Ee THE TAMIL NADU , Dr. AMBEDKAR LAW UNIVERSITY CHENNAI STUDY MATERIAL “LEGAL & CONSTITUTIONAL HISTORY” WORK SUBMITTED TO THE DIRECTOR, SOEL SCHOOL OF EXCELLENCE IN LAWINDEX S.No. TOPICS oe = eo oP oe OA oe 10, UNIT-I Administration of justice in Madras before 1726 Administration of justice in Bombay before 1726 Administration of justice in Calcutta before 1726 Mayor's court and the @HaRteRonI726 Warren Hasting’s plan of 1772,1774 and 1780 ‘Supreme court at Calcutta-its composition, powers and functions The Settlement Act of 1781 Judicial measures of Cornwallis 1787, 1790 and 1793 UNIT-ID Dual system of administration of justice and amalgamation of two system of courts The High court’s Act, 1861 Federal court High court Act under the constitution Development of rule of law Separation of powers Independence of judiciary Privy council as a court of appeal and jurisdiction Abolition and its jurisdiction of the privy council History of law reporting Page.No. 23 25 32 40 48 37 60 68 72 7 82 85 91 93ee Pp UNIT-II Legislative authority of east India company under the Charter of 1600, 1661 and 1726 Regulating Act,1773 The Pitts India Act of 1784 The Charter of 1793 ‘The Charter of 1813 ‘The Charter of 1833 The Charter of 1853 The Government of India Act, 1858 The Indian Councils Acts of 1861 The Indian Council Acts of 1892 UNIT-IV Minto-Morley Reforms of 1909 The Mont-Ford reforms of 1919 Dyarehy The Government of India Act, 1935 Provincial Autonomy UNIT-V Development of legal profession before 1726 Development of legal education ‘The Advocates Act, 1961 The All India Bar Committee of 1923 98 102 105 103 110 ll 113 1S 119 122 124 128 135 138 146 148, 154 1596. The Bar Council of 1926 160 The All India Bar Committee 161 Provision for enrolment of Advocates under the legal Practitioners Act 164PREFACE ‘The course material for the subject “legal and Constitutional history” is a simple version of the various ‘opies contained in the syllabus. This traces the development of the legal system and judiciary from 1600 till independence in 1947. Adequate care has been taken to ensure that the students at the degree level will get an intimate knowledge about the changing structure of the governance and legal system, the charters and Acts passed from time to time and legislative changes as well, an understanding of which is of vital importance to a law student. This material is an extract of sufficient information's collected from various texts on legal and constitutional history, T hope that definitely, this material will be a supportive one along with textbooks and other references. I will be failing in my duty if I don’t express my profound and sincere gratitude to Prof.P.Vanangamudi, our Hon’ble Vice Chancellor, and Prof:Dr.S.Narayana Perumal, Director U.G.Course, SOEL, for giving me this opportunity of preparing the course material. I acknowledge sincere thanks and gratitude Tmt.$.Gayathri and Mrs.V.Poojasrec, faculties, for their valuable and sincere efforts for their complete assistance in the outcome of this material. Prof. Dr. N. Ebenezer Joseph, HOD ie Dept of Intellectual Property Rights, THE TAMILNADU Dr. AMBEDKAR LAW UNIVERSITY, CHENNAIUNIT -1 CHAPTER-I I. ADMINISTRATION OF JUSTICE IN PRESIDENCY TOWNS OF MADRAS, 1. BOMBAY, CALCUTTA FROM 1600 TO 1726 AND THE DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWN AND DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS UNDER THE EAST INDIA COMPANY(14600-1773) INTRODUCTION: de ‘The legal history of British India opens with the establishment of the East India Company. . It was incorporated in England by the Crewn’s Charter of 1600 or Charter Act of 1600 and the company was exclusively given trading rights in Asia(including India), Africa and America. . All the members of the company constituted themselves as General court and it was to elect the Court of Directors every year. . The court of Directors consisted of a Governor and 24 Dircetors who was to manage the entire business of the company. . The Court of Directors could be removed from their office even before the expiry of their term of office by the General court, OBJECT OF THE COMPANY: L Initially the company had intention to carry on trade and commerce in Asia, Africa and America and it was conferred with only those powers which were necessary to regulate its business and maintain discipline amongst its servants and not for governing any territory. . But when the company entered India and found that the Indian kings were disunited and unaware of modern politics, the company gradually acquired territory of India, . Portuguese occupation of Indian territories also inspired the company to acquire territory in India and this acquisition was also bencficial from the commercial point of view also, because the company could capture market for its goods. |. In short, at the time of incorporation the object of the company was only commercial but later it tumed in to political.5. The Charter of 1600 conferred powers only to regulate its business and maintain discipline amongst its servant, but when its object turned in to political, it needed the powers necessary for the maintenance of the territory and the British crown cooperated with it and conferred on it more powers for this purpose. a In early days the administration of justice in the settlements of East India Company was not of a high order and there was no separation of powers between executive and judiciary. Such a Corporation was established in 1688 consisting of one Mayor, 12 Aldermen and 60 or more Burgesses. . The Mayor and 3 senior Aldermen were always British servants of the company and the remaining 9 Aldermen could be of any nationality. a . 30 of the 60 Burgesses were to be the heads of several castes. Mayor, Aldermen and 29 Burgesses were nominated by the company. Mayor and 3 Aldermen belongs to the Governor and council 7. Mayor was to continue in office for | year and Aldermen could continue till their lifetime or residence in Madras. However the out going Mayor could be re-elected by ‘the electorate. 8. Vacancy amongst Aldermen was to be filled by the Mayor from amongst the Burgesses. 9. The Mayor could be removed by the Aldermen and Burgesses and an Aldermen could be removed by Mayor, Aldermen and Burgesses. 10.The Governor and council was given power to remove any Mayor, Aldermen and Burgesses to appoint anyone in place of vacancy, 11.Along with this Corporation the Charter of 1687 established Mayor's court also, The Mayor's court was a part of Corporation. 12. The Mayor and Aldermen constitute a Court of Record which was known as Mayor's court and Mayor and Aldermen were to be justices. But the judges were not law experts and therefore a provision was added to Charter of 1687 for the appointment of expert in law and a recorder to assist the judges of the Mayor's court in deciding cases. 13.Sir John Biggs the Judge Advocate of the Admiralty court was appointed as the 1" Recorder of the Mayor's court, 14. The Mayor's court was empowered to hear and decide civil and criminal cases. It was also authorized to punish offences by corporal punishments, imprisonment and fine. 15.[t should decide cases according to justice and good conscience and laws enacted by the company. 16.Civil cases more than 3 pagodas and criminal cases where offender deserves death sentence or lose of limb, the appeals should be referred. to Admiralty court. 17-But after 1704, since Admiralty court could not sit regularly, the appeals were referred Governor and council.18.After 1712, it was made clear that the court could award death sentence in case of natives but it could not award death sentence in cases of Englishmen, DEFECTS: 1, There was no separation between executive and judiciary. The Mayor, Aldermen were the members of Governor's council who was the executive government of Madras, The Governor and council could remove any Mayor, Aldermen or Burgesses and appoint anyone in the place of vacancy. 2. The judges of Mayer Court were laymen and not law experts and they had no knowledge of English laws and they used to decide cases according to their common sense. No uniform and consistency in their decisions, Although an expert was appointed as recorder to assist the judges, the condition could not be: improved. Less importance was given by the judge to the advice and opinion of recorder. 3. The judges of the Mayor's court were not honest and impartial and they could be easily tempted. CHOULTRY COURT: During this period, the jurisdiction of the Choultry court was diminished. It could hear the cases of petty offences and civil cases up to 2 pagodas only. Two Aldermen were to sit twice a week at the Choultry to exercise its jurisdiction. In 1753 its civil jurisdiction was taken by the Court of Request, but it continued to exercise its criminal jurisdiction till 18° century. By 1800 the Choultry court was totally diminishedCHAPTER-ID JUDICIAL ADMINISTRATION AND DEVELOPMENT OF COURTS AND JUDICIAL INSTITUTIONS IN BOMBAY BEFORE 1726 INTRODUCTION: 1. The Island of Bombay was acquired by the Portuguese from the King of Gujarat in 1534 and in 1661 this Island was transferred by Portuguese king to British crown as a dowry on account of his sistcr’s marriage | Im 1668 this Island was transferred by the British crown to the East India company for an annual rent of 10 pounds as per Charter of 1668 3. The charter empowered the company to make laws and ordinances for the good governance of the Island of Bombay and also to impose punishments (including death sentence), penaltics ete and these laws and punishments should not be contrary to the laws of England. 4, The power to enact these laws was vested in the company’s General court or their court of committees and the Charter empowered the company to establish courts to judge all suits. 5, Under the Charter of 1668 the company enacted the laws for Bombay and the laws so framed were brought to Bombay in 1670. “The administration of justice and development of courts and judicial institutions in Bombay before 1726 could be seen in 3 stages: FIRST STAGE: 1670-1683 1. At an early stage, Bombay was under the control of Surat Presidency and the Govemar of Surat was Ex officio Governor of Bombay 2, Deputy Govemor and council were appointed to administer Bombay under the control of Governor of Surat. 3. Mr.Gerald Aungier, the Governor of Surat and Ex officio Governor of Bombay was much interested in introducing sound judicial system in Bombay and due to his efforts, the judicial plans of 1670 and 1672 was made to improve the judicial system of Bombay.JUDICIAL PLAN OF 1670: 1. According to this plan the whole Island of Bombay was divided in to two divisions, one division consisted of Bombay, Mazagaon and Girgaon, while the other divisi consisted of Mahim, Parcel, Sion and Worly. 2, A separate court was established for each division and each court had 5 judges and 3 judges were to constitute a quorum. 3. The custom officer of each division who was Englishman was authorized to preside over the respective court. 4, Some Indian were also appointed as judges and they were not paid any emoluments. 5. The court was empowered to hear cases of small thefts and civil action up to 200 xeraphins and appeals from this court was referred to court of Deputy Governor and council and thus the court of Deputy Govemor and council constituted a superior court. 6, Besides the cases beyond the jurisdiction of divisional court ie civil cases over 200 xeraphins and all scrious criminal cases like felony, murder, mutiny etc was to be decided by Deputy Governor and council. 7. An appeal from the court of deputy Governor and council was allowed to the Governor and council at Surat only in cases of absolute necessity. DEFECTS: 1. The administration of justice was in hands of traders who did not even have even elementary knowledge of English law and consequently they used to decide cases according to their sense of justice. 2, There were no separation of powers between executive and judiciary and both the powers were vested in the same hands. Mr.Aungier was aware of these defects and so he requested the company to send a law expert from England, But the company directed him to select an expert from the servants of the company in India. Mr.Aungier selected Mr.George Wilcox and with his advice, he prepared the judicial plan of 1672 for improving the existing judicial system of Bombay. JUDICIAL PLAN OF 1672: 1. By a government proclamation on August 1, 1672, the Portuguese laws were totally abolished ar:4 replaced by English laws at Bombay and as per this plan the whole judicial system was totally reorganized. 72, A new court known as Court of Judicature was established and George Wileox was appointed as its Judge. 3. This court was empowered to hear and decide all civil, criminal, probate and testamentary cases and it was to sit once a week to try civil cases with the help of a jury. An appeal from court of Judicature was to be heard by the Deputy Governor and council of Bombay. s . The court was to charge a fee of 5 % of the valuation of the suit from the litigants, however the provision was made to enable the plaintiff worth less than 60 xeraphins to sue as a pauper. 6. Besides court of Conscience was also established to hear petty civil cases up to 20 xeraphins without the help of jury. 7. This court was to sit once a week and no court of fee was to be charged from the poor persons. 8. Under this plan for the purpose of administration of criminal justice Bombay was divided in to four divisions — Bombay, Mahim, Mazagaon and Sion, 9. In each division Justice of peace was appointed who were to act not as a court but as a committing Magistrate to arrest the accused and examine the witnesses and also to send the record of his examination to court of Judicature. 10.All the justice of peace were to sit in the court of Judicature as assessors to help the judges in trying the criminal cases and appeals from the court of judicature were to be heard by the Deputy Govemor and couneil of Bombay. 1L.In 1673-74, several panchayats were also established which were authorized to decide cases amongst persons of their own castes, only if they were willing to submit their disputes before panchayats else their cases will be referred before Court of Judicature, MERITS: . Under this plan regular courts with well defined jurisdiction was established and were to sit regularly which enabled the court in disposing the eases within a reasonable time. v . The civil cases were to be decided with the help of jury by whi justice was rendered, impartial and fair 3, The administration of justice was inexpensive and the court fee was very moderate. 18