MODULE 1

In Hinduism, dharma is the religious and moral law governing individual conduct and
is one of the four ends of life. In addition to the dharma that applies to everyone
(sadharana dharma)—consisting of truthfulness, non-injury, and generosity, among
other virtues—there is also a specific dharma (svadharma) to be followed according
to one’s class, status, and station in life. Dharma constitutes the subject matter of the
Dharma-sutras, religious manuals that are the earliest source of Hindu law, and in
the course of time has been extended into lengthy compilations of law, the
Dharma-shastra.

Dharma, in concept, deals with duty, religion and inseparable quality of a thing or
orders i.e. virtuous conduct of righteous man and dharma in literal sense means
‘something which sustains or upholds’ and is a Sanskrit noun derived from root ‘dhr’.
Dharma is the semantic equivalent to the Greek word ‘ethos’. Dharma is the Indian
version of Natural law, how Indians perceived it in ancient society.

Dharma was the most important concept of the Hindu political thought. "In the
context of the Dharmashastras (or Hindu Political Science) the word dharma came to
mean 'the privileges, duties and obligations of a man, his standard of conduct' as a
member of the Aryan community, as a member of one of the castes, as a person in a
particular stage of life.”

It had established a duty based society. Its postulate was not only the duty of
individual towards the Society but also the duty of the Ruler towards the individuals
and the Society.

The legal system which was the same for the whole of India, notwithstanding the
existence of large number of kingdoms, some larger in size and others smaller
indicates that the concept of absolutist monarchies had always been rejected and
the supremacy of "Dharma" (Law) over the Kings as declared in the authoritative
texts was respected in letter and spirit. The English doctrine of "King can do no
wrong" was not accepted and the King himself was subject to law. The Dharma
Sastras impressed upon the Kings to look upon the people as God (Praja Vishnu)
and serve them with love and reverence.

The Hindu religion and philosophy laid down four great aims of human life: Dharrna
(religion and social law), Artha (wealth or economic well-being), Karma (doing work)
and Moksha (salvation of the soul). The correct balance of the first three was to lead
to the fourth. These concepts played a very important role in Indian thought.

Dharma is generally accepted to have been derived and superseded from the vedic
concept of Rita, which literally meant, ’the straight line’. Rita refers to the Law of
Nature, it signifies moral laws, and based on righteousness. When something is Rita
it simply meant that thing is true, right and nothing more. Dharma evolved side by
side of Rita but eventually took over it as the old concept of Rita was not able to
cope and solve the issue emerging with increasing social complexities. Dharma
signifies Natural law.

The English doctrine of "King can do no wrong" was not accepted and the King
himself was subject to law. The Dharma Sastras impressed upon the Kings to look
upon the people as God (Praja Vishnu) and serve them with love and reverence."

Dharma originated from Vedas which are Sruti (heard knowledge) and they are the
supreme source of knowledge for humans, as the narration of what is heard from the
ancient priests that is Sruti and they contains narration on everything possible
ranging from military to politics to common people’s life. Its other sources are Smriti,
which are the interpretation of Vedas and four sages have propounded the
dharmasastras and are called Smritikars. They are:
1. Manu
2. Yagnavalkaya
3. Brihaspati
4. Narada
The other source has been Puranas which are eighteen in number and contain
information about the creation and dynasties of god, sages and kings and detailed
description of yugas. All the sources are on the same footstep and no one has
supremacy over the other.

● This literature was in the form of Sutras (lw=kk%). A Sutra is a pithy

formulation of broad and general principles of common sense and justice.

● The term Sutra in common parlance means a thread; it was also used to
show a manual of instructions on various subjects.

● The Kalpa Sutras are the oldest Sutra works. It is of three types: 1)
Srautrasutras, 2) Grihyasutras, and 3) Dharmasutras.

● Srautrasutras are based on Shruti (i.e. what is heard), the Vedas. They are
useful for the study of the history of religion. Grihyasutras depict domestic
religious ceremonies of Sanskaras.

● Dharmasutras are a manual of human conduct. It speaks of wider relations

of man to the State, duties of varnas and ashramas, social usages, customs
and practices of everyday life.

● Civil law includes topics such as 1) taxes, 2) inheritance, and 3) position of

women. Criminal law includes topics such as 1) assault, 2) adultery, and 3)
 thefts, etc.

● They are our earliest sources of Hindu Law. Gautama, Baudhayana,

Vasishta and Apastambha are different authors of Dharmasutras.
Gautama’s Dharmasutra is the oldest (6th century).

● As time went on, the Dharmasutras came to be known as Dharmasastras or

instructions in sacred law. Smritis have played a great role in moulding the
life of Hindus. They are considered as the only authentic guides to law,
custom and duty and have a divine origin. In case of conflict between Vedas
and Smritis, Smritis have a upper hand.

● By preparing the Manusmriti, he gave India the first code of civil and
criminal law.

● It is the most authoritative work on Hindu Law. The code has 2685 verses. It
devotes three chapters (7, 8 and 9) to discuss the king and State
functionaries, the judiciary, sources of law and its classification, punishment,
role of the judges, principles of taxation, war and diplomacy, and the ethical
principles of warfare.

● According to him, dharma was the supreme power in the State. Even the
king was subject to law; he was merely an instrument to realise the goal of
dharma. State was not an end in itself but a means to an end, i.e. to attain
the four purusharthas, e.g. dharma, arth, karma and moksha. Manusmriti
has classified law under 18 titles. Manu insists on justice and equity.

● Brihaspati tells us about seven courts.

● He has also given kinds of witnesses. Minimum number of witnesses was

three, but he suggests that nine, seven, five, four, three or even two
witnesses

● He was the first to mention specifically three popular courts,  6 namely Kula,
Sreni and Puga arranged in the ascending order of their importance. He
had also described systematically the process of judicial procedure. He
observes that the mode of proof was three-fold: 1) documents, 2) witnesses,
and 3) possession.

● Witnesses should be religious, generous, descended from a respectable

family, speakers of truth (lR;oknh), eminent in virtue, fair, having sons and
wealthy.

● Yajnavalkya describes six kinds of stridhana. He had prescribed four types

of punishments, of course the punishments were cruel.

● Narada amplifies and explains the view of Manu in respect of witnesses and
divides them into 11 classes.
● He gave a detailed account of the constitution of the courts of justice and
gives an elaborate description of the court procedure.

● In Ancient India, the king was regarded as the fountain-head of justice.33

His foremost duty was to protect his subjects. He was respected as the lord
of dharma and was entrusted with the supreme authority of the
administration of justice in his kingdom.

● Next to the king was the court of the Chief Justice (Pradvivaka). Apart from
the Chief Justice, the court consisted of a board of judges to assist him. All
the judges were from the three upper castes preferably Brahmins.

● Brihaspati has stated that there were four kinds of tribunals, namely,
stationary, movable courts held under the royal signet in the absence of the
king, and commissions under the king’s Presidency.

● Village councils dealt with simple civil and criminal cases. At a higher level
in towns and districts, the courts were presided over by the government
officers under the authority of the king to administer justice. The link
between the village assembly and the official administration was the
headman of the village.

● In order to deal with the disputes amongst members of various guilds or

associations of traders or artisans (sreni), various corporations, trade guilds
were authorised to exercise an effective jurisdiction over their members.

● Puga assemblies made up of groups of families in the same village decided

civil disputes amongst family members.

● One of the cardinal rules of the administration of justice in Ancient India was
that a single individual should not administer justice. A Bench of two or
more judges was always preferred to administer justice.

● According to Brihaspati a suit or trial (vyavahara) consisted of four parts: 1)

the plaint (poorva-paksha), 2) the reply (uttar), 3) the trial and investigation
of dispute by the court (kriyaa), and 4) the verdict or decision (nirnaya).

● The provisions made gave the description of the highest court to be located
at the capital city, of lower courts under royal authority, and of people’s
courts recognised as having power to decide cases.

● Manu states that men who are guilty of crimes and have been punished by
the king go to heaven, becoming pure like those who perform meritorious
deeds.

● The punishments served four main purposes, namely, to meet the urge of
the person who suffered, for revenge or retaliation, as deterrent and
preventive measures, and for reformation or redemption of the evildoer.
 ● Manu, Yajnavalkya and Brihaspati state that there were four methods of
punishment, namely, by gentle admonition, by severe reproof, by fine and
by corporal punishment; and declare that these punishments may be
inflicted separately or together according to the nature of offence.

SHRUTI
Shruti in Sanskrit means "that which is heard" and refers to the body of most
authoritative, ancient religious texts comprising the central canon of Hinduism.
Manusmriti states: "Know that Vedas are Śruti". Thus, it includes the four Vedas
including its four types of embedded texts—the Samhitas, the Upanishads, the
Brahmanas and the Aranyakas.
Smriti literally "that which is remembered," refers to a body of Hindu texts usually
attributed to an author, traditionally written down but constantly revised, in contrast to
Śrutis (the Vedic literature) considered authorless, that were transmitted verbally
across the generations and fixed. Smriti is a derivative secondary work and is
considered less authoritative than Sruti in Hinduism. Sruti are fixed and its originals
preserved better, while each Smriti text exists in many versions, with many different
readings. Smritis were considered fluid and freely rewritten by anyone in ancient and
medieval Hindu tradition.
It literally means that which has been heard. The word is derived from
the root “shru” which means ‘to hear’. In theory, it is the primary and
paramount source of Hindu law and is believed to be the language of
the divine revelation through the sages."
The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’.
The term Veda is based on the tradition that they are the repository of all knowledge.
There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited
by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating
priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda
(containing a collection of spells and incantations, stories, predictions, apotropaic
charms and some speculative hymns).
The śruti literature include the four Vedas:[28][29]
● Rigveda
● Yajurveda
● Samaveda
● Atharvaveda
Each of these Vedas include the following texts, and these belong to the śruti
canon:[30]
● Samhitas
● Brahmanas
● Aranyakas
● Upanishads
SMRITI
Smriti, literally "that which is remembered" are a body of Hindu texts usually
attributed to an author, traditionally written down, in contrast to Śrutis (the Vedic
literature) considered authorless, that were transmitted verbally across the
generations and fixed. Smriti is a derivative secondary work and is considered less
authoritative than Sruti in Hinduism, except in the Mimamsa school of Hindu
philosophy.
The Smrti literature is a corpus of diverse varied texts. This corpus includes, but is
not limited to the six Vedāngas (the auxiliary sciences in the Vedas), the epics (the
Mahābhārata and Rāmāyana), the Dharmasūtras and Dharmaśāstras (or
Smritiśāstras), the Arthasaśāstras, the Purānas, the Kāvya or poetical literature,
extensive Bhasyas (reviews and commentaries on Shrutis and non-Shruti texts), and
numerous Nibandhas (digests) covering politics, ethics (Nitisastras), culture, arts and
society.
The texts on the four proper goals or aims of human life (Purusartha):
● Dharma: These texts discuss dharma from various religious, social, duties,
morals and personal ethics perspectives. Each of six major schools of
Hinduism has its own literature on dharma. Examples include Dharma-sutras
(particularly by Gautama, Apastamba, Baudhayana and Vāsiṣṭha) and
Dharma-sastras (particularly Manusmṛti, Yājñavalkya Smṛti, Nāradasmṛti and
Viṣṇusmṛti). At the personal dharma level, this includes many chapters of
Yogasutras.
● Artha: Artha-related texts discuss artha from individual, social and as a
compendium of economic policies, politics and laws. For example, the
Arthashastra of Chanakya, the Kamandakiya Nitisara, Brihaspati Sutra, and
Sukra Niti. Olivelle states that most Artha-related treatises from ancient India
have been lost.
● Kama: These discuss arts, emotions, love, erotics, relationships and other
sciences in the pursuit of pleasure. The Kamasutra of Vātsyāyana is most well
known. Others texts include Ratirahasya, Jayamangala, Smaradipika,
Ratimanjari, Ratiratnapradipika, Ananga Ranga among others.
● Moksha: These develop and debate the nature and process of liberation,
freedom and spiritual release. Major treatises on the pursuit of moksa include
the later Upanishads (early Upanishads are considered Sruti literature),
Vivekachudamani, and the sastras on Yoga.
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally,
Smritis contain those portions of the Shrutis which the sages forgot in their original
form and the idea whereby they wrote in their own language with the help of their
memory. Thus, the basis of the Smritis is Shrutis but they are human works. There
are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject
matter is almost the same. The difference is that the Dharmasutras are written in
prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry
(Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in
the Dharmashastras. In a narrow sense, the word Smriti is used to denote the
poetical Dharmashastras.
The number of Smriti writers is almost impossible to determine but some of the noted
Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in
the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana,
Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into three categories viz. Achar
(relating to morality), Vyavahar (signifying procedural and substantive rules which the
King or the State applied for settling disputes in the adjudication of justice) and
Prayaschit (signifying the penal provision for commission of a wrong).
Manu-smriti, (Sanskrit: “Laws of Manu” or “The Remembered Tradition of Manu”)
also called Manava-dharma-shastra (“The Dharma Text of Manu”), traditionally the
most authoritative of the books of the Hindu code (Dharma-shastra) in India.
Manu-smriti is the popular name of the work, which is officially known as
Manava-dharma-shastra. It is attributed to the legendary first man and lawgiver,
Manu. The received text dates from circa 100 CE.
The Manu-smriti prescribes to Hindus their dharma—i.e., that set of obligations
incumbent on each as a member of one of the four social classes (varnas) and
engaged in one of the four stages of life (ashramas). It contains 12 chapters of
stanzas, which total 2,694. It deals with cosmogony; the definition of the dharma; the
sacraments (samskaras); initiation (upanayana) and the study of the Vedas (the
sacred texts of Hinduism); marriage, hospitality, funeral rites, dietary restrictions,
pollution, and means of purification; the conduct of women and wives; and the law of
kings. The last leads to a consideration of matters of juridical interest, divided under
18 headings, after which the text returns to religious topics such as charity, rites of
reparation, the doctrine of karma, the soul, and hell. The text makes no categorical
distinction between religious law and practices and secular law. Its influence on all
aspects of Hindu thought, particularly the justification of the caste system, has been
profound.

Earliest Smriti on Hindu Law: Dharma-sūtras

The root texts of ancient Hindu jurisprudence and law are the Dharma-sūtras. These
express that Shruti, Smriti and Acara are sources of jurisprudence and law. The
precedence of these sources is declared in the opening verses of each of the known,
surviving Dharma-sūtras.
They were scattered/unorganised and written in prose form.
● Ācāra [religion](Sanskrit: आचार) is a concept used in the context of Classical
Hindu law that refers to the customary laws or community norms of a
particular social group.[1] These community norms are delineated and put into
practice by people who have earned the respect of those within each
individual group, such as a community leader or elder. Although in
Dharmaśāstra the ideal person who defines the ācāra of a particular place is
dictated as one who knows the Vedas or is “learned”, in actual practice this
role is often deferred to group leaders along with Vedic scholars.[2] Ācāra is
theologically important in Hindu law because it is considered, along with the
Vedas (Śruti), and Smriti (traditional texts such as the Dharmaśāstra
literature), to be one of the sources of dharma.[3] Particular regional ācāra is
believed to be canonized in Dharmaśāstra texts; however scholars differ on
the source for the actual accounts found within these texts.[4]
● Vyavahāra [civil law] (Sanskrit: व्यवहार) is an important concept of Hindu law
denoting legal procedure. The term is analyzed by Kātyāyana as follows: "Vi
means ‘various,’ ava means ‘doubt,’ hara is ‘removal’; legal procedure is
called by the term vyavahāra because ‘it removes various doubts.’”[1] Kane
defines it as follows: "When the ramifications of right conduct, that are
together called dharma and that can be established with efforts (of various
 kinds such as truthful speech, etc.) have been violated, the dispute (in a court
between parties) which springs from what is sought to be proved (such as
debt), is said to be vyavahāra."[2] According to Donald Davis, “There are two
basic meanings of vyavahāra. The first is a general sense of practice,
business, or everyday transactions. The other, specific sense is legal
procedure, the processes of litigation including a trial.”[3] Legal procedure
according to the dharmaśāstras includes: court, listening to and assessing
witnesses and their testimony, deciding and enforcing punishment, and the
pursuit of Justice in the face of Injustice. Davis later quotes the Nāradasmṛti in
an attempt to answer the question why legal procedure came about in the
Hindu tradition. The text states, “When men had dharma as their only focus
and were speakers of the truth, there was no legal procedure, no enmity, and
no (selfish) conflict. Legal procedure came into being when dharma was lost
among men."[
● Prāyaścitta [punishment] (Sanskrit: प्रायश्चित्त) is the Sanskrit word which
means "atonement, penance, expiation".[1][2][3] In Hinduism, it is a
dharma-related term and refers to voluntarily accepting one's errors and
misdeeds, confession, repentance, means of penance and expiation to undo
or reduce the karmic consequences.[4] It includes atonement for intentional
and unintentional misdeeds. The ancient Hindu literature on repentance,
expiation and atonement is extensive, with earliest mentions found in the
Vedic literature.[4][5] Illustrative means to repent for intentional and
unintentional misdeeds include admitting one's misdeeds, austerities, fasting,
pilgrimage and bathing in sacred waters, ascetic lifestyle, yajna (fire sacrifice,
homa), praying, yoga, giving gifts to the poor and needy, and others
Dharma-sutra, (Sanskrit: “righteousness thread”) any of several manuals of human
conduct that form the earliest source of Hindu law. They consist chiefly of sutras
(“threads” or “strings”) of terse rules containing the essentials of law concerning
interpersonal relations and the relationship between people and the state. The
maxims deal with the practical rules of caste and of human beings in their social,
economic, and religious relations. Formulated in prose, they were intended to be
committed to memory and expounded orally by teachers—thus forming, as it were,
epitomes of class lectures. Eventually these rules came to be interspersed with
stanzaic verses in various metres, each generally giving the substance of the rule
immediately preceding it. The verses themselves became increasingly popular and
ultimately led to the appearance of works entirely in verse. These metrical versions
of previously existing Dharma-sutras came to be called Dharma-shastras, though in
modern times that term more commonly is used to denote the whole body of
customary rules and observances governing Hindu religious and social life.
Dharma-shastras
Dharmaśāstra (Sanskrit: धर्मशास्त्र) is a genre of Sanskrit theological texts, and refers
to the treatises (śāstras) of early Hinduism on dharma. There are many
Dharmashastras, variously estimated to be 18 to about 100, with different and
conflicting points of view. Each of these texts exist in many different versions, and
each is rooted in Dharmasutra texts dated to 1st millennium BCE that emerged from
Kalpa (Vedanga) studies in the Vedic era.
They were organised and written in verse form.
The textual corpus of Dharmaśāstra were composed in poetic verses,[5] are part of
the Hindu Smritis,[6] constituting divergent commentaries and treatises on duties,
responsibilities and ethics to oneself, to family and as a member of society.[7][8] The
texts include discussion of ashrama (stages of life), varna (social classes),
purushartha (proper goals of life), personal virtues and duties such as ahimsa
(non-violence) against all living beings, rules of just war, and other topics.[

CUSTOM
Custom is regarded as the third source of Hindu law. From the earliest period custom
(‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee,
custom signifies a rule which in a particular family or in a particular class or district
has from long usage obtained the force of law. Custom is a principle source and its
position is next to the Shrutis and Smritis but usage of custom prevails over the
Smritis. It is superior to written law.
There are certain characteristics which need to be fulfilled for declaring custom to be
a valid one. They are:- (i) The custom must be ancient. The particular usage must
have been practised for a long time and accepted by common consent as a
governing rule of a particular society. (ii) The custom must be certain and should be
free from any sort of ambiguity. It must also be free from technicalities. (iii) The
custom must be reasonable and not against any existing law. It must not be immoral
or against any public policy and (iv) The custom must have been continuously and
uniformly followed for a long time.
Indian Courts recognize three types of customs viz: (a) Local custom – these are
customs recognised by Courts to have been prevalent in a particular region or
locality. (b) Class custom – these are customs which are acted upon by a particular
class. Eg. There is a custom among a class of Vaishyas to the effect that desertion
or abandonment of the wife by the husband abrogates the marriage and the wife is
free to marry again during the life-time of the husband. (c) Family custom – these are
customs which are binding upon the members of a family. Eg. - There is a custom in
families of ancient India that the eldest male member of the family shall inherit the
estates.
Local Customs – Local customs are those types of customs which exist in a certain
geographical locality and are thus part of that place’s culture. It is specific to that
place alone. However, when certain communities migrate, they take their customs
with them. And so, local customs are then further divided into two parts –
geographical local customs and personal local customs.

DIGESTS AND COMMENTARIES

Digests and commentaries came after smrities during the 7th century to 1800 A.D.
During earlier stages commentaries were based on smrities but in the later period,
the works were like digests containing various smrities and explaining and
reconciling various contradictions.
The evolution of different schools of Hindu law is a result of these digests and
commentaries as these digests and commentaries are interpretations of the Smriti
and hence the difference of opinion is bound to occur. Owing to this reason, different
schools of Hindu law emerged.
It was only after 200 AD, most of the work was done only on the existing material
given in Smrtis. The work done to explain a particular Smriti is called a commentary.
Commentaries were composed in the period immediately after 200 AD. Digests were
mainly written after that and incorporated and explained material from all the smritis.

Some of the prominent commentaries include Manubhashya, Manutika, and

Mitakshra. One of the most important digest is Jimutvahan’s Dayabhaga that is
applicable in Orissa and Bengal.

Mitakshara is one of well known and supreme source of law in India. It is based on
the commentaries written by Vijayneshwara on the code of yajanvalkya while
Dayabhaga law school is based on the commentaries of Jimutvahana. Dayabhaga
and Mitaksara are two main sources of Hindu law in India.

The main objective of these texts is to gather the scattered material available in the
form of smrities and shruties and to compile it in a more comprehensive form for the
betterment of society. Thus, these were much logical and to the point in their
approach.

Caste System
● Whole society was divided into four main castes. The four castes were
precisely and clearly defined and rules pertaining to their lawful activities and
functions dominated all social activities.
● The Brahmins were considered to be the most superior caste. The scholars
and priests of the Hindus belonged to this caste.
● The Kshatriyas were the nobles and warners and to this caste rulers of
various states and kingdoms mostly belonged.
● The Vaisyas were the merchants and traders.
● The Sudras were the workers and ranked lowest.
● Caste determined the pattern of life amongst Hindus relating to their status,
living, marriage, profession and social obligations. Caste consciousness had
become a marked feature in social relationship.
Types of customs:
● Local custom - one geographical area
● Family custom - custom within people of blood relation and common
anscestry
● Community/casts-based custom
● Guild custom
Caste > local > family

Two systems of family law, namely, Mitakshara and Dayabhaga, became the basis of
civil law. They dealt with property rights in a Hindu joint family and mostly amongst
land-owning families.
Puruṣārtha literally means an "object of human pursuit". It is a key concept in
Hinduism, and refers to the four proper goals or aims of a human life. The four
puruṣārthas are Dharma (righteousness, moral values), Artha (prosperity, economic
values), Kama (pleasure, love, psychological values) and Moksha (liberation,
spiritual values).[2][3]
All four Purusarthas are important, but in cases of conflict, Dharma is considered
more important than Artha or Kama in Hindu philosophy.[4][5] Moksha is considered
the ultimate ideal of human life.[6] At the same time, this is not a consensus among all
Hindus, and many have different interpretations of the hierarchy, and even as to
whether one should exist.
Historical Indian scholars recognized and debated the inherent tension between
active pursuit of wealth (Artha) and pleasure (Kama), and renunciation of all wealth
and pleasure for the sake of spiritual liberation (Moksha). They proposed "action with
renunciation" or "craving-free, dharma-driven action", also called Nishkam Karma as
a possible solution to the tension.

Under the ancient Indian system of Government great importance was given to
Rajdharma which declared that it was the personal responsibility of the King himself.
His duties were manifold. It would be interesting to note that several of those duties
are similar to those prescribed under the directive principles of State Policy in the
Constitution of India. Naturally the number of duties were such as would require the
division of work of the State into different departments and put them in charge of a
person as head of the department concerned and each department would also
require a cadre of officers to carry out the work of the department concerned.

Smritikaras - law givers, writers of legal, social, ethical and moral treatises.
Brihaspatismriti talks about different courts and witnesses.
Judges were appointed by the kings: they were required to have knowledge of the
four Vedas.
Types of courts
First three were people's courts. Mainly for civil matters.
● Kula - family (kula) courts were lead by the kula-head. They could mediate
only. Adjudication was less common, but was available.
● Shreni - courts for merchants and traders. They were lead by merchants. Both
mediation and adjudication options were available.
● Gana -
They were presided by panchayat-dars. They were a respectable person who had
knowledge of four Vedas.
Sahasha - offences of grave nature, which included violence. People's court didn't
have jurisdiction here.
● Adhikrita -
○ Pratishtitha - stationary court. Not allowed to use royal seal.
○ Apratishtitha - mobile courts/moving courts. Not allowed to use royal
seal.
○ Mudrita - most authoritative. Could use royal seal.

● Sasita - appellate jurisdiction. Limited original jurisdiction. Mainly located at

the capital. The capital had importance attached to it.
 ○ Rajah decided the issue of facts only. Only he could decide the
quantum of punishment.
○ Pradvivaka/sabhyas decided the issue of interpretation/law. They
couldn't give punishment.
○ Ganaka - managed fines and made all calculations regarding spending
○ Lekhaka - wrote legal proceedings and recorded all happenings in the
court.
○ Swapurusha - managed the victim, accused and witnesses. Brought
them to/from the court.
○ Shodanaka - communicated all important things between king and the
sabhyas.
Things which were to be present in physical form in the court during trial.
● Smriti
● Gold for oath
● Fire for oath
● Water, everyone could get water
Qualifications for being Pradvivaka:
● Well versed in all 18 titles of law, including 8000 sub-titles.
● Should be able to apply tarq, i.e. logic, for connecting them.
● Mimansa, for proper interpretation of law.
● Knowledge of Vedas and shastras.
Qualifications for being sabhya:
● An honourable man of the tribe
● Well-versed in 18 titles of law
● Familiar with concept of Dharma
● Tarq
● Mimansa
● Veda/shastra
No qualifications for a king.
Required to wear simple clothes to the trial court. Manusmriti said he should have a
dand (stick) in the hand, as a symbolic representation of power of punishment. His
presence is important.
Judicial independence - king could not control the outcome of cases.
Decisions by the council required to be unanimous. Non-unanimous decisions were
not existent. Smritis mention how dissenting opinions would lead to problems.
In cases where king isn't available, all power goes to pradvivakas and sabhyas, even
for issue of facts. However, quantum of punishment cannot be given by someone
other than the king only.
There have been instances where the kings disagreed with the sabhyas
recommendation for the punishment quantum.
Process of giving judgement/Legal proceedings
● Dharma - accused accepts the allegations of the offence and surrenders
● Vyavahara - an accused denies guilt or his statement doesn't accept the
allegation
● Charitra - based on contradictory customs and their usages. Precedents will
be applied here.
● Rajayana - ordeal, evidences used. Kings judgement used.

In villages, the local village councils or Kulani, similar to modern panchayats,

consisted of a board of five or more members to dispense justice to villagers.
Village councils dealt with simple civil and criminal cases. At a higher level in towns
and districts the courts were presided over by the Government officers under the
authority of the King to administer justice.
In order to deal with the disputes amongst members of various guilds or associations
of traders or artisans (Sreni), various corporations, trade-guilds were authorised to
exercise an effective jurisdiction over their members. These tribunals consisting of a
president and three or five co-adjudicalors were allowed to decide their civil cases
regularly just like the other courts.

Muslim period: Judicial system

● The political theory of Muslims was governed by their religion, Islam. It was
based on the teachings of the Quran, their religious book, the traditions of the
Prophet and precedent.
● The Quran being of absolute authority, all controversy centred round its
interpretation, from which arose the Muslim law or Shariat.
● The civil administration of the Sultanate was headed by the Sultan and his
Chief Minister (Wazir). The Sultanate was divided into administrative divisions
from the province to the village level. The Sultanate was divided into
Provinces (Subah). The Province (Subah) was composed of Districts
(Sarkars). Each District (Sarkar) was further divided into Parganahs. A group
of villages constituted a Parganah.
● In Mediaeval India the Sultan, being head of the State, was the supreme
authority to administer justice in his kingdom.
● Diwan-e-Qaza (arbitrator); Diwan-e-Muzalim (as head of bureaucracy) and
Diwan-e-Siyasat (as commander-in-chief of forces). The courts were required
to seek his prior approval before awarding the capital punishment.
● Central Capital
○ The King's Court, Diwan-e-Muzajj, Diwan-e-Risalat, Sadre Jehan’s
Court, Chief Justice's Court and Diwan-e-Siyasat.
 ○ The King's Court, presided over by the Sultan, exercised both original
and appellate jurisdiction on all kinds of cases. It was the highest Court
of Appeal in the realm. The Sultan was assisted by two reputed Muftis
highly qualified in law.
○ The Court of Diwan-e-Muzalim was the highest Court of Criminal
Appeal and the Court of Diwan-e-Risalat was the highest Court of Civil
Appeal. Though the Sultan nominally presided over these two courts,
he seldom sat in them.
○ Sadr Jahan became more powerful and occasionally presided over the
King's Court. The Court of Ecclesiastical cases, which was under the
Chief Justice up to 1248. was also transferred to the Sadre Jahan and
later on became popular as Sadr Jahan's Court.
○ The Court of Diwan-e-Siyasat was constituted to deal with the case of
rebels and those charged with high treason. Its main purpose was to
deal with criminal prosecutions.
○ The Chief Justice's Court was established in 1206. It was presided over
by the Chief Justice (Qazi-ul-Quzat). It dealt with all kinds of cases.
Earlier, Chief Justice or Qazi-ul-Quzat was the higher judicial officer but
with the creation of a new post of Sadr-e Jahan, its importance was
reduced for some time.
● Province
○ In each Province (Suhah) at the Provincial Headquarters five courts
were established, namely, Adalat Nazim Subah, Adalat Qazi-e-Subah,
Governor's Bench (Nazim-e-Subah's Bench), Diwan-e-Subah and
Sadre Subah.
○ Adalat Nazim Subah was the Governor's (Subehdar) Court. In the
Provinces the Sultan was represented by him and like the Sultan he
exercised original and appellate jurisdiction. In original cases he
usually sat as a single Judge.
○ The Governor sat with the Qazi-e Subah constituting a Bench to hear
appeals.
○ Adalat Qazi-e-Subah was presided over by the Chief Provincial Qazi.
He was empowered to try civil and criminal cases of any description
and to hear appeals from the Courts of District Qazis. Appeals from this
Court were allowed to be made to the Adalal Nazim-e-Subah.
Qazi-e-Subah was also expected to supervise the administration of
justice in his Subah and also to see that Qazis in districts were properly
carrying out their functions. He was selected by the Chief Justice or by
Sadre Jahan and was appointed by the Sultan.
○ The Court of Diwan-e-Suhah was the final authority in the Province in
all cases concerning land revenue.
○ The Sadre-e-Subah was the Chief Ecclesiastical Officer in the
Province. He represented Sadre Jahan, in Subahs in matters relating
to grant of stipend, lands, etc.
● Districts
○ In each District (Sarkar), at the District Headquarter, six courts were
established, namely, Qazi, Dadbaks or Mir Adils, Faujdars, Sadre,
Amils, Kotwals.
○ The Court of the District Qazi was empowered to hear all original civil
and criminal cases. Appeals were also filed before this Court from the
judgments of the Parganah Qazis, Kotwals and Village Panchayats.
The Court was presided over by the District Qazi who was appointed
on the recommendation of the Qazi-e-Subah or directly by Sadre
Jahan. The same four officers, namely, Mufti, Pandit, the Mohtasib and
the Dadbak, were attached to the Court of District Qazi.
○ The Court of the Faujdar tried petty criminal cases concerning security
and suspected criminals. Appeals were filed to the Court of
Nazim-e-Subah.
○ The Court of Sadr dealt with cases concerning grant of land and
registration of land. Appeals were allowed to be filed before the
Sadr-e-Subah.
○ Court of Amils dealt with the Land Revenue cases. From the judgment
of this Court an appeal was allowed to the Court of Diwan-e Subah.
○ Kotwals were authorised to decide petty criminal cases and police
cases.
● Parganah
○ At each Parganah Headquarter two courts were established. namely,
Qazi-e-Parganah and Kotwal.
○ The Court of Qazi-e-Parganah had all the powers of a District Qazi in
all civil and criminal cases except hearing appeals. Canon law cases
were also filed before this court.
○ Petty criminal cases were filed before the Kotwal. He was the principal
Executive Officer in towns.
● Villages
○ For each group of villages there was a Village Assembly or Panchayat,
a body of five leading men to look after the executive and judicial
affairs.
○ The Sarpanch or Chairman was appointed by the Nazim or the
Faujdar. The Panchayats decided civil and criminal cases of a purely
local character.
○ Though the decrees given by the Panchayats were based on local
customs and were not strictly according to the law of the Kingdom Still
there was no interference in the working of the Panchayats. No appeal
allowed for decisions.
● Judges appointment
○ During the period of Sultans. Judges were impartially appointed by the
Sultan, on the basis of their high standard of learning in law. From
 amongst the most virtuous of the learned men in his kingdom, the
Sultan appointed the Chief Justice (Qazi-ul-Quzat).
○ Even a Chief Justice was liable to be dismissed or degraded to the
post of a Qazi of lower rank where the Sultan found him incompetent
and corrupt. Incompetent and corrupt Qazis were ridiculed, condemned
and dismissed from their offices.

● After the Vedic age, probably sacrificial instructions of Brahmanas became

obscure necessitating composition a new  164 group texts to elucidate
them. This special class literature is designated as Sutras. The term sutra
originally meant “thread”, but was used with secondary meaning manual on
many subjects.

● This special class of literature is designated as the Sutras. The term sutra
originally meant a “thread”, but was used with the secondary meaning of a
manual of instructions on many subjects.

● During those days, instructions were given orally and this enabled
summarising the entire exposition thereby rendering its easy memorising.

● The Kalpa Sutras are the oldest sutra works. It divides itself into three
classes, the Srauta Sutras, the Grihya Sutras and the Dharma Sutras.

● The Srauta Sutras are so called because they are based on sruti (heard),
the Vedas. They deal with Vedic sacrifices and are important “for the
understanding of the cult of the sacrifice” as well as “for the study of the
history of religion”.

● The Srauta and Grihya Sutras lay greater emphasis on the idea of social
welfare and prescribe elaborate rules for the governing of the society
concerning religion, domestic duties and mutual relations between different
members of the society.
● The third class of textbooks are the Dharmasutras, the manuals of human
conduct. They deal at length with the duties of varnas and ashramas, the
social usages, customs and practises of everyday life.
● The beginnings of civil and Criminal Laws have to be assigned to this
period.
● Under the civil law, they have included such topics as taxes, inheritances
and the position of women, while the topics under  165 Criminal Law include
assaults, adultery, thefts, etc.
● The rules of punishments were based on class (varna) considerations and
while an offence committed by a Sudra invited capital punishment, for the
same offence a Brahmana went scot-free. At best, he washed off his sins
by performing penance.
● The Dharmasutras are our earliest sources for Hindu Law, the most
important being those attributed to Gautama, Baudhayana, Vasistha and
 Apastamba.
● Dharmasastras are distinguished by a greater concentration on law. They
are also called smritis (remembered), and have played a notable part in
moulding the life of the Hindus.
● In practice Hindus all over India turn for the real exposition of religious
duties and usages to the Dharmasastras.
● They are also accepted as the only authentic guides to law, custom and
duty. They were declared to be of divine origin.
● With the passage of time, it came to be realised that the Vedic hymns are
not only difficult to comprehend but also to relate to current practise. They
were found to be inadequate for the regulation of large segments of social
life that had become complex.
● Ultimately, in cases of conflict the smriti came to represent an authority
superior to that of the tradition, though the Vedas were not discarded
altogether”. The earliest of which is that of Manu, probably composed in its
final form in the second or third century AD.
● Other important smritis after Manu are those of Brihaspati, Yajnavalkya,
Visnu, Narada and Katyayana, which date from the Gupta period.
● The authority of the commentary at times rivalled those of the Codes
themselves. The commentaries or digests played a significant role in the
evolution of Hindu Law.
● The Dharmasastras combine the practical with the ethical. They deal with
many topics like varnas, ashramas, their privileges, obligations and
responsibilities; dharma of Kshatriyas and kings, judicial procedure, and the
sphere of substantive law such as crimes and punishments, contracts,
partition and inheritance, adoption, gambling, etc.
● All smritikaras attached the highest importance to moral qualities and
enjoined them upon all with all the emphasis they could command, but their
main purpose was a practical one, viz., to guide people to right acts in
everyday life; they dealt more elaborately with the acts, rites and
ceremonies that each person has to do with reference to his station in
society.
● concerning themselves with Varnashrama dharma and not with sadharama
dharma or duties common to all.
● The authors of the smriti literature were Brahmanas and naturally they
represent their point of view. The Arthasastra was more secular in
character and differs from smritis in many particulars.
● Dharmasastra is of an essentially deductive nature; Arthasastra, by
contrast, introduced inductive reasoning and a greater realism. But the
allegation that Arthasastra differs from Dharmasastras in  167 that it is not
dependent on the Vedas for validation must be rejected. To be sure, the
authors of the Arthasastra enjoy a relative intellectual freedom, and their
contribution lies in the separation of political speculation from theology. But
this need not and should not be taken to imply a repudiation of orthodoxy”
● The Dharmasastra, true to its nature, lays the greatest emphasis on
dharma, while the Arthasastra on artha.
● Varnashrama dharma had two-fold aims, one was to maintain harmony and
peace in the society which is a condition precedent to the attainment of the
ultimate end. The other purpose of it was to discipline the individuals
 according to their capacities in order to prepare them to follow their
cherished pursuits in life the first Code of Civil and Criminal Law”

● The Code of Manu is a metrical law book consisting of 2685 verses. It deals
with the “Institutes of Sacred Law” which he explained to the sages of old,
who desired to acquire a complete knowledge of the sacred law.
● Manu is said to have abridged and promulgated the Dandaniti, a colossal
treatise composed by Brahma, the Creator, dealing with life, morals and
government. It is this sacred tradition that is represented in the ordinance
known to us as the Manusmriti.
● The rest of the work is devoted to deal more comprehensively such moral
problems as penance and expiation and purely religious topics like the
transmigration of soul and final beatitude.
● He held that dharma was the supreme power in the state and the king was
merely an instrument to realise the goal of dharma. The state was not an
end in itself but only  169 a means to an end, a means to enable people to
attain the four purusharthas viz., dharma, artha, kama and moksa,
particularly the first three, as the last could be attained only by a few.
● Caste privileges and disabilities are discussed in a careful manner.
● Manu thought punishment both retributive and deterrent.
● The king’s officer compels the attendance of the plaintiff, witnesses and
sabhyas
● The Smriti decides the judgment, gold and fire are required for
administering oaths and (quaintly enough) water is required for quenching
thirst”.
● The king inflicted punishment based on the decision of the judge and the
assessors. The numerical strength of the sabhyas is put at seven, five or
three. Elsewhere, without stating clearly the functions, Brihaspati adds
ministers (amatyas) and the purohita to the list of members of the court.
● The four types of courts are stationary or fixed (pratisthita), courts which sat
in a town or village, ambulant or moving (apratisthita) which had no fixed
seat, one furnished with the king’s signet ring superintended by the chief
judge (Mudrita) and the fourth directed by the king himself (sasita).
● He states that kula, sreni and gana and other persons duly authorised by
the king should decide lawsuits except cases of violent crimes.
● If a cause had not been duly investigated by kula it could be decided by
sreni, if it had not been examined by sreni it could be decided by gana and
finally by the royal judges.
● He is one with Narada when he speaks of the four modes of decision
namely those according to dharma, vyavahara, charitra and rajajna.
● By vyavahara he means a decision based on Sastra alone and takes
charitra as a decision given in accordance with local usage, with inference
and with the opinions of merchants.
● rajajna to be the final authority in legal decision. Elsewhere he classes four
modes of decision under two categories.
● Decision by dharma, according to him, takes place when the matter in
dispute has been decided after due deliberation, according to equity and
after tendering oaths. Again, it arises when the defendant admits the claim
(or change), or else his innocence is proved by means of ordeals.
● After examination of the evidence and, again, when the defendant told a lie
or made no answer, it is known as decision by Vyavahara.
● Judgment was based upon inference and, again, when it was passed
according to usage, it is known as judgment by charitra.
● King’s edict takes place when the evidence is equally balanced and, again
when the  171 law-books and the sabhyas are at variance
● He speaks of twelve kinds of witnesses.
● Brihaspati makes an important landmark in the history of Hindu Law by
classifying Manu’s eighteen titles of law under two broad heads, civil and
Criminal Law.
● Moneylending, deposits, invalid gifts, concerns of partnership, non-payment
of wages, non-performance of service, land disputes, sale without
ownership, rescission of sale and purchase, breach of contract, relation
between husband and wife, theft and inheritance, as well as gambling,
which spring out of wealth, insult, violence and criminal connection with
another’s wife.
● It is composed of three books, which contain rules relating to the three
major categories of Indian law; proper conduct (acara), expiation
(prayaschitta) and Criminal Law (vyavahara), Yajnavalkya.
● Yajnavalkya prescribes four types of punishments like gentle admonition,
harsh reproof, fine and corporal punishment.
● Banishment is prescribed as a punishment for officers accepting bribes,
Brahmanas giving false evidence, for transgressing the rules and
regulations of corporate organisations, for playing with false dice and other
fraudulent activities.
● The Vedic conceptions of rita and satya are the precursors of the concept
of justice.
● Rita is rectitude, the straight path leading man to perfection. It also means a
divine cosmic order by which the universe and even the gods were
governed.
● Dharmasastras were absorbed in the tradition and both the Vedas and
Dharmasastras became the roots of dharma, the source of Hindu Law.
● According to Manu, in case of conflict, the sruti prevails over smriti and
these have precedence over sadachara and one’s own inclinations.
● Kautilya says, that the sources of law are four, in an ascending order of
validity: dharma, abiding in the nature of things; contract (vyavahara) to be
established by witness; local custom (carita), as understood by the people;
and the king’s order (rajasasana).
● The rules and regulations of the srenis, nigamas, ganas and so forth,
mimamsa, nyaya (logic), puranas, itihasa came to be considered as
auxiliary sources of law.
● Dharma, formed from the word dhr, to hold, means that which holds things
together and maintains it in being.
● Anything that disrupts or tears up the integrity of humanity or the integrity of
the world is adharma. It is the principle of disintegration”.
● The word dharma comprehends within itself the ritualistic ethics and the
ethics of righteousness.
 ● Guna means quality, and the quality, the inclinations of the individual to
perform a particular type.
● Though the Vedas were difficult in legal matters, they served a useful
purpose as the society was small and tribal in character.
● When the society grew complex and the Vedic regulations were found to be
difficult to relate current practise, the smriti codes came in handy to fill this
gap. The smriti regulations took into consideration the needs of the
changing society in formulating laws to govern all aspects of life, secular
and spiritual.
● Some of our lawgivers even went to the extent of saying that the custom
would override the smritis.
● Customs gained precedence over the smritis because of the changing
needs of the society. The Dharma sastrakaras themselves could not have
anticipated such developments. This explains the statement of the
smritikaras that each age must have its own Dharmasastra.
● The law that has its base in the Veda (sruti) is called the divine or the
sacred law as divine authorship is attributed to the sruti.
● The law that is based on the smriti is called human law as the authors of
the Dharmasastras were human and not divine.
● The framers of the human law did not completely set aside the Vedic
functions altogether, and did everything possible to accommodate its spirit.
They were more guided by the changing social environs.

Administration of Justice in Ancient India

The duty to protect is cast on the king by dharma itself and, therefore,
administration of justice is an imperative duty of the king under Hindu Law. The
fundamental obligation placed in kings according to Hindu theories is: to protect
the people, to give them security of life, property and to maintain social stability in
order to enable virtue to flourish. According to the Mahabharata, “protection is the
cheese of all kingly duties, and all other duties are subordinate to it. The
Mahabharata again declares, The happiness of the people, the upholding of truth
and maintenance of social order—these are the unchanging functions of
Rajadharma. Prajaparipalana, the protection of the subjects, is the supreme duty.
The purpose of that protection is that the people may not lapse into anarchy or
matsyanyaya or the fish analogy, where the stronger will eat the weaker as fish do
in water. “Under the protection of the king men being fearless can sleep with the
doors of their houses open”. These passages show that the maintenance of
external and internal peace, the upholding of social order, the creation of
conditions under which people can live a free life—this is the wider meaning that
our thinkers have given to the word “protection”. The maintenance of justice and
the punishment of offenders (dusta nigrata, sista paripalana) are the other aspects
of the problem of protection. It was the sacred duty of the king to punish the wrong
doers; if he neglected this work, he would go to hell. The Mahabharata
emphasises that it is only by coercive action, danda, that civilised life can exist at
all. Danda becomes the ultimate sanctions of the government.  194 Bhisma, while
answering questions relating to the meaning of justice, its nature, its form and its
essence, says, “Penal justice (danda) is so called in order that the righteousness
of the king who is wide awake may not suffer extinction.
The fundamental obligation placed in kings according to Hindu theories is: to
protect the people, to give them security of life, property and to maintain social
stability in order to enable virtue to flourish.
● Prajaparipalana, the protection of the subjects, is the supreme duty.
● The purpose of that protection is that the people may not lapse into anarchy
or matsyanyaya or the fish analogy, where the stronger will eat the weaker
as fish do in water.
● It was the sacred duty of the king to punish the wrong doers; if he neglected
this work, he would go to hell. The Mahabharata emphasises that it is only
by coercive action, danda, that civilised life can exist at all. Danda becomes
the ultimate sanctions of the government.
● The duty to administer justice under Hindu Law is not a self-imposed duty,
but it is in the nature of constitutional norm which the king is bound to obey
if he is to be called a king at all
● It appears village elders acted as judges and punishment was awarded
according to the nature of the offence, in accordance with local usages or
customs.
● Pratisthita, court established in a fixed place such as a town, 2) Apratisthita,
circuit court, 3) Mudrita, court presided over by a judge who is authorised to
use the Royal seal and 4) Sasita, court presided over by the king himself.
● Narada speaks of various courts with different powers of jurisdiction like
Kulani (village councils), sreni (guided courts), Puga or Gana (assemblies).
● Kautilya mentions two types of courts, namely Dharmasthiya (civil courts)
and Kautakasodhana (criminal courts).
● Manu classifies law under 18 titles without making demarcation between
civil and criminal disputes. These were: 1) deposits and pledge, 2)
non-payment of debts, 3) sale without ownership, 4) concerns among
partners, 5) resumption of gifts, 6) non-payment of wages, 7)
non-performance of agreements, 8) restriction of sale and purchase, 9)
disputes between the owner (of cattle) and his servants, 10) defamation,
13) theft, 14) robbery and violence, 15) adultery, 16) duties of a man and
wife, 17) partition of inheritance, and 18) duties of a man and wife, 17)
partition of inheritance, and 18) gambling and betting.
● The guilds had their own rules and regulations called the srenidharmas,
which were binding on their members.
● Among the smritikaras, Yajnavalkya was the first to mention specifically
three popular courts, namely, kula, sreni and puga arranged in an
ascending order of importance.
● There were popular courts in the villages called Village Panchayats, which
were invested with judicial powers. Kautilya says that the village court was
presided over by the gramavriddha.
● The officer of the court called Lekhaka or writer recorded it.
● According to Manu, ‘in disputes relating to sahasa, theft, abuse, assault,
cows, charges of grave sins and women, the defendant has to make his
defence at once, and that in other cases time may be granted at the
discretion of the court.
● Replies of the defendant were generally of four types: Mithya (denial),
Sampratipatti or Satya (confession or admission), Karana
Pratyavasakandana (a special plea of demurrer) and Prannyaya or
Purvanirnaya (reference to a previous verdict).
 ● Brahmanas were exempted from capital punishment, but in extreme cases,
banishment was recommended.
● Manu thought punishment both retributive and deterrent.

Judicial Reforms of Shershah

● In 1540, Sher Shah laid the foundations of Sur Dynasty in India after defeating
the Mughal Emperor Humayun, son of Babar. During the reign of the Sur
Dynasty, from 1540 to 1555, when Sher Shah and later on Islam Shah ruled
over India, the Mughal Empire remained in abeyance.
● Sher Shah introduced the system of having in the Parganahs, separate courts
of first instance for civil and criminal cases. At each Pargana Town, he
stationed a civil judge, called Munsif a title which survives to this day, to hear
civil disputes and to watch conduct of the Amils and the Moqoddams.
● Moqoddams or heads of the Village Councils were recognised and were
ordered to prevent theft and robberies. In cases of robberies, they were made
to pay for the loss sustained by the victim. Police regulations were now drawn
up for the first time in India.
● When a Shiqahdar or a Munsif was appointed, his duties were specifically
enumerated.
● The judicial officers below the Chief Provincial Qazi were transferred after
every two or three years.
● The duties of Governors and their deputies regarding the preservation of law
and order were emphasised.
● The Chief Qazi of the Province or the Qazi-ul-Quzat was in some cases
authorised to report directly to the Emperor on the conduct of the Governor.
Mughal Period
● During the Mughal period, the Emperor was considered the "fountain of
Justice''. The Emperor created a separate department of Justice
(Mahukna-e-Adalat) to regulate and see that justice was administered
properly. On the basis of the administrative divisions, at the official
headquarters in each Province, District, Parganah and Village, separate
courts were established to decide civil, criminal and revenue cases.
● Imperial capital
○ The Emperor's Court, presided over by the Emperor, was the highest
court of the empire. The Court had jurisdiction to hear original civil and
criminal cases. As a court of the first instance generally the Emperor
was assisted by a Darogha-e Adalat, a Mufti and Mir Adil. In criminal
cases the Mohtasib-e-Mumalik or the Chief Mohtasib, like the
Attorney-General of India today, also assisted the Emperor. In order to
hear appeals, the Emperor presided over a Bench consisting of the
 Chief Justice (Qazi-ul-Wazat) and Qazis of the Chief Justice's Court.
The Bench decided questions both of fact and law.
○ The Chief Court of the Empire was the second important court at Delhi,
the seat of the Capital. It was presided over by the Chief Justice
(Qazi-ul-Quzat). The Court had the power to try original, civil and
criminal cases, to hear appeals from the Provincial Courts.
○ The Chief Revenue Court was the third important court established at
Delhi. It was the highest Court of Appeal to decide revenue cases. The
Court was presided over by the Diwan-e-Ala.
○ The Court of Qazi of Delhi, who enjoyed the status of Chief Qazi of a
Province, decided local civil and criminal cases.
○ The Court of Qazi-e-Askar was specially constituted to decide cases of
the military area in the capital.
● Provinces
○ The Governor's own court (Adalat-e-Naziin-e-Subah) had original
jurisdiction in all cases arising in the provincial capital. It was presided
over by the Governor (Nizam-e-Suhah).
○ The Provincial Chief Appellate Court was presided over by the
Qazi-e-Subah. The Court had original civil and criminal jurisdiction.
○ Provincial Chief Revenue Court was presided over by Diwan-e-Subah.
The Court was granted original and appellate jurisdiction in revenue
cases.
● Districts/Sarkar's
○ The Chief Civil and Criminal Court of the District was presided over by
the Qazi-e-Sarkar. The Court had original and appellate jurisdiction in
all civil and criminal cases and in religious matters. Qazi-e-Sarkar was
the principal judicial officer in a District. He was officially known as
"Shariyat Panah". Appeals from here went to Qazi-e-Subah.
○ Faujdari Adalat dealt with criminal cases concerning riots and state
security. It Was presided by the Faujdar. Appeals lay to the Governor's
Court.
○ Kotwali Court decided cases similar to those under modern Police Acts
and has appellate jurisdiction. It was presided over by
Kotwal-e-Shahar. Appeals lay to the District Qazi.
○ The Amalguzari Kachehri decided all revenue cases. Amalguzar
presided over this Court. An appeal was allowed to the Provincial
Diwan.
● Parganah
○ Adalat-e-Parganah was presided over by Qazi-e-Parganah. The Court
has jurisdiction over all civil and criminal cases arising within its original
jurisdiction. It included all those villages which were under the
Parganah court's jurisdiction.
 ○ Court of Kotwali was presided by Korwal-e-Parganah to decide such
cases are found in the modern Police Act. Appeals were made to the
Court of District Qazi.
○ Amin was the presiding officer in Kachehri which decided revenue
cases. An appeal lay to the District Amalguzar.
● Village
○ From ancient times, panchayats presided over petty civil and criminal
matters.
○ No appeal was allowed from the decision of a Panchayat. Village
Panchavats were mostly governed by their customary law.
● Institution of Lawyers
○ Litigants were represented before the Courts by professional legal
experts. They were popularly known as Vakils. Thus the legal
profession flourished during the Mediaeval Muslim period. Though
there was no institution of lawyers like the "Bar Association" as it exists
today, still the lawyers played. A prominent role in the administration of
justice.
○ Government advocates were for the first time appointed in the reign of
Shah Jahan to defend civil suits against the State. During Aurangzeb's
reign, wholetime lawyers were appointed in every district, who were
known as Vakil-e-Sarkar or Vakil-e-Shara.
○ Vakils had a right of audience in the Court. It was expected that the
Vakils should maintain a high standard of legal learning and behaviour.
● In criminal cases, a complaint was presented before the court either
personally or through a representative. To every criminal court was attached a
public prosecutor known as Mohtasib. He instituted prosecutions against the
accused before the court. The court was empowered to call the accused at
once and to begin hearing of the case.
● During the Muslim period Islamic law or Sharia was followed by all the Sultans
and Mughal Emperors. The Sharia is based on the principles enunciated by
the Quran. Under the Muslim criminal law, which was mostly based on their
religion, any violation of public rights was an offence against the State.
● Three forms of punishments:
○ "Hadd" provided a fixed punishment as laid down in Shara, the Islamic
law, for crimes like theft, robbery, whoredom (Zina), apostasy (Ijtidad),
defamation (ltteham-e-Zina) and drunkenness (Shurb). It was equally
applicable to Muslims and non-Muslims. The State was under a duty to
prosecute all those persons who wereguilty under "Hadd". No
compensation was granted under it.
○ "Tazir" was another form of punishment which meant prohibition and it
was applicable to all the crimes which were not classified under 'Hadd'.
It included crimes like counterfeiting coins, gambling, causing injury,
minor theft, etc. Under "Tazir", the courts exercised their discretion in
awarding suitable, punishment to the criminals. The courts were free to
 invent new methods of punishing the criminals e.g. cutting off the
tongue, impalement, etc.
○ "Qisas" or blood-fine was imposed in cases relating to homicide. It was
a soil of blood-money paid by the man who killed another man if the
murderer was convicted but not sentenced to death for his offence.
Muslim Jurists supported Qisas on the basis that "the right of God's
creatures should prevail" and only when the aggrieved party had
expressed his desire, the State should intervene. The court exercised
its discretion to compound the homicide cases. Qisas may be
compared with the Weregild of the contemporary English period. The
State was authorised to punish the criminals for grave offences
although the injured party might "waive his private claim to
compensation or redress".
Module 2
The English East India Company: Development of Authority under Charters
● English people came to India in 1601 as a 'body of trading merchants.
● On 31st December, 1600 Queen Elizabeth I granted a Charter to the
Company which incorporated the London East India Company "to trade into
and from the East Indies, in the countries and parts of Asia and Africa... for a
period of fifteen years... subject to a power of determination on two years'
notice if trade was found unprofitable”.
● Charter of 1600 - The provisions of the Charter of 1600 were only in
connection with the trade and were not intended for acquisition of dominion in
India. The legislative authority was given to the Company in order to enable it
to regulate its own business and maintain discipline amongst its servants. Due
to subsequent interpretation of these provisions to meet the requirements of
controlling and administering territorial expansion of the Company in India.
Ilbert stated it as “the germ out of which the Anglo-Indian Codes were
ultimately developed”.
● Charter of 1609 — On 31st May, 1609, James I granted a fresh Charter to the
Company which continued its privileges in perpetuity, subject to the provision
that they could be withdrawn after three years notice.
○ The Company was also authorised to continue the enjoyment of all its
privileges, powers and rights which were earlier granted to it by Queen
Elizabeth under the Charter of 1600.
○ In order to enable the Company to punish its servants for grosser
offences on long voyages, the Company secured the first Royal
Commission in 1601. Later on 14th December, 1615, the King
authorised the Company to issue such Commissions to its Captains
subject to one condition that in case of capital offences, e.g.,wilfull
murder and mutiny, a jury of twelve servants of the Company will give
the verdict.
○ The Company was given this power in order to maintain discipline on
board during the voyages. Some additional powers were given to the
Company for enforcing martial law by the Charter of 1623.
● Jahangir’s Farman
○ Entrusted with these powers, the English people came to India in the
reign of Emperor Jehangir and settled at Surat in 1612. Surat was one
of the most important centres of trade and commerce on the Western
coast of India.
 ○ With a view to strengthening their power and to secure advantages, the
Directors of the Company tried to contact the Mughal Emperor.
○ In 1618, Sir Thomas Roe, Ambassador of James I, succeeded in
gaining the Emperor's favour and the English Company entered into a
treaty with the Mughal Emperor.
○ The Mughal Emperor granted the right of self-government to the
English by issuing a Farman (Order) and this proved a turning point in
the legal history of India as the English Company secured various
privileges from the Mugha Emperor.
■ That the disputes amongst the Company's servants will be
regulated by their own tribunals.
■ That the English people will enjoy their own religion and laws in
the administration of the Company.
■ That the local native authorities will settle such disputed cases in
which Englishmen and Hindus or Muslims were the parties.
■ That the Mughal Governor or Kazi of the relevant place will
protect the English people from all sorts of oppression and
injury.
○ The President and members of this Council at the Surat factory were
working as executive officers of the Company. They were also having
judicial authority over English people as the Indian Emperor allowed
them to be governed by their own laws.
○ As the presiding judicial authorities were laymen, they mostly applied
their ideas of justice instead of the settled rules of the English law. The
English people exploited the native judiciary to their own advantage
due to the prevailing corrupt practices in local courts.
● Charter of 1635 - In 1635, Charles I permitted Sir William Courten to
establish a new trading body for the purpose of trading with the East Indies
under the name of Courten's Association. The old Company faced competition
at the hands of the new Company and many other difficulties were created in
England which continued up to 1657.
● Charter of 1657 - In 1657, Sir Oliver Cromwell granted a new Charter which
amalgamated the various joint-stocks into one joint-stock. The Charter also
ended the old rivalry between the Courten's Association and the old Company
by uniting them into one. In fact, the Charter of 1657 changed the very
character of the Company According to Hunter, the new joint Company was
now "transformed from a feeble relic of the mediaeval trade guild into a
vigorous forerunner of the modern joint-stock Company".
● Charter of 1661: Its provisions - In the reign of Charles II, the Company
entered into a period of unprecedented prosperity After 1660, the year which
proved another turning point in the history of the Company, the Company
regained its prosperity and it changed its character from a purely
trading-concern into a territorial power. On 3rd April, 1661, Charles II granted
 a new Charter to the Company. Besides extending the privileges of the
Company on new territorial lines, the Charter reorganised its structure.
○ The Charter of 1661 reorganised the Company on a joint-stock
principle and each member who had a share capital of £500 was given
the right to one vote in the General Court of the Company.
○ In order to meet the existing circumstances more effectively, the
Company's power and command over its fortresses was strengthened.
○ The Company was authorised to appoint Governors and other officers
for proper administration. The Company's power to govern its
employees and to punish their disobedience and misdemeanour was
enhanced.
○ The Charter further authorised the Company to empower the Governor
and Council of each one of its factories or trading centres at Madras,
Bombay and Calcutta to administer, with respect to the persons
employed under them, both civil and criminal justice according to the
English law.
○ Where there was no Governor, the Chief Rector of a trading centre and
his counsel was authorised to send a man for trial to a place where
there was a Governor.
● Legislative powers
○ By the first Charter of 1600, the Company's power to legislate was
subjected to two conditions, that the provisions of its legislation should
not contravene the English law whether statutory or customary and that
it should be reasonable.
○ If one compares the scope of these two charters the Charter of 1661
handed over a much more extensive power to the Governor and
Council of a factory. Whereas the power under the Charter of 1600 was
with respect to persons i.e. applicable only to the Company's servants
and Capital punishment under the Charter could not be awarded, the
powers under the 1661 Charter was extended to all those who lived in
the Company's settlements and all punishments including death
penalty could be awarded.
○ The former Charter was designed to maintain discipline among the
servants of the Company while the latter's purpose was to develop into
a government for the locality and give a judicial system to the
Company's territorial possessions.
○ The second important feature of the 1661 Charter was that it drew no
distinction between the executive and the judiciary and justice was
required to be administered according to English law the Charters
tenaciously guarded and protected the rights of Englishmen and put
the Indians to a great disadvantage.
● Charter of 1668—The Charter of 1668 was a step which further assisted the
transition of from trading body into a territorial power. Charles II transferred in
 1669 the island of Bombay, which he got as a dowry from Portugal, to the
East India Company for an annual rent of £10.
○ The Charter of 1668 authorised the Company to make laws, orders,
ordinances and constitutions for the good government of the island of
Bombay.
○ It was specifically provided that such laws and regulations should not
be repugnant or contrary to, but be as near as possible to the laws of
England. The same Charter also empowered the Company to establish
Courts of Judicature similar to those established in England for the
proper administration of justice.
● Charter of 1683—The Charter of 1683, granted by Charles II, was the next
step. It authorised the Company to raise military forces. The Charter provided
that a court of judicature should be established at such places as the
Company might consider suitable, consisting of one person learned in civil
laws and two merchants— all to be appointed by the Company—and decide
according to equity, good conscience, laws and customs of merchants by
such dates as the Crown from time to time directs.
○ Thus, under this Charter the East India Company was authorised to
establish Admiralty Courts at places of its own choice.
● Charter of 1686—James II, by the Charter of 1686 further renewed and
added to the various powers and privileges earlier granted to the East India
Company.
○ The Charter authorised the Company to appoint admirals and other
sea-officers in any of their ships, with power for these naval officers to
raise naval forces and exercise martial law over them in times of war,
to coin money in their Forts and to establish Admiralty Courts.
○ In 1687 the Company was authorised to establish a municipality and a
Mayor's Court at Madras.
● [include later]
Organisational set-up of the English Company's Factories or Settlements in
India
● English factories and settlements were governed by a President or Governor
and Council at the three places. Members of the Council were generally taken
from senior merchants of the Company.
○ The Governor who was executive head with his Council was also
looking after the administration of justice in his settlement. The
Company derived the power and authority which it exercised in its
settlements from two different sources—the Crown and the Parliament
in England on the one hand and the Mughal Emperor and other native
rulers in India on the other.
○ At the three settlements of Bombay, Madras and Calcutta the Company
had to deal with different local political powers.
○ At Bombay, the Company exercised its powers as the representative of
the English Crown.
 ○ The position at Madras was different. Madras was granted to the
Company by the local Raja in 1639. The Company ruled over both
Englishmen and Indians but its authority over the former was derived
from the Royal Charters while its power over the latter was derived
from the grant of the local Raja or Nawab. At Calcutta, the Company
purchased the Zamindari of the three villages which later came to be
known as Calcutta. There the Company exercised its authority under
the Mughal Emperor's grant of Zamindari. The policy of the Company,
therefore, varied according to the principle by which control was to be
exercised in all these three settlements.
Surat settlement
● The factory was in a hired house. The firman of the Moghal Emperor Granted
these traders a veritable Empire within an Empire with an instruction that the
Kazis should do speedy justice to Englishmen, protect them from all injuries or
oppressions whatsoever and "aid and entreat them as friends with courtesy
and honour." With this favour conferred on them the British routed their
competitors, the Portuguese in the waters of Surat. In those days in India the
law was personal and religious in character and the English did not like to be
governed by that law and the local courts.
Madras Settlement and Administration of Justice from 1639 to 1726
● In 1639 on 22nd July, an Englishman, Francis Day, acquired a piece of land
from a Hindu Raja of Chandragiri, for the East India Company. It was known
as Madraspatnam.
● The consequence of this grant of land was that Francis Day built the Fort St.
George in 1640 for the Company's factory and also for the residence of
English people employed in the service of the Company.
● This Fort was later on known as "White Town", while the village nearby
inhabited by native Indians was known as "Black Town". Thus the whole city
of Madras was founded by Francis Day.
● The Raja empowered the Company to mint money and to govern the whole
city of Madraspatnam. Due to the initiative of English traders, trade and
commerce gradually developed. Certain villages in the neighbourhood also
gained importance and progressed.
● A—FIRST PHASE: 1639-1678
○ The Company's factory at Fort St. George was under the administration
of an Englishman, who was called Agent. The agent and the Council
were authorised to decide both civil and criminal cases of English
people residing at Fort St. George.
○ It is necessary to point out that the authority to punish offenders
conferred by the Charter of Queen Elizabeth and later confirmed by
King James I, was so vague that it was not clear whether the Agent
and Council could exercise judicial authority over the native Indians.
○ Though the Raja granted rights to administer justice to the English
people, they thought it better to allow old traditional courts to continue
 to govern natives. According to the old native system, a Choultry Court
was administering justice in the village area of Madraspatnam. This
Court was presided over by the village headman known as "Adigar" or
a Governor of the Town as he was called.
○ European persons were appointed judges to preside over the Choultry
Court from 1648 onwards.
○ Thus, during the period from 1639 to 1661, two separate bodies were
administering justice at Madras. The Agent and Council were acting as
supreme judicial authority for English people residing in the Fort
St.George, known as White Town, and the native people, residing in
the so-called Black Town locality, were under the jurisdiction of the
Choultry Court. It may be pointed out that in serious cases reference
was made to the Raja, who always laid emphasis on the fact that the
accused must be punished according to the provisions of English Law.
○ Charles II granted a very important Charter in 1661. It played an
important historical role by considerably improving the existing judicial
system of the Company's settlement at Madras.
○ The Charter empowered the Company to appoint a Governor and
Council in each of its settlements in India. The Governor and Council
were authorised to judge all persons belonging to the Company or
living under them in all causes, civil and criminal, according to the laws
of England, and to execute judgment in the respective settlements.
○ In other words, even the Indian Inhabitants who were residing in the
Company's settlements were also included in the Jurisdiction of the
Governor and Council. Thus the Charter expressly provided for the
application of English law and empowered the Governor and Council to
exercise control over both the judiciary and the executive.
○ It was later on realised as a defective provision because the Governor
and Council were not legal experts. Under the Charter of 1661, the
Company appointed Foxcroft as the first Governor of Madras. Foxcroft
came into conflict with Sir Edward Winter and finally emerged
victorious against his rivals. In 1665 Foxcroft wrote a strong letter to the
Company complaining against two magistrates appointed by Sir
Edward Winter, his rival.
○ Foxcroft utilised this opportunity and appointed William Dawes as
magistrate. In order to gain favour of the natives as well as English
people, Foxeroft invited certain chiefs of the inhabitants to a ceremony
and in their presence advised William Dawes, the magistrate "to be
careful without partiality to administer equal justice to all men without
oppression or arbitrary will".
○ In 1665, the trial of Mrs. Ascentia Dawes gained historical importance
in the judicial history of Madras. It was the first trial by jury in Madras
during the Governorship of Foxcroft.
 ○ In this case, one Mrs. Ascentia Dawes murdered an Indian slave girl
named Chequa alias Francisca. She was charged with the commission
of a capital crime.
○ The indictment was drawn out in accordance with a form prescribed by
the Company and a Grand Jury was summoned to return to indictment
billa vera.
○ The Jury found her guilty of the offence of murder of the slave girl, but
not in the manner and form as stated by the prosecution. The Members
of the Jury asked the Court for further directions. In its answer the
Court stated that the members of the Jury were bound to bring in a
verdict of guilty or not guilty without any reservation or limitation.
○ The most surprising part of the whole trial was that the foreman of the
Jury, Mr. Reade, gave the verdict not guilty, contrary to all expectations.
Due to this reason, the court acquitted Mrs. Ascentia Dawes.
○ It is not surprising to note that this typical situation arose because the
Courts Had no person well qualified in law to guide its working.
○ As a consequence of this trial, the ignorance of the Court was exposed.
Necessity of suitable legal assistance to assist the Court was greatly
felt.
○ The President and Council at Madras realised great difficulty in
administering justice. As a result of this trial, the Agency at Madras was
raised to the status of Presidency of Madras. The Agent became
Governor of Madras.
○ Though the Charter of 1661 stipulated administration of justice
according to English law, steps were not taken to appoint any legal
expert to assist the Court in the administration of justice.
○ Surveying the period from 1639 to 1665, it may be stated that the
machinery to administer justice was at a very rudimentary stage.
○ In this first phase, due to elementary judicial methods regular and
systematic administration of justice was absent. Two bodies were
administering justice: the President and his Council for the White Town
and the Choultry Court for the Black Town; the former, inefficient as it
was a very hesitating sort of court not sure of its power, while the latter
could decide only petty cases.
● B—SECOND PHASE: 1678-1683
○ With the appointment of Streynsham Master as Governor in 1678,
began the next phase in the early judicial history of Madras.
○ The Court of Governor and Council was designated as the High Court
of Judicature. Proper arrangements were made for regular meetings of
the Court of Governor and Council. It was clearly stated that the Court
will meet twice a week and will be authorised to decide all civil and
criminal cases with the help of a jury of 12 men.
○ Another important step of the Governor was to reorganise the old
Choultry Court. According to his scheme the Indian officers of the Court
 were replaced by the English Officers of the Company's service. The
number of judges was increased to three out of which not less than two
were required to preside over the trial of cases and registration of bills
of sale of land and other property. Justices were directed to sit in the
Court for two days each week. i.e. every Tuesday and Friday.
○ The Court was empowered to try civil cases up to 50 Pagodas, and
petty criminal cases. The High Court of Judicature consisting of the
Governor and Council were authorised to hear appeals from the
Choultry Court. Thus a judicial system based on a hierarchy of
Courtswith well-defined jurisdiction, came into existence in Madras.
○ The Governor of Madras, Streynsham Master, made a very important
declaration in 1680 by which the English language was recognised as
the only official language in Madras. Till 1680 three languages were
used in the Court, namely Portuguese, Tamil and Malayalam.
○ Thus the English language was firmly planted initially as Court
language in Madras and played an important role in moulding the local
population of Madras in favour of political leadership controlled by
English people employed by the Company.
○ Trial of Gilbert and De Lima: William Gilbert was an Englishman. He
was alleged to have committed murder of one John Hartley. De Lima a
Portuguese inhabitant of Madras was alleged to have committed the
murder of a black Christian. The Governor and Council sought
instructions from the Company in connection with their trial.
○ As a result the trial was delayed and the accused had to remain in jail
as an undertrial for a long period.
○ Gilbert presented a petition to the Council indicating that he acted in
self-defence and he was in prison for 31 months awaiting trial.
○ The Company by its direction dated 5th December 1677 directed the
holding of trial against both the accused. The plea of Gilbert that he
killed Hartley in self-defence was accepted. De Lima was found guilty
of the charge, but on appeal he was sent home.
○ During the second phase also the working of the Court was irregular
and inefficient. Prisoners were rotting in prison without trial and much
time was lost in consultations and demand from the Company for more
power.
○ However a serious study of 1661 Charter would show that it was not
the lack of power but hesitation and apathy to use it that was
responsible for the sorry state of affairs prevailing at that time.
● C—THIRD PHASE: 1683-1726
○ Admiralty court: Gradually the Company realised that its monopoly of
trade was being infringed by other foreign and independent traders
who were not authorised to trade with India.
○ Admiralty Court: In order to curb the activities of interlopers and to
safeguard trading interests, the Company obtained a Letters Patent
 from King Charles II in 1683. The Charter of 1683 marks the beginning
of the third phase.
○ It empowered the company to set up Admiralty Courts in India.
○ Its main purpose was to try all traders committing various crimes on the
high seas. The Court was empowered to hear and determine all cases
concerning maritime and mercantile transactions. The Court was also
authorised to deal with all cases of forfeiture of ships, piracy, trespass,
injuries and wrongs.
○ It was specifically stated that in its difficult task of administering justice,
the Court will be guided by the laws and customs of merchants as well
as the rules of equity and good conscience.
○ The provisions of the Charter of 1683 were repeated by James II in a
Charter issued on April 12, 1686. On 10th July, 1686 the Court of
Admiralty was established at Madras. John Grey was appointed Judge
of the Court of Admiralty and to assist him two other English
people—John Lyttleton and Nethanial Higginson, were also appointed
as his assistants. Seven months later John Hill was appointed Attorney
General of the Admiralty Court.
○ On 22nd July, 1687 Sir John Biggs, who was Recorder of Plymouth
and a learned lawyer in civil law, was appointed "Judge-Advocate" i.e.,
the Chief Judge of the Court of Admiralty at Madras.
○ John Biggs with his legal background contributed to administration of
Justice. The court became famous as General Court of Madras during
his tenure. He died in 1689.
○ It was realised in 1690 that the powers of the Mayor’s court were
limited and therefore the government considered it suitable to revive
the old court of Judicature established by a previous governor of
Madras, Master.
○ Earlier, the court of Judicature was superseded by by the
Judge-Advocate and thus the court suffered from temporary eclipse.
The governor, Judge-Advocate, himself became one of the five judges
of the new court. It is a matter of gratification and interest that the list of
Judges of this court included the name of an Indian, Allingall Pillai.
○ Danel Du Bois was appointed Attorney general. Pillai was the earliest
Indian judicial officer appointed to the bench at Madras.
○ In 1692, John Dolben, an Englishman well versed in law, was
appointed Judge-Advocate in the vacancy caused by the death of John
Biggs. He was independent in his decisions and refused to decide
cases under any pressure or be influenced by favouritism. The
company looked for opportunities to remove him, and he was soon
dismissed on charge of bribery
○ In place of Dolben, William Frazer was appointed Judge-advocate. In
1696, the members of the council were directed to serve in succession
as judge-advocate. John Styleman replaced him soon.
○ Its jurisdiction, including hearing of appeals from the Mayor’s court,
was transferred to the Governor and council.
○ The Governor and Council gradually replaced the Admiralty court.
○ The Admiralty Court exercised a wide jurisdiction in all cases: Civil,
Criminal, maritime and mercantile. It has to be noted that it was in 1687
that a professional lawyer was appointed to administer justice and it
was again in 1687 that the executive gave up judicial functions in
favour of Admiralty Court.
○ Corporation of Madras
■ Mayor's Court - The company issued a Charter in December
1687 which authorised it to create Corporation Of Madras and
establish a Mayor's Court.
■ The Mayor's Court was a part of the Corporation of Madras. It
was empowered to carry out judicial functions.
■ The Company officials were afraid of interference by the British
Parliament in the Company's matters and, therefore, were not
inclined to invite superior officials to its settlements in India.
■ In 1688, the Company created a Corporation of Madras
consisting of a Mayor, twelve Aldermen and sixty or more
Burgesses. In the first instance, the Company's Charter
nominated the persons who would occupy these positions in the
Corporation. It provided that an Englishman Would be elected
every year as Mayor by the Aldermen. Aldermen were appointed
for their life or during their residence in Madras. Out of twelve
Aldermen, three were required to be Englishmen compulsorily.
The quorum fixed for sitting of the Court Was a Mayor and two
Aldermen. The Mayor and Aldermen were to elect Burgesses
From amongst the people who were in the Company's service.
■ Its proceedings were conducted in a summary way according to
justice, equity and good conscience and the laws framed by the
Company. Its decisions were on ad hoc basis and lacked
uniformity. It imposed death sentence in several cases against
the natives.
○ Drawbacks
■ The Court had no reputation for impartiality and incorruptibility.
■ It should be noted that the court was subservient to the
Executive as the power of removal of the Mayor and Aldermen
from their office was vested in the Governor and Council.
○ The Choultry Court
■ As stated above, the creation of the Mayor's Court at Madras left
only petty cases to be decided by the Choultry Court. The
Choultry Court, therefore, decided only petty criminal cases and
civil cases amounting to two Pagodas. Two Aldermen
 constituted the quorum of the Choultry Court, who were to sit for
two days in every week, to decide petty civil and criminal.
■ With the dawn of the eighteenth century, there were four
different courtsworking in Madras—First, the Mayor's Court as
the Court of Record; secondly, theCourt of Admiralty with the
Judge-Advocate as President to try pirates; thirdly, theOld
Choultry Court whose presiding 'officer was called the Chief
Justice of theChoultry; and finally, the Court of the President or
Governor-in-Council, which heard appeals from the decisions of
the Admiralty Court as well as from the Mayor's Court.
○ Standard of Justice
■ No principle of substantive or procedural law governed the
judicial proceedings. Judgment-debtors and criminals were sent
to prison for indefinite periods. Englishmen guilty of serious
offences were being sent to England. The Governor could
pardon death sentence. Pirates and interlopers were awarded
death penalty. Robbery was punishable with death. For stealing,
punishment was slavery.
Administration of Justice in Bombay: The Bombay settlement
● Political position of Bombay
○ The Portuguese acquired the island of Bombay from Sultan
Bahadurshah, the King of Gujarat, in 1534 and from that time onwards
it was under the political control of the Portuguese.
○ The King of Portugal, Alfonsus VI, gave Bombay in dowry to the King of
England, Charles II, when the English King married his sister Princess
Catherine in 1668. Charles II thought that Bombay being a very
backward place, was economically not profitable and as it was difficult
to exercise control from England, he transferred Bombay to the
Company in 1668 for a very nominal annual rent of £10. (A 50,000
pounds loan at 6% interest rate also)
○ The position of Bombay was completely changed with this transfer by
the new Charter of 1668. The Charter authorised the Company to
legislate and to exercise judicial authority in the Island of Bombay.
○ It Was further stated that such laws should be consonant to reason and
not repugnant or contrary to the laws of England and they were also
required to be as near as may be agreeable to the laws of England.
The system of courts and procedure was to be similar to that
established and used in England.
○ The President of Surat, Sir George Oxenden, received the Company's
orders in September 1669 to visit the Island of Bombay and establish
the executive government under a Deputy Governor and Council.
Though Oxenden visited Bombay in January 1669, it was only after the
death of Oxenden in July 1669 that the laws enacted by the Company
under the Charter of 1668, actually came; into force for the government
 of Bombay. Thomas Papillon drafted these laws which were
subsequently revised by the Court of Committees and the
Solicitor-General.
○ Finally, these laws were brought to Bombay by Gerald Aungier, the
Governor of Surat, in 1670.
● Charter of 1668
○ The Charter of 1668 conferred full powers, privileges and jurisdiction
on the Company so that it could make laws, ordinances and
constitutions for the good governance of the island and could impose
appropriate and suitable pains, penalties and punishments by way of
fine, imprisonment and even death.
○ Thus the power of administration including power of legislation and
administration of justice was granted. There were two conditions
prescribed for the purpose that the laws were to be consonant to
reason and not repugnant but as near as may be, agreeable to the
laws of England.
● Judicial Reforms of 1670
○ The first important legislative work of the Company was done by
Gerald Aungier in 1670. He reorganised the old judicial set-up of
Bombay.
○ Old laws which were initiated by Oxenden were given a final shape and
were classified into six sections.
○ First section related to the freedom of worship and religious beliefs
granted to all inhabitants. The laws prohibited the use of abusive and
contemptuous language in respect of the religion of other persons. The
defaulters were liable to pay fine or imprisonment.
○ The second section dealt with the impartial administration of justice.
The existing rights of persons were confirmed and the principle of fair
trial and convictions was recognised. It provided for a trial by a jury of
twelve persons in cases concerning deprivation of civil rights, etc.
○ The third section provided for the establishment of a Court of
Judicature to decide all criminal cases. The Governor and Council were
authorised to appoint a judge.
○ All trials were required to be by jury of twelve Englishmen. Where a
parties to the suit were not English, only six were required to be
Englishmen and other remaining six were chosen from Indians. Right
of appeal from the Court to the
○ Governor and Council was also granted. It provided for the
appointment of Justices of the Peace and Constables to maintain
peace and order and in anct criminals, etc.
○ The fourth section dealt with the registration of transactions concerning
sale of land and houses.
 ○ The fifth section contained miscellaneous provisions dealing with
penalties for different crimes. In many cases the severity of English law
was reduced.
○ The last section dealt with military discipline and prevention of disorder
and revolt. Death penalty for mutiny, revolt, insurrection, rebellion or
sedition.
○ He improved the judicial system gradually, as he was aware that it
would not be possible to supersede the old system of the judicial
system of Portuguese law.
○ According to the reforms of 1670, the Island of Bombay was divided
into two divisions - one division consisted of Bombay, Mazagaon and
Girgaon; the other comprised of Mahim, Parel, Sion, and Worli.
○ A separate Court of Judicature was established for each division at
Bombay and Mahim. Each Court consisted of five judges. The customs
officer of each division, an Englishman, was empowered to preside
over the respective Court.
○ Three judges formed the quorum of the Court. As it was not possible
for an Englishman to have adequate knowledge of Indian Laws, some
Indians were also appointed judges to assist him in the Court of each
division. The Courts were authorised to hear, try and determine cases
of small thefts and all civil actions up to 200 Xeraphins in value.
○ An appeal from the Court of each division was allowed to the Court of
Deputy-Governor and Council. Apart from the appellate jurisdiction, the
Court also had original jurisdiction in important felonies, which were to
be tried with the help of jury and the laws of the Company.
○ Englishmen were under the jurisdiction of this Court. Further appeal to
the President and Council at Surat was discouraged except in rare
cases.
○ The judges of the superior and inferior courts had no knowledge even
of the elementary principles of law; they were merely traders. The
Judicial and executive powers were exercised by the same persons.
○ As a consequence, the abuse of power created various new problems.
In order to remove these defects Aungier requested the Company
authorities to provide persons who were experts in law. Initially, the
Company paid no attention to it. After some insistence the Company
asked Aungier, the Governor, to select any such experts in law from the
existing persons who were in the employment of the Company in India.
○ After some time, Aungier selected George Wilcox with whose advice
he prepared a new plan in 1672 for the administration of justice in
Bombay.
● New judicial Reforms of 1672
○ According to the new plan the Government issued a proclamation on
1st August, 1672 declaring the introduction of English Law into
Bombay.
○ It may be recalled that in the judicial plan of 1670 the Portuguese Laws
and customs were left untouched. They were totally abolished under
the newplan, and with this change, the old confusing state of laws also
came to an end in Bombay.
○ The judicial machinery was again organised. A new central court
known as The court of Judicature was established.
○ The Court was inaugurated on 8th August,1672 by the then Governor
of Bombay, Gerald Aungier, with pomp and ceremony.
○ In his inaugural address the Governor Aungier enunciated the
principles of the administration of justice not only in Bombay but all
over the country. He emphasised that all the inhabitants of this island,
irrespective of caste or creed had an equal title and right to justice.
Thus he laid special emphasis on the principles of independence,
impartiality and equality for the future guidance of the judiciary.
○ Aungier is rightly remembered as the "true founder" of Bombay.
○ He was a man of liberal ideas and he believed in a sound and impartial
administration of justice without fear or favour. He projected basic
principles of ethics for judiciary too.
○ The Court of Judicature was empowered to exercise its jurisdiction
over all civil, criminal and testamentary cases. George Wilcox was
appointed its Judge, assisted by other Justices. The Court sat once a
week to try civil cases with the help of the jury. The Court charged a fee
of five per cent of valuation of the suit from the litigants.
○ The Judge was prohibited from carrying on private trade or business,
and instead he was granted a salary of Rs. 2,000/- per year to meet his
expenses.
○ An appeal from the Court of Judicature was allowed to the Deputy
Governor and Council. Juries were duly employed and paid.
○ Attorneys were allowed to practice. English procedure, including arrest
and imprisonment, was followed. As far as possible the English
substantive law including statute law was made applicable.
○ In framing the new scheme Aungier was primarily concerned with the
speedy and impartial administration of justice.
○ Justices of the Peace were appointed to administer criminal justice. For
this purpose Bombay was divided into four divisions, namely, Bombay,
Mahim, Mazagaon and Sion.
○ In each division a Justice of Peace, an Englishman, was appointed.
They acted as committing magistrates to arrest the accused and to
examine the witnesses. The record was then placed before the Court
of Judicature which met once a month to decide criminal cases with the
assistance of all the Justices of Peace, who acted as assessors in the
Court.
 ○ The scheme of 1672 also created a Court of Conscience to decide
petty civil cases. Once a week the Court dealt summarily with civil
cases under twenty Xeraphins.
○ The decision of the Court was final and no further appeal was allowed.
No court-fee was charged from poor persons and, as such, the Court
became famous as, "Poorman's Court".
○ George Wilcox, Judge of the Court of Judicature, also presided over
court of conscience which sat once a week to decide on petty civil
cases.
○ civil cases.
○ George Wilcox, the first Judge of the Court of Judicature died in 1674.
James Adams was chosen to succeed Judge Wilcox but he was not
well-versed in law.
○ Keignwin's rebellion which began in December, 1683, and continued up
to November, 1684 gave a death-blow to Aungier's judicial system in
the Island of Bombay.
● Admiralty Court conflicts with Council: 1684-1690
○ After the rebellion was suppressed, efforts were made to set-up a
regular judicial system at Bombay. The Company found its authority to
establish courts under an earlier Charter of 1683 granted by Charles II.
○ The authorities at Bombay Were also aware of the judiciary which was
set-up at Madras under the Charter of 1683.
○ The Charter provided for the establishment of Courts at such places as
the Company might direct for maritime causes of all kinds, including all
cases of trespasses, injuries and wrongs done or committed upon the
high seas or in Bombay or its adjacent territory, and each Court was to
be held by a learned judge in civil law assisted by two persons chosen
by the Company.
○ Such Courts were required to decide cases according to the rules of
equity and good conscience and the laws and customs of merchants.
○ Accordingly, an Admiralty Court was established at Bombay in 1684.
Dr. St. John, a person learned in civil law, was selected by the
Company at England to be appointed as Judge-Advocate of the
Admiralty Court.
○ Dr. St. John also succeeded in getting authority from the Governor to
act as Chief Justice of the Court of Judicature. The Court of Judicature
was again created, as the authority of the Admiralty Court was not
sufficient to Cover all other civil business.
○ John Child, Governor of Bombay at Surat, was not in favour of
accepting the theory of judicial independence which was adopted by
Dr. St. John in his judicial decisions.
○ It gave rise to conflicts between the Governor and the Chief Justice. Dr.
St. John's judicial independence was interpreted by the Governor John
Child as insubordination towards himself.
 ○ In 1685 the Governor got all and the powers of Dr. St. John to act as
Chief Justice of the Court of Judicature were withdrawn.
○ Vaux, a member of the Bombay Council was also appointed Judge to
preside over this Court, in place of Dr. St. John. These steps further
developed the existing conflict between the Governor and the Chief
Justice.
○ Dr. St. John strongly criticised the transferring of his powers to Vaux, a
new judge, who according to him was ignorant of civil laws.
○ In due course the Governor and Dr. St. John further came into serious
conflict and their relationship became strained which ultimately resulted
in the dismissal of Dr. St. John in 1687 from the Court of Admiralty.
○ The incident made the Company all the more reluctant to appoint
professional lawyers as judges in India.
○ After Dr. St. John's dismissal, Sir J. Wyborne, Deputy Governor of
Bombay, was appointed Judge of the Admiralty Court. In 1688 Vaux
succeeded Sir J. Wyborne and remained in the office up to 1690.
○ The Court practically ceased to function independently due to the
strong position of Governor and the President of the Board of Directors
in London.
● Revival of judicial machinery: 1718-1728
○ A new period in the Judicial history of Bombay began with the revival
and inauguration of a Court Of Judicature on 25th March, 1718 by
Governor Charles Boone.
○ It was established by the order of the Governor and Council which was
later on approved by the Company authorities. It differed from the
earlier Court of Judicature which was established under Aungier's
judicial plan of 1672, as it was constituted according to the laws of the
Company and not by the Governor and Council.
○ The Court of Judicature of 1718 consisted of ten judges in all. It was
specially provided that the Chief Justice and five judges will be English.
The remaining four were required to be Indians representing four
different communities, namely, Hindus, Mohammedans, Portuguese
Christians and Parsis.
○ All English judges were also members of the Governor's Council and
enjoyed a status superior to Indian judges. Three English Judges
formed the quorum of the Court. The Court met once a week. Indian
judges, who were also known as "Black Justices", were included
mainly to increase the efficiency of the Court and their role was mostly
that of assessors or assistants of the English judges.
○ They do not appear to have enjoyed equal status with English judges.
They do not appear to have enjoyed equal status with English judges.
○ The Court of 1718 was given wide powers. It exercised jurisdiction over
all civil and criminal cases according to law, equity and good
conscience. It was also guided by the rules and ordinances issued by
 the Company from time to time. It was necessary for the Court to give
due consideration to the customs and usages of the Indians.
○ Apart from its jurisdiction over probate and administrative matters, it
was further authorised to act as a Registration House for the registry of
all sales concerning houses, lands and tenements.
○ An appeal from the decision of the Court of Judicature was allowed to
the Court of Governor and Council in cases where the amount involved
was Rs. 100 or more.
○ A notice to file an appeal was to be given within forty-eight hours after
the judgment was delivered to the Chief Justice of the Court of
Judicature.
○ In spite of the fact that it sat once a week, it was famous for its
impartiality, speedy justice and also for the cheapness of its process.
Most of the civil litigation was concerned with the recovery of debts.
○ In order to recover debts the Courts generally adopted English
practice. Where a person was not having any property, he was kept in
prison so long as the debt due wasn't paid.
○ Fawcett has pointed out certain cases where the Court applied English
law and even international law which was vague and underdeveloped
at that time. This Vagueness and uncertainty was bound to lead to
injustice and lack of uniformity in punishing the criminals.
● Rama Kamti case
○ Rama Kamti was a rich and influential person. He was the supporter of
the Company.
○ On a charge that he was corresponding with one Angria, a pirate chief,
Kamti was arrested. Angria was troubling the Company.
○ The trial was held before Governor Boone and his Council. There was
no conclusive evidence whatsoever against Kamti but a round pirate
chief Angria had told her that Kamti had written to him.
○ His servant was tortured by cutting off his thumb to extract evidence
and a statement implicating Kamti.
○ Some letter making it appear to have been written to Angria were
manufactured by forgery.
○ Kamti was found guilty and sentenced to an indefinite period of
imprisonment. His property was confiscated and auctioned. The
charges against Kamti were drawn by Governor Boone and his
Council.
○ His trial was held before an ad hoc tribunal which was presided over by
Governor Boone and consisted of members of the Council and Parker,
the Chief Justice of the Court.
○ During the trial Parker objected to the torture of Kamti servant which
was inflicted at the instance of Boone. The result of showing this
judicial independence was his dismissal by the Governor.
Administration of justice in Calcutta
● Grant of Zamindari rights to the company
○ As early as 24th August, 1690 the English East India Company
constructed Fort William for its factory, by the side of the river Hoogly.
○ In 1698, Prince Azim-Ush-Shan, Subedar of Bengal and grandson of
Emperor Aurangzeb, granted Zamindari rights of three
villages—Calcutta, Sutanati and Govindpur—to the English Company.
○ This proved a historical event as the grant of Zamindari rights
empowered a foreign company to exercise all those powers which the
native Zamindars were authorized to have under the Mughal
administrative and judicial system.
○ The Company took full advantage of this authority and appointed a
Collector to control the administration of all the three villages. The
Collector began regularly to hold Zamindari court for both civil and
criminal cases.
○ The local council was required in 1698 to send all prisoners to Madras
for trial, as the Emperor kept in abeyance certain privileges of the
English Company.
○ In 1699, the status of Calcutta was raised to that of a Presidency and
its Governor and Council were entrusted with all the necessary
administrative and judicial powers. The Collector who was the
company's officer, was also appointed a member of the Governor's
Council at Calcutta.
● Justice in criminal cases
○ In order to administer justice in criminal cases, the Company decided
to adopt the existing Mughal pattern. As such a Faujdari Court,
presided by an English Collector, was established to decide criminal
cases of the natives of three villages, Sutanati, Govindpur and
Calcutta.
○ Apart from its jurisdiction on Indians, the Court also look cognizance of
petty crimes committed by English people. For serious crimes the
Governor and Council were authorised to try by the Charter of 1661.
● Justice in civil cases
○ To deal with civil litigation, the Collector presided over a civil court or
the court of Cutchery. Ordinarily, the civil cases were referred to
arbitrators by the Collector. The Collector decided cases in a summary
way on the basis of the prevailing customs and usages of the country.
○ The Collector in the capacity of a Zamindar was also responsible for
the collection of land revenue from natives of three villages
○ Appeals were made to the Governor and Council.