar, ATR 1955 SC 661.
5. Srinivas v. Narayan, AIR 1154 SC 571.
6. See Articles 221 and 372(i) of the Constitution.
Concept and Sources of Law 193

none of them is bound by its own decision or a decision of another High

Court. The precedent of one High Court is simply of persuasive value for
another High Court. The decisions of the large benches of the same High
Court are, however, binding on the smaller benches of that High Court.
The obiter of a High Court is not binding on any court.
District or lower courts are bound only by the precedents laid down
by the Supreme Court or past decisions of the Privy Council or the
Federal Court, or the High Court to which they are subordinate. But they
are not bound by the decision of any other court including a High Court
to which they are not subordinate,’ although they will give due weight ~
to the decision of any other High Court in the absence of a precedent by
their own High Court. But such decision will be of no greater authority
than the decision of a foreign court.
Among the lower courts though there is hierarchy, there is no system
of precedents. One reason, among others, for that is the decisions of these
courts are not published and therefore, they are not easily accessible. So
far as the Supreme Court decisions are concerned they are published in
the official Supreme Court Reports and also in various unofficial reports
including the All India Reporters, Supreme Court Journal, Supreme Court
Cases, etc. Similarly, the High Court decisions are published in the official
Indian Law Reports series of each High Court as well as in large number
of private All India journals such as the All India Reporter and many local
or State level journals. These journals are annual and properly indexed
and bound so that we can easily get our law in them. Digests of the cases
are also published by various agencies including the All India Reporter
and Madras Law Journal in which we can find reference to all decisions on
a topic at one place. There are all kinds of digests, such as fifty year
digest, fifteen year digest, five year digest and annual digest for all courts
as well as separately for the Supreme Court and individual High Courts.
This system of digests and reports assures the success of precedent as a
source of law. The decisions of the Supreme Court and of the High
Courts are now also available on internet free of charge and also on
several private websites and in CD Roms.
Legislation versus Precedent—Between the legislation and precedent
which is preferable is not easy to say. Both have some advantages and
some disadvantages.
(1) While legislation may be resorted at anytime to change the
existing law or create a new law, precedent cannot do that unless
a case actually arises and is brought before the court.

1. For details see I.C. Sexena The Doctrine of Precedent in India: A study of its Aspects, 3 Jaipur
LJ 188 (1163).
194 Indian Legal & Constitutional History
(2) Legislation, unless exceptionally made retrospective, has
prospective effect, that is, it makes law for the future. Thus, the
law becomes known, to the people in advance. Precedent makes
law for the past transactions and applies it retrospectively. Thus
parties are governed by a law which did not exist at the time
when the transaction took place.
(3) Legislation is more coherent and it is easier to get the law as
compared to the difficulty in finding the precedent.
(4) Legislation is more certain than a precedent. While courts may
give their own interpretation to a legislation and give a meaning
very different from the one that appears on its face, there is
comparatively less scope to twist the meaning in following or
not following a precedent by distinguishing it.
(5) Legislation is more easily accessible than the precedent.
(6) Legislation is rigid and cannot change according to the
individual fact situation and must apply equally in disregard to
the needs of individual justice while precedent has the flexibility
of being moulded and applied according to the needs of
individual case. Thus precedent has greater justice content than
legislation. |
(4) Custom—Custom is the most ancient of all the sources of law and
held the most important place in the past, though its importance is now
diminishing with the growth of legislation and precedent. Custom means
uniformity of conduct of people under like circumstances. It is an
unwritten law of the place and the people where it originates. Certain
practices are accepted by the people as good or beneficial or apt and
they go on practising them which in course of time acquire the force of
law.
According to some jurists like Savigny customary law is the real law
of the people while the rest is only a super-imposition. There is great
truth in it and supports the claim of custom because firstly, you cannot
have successful laws which are not part of the habits of the people and
secondly, you cannot have good laws which do not represent the
legitimate aspiration of the people. Custom fulfils these conditions.
However, in the present day highly technical and mixed society we
cannot completely rely on custom as a source of law. Nor can we
afford multiplicity of customary laws to regulate different walks of life of
our country. Therefore, other sources have to be developed. Outside
the State legal system the custom still continues to be the main source of
law.
Concept and Sources of Law 195

Custom must satisfy the following conditions! to acquire the force of

law or to become a source of law.
(i) Antiquity.—A custom cannot be created in a day. It must be of
long standing. While in England the requirement is that it
should have existed from time immemorial, that is, before 1189
(the year of accession of Richard I), in India long usage or
observance is enough and thus even a twenty year old custom
may satisfy this requirement.
(ii) Reasonableness.—A custom must be reasonable. Reasonableness
here does not mean every learned man’s reason but artificial and
legal reason warranted by authority of law. A custom is
reasonable if no good legal reason can be assigned against it.
(iil) Conformity with Statutory Law.—No custom however old and
reasonable can stand effectively if it conflicts with a statute or
legislation.
(iv) Observance as of Right—The custom must have been followed
openly, without the necessity for recourse to force, and without
the permission of those adversely affected by the custom and
regarded as necessary, that is, the use must not be either by
force, or by stealth or at will.
(v) Consistent with Morality and Public Policy—In some cases our
courts have held that a custom contrary to morals or public
policy cannot have the force of law. Thus, in one case the court
refused to recognise a custom claimed by dancing girls of
adopting daughters because it would perpetuate prostitution.’
Similarly, the court refused to accept a custom to marry one’s
daughter’s daughter on grounds of morality.°

WWW

. For the conditions of a valid custom in Hindu law see sec. 3(a) of the Hindu Marriage
Act, 1956 and the connected Acts.
. See Subhani v. Nawab, (1940) 68 IA 1; Gokal Chand v. Parvin Kumar, AIR 1952 SC 231.
Ram Dhan Lal v. Radhe Sham, (1951) SCJ 307 (314).
. Mathura Narain v. Est Naikin, (1880) ILR 4 Bom 545.
_ Balusami v. Balkrishna, AIR 1957 Mad 97. Also see M.-P. Jain Custom as a Source of Law in
aa
India, 3 Jaipur LJ 96 (1963).
 16
THE RULE OF LAW IN INDIA
l. THE RULE OF LAW
Commonly speaking the rule of law means supremacy of law or, in —
Aristotle’s words, government of laws as opposed to the government of
men. The rule of law requires that the organised power of the society, i.e.,
the State must be subject’ to law. This simple meaning of the rule of law —
is, however, full of difficulties. For example, the question arises:
supremacy of which law? If it means supremacy of any kind of law then
even the most arbitrary or atrocious laws like those of Hitler’s or any
dictator’s regime could be justified in the name of the rule of law.
Similarly, another question is: what is the meaning of the government of
laws as opposed to that of men? It is an undisputed fact that the -
government consists of men and is run by them. Laws are the creation of
men; they do not and cannot operate except through the medium of men.
In that case the meaning of the rule of law given above serves a very ©
limited purpose that the State should make laws before it acts. It does not —
take account of the kind and quality of the law.
Perhaps that was the kind of concept of the rule of law in the
beginning which according to Professor Unger first emerged in the
western world during the 18th and 19th centuries. According to him, the -
concept of the rule of law was based upon two basic postulates; (i)
separation of legislation from administration, and (ii) generalityof laws,
i.e., equality before law.’ Professor A.V. Dicey, who for the first time in
1885 gave a systematic analysis of the rule of law in the context of British
Constitution, represents that | aes of approach in following three
- principles of the rule of law:—
(1) (Absence of arbitrary power). It [the rule of Law] means, in the first
place the absolute supremacy or predominance of regular law as
1. R.M. Unger Law in Modern Society, 57 (1976).
2. A.V. Dicey An Introduction to the Law of the Constitution, 202-3 (10th Edn., 1959). For a
restatement of Dicey’s three principles see H.W. Jones The Rule of Law and Welfare
State, 58 col. LR 149 (1918).
196
The Rule of Law in India 197

opposed to the influence of arbitrary power, and excludes the

existence of arbitrariness of prerogative, or even of wide
discretionary authority on the part of the Government.
(2) (Equality before the law). It means, equality before the law, or the
equal subjection of all classes to the ordinary law of the land
which is administered by the ordinary law courts. The “rule of
law” in this sense excludes the idea of any exemption of officials
or others from the duty of obedience to the law which governs
other citizens or from the jurisdiction of the ordinary tribunals.
(3) (Constitution a consequence of individual’s rights). The “rule of
law”, lastly, may be used as a formula for expressing the fact that
with us the law of the Constitution, the rules which in foreign
countries naturally form part of a constitutional code, are not the
sources but the consequences of the rights of individuals, as
defined and enforced by the courts.
Although Dicey’s third meaning of the rule of law applies primarily
to the British Constitution, his formulation is regarded the starting point
for discussion on the subject. Relying on him Lord Hewart in 1929,
attacked conferment of wide discretionary powers by the British
Parliament on the executive as a violation of the rule of law.! The
Donoughmore Committee, appointed to look into Hewart’s allegations,
did not agree with Hewart but it asserted the validity and importance of
Dicey’s formulation of the rule of law.* Later in 1957, the Franks
Committee again endorsed Dicey’s propositions.? Writers opposed to the
extension of the powers of the administration and take up Dicey’s first
proposition to condemn such extension*. Hayek has gone to the extent of
saying that the social welfare state is a negation of the rule of law because
it confers wide discretionary powers on the administration.° This kind of
allegiance to Dicey’s concept of the rule of law goes a little bit too far. It
is said that if absence of discretion is the rule of law then it has never
existed anywhere nor there is any possibility of it in future.®
Perhaps in Dicey’s time, of laissez fair state a society based on the rule
of law could be conceived of by making general laws and giving
minimum or no discretion to the administrator. But with the emergence

. Lord Hewart The New Despotism, (1929).

. Report of the Committee on Ministers’ power, (1932).
. Report of the Committee on Tribunals and Enquiries, (1957). .
-. See, for example, J. Dickinson, Administrative Justice and the Supremacy of Law (1927),
WN

Jaisinghani v. Union of India, AIR (1967) SC 1427 (1433).

4. F.A. Hayek The Road to Serfdom, (1944).
6. See K.C. Davis Administrative Law Text, (1972).
_ Indian Legal & Constitutional History
of social welfare state, since the end of 19th and beginning of the 20th
centuries we have to accept that a just order could not be brought about
unless laws took into account individuals or groups of individuals in the
society.! General laws made without taking into account the peculiarities
of individuals or groups, create or perpetuate inequalities and thus
produce injustice. Similarly, the administrator who has no discretion in
implementing the welfare schemes according to individual traits and
requirements will also perpetuate existing inequalities and injustice.
There are a number of complex problems of the modern society which
cannot be tackled fairly by uniform laws and without vesting discretion
in the administrators. Open-ended legislation and policy based
adjudication has become a recognised necessity for a just social order.
Therefore, if the rule of law stands for justice, its contents must be
revised.” ‘
Among others, the International Commission of Jurists, which is a
consultative organ of the United Nations and consists of jurists from all
over the world, has undertaken the job of giving positive contents to the
rule of law in the present day free society. In a working paper prepared
for the International Congress of Jurists assembled in New Delhi in 1959
under the aegis of Commission, the rule of law was stated in the
following words:
The principles, institutions and procedures, not always identical,
but broadly similar, the experience and traditions of lawyers in
different countries of the world, often having themselves varying
political structures and economic backgrounds, have shown to be
important to protect the individual from arbitrary government and to
enable him to enjoy the dignity of men.
The paper emphasised that the rule of law had two aspects: (i)
substantive and (ii) procedural. The substantive aspect of the rule of law
recognises certain rights of the individual which he is entitled to enforce
against the State. The rights may be either traditionally recognised
political and civil rights like freedom of speech and religion, or they may
be newly recognised social and economic rights which assure his moral
and intellectual development as a human being and a dignified member
of the society. The latter category of rights impose a positive obligation
on the State to do certain things for the individual such as providing or
creating conditions to provide him food, shelter, clothing, education,
1. See Unger, op. cit., 198.
2. About Dicey type of the rule of law Unger says: “the rule of law is in the end
incapable of eradicating unjustifiable dependency in everyday life”, Ibid.
3. The Rule of Law in a free Society. (A Report on the International Congress of Jurists,
New Delhi, India, 1959).
The Rule of Law in India
199
employment ete. The procedural aspect of the rule of law is concerned
with giving practical effect to its substantive aspect.
While the Congress did not go into the details of the substantive
aspect of the rule of law it studied the procedural aspect through four
committees whose recommendations may be summarised as below:—
(i) The Legislature and the Rule of Law:—Emphasising the role of
the legislature in upholding the dignity of the individual by
giving recognition to his civil and political rights and by creating
social and economic conditions for his full development, the first
committee, among other things, specifically recommended that
the legislatures should not make discriminatory laws; or laws
interfering with the freedom of religion, speech, assembly,
association; or laws restricting fundamental rights and freedom
or; retroactive laws; or laws denying the right to. elect
responsible government!
(ii) The Executive and the Rule of Law.—The second committee
recommended that “The Rule of Law depends not only on the
provision of adequate safeguards against abuse of power by the
Executive, but also on the existence of effective government
capable of maintaining law and order and of ensuring adequate
social and economic conditions.”* For this reason it was
necessary that legislative, judicial and other discretionary
powers were conferred on the executive. But the powers must be
subject to proper safeguards against their misuse and must also
to subject to judicial review, i.e. the power of the Courts to
invalidate any abuse of the power.
(iii) The Criminal Process and the Rule of Law.—lIn criminal
matters, according to the third committee, the rule of law
required, inter alia, certainty of the criminal law, presumption of
_ innocence, and a public trial with a right to legal remedies,
including an appeal. It also required that the arrest was strictly
regulated by law, detention pending trial was permitted only in
the interest of public security or the administration of justice;
counsel of one’s choice was permitted; and an accused was not
compelled to incriminate himself.’
(iv) The Judiciary and the Legal Profession under the Rule of
Law.—The fourth Committee reported that “An independent
1. The Rule of Law in a free Society. (A Report on the International Congress of Jurists,
New Delhi, India, 1959, pp. 4-5.
2. The Rule of Law in a free Society. (A Report on the International Congress of Jurists,
New Delhi, India (1959), p. 11.
3. Jbid., pp. 8-11.
 200 Indian Legal & Constitutional History

judiciary is an indispensable requisite of a free society under the

Rule of Law.”! Such independence implies freedom from
interference by the executive or the legislature in the exercise of
judicial function and adequate remuneration to the judges.
Equally essential was an organised legal profession free to
manage its own affairs. Equal access to law for the rich and poor
alike was also necessary and therefore, it suggested provision for
legal aid programmes with the support and participation of legal
professionals.
At the end of the session the Congress declared:
The Rule of Law is a dynamic concept for the expansion and
fulfilment of which jurists are primarily responsible and which
should be employed not only to safeguard and advance the civil and
political rights of the individual in a free society but also to establish
social, economic, educational and cultural conditions under which his
legitimate aspirations and dignity may be realized.
We may conclude this part of discussion in the words of Friedmann
that “the basic value [of the rule of law] remains the same: the fullest
possible provision by the community of the conditions that enable the
individual to develop into a morally and intellectually responsible
person. But the means by which this goal is to be attained cannot but be
deeply influenced by the social conditions in which we live.”? For
example, the means that were good during Dicey’s Iaisse-faire society do
not suit the present day ideal of social welfare state. But this shift in the
means does not make the foundations of the concept of the rule of law
less solid. It simply supports its dynamism and tendency to respond to
the unending challenge of evolutionary or revolutionary changes in
society.
ll. THE RULE OF LAW IN INDIA
Pre-Constitution Position—The rule of law in the sense of
supremacy of law has its groundings in India from the very beginning of
its civilization. Time and again, it was asserted by our ancient lawgivers
and thinkers that the law was above everyone including the king.’
Instances of the kings being punished for the violation of the laws of their
own kingdom are also available.* Islamic legal system also recognises the
1. The Rule of Law in a free Society. (A Report on the International Congress of Jurists,
_ New Delhi, India (1959), p. 11.
2. W. Friedmann Law in a Changing Society, 384 (1964).
3. See Gautam Dearmsutra, XI; Manusmriti, VII.
4. King Bimbsar had to go to exile for having violated a law of his own kingdom: King
Venu was killed for assuming on himself the power of a lawgiver and finally, there is
the example of King Harischandra, though in a different context, who did not relax
obedience to law even in favour of his grief-striken wife.
The Rule of Law in India
201
supremacy of law’ and accordingly, examples of the rule of law having
been followed during the Muslim rule in India are also available2 But
this concept of the rule of law both in ancient times and during Muslim
rule did not resemble the concept as it developed in the West during the
18th and 19th centuries. Our ancient law was based on caste system and
legalised inequality with very little or no human dignity at the lowest
caste rank. Similarly, though the Islamic jurisprudence was based on
equality there was no recognition of individual rights and of a view of
group relationship in which no group is in a permanent position to
govern.°
In 1612, when the East India Company stepped in India the concept
of the rule of law had not taken its roots even in England. Only in 1688
the supremacy of the British Parliament was finally established and a
clear statement of the rule of law was given by Dicey in late 1885.4 It
cannot, therefore, be said that with the advent of the British rule of law
in the modern sense the concept had been introduced in India. On the
other hand, we can say that even after the concept had become fully
established in England it was not introduced in India.
We have seen in the earlier Chapters of this book that no serious
effort was made to make judiciary independent of the executive till the
establishment of the Supreme Court at Calcutta in 1774.° The
independence of the Supreme Court was also not acceptable to the
executive and therefore, it was curtailed by the Settlement Act of 1781.
Moreover, the Supreme Court had a very limited territorial jurisdiction
and the position in the moffussil continued unchanged till the
establishment of the High Courts under the Act of 1861. The criminal
administration of justice at the lower level continued to be executive
ridden throughout the British rule.
No effort was made to distinguish legislative business from the
executive till the Indian Councils Act, 1861 was passed. Even after this
Act and upto the commencement of the Constitution the over-riding
power of legislation continued to vest in the executive.
1. For details see M.P. Singh Outlines of Indian Legal History (Ancient and Medieval
Periods) Ch 6 (1968).
2. Jahangir is said to have given a decision in murder case on the complaint of the
widow of a washerman whose husband, by mistake, had been killed by the wife of
Jahangir—Nurjahan.
3. Unger says that the concept of this kind of group relationship and the concept of a
higher universal law are two preconditions for the growth of the rule of law. He says
Hindu and Islamic system did not fulfil these conditions. Unger, op. cit.
4. It should not be taken to mean that earlier jurists like Bracton, Coke and Blackstone
had not talked of the rule of law in England.
5. For the view that with the Supreme Court the rule of law was also established see
B.N. Pande, op. cit.; p. 1.
202 Indian Legal & Constitutional History

No effective remedy such as writs against the illegal executive acts

was available except to a very limited extent in the Supreme Courts or
after them in their succession three High Courts. Only in 1923, the power
to issue the writ of habeas corpus was conferred on all the High Courts.
There were no guaranteed constitutional rights of the citizens and
a
—O

even after strong demands for such guarantees the Government of India
Act, 1935 protected only the right to property and prohibited
discrimination on grounds of race, religion, etc., with respect to property
and occupation.! Dicey’s first principle of the rule of law that no one can
be deprived of his life, liberty or property except for the breach of law
had come to be recognised in India, and that was the only safeguard
against the executive excesses. But the ineffectiveness of this principle in
practice is apparent in the history of our national movement during
which our leaders were beaten, arrested and detained sometimes for no
fault and sometimes even for the bona fide criticism of the government.*
Moreover, till the enactment of codes the position of the law itself
was uncertain and many instances like that of Nandkumar having been
punished for acts which they did not know and could not know even
after reasonable enquiry that they were illegal.°
In the pre-constitution history of the rule of law, however, the name
of Cornwallis deserves a specific mention who made a sincere effort to
introduce the principle of the rule of law in the moffussil in his scheme
of 1793 by (a) separating the judiciary from the executive: (b) subjecting
the executive to judicial control; (c) recognising the government liability;
(d) making the British subjects amenable to the Diwani; (e) organising the
legal profession; and (f) making legislative reforms. If his line of
approach was pursued by subsequent rules, perhaps the rule of law
would have taken strong roots in India much before the end of the British
rule.
Post-Constitution Position—In A.D.M. Jabalpur v. S.K. Shukla}
Ray CJ., said that “The Constitution is the rule of law” and that “no one
can rise above the rule of law in the Constitution”.° This view treats the
rule of law as synonym of the supremacy of law and to that extent it is
correct because the Constitution is the supreme law of the land and any
law or executive action inconsistent with it is null and void. But
acceptance of this view amounts to saying that every Constitution in the
world, including one framed or followed by a military rule must be
. Secs. 298 and 292.
See Emperor v. Tilak, 22 Bom 112 (1897) and Emperor v. Narain, 74 1A 89.
On the position of law see supra Ch. 9.
. AIR 1976 SC 1207 (1217).
. Part Ill of the Constitution.
aor
WN
The Rule of Law in India 203
accepted as an embodiment of the rule of law. In the foregoing discussion
on the rule of law we have, however, seen that the rule of law is an ideal
or standard to judge the Constitution and the laws, whether they fulfil
those ideals or the standard. That being the right approach to the rule of
law we may examine the post-Constitution position on the lines
suggested by the International Commission of Jurists in their Delhi
Congress.
The ideal and the objective of the Constitution is summed up in its
opening words, i.e., the preamble, according to which the people have
declared India a sovereign, socialist, secular, democratic republic and
have resolved to secure to its citizens social, economic and political
justice; liberty of thought, expression, belief, faith and worship; and
equality of status and opportunity; and to promote among them
fraternity assuring the dignity of the individual. To give contents to these
ideals the Constitution guarantees the fundamental rights to the
individual’ and imposes some positive obligations on the State in the
form of Directive Principles of State Policy.’
The fundamental rights include equality before the law (Article 14);
prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth (Article 15); equality of opportunity in matters of public
employment (Article 16); abolition of untouchability (Article 17);
protection of right to freedom of speech and expression, assembly,
association, free movement, residence and settlement in any part of India,
and occupation, trade or business (Article 19); protection against ex-post
facto laws, double jeopardy and self-incrimination (Article 20); protection
of life and personal liberty (Article 21); right to elementary education
(Article 21A); protection against illegal arrest or detention, the right to
consult and to be defended by a lawyer of ones choice and prevention of
detention in police custody without being placed before a magistrate
within 24 hours (Article 22); prohibition of traffic in human beings and
forced labour (Article 23); prohibition of children under 14 in factories,
mines or hazardous occupations (Article 24); freedom of conscience, free
profession, practice and propagation of religion (Article 25); protection of
interests of the minorities (Articles 29 and 30); and the right to
constitutional remedies (Article 32). |
These rights are not mere platitudes. There is a fundamental right to
enforce them directly in the Supreme Court’ though of course they can
also be enforced in the High Courts.4 The Constitution expressly says that
1. Part III of the Constitution.
2. Part IV of the Constitution.
3. Article 32.
4. Article 226.
204 Indian Legal & Constitutional History

any law inconsistent with the fundamental rights shall be void' and
therefore, the fundamental rights cannot be abridged or taken away by
legislation. At one time it was held that they cannot be taken away or
abridged even by a constitutional amendment.? That decision has been
over-ruled and the present position is that though the fundamental rights S
e

can be abridged*® or taken away but not in a manner that changes the
basic structure of the Constitution* What is basic structure is a matter of
controversy but the chapter on fundamental rights is essential part of that
structure.
Among the Directive Principles of State Policy are: the obligation on
the State to secure a social order for the promotion of the welfare of the
people;? and in particular to secure adequate means of livelihood and
equal pay for equal work to men and women, community control on
material resources for the common good, and operation of the economic
system, in a way that does not result in the concentration of wealth and
means of production to the common detriment; protection of the children
and protection against exploitation of childhood and youth;* obligation to
secure right to work, education and public assistance in case of want;’
just and humane conditions for work and maternity relief;* living wages
for workers,’ childhood care and education for children,’° promotion of
educational and economic-interests of Scheduled Castes, Scheduled
Tribes and other weaker sections;'! improvement in living standards,
nutrition and public health;!? and provision for equal justice and free
legal aid.’
. Article 13.
. Golak Nath v. State of Punjab, AIR 1967 SC 1641.
. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
. Ibid. The Supreme Court followed the basic structure rule to invalidate a clause of the
Pe
wn
39th amendment in Indira Gandhi v. Raj Narayan, AIR 1975 SC 2299. After that the
Supreme Court in Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789 invalidated
that provision of Article 31C which made the fundamental rights to equality and
freedom subject to the directive principles and clauses (4) and (5) of Article 368 which
made the constitutional amendments immune from challenge and declared power of
amendment limitless.
5. Article 38.
6. Article 39.
7. Article 41.
8 . Article 42.
9 . Article 43.
10. Article 45.
11. Article 46.
12. Article 47.
13. Article 39A.
The Rule of Law in India 205
The directive principles cannot be enforced in the courts but they are
“fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in making laws”!
In addition to the fundamental rights and the directive principles
there are some other provisions in the Constitution which either
guarantee important rights to the individual or impose obligation on
State to look after his welfare. For example, no tax can be collected nor
property be taken without the authority of law; no discrimination on the
ground of religion, race’s caste or sex can be made in the enrolment of
voters; freedom of trade, commerce and intercourse throughout the
territory of India is guaranteed;* and claims of the Scheduled Castes and
the Scheduled Tribes to services and posts have to be taken into
consideration. Several? other provisions provide protection to the
Scheduled Castes, the Scheduled Tribes, backward classes and linguistic
minorities but due to lack of space they cannot be mentioned.®
Primary obligation of making laws is on Parliament and State
Legislatures but they can delegate legislative functions to the executive to
meet any situation. The only constitutional limitation in this regard is
that the essential legislative function “which consist in the determination
or choice of the legislative policy and of formally enacting the policy in
a binding rule of conduct”, cannot be delegated.’ Judicial or quasi judicial
functions can also be conferred on the executive.’ Safeguards against the
misuse of this power are provided by the legislatures. In addition to that
the Constitution and the laws also provide easy and quick remedy in the
courts by way of suits, writs and appeals.’ Thus, the conferment of wide
discretionary powers on the executive to execute social welfare schemes
is coupled with sufficient safeguards against any misuse of that
discretion.

. Article 37.
. Articles 265 and 300A.
. Article 325.
. Article 301.
. Article 335.
350, 350A
. See for example, Articles 15(4), 16(4), 330, 331, 332, 333, 338, 339, 340, 347,
-&
oO
WON
a
and 350B.
nce of
7. This limitation continues to stand in spite of its severe criticism and differe
S.T., AIR
opinion in the court. See, for example, Gwalior Rayon Mills v. Asstt. Comm.
1974 SC 1560.
taking them
8. Perhaps essential judicial functions cannot be given to the executive after
from the courts, Smt. Indira Gandhi v. Raj Narayan, AIR 1975 SC 2299.
9. See Articles 32, 226 and 136 of the Constitution.
206 Indian Legal & Constitutional History

in the area of criminal process some of the important guarantees are

provided under Articles 20-22 mentioned above. Most of them ensuring
fair trial are provided in’ the Code of Criminal Procedure. The
presumption of innocence of the accused is well-established in our law.
However, there are a few things that undermine the rule of law. One of
|
them is the provision for preventive detention under Article 22. Although
it requires communication of grounds for detention, gives right to make
representation against such detention and fixes maximum period of three
months for such detention except when an Advisory Board consisting of
High Court Judges recommends detention for longer period. The courts
also scrutinise very closely and order release of the detenue on finding
slightest mistake on the part of the detaining authority.’ But
unfortunately during the emergency the Constitution empowers the
executive to suspend some of these safeguards, including the judicial
review, and, also to assume the authority to detain any person
indefinitely and for any reasons whatsoever.* How dangerous this power
could be was not realised till the people experienced its exercise during
the emergency imposed in June 1975. Though this is an emergency
provision but it certainly undermines the rule insofar as individual is left
with no remedy including the political process from which also he is
excluded because of his detention. The Forty-fourth amendment to the
Constitution has improved the position as it has taken away the power
to suspend the enforcement of Articles 20 and 21.
Independence of the judiciary as an aspect of the rule of law is fully
ensured under the Constitution. The judges of the Supreme Court and
the High Courts are appointed by the President from amongst the
persons fulfilling the qualifications prescribed by the Constitution and
after consultation with the Chief Justice of India and in case of High
Courts, in consultation with the Chief Justice of that High Court and the
Governor of the State.* Their tenure and salaries have been fixed by the
Constitution.* Salary of a judge cannot be reduced during his tenure and
no judge can be removed from his office except by the President and that
too only on a resolution of the two Houses of Parliament passed by each
House by a majority of not less than two-thirds of the members present
and voting on the ground of proved mis-behaviour or incapacity of a

1. See for example Sadanandan v. State of Kerala, AIR 1960 SC 1925 and R.K. Poul v. State
of West Bengal, AIR SC 863.
2. See Articles 352 and 359 and A.D.M. Jabalpur v. S.K. Shukla, ATR 1976 SC 1207.
. Articles 124 and 217.
is)

4. For salaries see Sch. II of the Constitution. The age of retirement of a Supreme Court
Judge is 65 and of a High Court Judge 62.
The Rule ofLaw in India 207
judge.’ No judge has so far been removed and the only attempt to
remove a Supreme Court judge was defeated in Parliament2 After
retirement no Supreme Court judge can plead or act in any court or
before any authority and no High Court judge can plead or act except in
the Supreme Court or any other High Court. Thus, we see that the
Constitution does all that could be done to keep the judiciary
independent. In practice also there was no complaint of political
considerations in the appointment of the judge or of interference in their
functioning till 1973 when Justice A.N. Ray was appointed as Chief
Justice superseding three judges senior to him. Subsequent to that,
allegations of political interference in the working of the judiciary have
been made and to some extent that was proved by the transfer of some *
inconvenient judges from one High Court to another. After the change of
the Government at the Centre in March 1971, the process was reversed
and the judges were given an option to return to their parent High
Courts. In its famous Judges Transfer case the Supreme Court has upheld
the policy of transferring the judges from one High Court to another
without finding any impairment of judicial independence in it.
This position has, however, been changed by an imaginative but
controversial interpretation of the constitutional provisions on the
appointment of the Supreme Court and High Court judges and transfer
of the later. Judges are now appointed and transferred by a collegium of
judges headed by the Chief Justice of India, which has the final say in the
matter. The Chief Justice of India is appointed by seniority excluding any
chance of supersession.*
The Constitution takes care of the independence of the subordinate
judiciary also. The district judges are appointed by the Governor in
consultation with the High Court? and other judicial appointments are
made by the Governor in accordance with the rules framed in
consultation with the State Public Service Commission.® The control and
supervision of the subordinate courts is vested in the High Courts
and not in the executive.’ In accordance with the directive principle in
1. See Articles 124, 125, 217, 218 and 221.
2. For details see, M.P. Singh Shukla’s Constitution of India, (10th Edn., 2001) discussed
under Article 124(4) & (5).
3. S.P. Gupta v. Union of India, AIR 1982 SC 149.
4. See, S.C. Advocates-on-Record Assn. v. Union of India, AIR 1994 SC 268 & Presidential
- Reference (in re:), AIR 1999 SC 1. Also M.P. Singh Securing the Independence of the
Judiciary — the Indian Experience, 10 Indiana Int'l & Comp. L. Rev. 245 (2000).
5. Article 233.
a Article 234.
7. Article 235.
208 Indian Legal & Constitutional History

Article 50 in mostof the States the judiciary has been separated from the
executive at all levels.
Emphasising the relationship between the rule of law and the legal
profession we have noted in Chapter 13 that the Advocates Act, 1961
gives full autonomy to the legal profession along with the strength of an
All India Bar and uniform standards. The concept of legal aid has also
been enshrined in the Act.
In conclusion, we may say that the Indian legal system provides all
the machinery necessary for the development and maintenance of the
rule of law. What is more important is that most of the arrangements are
made in the basic document i.e., the Constitution which can be amended
only by a special procedure and that too subject to the qualification
imposed by the courts that the basic structure of the Constitution cannot
be amended. Most important fact in this regard is that almost
unanimously the Supreme Court invalidated a clause of the 39th
Amendment of the Constitution on the ground of the violation of the rule
of law.’ It has clearly observed that the rule of law pervades the
Constitution as its basic feature and cannot be taken away even by an
amendment of the Constitution.’ In practice the rule of law has been by
and large respected and as a slogan, it has always been a tool both in the
hands of the Government as well as the opposition.’ Any violation of it
should not be taken lightly but some of them may be defended in view
of the challenges faced by our infant democracy and infinite problems
resulting from adverse social and economic conditions.
A recent development in the direction of realization the rule of law in
India is worth noting. The development has been initiated solely by the
judiciary, particularly the Supreme Court. The judiciary has done it in
two ways. First, starting with Maneka Gandhi v. Union of India‘, it has
recognised certain judicially enforceable fundamental rights, particularly
under the right to life and liberty guaranteed in Article 21 of the
Constitution, which were not contemplated before. Among these rights,
the right to human dignity” is the most important and constitutes their
core around which such other rights as the right to legal aid®, speedy
1. See Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299. Also see Minerva Mills Ltd.
v. Union of India, AIR 1980 SC 1989.
2. See, P. Sambhamurthy v. State of Andhra Pradesh, AIR 1987 SC 663 & D.G. Wadhwa v.
State of Bihar, AIR 1987 SC 589.
3. Even the Swaran Singh Committee which suggested the most controversial 42nd
amendment of the Constitution asserted its faith in the rule of law.
4. AIR 1978 SC 597.
5. Frances Carolie Mullin v. Administrator, Union Territory of Delhi, ATR 1981 SC 746.
6. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.
"The Rule ofLaw in India 209
trial’, freedom from torture in the jails2, minimum wages”, rehabilitation
of the bonded labourers*, compensation for unlawful detention? etc., have
been created. Since most of these and many other rights belong to those
who cannot easily avail of the judicial process the courts, relaxing the
requirement of locus standi, are encouraging what is popularly called
public interest litigation. Under this form of litigation any one having
sufficient interest in the subject-matter of the dispute, even though he
himself is not an aggrieved party, may approach the court. And for doing
so he need not file a formal petition in the court. Even a post-card
addressed to the court may be sufficient for initiating the suitable
proceedings. There are instances where the courts have initiated the
proceedings even on the basis of the newspaper reports or letters to the
editor published in a newspaper®. To encourage the leading lawyers to
take up the cause of our unfortunate, destitute and ignorant brethren, the
courts also order substantial costs to be paid to the lawyer. Although the
judiciary suffers from certain inherent limitations and for the recognition,
and realisation of positive rights we cannot depend as much on it as we
can on the legislature and the executive, yet the judicial activism in the
last few years has created a new awakening amongst the people towards
the rights of the weaker sections, particularly through the involvement of
those institutions (courts and the bar) which are traditionally considered
to be the domain of those whose pockets can afford to reach them.

WWW

1377,
1. Hussainara Khatoon v. State of Bihar (four cases), AIR 1979 SC 104 (1360, 1369,
1819).
II v. Delhi
2. Sunil Batra I v. Delhi Administration, (1978) 4 SCC 494 and Sunil Batra
Administration, AIR 1180 SC 1579.
3. People’s Union for Democratic Rights v. Union of India, AIR 1982 SK 1975.
v.
4. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, and Neeraja Chaudhary
State of Madhya Pradesh, AIR 1984 SC 1099.
5. Rudul Sah v. State of Bihar, (1983) 4 SCC 141.
in the Supreme
6. For details see U. Baxi Taking Suffering Seriously: Social Action Litigation
v. Union of India,
Court of India, 8 & 9 Del. L. Rev. 91 (1979 & 1980). Also S.P. Gupta
AIR 1982 SC 149, and Bandhua Mukti Morcha, supra n. 9.
 SUBJECT INDEX
A prescription of a uniform
qualification, 151
Absence of party system, 163
statement of objects and reasons, 151
Act of Settlement of 1781, 46
changes introduced, 47 Advocate-General, 149
difficulties, 49 Advocates, 147
ecclesiastical jurisdiction of Advocates and attorneys
Supreme Courts, 49 category of, 148
features of, 47 Agent, 4
purpose of, 46 All India Bar Committee, 1951, 150
sadar diwani adalat, 48 All India Bar Council, 150
to support lawful government of All India. Judges’ Association, 143
Bengal, 47 All India Reporters, 193
to support lawful government of Ameen’s Courts, 60
Bihar, 47 — Ancient Indian law, 105, 201
to support lawful government of Ancient politico-legal system, 136
Orissa, 47
Angels, 177
writ jurisdiction of supreme court, 49
Appeal by special leave, 101
Adalat System Appeals as of Right, 100.
after Cornwallis, 64
Appeals from India, 100
beginning of, 25
Appellate Courts
extended to Benaras, 67
sadar diwani adalat, 27
extension of, 71
sadar nizamat adalat, 27
under Lord Cornwallis, 52
Appellate jurisdiction, 93,95, 168
Adam Smith’s theory, 33
civil jurisdiction, 95
Additional chief judicial magistrate, 142
criminal jurisdiction, 95
Adjudication, 121
Application of
Administration criminal law, 90
civil justice, 81, 85 English law in India, 3
criminal justice, 31, 76, 81, 128 law, 95
East India Company, 4
Appointment of
justice, 4, 146, 154, 187
judges of diwani adalat, 79
Administration of Criminal Justice, 31 Law Commission, 111, 114
criminal courts, 31 munsifs, 71
mohammedan law of crimes, 31 sadar ameens, 71
mohammedan officers, 31
Appointment of High Court Judge
Administrative control
qualification for, 93
of Supreme Court, 192
Appraisal of
Admiralty Court, 7 Privy Council, 103
Admiralty jurisdiction, 95 reforms of Lord Amherst, 82
Adoption, 122 reforms of Lord Hastings, 81
Advisory jurisdictions, 168 reforms of Lord William Bentinck, 87
Advocate Act, 1961, 151 Arbitrary or atrocious laws, 196
establishment of an all India Bar Arbitration in Land Disputes, 80
Council, 151 Arya Marriage Validation Act, 1937, 119
main features, 151
Attorneys, 147
Autonomous provinces, 165
210
:
:
|Subject Index 211

B Charter Act, 1833, 109, 127, 128, 155

Bar Council, 149 Charter Act, 1853, 111
duties and norms of discipline, 149 Charter of 1661, 3
empowered to make rules, 149 Charter of 1726, 15
prescribing their qualifications british legal system, 18
rights, 149 created a legislature in each
professional conduct, 149 presidency, 18
regulating admission of advocates, 149 crown’s court, 18
Bar Council of India, 152 instances of discord and difficulties, 20
attorney-general for India, 153 judicial system, 18
election of its members, 153 jurisdiction of king-in-council, 18
executive committee, 153 main features of, 17
laying down standards of professional royal courts, 18
conduct, 153 uniform system, 18
organising legal aid for poor, 153 working of, 19
promoting & supporting of law Charter of 1753, 20
reform, 153 election of aldermen, 21
promotion of legal education, 153 jurisdiction of mayor's court, 21
solicitor general, 153 Chief judicial magistrate, 142
Basic Features of Federalism, 165 Child Marriage Restraint Act, 1929, 120
Basic principles of natural justice, 70 Choultry Court, 7, 23
Basic structure of Constitution, 143, 204 Circuit Courts, 55
Battle of Plassey, 25, 33 Civil Judiciary, 59, 88
Black Justices, 11 Civil jurisdiction, 94,95
Britain Labour Party, 171 Civil Law, 107
British — Civil Matters 125
administration, 118 company’s court 126
attorneys, 146 company’s territory 125
Constitution, 197 presidency limits 126
judicial system at Surat, 3 Codification of criminal law, 110
Rule, 118 Codification of Laws, 108
Rule of law, 201 Collective responsibility
settlement in India, 105 absence of, 162
C Collegium of judges, 207
Calcutta | Commencement of Constitution, 141, 201
judicial system under company, 13 Company’s courts, 147
Cast Disabilities Removal Act, 1850, 119
Company’s treasury, 15
Central Executive, 160 Compensation for unlawful
detention, 209
Central Government, 160, 166
Concept and Sources of Law, 177
central executive, 160
central legislature, 160 Concept of Law, 177
definition of law, 178
Central Legislature, 157, 160
terms of its purpose, 177
Certiorari what is law, 177
writ of, 98
Constituent Assembly (legislative), 113
Chamier Committee, 148
Constitution, 188
Changes introduced in 1794, 65 basic structure, 143, 204
Changes introduced in 1795, 66 commencement of, 141, 201
Changes introduced in 1797, 67 Constitution and functions of factory, 3
Charter Act, 1813, 126 Constitution of company, 2
212 Indian Legal & Constitutional
History
Constitution of Indian Union consistent with morality and public
pattern of, 170 policy, 195
Constitution of Sadar Adalat, 69
observance as of right, 195
reasonableness, 195
Constitutional Developments
after Act of 1935, 170 D
Constitutional History of India, 155 Dayabhaga, 122 —
=

Cornwallis Code, 62 school of Hindu law, 123

Corporation Debts, 122
determination of small controversies, 6 Definitions of law, 179
impose local-taxes, 6 Deputy-Governor and Council
mayor, 7 authority of, 8
purpose of, 6 Development of Personal Laws
representative local government, 6 during British period, 118
unarmed inhabitants, 6 Devolution Rules, 160
Council of State, 160 Dharma and Rajdharma
Court relationship between, 181
of Admiralty, 7 Differences between
of Directors, 2 executive and judiciary, 22
of District Magistrate, 55 law and morality, 184
of Governor and Council, 17 Direct Action Day, 173
of King’s Bench, 97
Direct rule of Crown, 92
of Munsifs and Sadar Ameens, 78
Directions of Crown, 6
of Record, 17
Directive Principles of State
of Registrar, 79
Policy, 115, 204
for natives, 23
Dissolution of Muslim Marriage Act,
Courts of Original Jurisdiction
1939, 120
moffussil diwani adalat, 26
Distinction between
mofussil faujdari adalat, 26
intentional and accidental murder, 106
small cause adalat, 26
law and morals, 183
Courts of Sadar Ameens 126
District judges, 133, 148
Criminal administration of
appointment of, 133
justice, 106, 201
District magistrates, 148
Criminal Judiciary, 60, 88 Diwani Adalat, 53, 60, 78, 79
Criminal jurisdiction, 94, 95, 127 assistant judge for, 71
Criminal justice of Burdwan, 64
sphere of, 127 registrar’s jurisdiction enhanced, 71
Criminal Law, 95, 106 Diwani of Bengal, 25
Criminal Matters, 53, 127 Doctrine of
British rule, 127 basic structure, 185
Criminal Process and Rule of Law, 199 precedent, 192
Cripps Mission, 170 Draft Constitution, 175
Crown, 93, 155, 163 Draft of
Crown servant, 99 Indian Succession Act, 112
Crown’s Court, 15, 126 Law of Contract, 112
Crown’s Representative, 167 Law of Evidence, 112
Crown’s service in India, 162
Law of Negotiable Instruments, 112
Law of Specific Performance, 112
Custom, 194
Law of Transfer of Property, 112
antiquity, 195
conformity with statutory law, 195 Dyarchy
provincial executive, 162
Subject Index 213
E First factory in India, 3
East India Company, 1, 118, 155, 201 administered by President and
and its early settlements, 1 Council, 3
kinds of courts were First Law Commission, 110
established by, 146 First National Judicial Pay
powers of company, 1 Commission, 144
Economic-interests of SC, ST main recommendations of, 144
and OBC, 204 pay scales for judicial officers, 144
Electoral college, 171 Foreign court, 193
Elements of Indian Legal System, 176 Fourth Law Commission, 113
Elphinston’s Code, 107 term of, 113
English Courts Freedom from torture in jails, 209
procedure of, 8 Freedom of
English law religion, 198
principles of, 20 speech, 198
English legal system trade, 205
fountain of justice, 100 Fundamental rights, 203
English system of Jurisprudence, 108 G
Equality. of Gains of Learning, 122
opportunity, 203
Government of India Act, 1919, 159
status, 203
Government of India Act, 1935, 165
Essential legislative functions, 189
Governor's Councils in India, 158
Establishment of
Governor's Provinces, 166
Bar Council for each High Court, 149
Governor-General, 155
Corporation and Mayor’s Court, 6
Crown’s Courts in India: Mayor, 15 Governor-General and Council, 34
factory at Sutanati, 12 control of Madras and Bombay, 34
Gram Nyayalaya, 139 legislative power of council, 35
High Courts 128 powers and duties of council, 34
National Judicial Academy, 144 Supreme Court, 35
statutory law revision committee, 113 Governor-General’s Council, 159
Supreme Court at Calcutta, 201 Governors’ province, 161
Evaluation of Guardian and Wards Act, 1890, 120
Plan of 1793, 62
H
Sir John Shore’s reforms, 68
Habeas corpus
Executive and Rule of Law, 199
writ of, 202
Executive magistrates, 135 High Courts, 92, 132
F appellate jurisdiction, 132
composition, 132
Factum valet, 122
court of record, 133
Federal Court, 103, 192
creation and establishment, 132
Federal Government
jurisdiction, 132
executive, 166
original jurisdiction, 132
federal court, 168
powers, 132
legislature, 167
High Courts and Privy Council, 92
Federal Legislature, 166 High Courts of Calcutta, Madras and
Federalism Bombay, 97
basic features, 165 Hindu Gains of Learning Act, 1930, 120
Financial Problems, 163 Hindu Inheritance (Removal of
First East India Company, | Disabilities) Act, 1, 120
214 History
Indian Legal & Constitutional
Hindu Law, 118 Jallianwalla Bagh tragedy, 164
history of, 123 Jimutvahana, 122
and wills, 123 : Joint family property, 122
Hindu Law of Inheritance Act, 1928, 120 Judge-Advocate
Hindu Widows Re-marriage designation of, 6
Act, 1856, 119 Judges
Hindu Women’s Right to age of, 96
Property Act, 1937, 120 qualifications of, 93
Hitler, 196 Judges transfer case, 207
House of Commons, 34 Judicial
activism, 209
! administration in 1772, 26
illegal seizure, 16 administration in non-regulation
immemorial custom, 110 Province, 89, 90
Increase in arrears Commissioner, 96
lengthy procedure, 65 Committee, 102
limited powers of lower courts, 65 functions to magistrates, 141
provision for several appeals, 64 magistrates, 135
reason, 64 opinion, 190
Independence organs, 180
of judiciary, 141, 206 Plan of 1772, 26
of subordinate judiciary, 207 Plan of 1774, 27
Indian and foreign jurists, 124 Judicial Plan of 1780, 28
Indian Bar Council Act, 1926, 148 appointment of Sir Impey, 29
Indian Council Act, 1892, 157 diwani adalat, 28
Indian Councils Act, 1861, 156 recall of Sir Impey, 31
Indian Independence Act, 1947, 174 reformation of judicial system, 31
reforms of Sir Impey, 30
Indian Legal History, 57
working of plan, 29
Indian legal system
Judicial Plan of 1787, 52
development of, 57
civil matters, 53
Indian Legislature, 160
conflict of jurisdiction, 52
Indian political parties and diwani adalat, 53
communities, 170 mal adalat, 53
Institutes of Hindu Law, 124 revenue court, 53
Integration of bar revenue matters, 53
into a single class of legal Judicial Plan of 1790, 54
profession, 151 administration of criminal justice, 54
Interference in powers circuit courts, 55
of legislature or executive, 143 court of district magistrate, 55
International Commission of courts created under, 55
Jurists, 198, 203 features of, 56
International Congress of Jurists, 198 mofussil faujdari adalats, 54
Introduction of sadar nizamat adalat, 54, 56
Adalat system, 106 Judicial Plan of 1793, 57
English law in India, 3 abolition of court fee, 61
Islamic jurisprudence, 201 ameen’s courts, 60
British subjects made amenable to
J diwani adalat, 58
Jails civil judiciary, 59
lack of facilities, 8 control of judiciary over executive, 58
a
Subject Index 215
criminal judiciary, 60 of sadar ameen, 78
development of Indian legal of Supreme Court at Calcutta 126
system, 57 Jury trail, 3
diwani adalat, 60 Justice
features of, 57 cheap, 114
general features, 57 effective, 114
governmental liability, 58 simple, 114
legal profession, 61 speedy, 114
legislative reforms, 61 substantial, 114
munsif s courts, 60 Justice, equity, and
other reforms, 61
good conscience, 110, 119, 121
position of native law officers
Justice of Peace 128
improved, 62
provincial courts of appeal, 59 K
registrar's courts, 60 Karl Marx, 177
reorganisation of courts, 58 King James II, 2
sadar diwani adalat, 59
King-in-Council in England, 17
separation of executive and
King-in-Council, 100
judiciary, 57
Judicial Reforms L
made after Bentinck, 88 Land
civil judiciary, 88 revenue, 26
criminal judiciary, 88 Law
revenue matters, 88 and its Codification, 105
Judicial review, 206 and Morality, 182
Judicial scheme of Lord Cornwallis, 89 terms of criterion of validity, 180
Judicial system Law and Regulations, 106
absence of, 8 civil law, 107
in India, 130 criminal law, 106
Judicial System beyond Hens): 89 law in mofussil, 108
Judicial system in Bombay upto 1726 presidency towns, 107
application of law, 11 Law Commission, 111, 114
black justices, 11 appointed by government of India
civil cases, 11 every three year, 117
conclusion, 12 need of creating, 113
court of appeals, 10 not a statutory body, 117
court of conscience, 10 not yet a constitutional body, 117
court of judicature, 9 Law Commission of India, 138, 148
criminal cases, 11 Law in Mofussil, 108
custom officer of division, 9 Law of tort, 190
first stage (1668 to 1683), 9 Law reform in India
second stage (1684-1693), 10 mainspring, 109 _
third stage (1718 to 1726), 11 Law reforms
Judiciary and Legal Profession since Independence, 113
under Rule of law, 199 Laws of Wills, 120
Jurisdiction Legal education, 154
of courts, 130 Legal history of India, 109
of Crown’s courts 126
Legal order, 179
of King’s Bench, 35 terms of, 180
of mofussil civil courts 126
Legal Practitioners Act, 1879, 147
of munsif, 78
216 Indian Legal & Constitutional History

Legal Profession, 146, 154 Lord Minto, 72

early development, 146 Lord Wellesley, 69
Legal reforms committees, 145 Lord William Bentinck, 83
Legal system M
and judicial process, 184
existence of, 181
Majority Act, 1875, 120
Making of Constitution, 175
Legal system in Madras upto 1726
first stage (1639 to 1665), 4 Mall Adalats, 53, 66
second stage (1665 to 1686), 5 Mayor, 7
third stage (1686 to 1726)—admiralty Mayor's Court, 7, 16, 100
court, 5 comparison, 18
Legal works on personal laws, 124 decisions of, 20
Legislation, 188 judicial functions, 19
and adjudication, 119 under Charter of 1687 and 1726, 18
versus Precedent, 193 Meaning and structure of law, 178
Legislation and precedent Members of Governor's Council, 22
growth of, 194 | Method of Proceedings
Legislative Assembly, 160, 172 administrative work, 19
Legislative Councils, 157, 164 civil suits sessions trials, 19
Legislative Powers, 17 probate, 19
Legislative powers of Councils, 157 Metropolitan magistrates, 135
Legislature and Rule of Law, 199 Minimum wages, 209
Letter Patent, 93 Minister's Office, 163
Lex loci Act, 110 Minto Morley Reforms of 1909, 158
Liberty indirect election of members, 158
of belief, 203 powers of legislature, 158
of faith, 203 Mitakshara School of Hindu Law, 122
of expression, 203 Modern Judiciary, 130
of thought, 203 Mofussil Diwani Adalats, 121
of worship, 203 Mofussil Faujdari Adalats, 54
Lord Amherst, 81 Mohammedan Law, 105
Lord Cornwallis, 72 of crimes, 31
judicial scheme, 89 of Succession, 124
Lord Hastings — main defects before Montagu’s policy, 160
breach of peace, 74 Montagu-Chelmsford
corruption, 75 proposals of, 164
delay in disposal of cases, 74 Morality, 184
difficulty for ryots, 75 Mountbatten Plan, 174
difficulty with English judges, 76 Mughal Emperor Jahangir, 3
large territorial jurisdiction Mukthars, 147
of courts, 75
Munsif, 137
limited criminal courts, 76
no execution of decrees, 75 Munsif’s court, 60, 65
Lord Hastings -— reforms, 74 Munsifs and Sadar Ameens
arbitration in land disputes, 80 enhancement in powers, 85
court of munsifs and sadar ameens, 78 Muslim administration of criminal
increase in court fee, 77 justice, 54
reforms in civil judicature, 77 Muslim League, 170, 171, 173
reforms in criminal judicature, 80 Muslim rule in India, 203
reforms of, 77 Mutual interference, 163
lens
att

Subject Index
+ 217
N Hindu Law of Inheritance
Native Convert Marriage Dissolution Act, 1928, 120
Act, 1866, 119 Hindu Widows re-marriage
Natural justice Act, 1856, 119
basic principles, 70 Hindu Women’s Right to Property
Nawab, 25 Act, 1937, 120
Non-cooperation of civil servants, 163 laws of wills, 120
Non-Regulation Provinces, 90 Majority Act, 1875, 120
Number of Judges in a High Court, 96
Native Convert Marriage Dissolution
Act, 1866, 119
Number of legislative members in
other legislations, 121
Central Legislature, 158
Shariyat Act of 1937, 120
Nyaya Panchas, 138 Wagdfs Act, 1913, 120
Nyaya Panchayats, 136 Personal laws of Hindus and
O Mohammedans, 119
Object of codification, 127 Pleaders, 147
Powers
Objective of Constitution, 203
of legislation, 164
Objective Resolution, 175
of legislatures, 157
Obligation of lawyers, 154
of Secretary of State for India, 159
Original civil jurisdiction of High Preamble to Constitution of India, 175
Courts, 134
Precedent law, 189
Original jurisdiction, 94, 168
Precedent, 191
admirality jurisdiction, 95
Pre-independence Privy Council policy,
civil jurisdiction, 94
192
criminal jurisdiction, 94
revenue jurisdiction, 94 Presidency magistrates, 148
testamentary and miscellaneous Presidency Towns, 107, 134
jurisdiction, 95 position of law, 107
Over-riding power of legislation, 201 Principle
of collective responsibility of
P executive, 163
Pakistan resolution, 170 of Hindu and Mohammedan laws, 119
Panchayat judge, 138 of joint responsibility, 170
Panchayat system, 136 of criminal justice, 54
Paramountcy of Crown, 173 of Hindu law, 122
Personal Laws and Legislation, 119 Principles of rule of law
Arya Marriage Validation absence of arbitrary power, 196
Act, 1937, 119 onstitution a consequence of
Cast Disabilities Removal individual’s rights, 197
Act, 1850, 119 equality before law, 197
Child Marriage Restraint Privy Council, 100
Act, 1929, 120 appeal by special leave, 101
Dissolution of Muslim Marriage appeals as of right, 100
Act, 1939, 120 appeals from India, 100
Guardian and Wards Act, 1890, 120 appraisal of, 103
Hindu Gains of Learning hindu and mohammedan law, 103
Act, 1930, 120 judicial committee of, 102
Hindu Inheritance (Removal of unique judicial institution, 103
Disabilities) Act, 1928, 120 working of, 102
218 Indian Legal & Constitutional History
Promotion of educational, 204 increased participation of Indians, 85
Provincial Court of Appeals, 59, 66, 78 introduction of jury system, 86-
judicial powers of registrar
Provincial Government, 161
executive, 168
abolished, 86
reforms in civil judicature, 85
governor's powers, 169
reforms in criminal judiciary, 83
legislative assembly, 169
legislature, 169
reforms in revenue matters, 87
Provincial Legislature, 163, 171 Reforms of Sir Impey, 30
Public indignation, 186 Registrar's Courts, 60
Public interest litigation, 209
Registrar's decision, 65
Regulating Act, 1773, 34
Q control of Madras and Bombay, 34
Quasi-federal system, 166 governor-general and council, 34
Queen Elizabeth, | legislative power of council, 35
Quit India Resolution, 171 objectives, 34
oppression of company’s servants in
R India, 34
Racial discrimination in judicial powers and duties of council, 34
administration, 125 provide remedies against
Reform illegalities, 34
of judicial administration, 115 provision on presents and private
of Lord Amherst, 82 trade, 35
of Lord Hastings, 81 provisions of, 34
of Lord William Bentinck, 87 reform company’s government in
Reforms in Criminal Judicature India, 34
conferment of magisterial reform constitution of East India
powers on Indians, 80 Company, 34
enhancement of powers of Supreme Court, 35
magistrates, 80 Regulation Provinces, 90
magisterial powers conferred on Rehabilitation of bonded labourers, 209
collector, 80 Reorganisation of Courts, 58
Reforms of Lord Amherst, 82 Representatives of British India, 172
collector authorised to decided Republic day, 175
revenue disputes, 82
Restriction on appeals
judges in provincial court of appeals
to Sadar Diwani Adalat, 69
increased, 82
Revenue
position of sadar ameens improved, 82
court, 53
Reforms of Lord Hastings, 77
jurisdiction, 94
Reforms of Lord William Bentinck matters, 88
abolition of circuit court, 83
Right to human dignity, 208
abolition of provincial court of
appeals, 86
Right to legal aid, 208
court of principal sadar ameen, 86 Rights of litigants, 154
creation of a sadar adalat at Royal Commission, 2, 165
Allababad, 83 Rule of law, 196
creation of collector-magistrates, 84 basic postulates, 196
creation of court of district and concept of, 196, 201
sessions judge, 84 development and maintenance of, 208
creation of court of commissioner, 84 Dicey’s formulation, 197
enhancement of powers of diwani dynamic concept for expansion, 200
adalat, 86 generality of laws, 196
Subject Index~ 219
post-constitution position, 202 Sir John Shore, 64
pre-constitution position, 200 Small Cause Courts, 135
principles of, 196 Social, economic and political
procedural aspects, 198 justice, 203
separation of legislation from Sociological jurists, 177
administration, 196
Sources of Hindu law, 187
substantive aspects, 198
Sources of law, 186
supremacy of law, 196
constitutién, 188
Rule of law and legal profess
custom, 194
relationship between, 208
legislation, 188
Rule of Law in India, 196, 200 meaning of, 186
S precedent, 189
principles of, 187
Sadar Adalats, 92
camera proceedings, 70 Sovereign Pakistan
concentration of all powers, 70 forming, 174
paucity of time, 69 Sovereign rights of Crown, 2
principle of good government, 70 Speedy trial, 208
suffered from several defects, 69 State Bar Council
working of, 70 admit advocates on its roll, 152
Sadar Ameens, 78 entertain and determine cases of
Sadar Diwani Adalat, 59, 67,79, 126, 147 misconduct against advocates, 152
changes in, 72 functions of, 152
constitution of, 72 organise legal aid for poor, 152
restriction on appeals, 69 prepare and maintain such roll, 152
promote and support law reform, 152
Sadar Nizamat Adalat, 54
promote growth of bar
SC, ST and OBC
associations, 152 *
economic-interests, 204
safeguard rights of advocates, 152
Scheme of 1793 of Cornwallis, 90
State Bar Councils, 151
arrears of work in courts, 64
State law, 180
basic framework of, 69
State legal system, 180
Second East India Company, 2
State level journals, 193 -
Second Law Commission, 112
English law, 112 | Stridhana and Hindu Women’s
recommendations for law reforms, 112 Estate, 123
substantive civil law for whole of Structure of Government, 166
India, 112 federal government, 166
uniform codified law, 112 _ provincial government, 168
Secretary of State for India, 157 Subah, 25
Secretary of States’ Council Subahdar, 25
in London, 158 Sub-divisional magistrate, 137
Seizure of property, 16 Sub-divisional officer in civil, criminal
and revenue matters, 137
Separation of Judiciary
Subordinate Civil Courts, 134
and Executive, 139, 143, 202
city civil courts, 135
Session judges, 148
Subordinate Courts, 133, 147
Settlement at Surat, 3
Subordinate Criminal Courts, 135
Settlement in Bombay, 8 Subordinate legislation, 188
Settlement in Calcutta, 12 Supreme Court, 130, 131
Settlement in Madras, 4 administrative control, 192
Shariyat Act of 1937, 120 advisory, 131
220 Induce «al & Constitutional
History —
appellate, 131 T
4
arrears of cases, 132 Tenure of Lord Minto
composition, 130 appointment of more magistrates, 73 ‘
creation of Constitution, 130 change in criminal judicature, 72
faces problem of mounting changes in sadar diwani adalat, 72
work load, 132 enhancement powers of magistrate, 73
hear appeals against decisions of High original jurisdiction of provincial court
Courts, 132 of appeal, 73
jurisdiction, 130 reference in revenue matters, 74
original jurisdiction, 131 Testamentary and Miscellaneous
powers, 130 jurisdiction, 95
review its own decision, 132 Theory of ‘justifiable murders’, 106
Supreme Court at Calcutta, 36 Theory of Spiritual Benefit, 122. *
admiralty jurisdiction, 37
Third Law Commission, 112
appeals, 37
Tranquility of British India, 161
categories of persons against whom
suit could be filed, 36 Turkish peace terms, 164
civil jurisdiction, 36 Types of civil courts in U.P., 134
composition of, 36 Types of rules
criminal jurisdiction, 37 primary, 181
ecclesiastical jurisdiction, 37 secondary, 181
equity jurisdiction, 37
U
illustrative cases, 41
Uncertainty of laws, 8
jurisdiction of, 36, 39
other powers, 37 Unfair trial, 8
relations between supreme court and Uniform codified law, 112
governor-general, 38 United Nations, 198
working of, 38 Universal values, 186
Supreme Court Cases, 193 Unlawful detention
Supreme Court Journal, 193 compensation for, 209
Supreme Court Reports, 193
Vv
Supreme Courts, 92
Vakils, 147
at Bombay, 33
category of, 148
at Calcutta, 33
at Madras, 33
Vestige of racial discrimination, 129
personal jurisdiction, 99 Ww
Supreme Courts at Madras Waafs Act, 1913, 120
and Bombay, 50 Wavell Plan, 171
constitution powers, 51
Wills, 123
directors of company, 50
Working of Act of 1935, 169
function, 51
jurisdiction of, 51 Writ Jurisdiction of High Courts, 96, 100
level of lower judiciary, 50 Writ of certiorari, 98
limitations, 51 Writ of habeas corpus, 202 ©
powers and functions of, 51
recorder’s court, 50
working of, 51 Purchased:

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