1.

LEGAL HISTORY
Legal History of India can be studied in under five important periods, i.e, Vedic period, Hindu
period, Muslim period, British period and after independence.
I. VEDIC AGE
When the process of formation of society and State was over, it was felt that there
should be an organised administration which could give justice. For the purposes of
public peace and advancement this was a necessary factor because in case of
disturbance, social and religious progress was not possible from which we can infer that
ancient Indian society was not static, it was dynamic.

A need was felt for a treatise on legal philosophy or jurisprudence: a science of social
engineering. In this literature, one can see how our ancestors comprehended the
complex problems of society and prescribed rules for regulating society and social
conduct. We must pay respect to this body of legal literature for our knowledge of the
evolution of Hindu Law.

1. Sutras – After the age of sacrificial instruction, to be observed at the time of

doing Yagna became obscure, a new group of texts was required to explain
them. This literature was in the form ofSutras (卸 ).A Sutra is a pithy
formulation of broad and general principles of common sense and justice.
● It is a pithy statement, being unambiguous, substantial, universal and logically
● sound—so say the Pandits or the learned
● The term Sutra in common parlance means a thread; it was also used to show
● a manual of instructions on various subjects

2. Types of Sutras – Kalpa Sutras are the oldest works and are of three types
which are Srautrasutras(based on shruti), Grihya Sutras, and Dharmasutras, the
vedas. These are useful for history and religion

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

man to the State, duties of varnas and ashrams, social usages, customs and
practices of everyday life. This period is a period to which one can assign the
beginning of civil and criminal laws.
● 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 an upper hand.

4. Role of Smritikars – Smritikars were more interested in formulating a system of

rules for the welfare of society and social solidarity. They have played a very
important role in preparing rules for regulating the social and religious life of
the people.
 a. Manu andManusmriti.—Manu is the most famous and outstanding figure in the
history of lawgivers of antiquity. By preparing the Manusmriti, he gave India
the first code of civil and criminal law. This code is still valuable and regulates
the conduct and nature of Indian society. 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. Thus, Manusmriti is the most outstanding and
dominating work among the Dharmasastras. Brihaspati, Yajnavalkya, Narada
and Katyayana represent the last stage of legal development

b. Brihaspati.—Brihaspati tells us about seven courts. His concern for even handed
justice becomes evident when he amplifies rules relating to different classes of
evidence with their characteristics. 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 were sufficient, provided they were learned
Brahmans. But a single witness should never be entertained.
c. Yajnavalkya – He arranged the material ofManusmriti in a systematic and
concise manner. He was the first to mention specifically three popular
courts,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-fbld: 1) documents, 2)
witnesses, and 3) possession. A document was expected to be precise, detailed,
authentic and signed by witnesses. Witnesses should be religious, generous,
descended from a respectable family, speakers of truth eminent in virtue, fair,
having sons and wealthy. Regarding possession, he believed that "title prevails
over possession unless the latter be hereditary". He gives rules about mortgages
of property. He laid more stress on civil law and closely followed Manu.
Yajnavalkya describes six kinds of stridhan. He had prescribed four types of
punishments, of course the punishments were cruel.
d. Narada.—He provides the first legal commentary which is not loaded with
precepts of religion and morality. However, the judicial procedure advocated by
him is a highly complex one. Narada amplifies and explains the view of Manu
in respect of witnesses and divides them into 11 classes.
e. Katyayana.—Katyayana makes up a "triumvirate" in the realm of Hindu Law
and procedure, the other two being Brihaspati and Narada. He gave a detailed
account of the constitution of the courts of justice and gave an elaborate
description of the court procedure. He refuses a remedy if it is not sanctioned
by the usages of the country. A verdict pronounced by the court was called
jaya-patra

II. HINDU PERIOD : JUDICIAL SYSTEM IN ANCIENT INDIA

1. Ancient Hindu social order, institutions and religious philosophy
In determining the social order two important concepts may be stated, namely, the
caste system and the joint family system.
(a) Caste system.—The caste system emerged in Ancient India as unique and
one of the most rigid social systems ever developed in any part of the world. A
caste was a social group consisting solely of persons born in it. 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. They had in law and
in fact privileges and prerogatives not held by other sections of Hindu society.
The Kshatriyas were the nobles and warriors and to this caste rulers of various
states and kingdoms mostly belonged. The Vaisyas were merchants and traders. The Sudras
were the workers and ranked lowest. The caste was determined by birth. The members of the
three upper classes, namely, Brahmins, Kshatriyas and Vaisyas were the elite of Hindu society.
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.4 The basis and continuance of caste system depended on the vast network of
sub-castes. Sub-caste relationships were based on specialisation of work and economic
independence. The caste association further diluted political loyalties. In later centuries, caste
exclusiveness became absolute and reached its peak in caste panchayats. Each caste
panchayat was regarded as a supreme authority for the particular caste in each village. It
gave stability to Indian society. Though the caste system was conservative, it was still most
needed to suit the requirements of Ancient India.

(b) Joint family system.—The joint family system was another important
institution which determined the social order amongst Hindus in Ancient India.
A family was regarded as a unit of the Hindu social system. An ancient family
included parents, children, grandchildren, uncles and their descendants, and their
collaterals on the male side. This social group had common dwelling and enjoyed
their estate in common. At the head of the family was the patriarch, whose authority was
absolute over the members of his family. He represented all the members of his family before
the law and claimed absolute obedience from them. The family group was bound together by
sradha1 ceremony. A number of families constituted a sect, gram or village, which became an
administrative unit also. The concept of family led to private property, which in turn led to
disputes and struggles, which necessitated law and a controlling authority. In later centuries,
problems concerning the division of land and inheritance came in for special attention. Two
systems of family law, namely, Mitakshara and Dayabhaga, became the basis of civil law.8
They dealt with property rights in a Hindu joint family and mostly amongst land-owning
families.

The political system and institutions were varied and complex in Ancient India.
India was divided into various independent States—some monarchies and the rest tribal
republics. Monarchy in various forms was prevailing in the ancient Hindu period. Dharma was
the most important concept of the Hindu political thought.
● The ancient legal and constitutional system in Ancient India established a duty-based
society.
● It emphasized the duty of individuals towards society and the duty of rulers towards
individuals and society.
● The legal system was uniform throughout India, despite the existence of numerous
kingdoms, rejecting the concept of absolutist monarchies.
● The supremacy of dharma (law) over the kings was respected, and the king himself
was subject to the law.
● Kings were encouraged to view the people as God (Praja Vishnii) and serve them with
love and reverence.
● The individualistic doctrine of laissez-faire was not accepted, and the philosophy of
subordinating individual or smaller group interests for the greater good was deeply
embedded in dharma.
● Dharma or law served as the blueprint for the all-round development of individuals
and different sections of society.
● Dharma encompassed positive and negative commands (yidhi and nishedha) and
aimed at the upliftment and welfare of all living beings.
● The concept of saptanga (seven limbs) of the State included the sovereign, minister,
territory with people, army, and friends or allies.
● The king held supreme authority and was responsible for protecting the kingdom
against external aggression and internal threats to life, property, and traditional
customs.
● The king also maintained social order, preserved the purity of class, caste, and family
systems, and had increased powers in the Mauryan system.
● Hindu religion before Buddhism was known as the Vedic religion, while the form that
succeeded Buddhism was called the Puranic religion.
● Hindu religion and philosophy outlined four aims of human life: dharma (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 aims would lead to the attainment of moksha.
● Various formal systems of Hindu philosophy, such as Nyaya, Vaisheshika, Samkhya,
Yoga, Mimamsa, and Vedanta, had a significant impact on Indian thought.
● Yoga and Vedanta continue to exert a great influence in various ways and represent
the dominant philosophical outlook of Hinduism today, as stated by Nehru.

2. Ancient Kingdom : Administrative units

● Ancient India was divided into independent states, with the king as the supreme
authority in each state.
● Each state had administrative divisions such as provinces, divisions, and districts, each
with separate governors appointed based on status.
● District officers were responsible for judicial and administrative functions within their
districts.
● Cities had their own administration, with a separate governor overseeing their
governance.
● Villages were the basic unit of government and were classified according to the
number of villages under their administrative jurisdiction.
● Each village had a village headman and a village council or panchayat, assisting in
village administration.
● The village headman represented the king's administration and protected the village
from external threats and oppression.
● Rajyadharma, the king's personal responsibility, played a significant role in the ancient
Indian system of government.
● The division of work in the state required different departments headed by individuals,
along with a cadre of officers to carry out departmental work.
● The existence of a well-developed governmental system in ancient India is evidenced
by the provisions in the legal and constitutional system.
● Kautilya's Arthashastra divided the realm into four administrative units: Sthaniya,
Dronmukha, Kharvatika, and Sangrahana, each with its own law courts.
● Law courts were established in each administrative unit and at the meeting places of
districts to resolve disputes between citizens.

3. Administration of justice
a. Constitution of Courts – Appeals from guild tribunals could be made to local courts,
then to royal judges, and finally to the king, but such appeals were rare.
● Family courts were established due to the joint family system, and disputes among
family members were resolved by puga assemblies composed of groups of families in
the same village.
● According to Brihaspati, family arbitrators were the first to handle disputes, followed
by judges who were superior to the families, and the Chief Justice (Adhyaksha) who
was superior to the judges. The king held the highest authority, and his decision
became law.
● Criminal cases were generally presented before the Central Court or courts under royal
authority. Village-level judicial assemblies were limited to hearing minor criminal cases.
● Decisions of higher courts in Ancient India superseded those of lower courts, and each
lower court respected the decisions of higher courts. The king's decision was considered
supreme.
● Administration of justice in Ancient India followed the principle that a single individual
should not administer justice. A bench of two or more judges was always preferred for
decision-making. The old texts emphasized that no decision should be given by a
person individually, and the king or his ministers would transact the business on the
bench, with the king sitting in his council and administering justice.

b. Judicial procedure – Judicial procedure in Ancient India was elaborate and consisted of
four parts: the plaint, the reply, the trial and investigation, and the verdict or decision.
● Filing a plaint meant submitting to the jurisdiction of the court, and the court could
order the defendant to submit a reply based on the allegations in the plaint.
● If the defendant admitted the allegations, the court would decide the case. If the
defendant contested the case, both parties were given the opportunity to prove their
cases.
● Evidence played a crucial role in proceedings, and it was typically based on
documents, witnesses, and the possession of incriminating objects.
● The legal system in Ancient India recognized the highest court located in the capital
city, lower courts under royal authority, and people's courts with the power to decide
cases.
● The qualifications of judges and court officers were prescribed, and experts could be
appointed as assessors to assist with technical questions.
● Laws of procedure and evidence were established, and a code of conduct for judges
and court personnel was in place.
● Punishment provisions were included for officers committing offences during the
administration of justice.
● In civil cases, the court inquired into the social status and qualifications of witnesses.
● In criminal cases, circumstantial evidence and witness testimonies were used. The
accused could present witnesses in their defence, and witnesses were required to take
an oath before the court.
● Ordeal was sometimes used as a means of proof, and the courts were instructed to
convict only according to established procedures.
● False witnesses were heavily fined, and Narada mentioned that they were condemned
to a terrible hell for a kalpa (an aeon).

c. Institution of lawyers – The ancient Hindu judicial system did not have a separate
institution of lawyers, according to the Smritis.
● However, it is possible that individuals well-versed in the law of the Smritis and court
procedures were appointed to represent parties and present their cases before the
court.
● The procedures outlined in the Narada Smriti, Brihaspati Smriti, and Katyayana Smriti
were highly technical, suggesting that skilled assistance was often required in litigation.
● Historical evidence, along with the observations of scholars like Kane, indicates that
the organisation of lawyers as it exists today did not exist in the ancient Hindu period.

d. Appointment of judges and judicial standard – Caste considerations were important in

the appointment of judges in the ancient judicial system. Preferably, a Brahmin was
appointed as the Chief Judge or judge, followed by Kshatriyas and Vaisyas. Sudras
were not appointed as judges.
● Qualifications for judges included being knowledgeable about the customs of the
country, believers in the caste system and God, respectful of sacred books, and
mentally stable. Ignorant, non-believers, and those in distress were not considered
suitable for the role of a judge. Women were also not allowed to hold the office of a
judge.
● The standards for judges and magistrates were high. Judges were required to take an
oath of impartiality and demonstrate integrity when resolving disputes. Their decisions
were expected to be in accordance with the prescribed procedures.
● Brihaspati emphasised that judges should decide cases without personal gain,
prejudice, or bias, and their decisions should be based on the prescribed procedures. It
was believed that a judge who fulfilled their judicial duties in this manner would
achieve spiritual merit similar to a person performing a yajna (sacred ritual).
● Dishonesty in a judge was considered the most reprehensible crime.

e. Trial by Jury – In the ancient judicial system of India, a form of trial by jury existed,
although it did not resemble the concept as understood today.
● The play "Mrichchakatika," believed to have been produced in the 3rd century, features
a court scene that mentions the jury.
● Sukraniti, Brihaspati, and Narada, ancient legal texts, defined the functions of the jury,
indicating that community members assisted in the administration of justice.

f. Trial by ordeal – Trial by ordeal was a method used in the ancient Indian judicial
system to determine a person's guilt.
● The society, influenced by religion and faith in God, considered trial by ordeal as a
valid form of proof.
 ● Swearing by one's troth or invoking the Gods to witness the truth of a statement was
common during the ordeal.
● Trial by ordeal was typically used in cases where concrete evidence was not available.
● The greatest drawback of trial by ordeal was that it could result in a person proving
their innocence through death, as the ordeals were often painful and dangerous.
● The Agni Purana provides a detailed account of the different types of ordeals used in
ancient India, including the ordeal and balance, ordeal of fire, ordeal by water, ordeal
by poison, ordeal of lot, ordeal of rice grains, and ordeal of fountain-cheese.

g. Crimes and punishments – In the ancient Hindu period, punishment was seen as a form
of expiation that removed impurities from individuals who had committed sinful or
criminal acts.
● Punishment served several purposes, including meeting the urge for revenge or
retaliation, acting as deterrent and preventive measures, and aiming for the
reformation or redemption of the wrongdoer.
● Ancient Smriti writers recognized four main methods of punishment: gentle admonition,
severe reproof, fines, and corporal punishment. These could be applied separately or
together based on the nature of the offence.
● Judges considered various factors, such as the motive and nature of the offence, time
and place, the offender's strength, age, conduct, learning, and financial position, as
well as whether the offence was repeated, before deciding on the appropriate
punishment.
● The severity of punishment could also depend on the offender's caste.
● Certain individuals, such as old men over 80, boys below 16, women, and those suffering
from diseases, were exempted from punishment under ancient criminal law. Children
under the age of five were considered incapable of committing crimes or sins and were
not subject to punishment or expiation.

In the ancient Hindu period, Brahmin offenders were generally not sentenced to death or
corporal punishment for offences deserving a death sentence. Other punishments were
substituted for them, although Katyayana and Kautilya were against exempting Brahmins.
● Criminals were required to pay fines and undergo corporal punishment for their
offences under ancient criminal law.
● Different penalties and compensations were prescribed for different castes in cases of
theft, adultery, rape, abuse, and contempt.
● Adultery and rape cases considered the caste of the offender and the woman in
determining the punishment.
● Respect for higher castes was emphasised, and offences against them carried fines or
corporal punishment.
● Murder cases involved fines based on the caste of the victim, and ancient law books
prescribed death penalties with various forms of execution, mutilation, torture, and
imprisonment.
● The earlier criminal law in India was severe and drastic, but over time, punishments
were lessened and fines became the ordinary form of punishment for many crimes.
● The administration of justice in ancient India involved village assemblies or communal
bodies, with or without the presence of the king or public officers. The king's power and
jurisdiction gradually increased throughout the kingdom.
 ● There was no organised criminal justice system vested solely in the king or the people,
and the system of Wergild (Vaira) indicated that criminal justice remained in the
hands of those who were wronged.
● The king's peace was recognized as infringed by crime in the Sutras

III. MUSLIM PERIOD : JUDICIAL SYSTEM IN MEDIEVAL INDIA

● The Muslim period in India began with the arrival of Arabs in the 8th century. They
settled in the Malabar Coast and Sind but did not penetrate further.
● The absence of a deeper Arab influence in India was seen as unfortunate, as it could
have led to a synthesis of Islamic and Hindu cultures, potentially advancing Indian
civilization.
● The Arabs conquered Persians, Afghans, and Turks and converted them to Islam. The
Afghans and Turks then invaded India, motivated by a desire for wealth and a claimed
zeal for Islam.
● The Hindu kingdoms fell to the Afghans and Turks, similar to how the Roman Empire
collapsed before German barbarians.
● While ruling in India, the Muslim rulers were cautious not to completely antagonise the
Hindus, but sporadic acts of vandalism and brutality did occur.
● Unity between the two cultures could have been achieved over time, as evidenced by
efforts made by rulers like Akbar and saints like Kabir.
● However, the British arrived and exploited the existing antagonism between Hindus
and Muslims for their own gain.
● The British fueled tensions between the two communities and, even during the partition
of India, deliberately divided the country into India and Pakistan to politically weaken
the subcontinent.
● The process of exploiting divisions continues, perpetuated by other so-called civilised
countries.
● The downfall of Hindu kingdoms can be attributed to several reasons, while it is
important to study the social order, political theory, and religious philosophy of Muslim
rule in India.

1. Causes of the downfall of the early Hindu Kingdoms

● The downfall of the Hindu period began in the late 11th and early 12th centuries with
attacks by foreign invaders of Turkish descent on local Hindu Rajas.
● The disintegration of old Hindu kingdoms was influenced by political, military, social,
and economic factors.
● Constant struggles for supremacy among powerful states created an atmosphere of
mutual distrust, preventing political unity against foreign invaders.
● Economic and military resources were wasted due to internal conflicts, while a lack of
capable leadership hindered the unification of Indians against the common enemy.
● Indian warfare tactics were not adapted to the new situation, and the influence of
feudatory families posed a threat to the stability of the central government.
● Caste divisions within Hindu kingdoms weakened their resistance.
● Treachery by local chiefs or high officers for personal gain contributed to the defeats.
● The success of the Sultans of Ghazni and Ghor can be attributed to their use of shock
tactics, characterised by sudden raids and swift returns.
● The Indian leadership was not vigilant, lacked unity, and was politically disunited, while
the Turks possessed military superiority and religious fanaticism.

2. Muslim Social order : political theory and religion

● The social system of Muslims in India was based on Islam, which promoted equality
among men and rejected the graded inequality of the caste system.
● Islam emphasised equality before God, disregarding distinctions of class, nationality,
race, and colour. However, it had a more patriarchal and arbitrary nature.
● Polygamy was limited to four wives in Islam.
● The main objective of Muslim rule in India was self-preservation and political
dominance over Hindus. Over time, Muslims and Hindus adopted each other's habits
and customs.
● Muslim political theory was governed by Islam and was based on the teachings of the
Quran, traditions of the Prophet, and precedent.
● Political institutions developed by Muslims in India were influenced by Greek
philosophers.
● Sovereignty in a Muslim state belonged to God, and rulers saw themselves as God's
humble servants.
● The Muslim polity was based on the legal sovereignty of Sharia or Islamic law.
● Unity within the Muslim community was emphasised, and allegiance to the Caliph or
ruler was obligatory.
● Controversies arose from interpreting the Quran, leading to the development of
Muslim law (Sharia). Muslims divided into various sects, with Sunnis and Shias being
the main sects.
● Turkish and Afghan influences, along with Persian culture, shaped the Muslim religion
in India.
● The policy of intolerance and religious intolerance was prevalent among the Muslim
rulers, leading to the propagation of strange doctrines and the assertion of India as a
Muslim country.

3. Historical introduction
● In the late 10th and early 11th centuries, Mahmud of Ghazni, a Turkish Muslim,
launched a series of raids on North-West India, plundering temples and accumulating
vast wealth. In 1191, Mohammed of Ghor attacked India but was initially defeated by
Hindu Rajas. However, he ultimately established a Muslim Sultanate in Delhi by the
end of the 12th century. From 1206 to 1526, the Delhi Sultanate saw the rule of 33
Turkish kings belonging to five dynasties.
● In 1398, Timur, a Mongol conqueror, captured Delhi and ended the Sultanate of Delhi,
but it was later revived in the 15th century. The Delhi Sultanate was marked by
dynastic instability, frequent blood feuds, and persecution of Hindus. The Sultans
aimed to establish a vast empire but faced challenges in conquering the Deccan
region. In the South, the Hindu kingdom of Vijayanagar was founded in 1336 and
became a dominant power, hindering further Muslim expansion in the region.
● The southern parts of India were ruled by the Bahmani dynasty (1347-1587), the Bijapur
Sultanate (1490-1686), and the Nizams of Hyderabad (1730-1948). In the north, the
Nawabs of Oudh ruled from 1722 to 1857, and in the east, the Nawabs of Bengal ruled
from 1740 to 1770.
 ● In the 16th century, two significant factors emerged in Indian history: the Mughals, who
established themselves in the North, and the Portuguese, who arrived by sea to
establish their presence in the South and West. The Portuguese aimed to monopolise
overseas trade in India, while the Mughals founded an empire. Babur, a descendant of
Tamerlane and Genghis Khan, defeated Ibrahim Lodi in 1526 and established the
Mughal Empire in India. Babur's son, Humayun, faced constant battles with rebels
during his rule.
● Sher Shah ruled over North India from 1540 to 1545 and implemented various reforms.
Akbar, the greatest Mughal ruler, consolidated the empire from 1556 to 1605 by
defeating enemies and building relationships with non-Muslim martial races. Akbar
established an administrative and judicial system. His successors, Jahangir, Shah Jahan,
and Aurangzeb, lacked the same abilities and statesmanship.
● After Aurangzeb's death in 1707, the Mughal Empire began to disintegrate due to the
rising power of the Sikhs and the Marathas. The empire theoretically continued under
puppet emperors until 1862, but practically, it had ended. The Mughal Empire lasted
for nearly two centuries until the British took over. It was an Asian despotism with
shallow roots, relying on the character of the reigning autocrat and military power
rather than popular support or ancient tradition.
● The judicial system during the mediaeval Muslim period can be divided into two
periods: the Sultanate of Delhi and the Mughal period. The reforms introduced by Sher
Shah acted as a bridge between these two periods.

4. The Sultanate of Delhi: civil administration

● In order to understand the set-up of the judicial machinery during the period covered
by the Sultans of Delhi, i.e. from 1206 to 1526, it is necessary to have a brief account of
the prevailing administrative units.

A. Administrative Units
● The civil administration was led by the Sultan and his Chief Minister (Vazir).
● The sultanate was divided into administrative divisions from the province to the village
level.
● The sultanate was divided into Provinces or subahs.
● Each Province or subah was composed of districts known as sarkars.
● Each district or sarkar was further divided into parganas.
● A pargana consisted of a group of villages.
This administrative structure allowed for hierarchical governance and efficient management of
the sultanate's territories.

B. Administration of justice : Constitution of Courts

● The Sultan, as the head of the state, had supreme authority in administering justice in
his kingdom.
● The Sultan performed the function of administering justice in three capacities:
Diwan-e-Qaza (arbitrator), Diwan-e-Mazalim (head of bureaucracy), and
Diwan-e-Siyasat (Commander-in-Chief of forces).
● The courts operated in the name of the Sultan and required his prior approval for
capital punishment.
● The judicial system was organized based on administrative divisions of the kingdom,
such as the capital, provinces, districts, parganas, and villages.
● There was a systematic classification and gradation of courts at each level, with
defined powers and jurisdiction for each court.
● This hierarchical structure ensured the administration of justice throughout the
Sultanate, with clear guidelines and responsibilities for each level of the judiciary.

a. Central capital – The King's Court: Presided over by the Sultan, it had original and
appellate jurisdiction over all types of cases. It was the highest court of appeal in the
realm, assisted by two qualified Muftis.
● Diwan-Al-Mazalim: The highest court of criminal appeal, presided over by the Sultan
but usually not attended by him.
● Diwan-e-Risalat: The highest court of civil appeal, also presided over by the Sultan but
not regularly attended by him.
● Sadre Jahan's Court: Initially under the Chief Justice, it became a separate court
presided over by the Sadre Jahan, who gained significant power and occasionally
presided over the King's Court.
● Chief Justice's Court: Established in 1206 and presided over by the Chief Justice
(Qazi-ul-Quzat). It dealt with various types of cases and had experienced and
respected judges.
● Diwan-e-Siasat: Established to handle cases of rebels and high treason, dealing mainly
with criminal prosecutions. It was established by Mohammed-bin-Tughlaq and existed
until 1351.
● Additionally, several officers were attached to the Chief Justice's court, including
Muftis, Pandits, Mohtasibs, and Oadbas, each contributing to the functioning of the
judicial system during the Sultanate period.

b. Provinces –
● Adalat Nazim Subah: The Governor's court (Subedar) representing the Sultan in the
province. It had original and appellate jurisdiction, with the Governor usually acting as
a single judge. Appeals from this court were made to the Central appellate court at
Delhi.
● Adalat Qazi-e-Subah: Presided over by the Chief Provincial Qazi, this court had the
authority to try civil and criminal cases and hear appeals from the courts of District
Qazis. Appeals from this court were allowed to be made to the Adalat Nazim-e-Subah.
● Governor's Bench: The Governor sat with the Qazi-e-Subah as a bench to hear appeals
while exercising appellate jurisdiction. Final second appeals could be filed before the
Central Court at Delhi.
● Diwan-e-Subah: The final authority in the province for all cases related to land revenue.
● Sadre-e-Subah: The Chief Ecclesiastical Officer in the province, representing Sadre
Jahan. This position dealt with matters relating to the grant of stipends, lands, and
other related issues.
● Additionally, several officers, including Muftis, Pandits, Mohtasibs, and Dadbaks, were
attached to the courts at the provincial level, contributing to the administration of
justice in their respective roles.

c. Districts –
● Qazi: The court of the District Qazi, which had the authority to hear all original civil
and criminal cases. Appeals could be filed before this court from the judgments of
Pargana Qazis, Kotwals, and village panchayats.
 ● Dadbaks or Mir Adis: These officers were responsible for assisting the court
proceedings and maintaining records.
● Faujdars: This court dealt with petty criminal cases related to security and suspected
criminals. Appeals from this court could be filed to the court of Nazim-e-Subah.
● Sadre: The court of Sadre handled cases concerning the grant of land and land
registration. Appeals were allowed to be filed before the Sadre-e-Subah.
● Amils: This court dealt with land revenue cases.
● Kotwals: Kotwals were authorized to decide petty criminal cases and police cases.
● The same four officers, namely, Mufti, Pandit, Mohtasib, and Dadbak, were attached to
the court of the District Qazi, providing assistance and expertise in their respective
roles

d. Parganas – Qazi-e-Pargana: This court had the same powers as the District Qazi and
could hear all civil and criminal cases at the pargana level. It also dealt with Canon
law cases.
● Kotwal: The Kotwal's court handled petty criminal cases at the pargana level. The
Kotwal served as the Principal Executive Officer in towns.
● These two courts played a crucial role in administering justice and maintaining law and
order at the pargana level.

e. Villages –
● A pargana was divided into groups of villages.
● Each group of villages had a village assembly or panchayat consisting of five leading
men.
● The Sarpanch or Chairman of the panchayat was appointed by the Nazim or the
faujdar.
● The panchayats were responsible for handling the executive and judicial affairs at the
village level.
● The panchayats had the authority to decide civil and criminal cases of a purely local
nature.
● The decrees issued by the panchayats were based on local customs rather than the
kingdom's law.
● The decisions of the panchayats were generally binding upon the parties involved, and
there was no provision for appeals from their decisions.
● The panchayats operated with minimal interference, allowing them to function
autonomously within their local communities.

C. APPOINTMENT OF JUDGES AND JUDICIAL STANDARD

● Judges were appointed by the Sultan based on their high level of learning in law and
virtuous character.
● The Chief Justice (Qazi-ul-Quzat) was appointed from among the most learned and
virtuous individuals in the kingdom.
● Judges were highly respected in society and known for their great ability and
impartiality.
● Many Chief Justices of the Sultanate period were famous for their independence and
fair administration of justice.
 ● Occasionally, the Qazis were also teachers of law who possessed the ability to give
correct judgments.
● Public resentment was expressed when unpopular and corrupt individuals were
appointed as Qazis.
● Judges of doubtful character were removed from their judicial offices.
● Even the Chief Justice could be dismissed or degraded to a lower rank if found
incompetent or corrupt by the Sultan.
● Incompetent and corrupt Qazis faced ridicule, condemnation, and dismissal from their
positions.

5. Judicial reforms of Sher Shah

● Sher Shah introduced separate courts of first instance for civil and criminal cases in
the parganas.
● Civil Judges called Munsifs were appointed in each pargana town to hear civil disputes
and oversee the conduct of revenue officers.
● The Shiqahdars, who had powers similar to Kotwals, were given magisterial powers
within the parganas and remained in charge of the local police.
● Moqoddams, heads of the Village Councils, were recognized and tasked with
preventing theft and robberies, with the responsibility to compensate victims in cases
of robberies.
● Specific duties were enumerated for appointed Shiqahdars and Munsifs.
● Judicial officers below the Chief Provincial Qazi were transferred every two or three
years.
● Emphasis was placed on the duties of Governors and their deputies in preserving law
and order.
● The Chief Qazi of the Province (Qazi-ul-Quzat) was authorised to report directly to
the Emperor on the conduct of the Governor, particularly if the Governor attempted to
override the law.

IV. MUGHAL PERIOD : JUDICIAL SYSTEM

● The Mughal Empire began in India with Babur's victory over the last Lodi Sultan of
Delhi in 1526.
● Babur's son, Humayun, temporarily lost the kingdom to Sher Shah in 1540 but regained
it in July 1555 by defeating the descendants of Sher Shah.
● The Mughal Empire lasted from 1555 to 1750.
1. Administrative divisions
● The empire was administratively divided into the imperial capital, provinces (subahs),
districts (sarkars), parganas, and villages.
● Similar to the Sultans of Delhi, the Mughal Emperors were absolute monarchs, holding
supreme authority over the executive, legislative, judicial, and military powers of the
empire.

2. Administration of Justice : Constitution of courts

● During the Mughal period, the Emperor held the title of the "fountain of justice."
● A separate department of justice, known as the Mahukma-e-Adalat, was created to
regulate and ensure proper administration of justice.
● Courts were established at the official headquarters in each Province, district, pargana,
and village to handle civil, criminal, and revenue cases.
● In the imperial capital of Delhi, the highest courts of the empire were established with
original and appellate jurisdictions.
● The Mughal Empire had a systematic gradation of courts, with presiding judges having
well-defined powers.
● This judicial system spanned across the entire empire, ensuring access to justice
throughout the Mughal territories.

a. The imperial capital – Three important courts were established in Delhi during
the Mughal period: the Emperor's Court, the Chief Court, and the Chief
Revenue Court.
● The Emperor's Court, presided over by the Emperor, was the highest court in the
empire. It heard original civil and criminal cases and had a bench for appeals. The
court was assisted by a Darogha-e-Adalat, a Mufti, and a Mir Adi, and the Chief
Mohtasib-e-Mumalik also assisted in criminal cases.
● The Chief Court, presided over by the Chief Justice (Qazi-ul-Quzat), tried original civil
and criminal cases and heard appeals from provincial courts. It supervised the working
of provincial courts and was supported by eminent Qazis, a Darogha-e-Adalat, a
Mufti, and a Mir Adi.
● The ChiefJustice, appointed by the Emperor, held the second-highest position in the
judiciary. Men of high scholarship and character were chosen for this role, often from
the ranks of Chief Provincial Qazis.
● The Chief Revenue Court, presided over by the Diwan-e-Ala, was the highest court for
revenue cases and served as the court of appeal for such matters.
● Delhi also had two lower courts: the court of Qazi of Delhi, who acted as the Chief
Qazi of a Province and decided local civil and criminal cases, and the court of
Qazi-e-Askar, which specifically handled military area cases and moved with the
troops.
● Each court had four attached officers: a Darogha-e-Adalat, a Mufti, a Mohtasib, and a
Mir Adi.

b. Provinces – In each province (subah), there were three courts: the Governor's
own court and Bench, the Chief appellate court, and the Chief Revenue court.
● The Governor's own court (Adalat-e-Nazim-e-Subah) had jurisdiction over cases arising
in the provincial capital and was presided over by the Governor (Nazim-e-Subah).
● The provincial Chief appellate court, presided over by the Qazi-e-Subah, had original
civil and criminal jurisdiction.
● The provincial Chief Revenue court, presided over by the Diwan-e-Subah, had
jurisdiction over revenue cases.
● In each district (sarkar), there were four courts: the Chief Civil and Criminal court of
the District, Faujdari Adalat, Kotwali court, and Amalguzari Kachehri.
● The Chief Civil and Criminal court of the District, presided over by the Qazi-e-Sarkar,
had original and appellate jurisdiction in civil and criminal cases, as well as religious
matters. Appeals from this court were made to the Qazi-e-Subah.
● The Faujdari Adalat dealt with criminal cases related to riots and state security and
was presided over by the faujdar. Appeals from this court were made to the Governor's
court.
 ● The Kotwali court handled cases similar to those under modern Police Acts and had
appellate jurisdiction. It was presided over by the Kotwal-e-Shahar, and appeals went
to the District Qazi.
● The Amalguzari Kachehri decided all revenue cases and was presided over by the
Amalguzar. Appeals from this court were allowed to the provincial Diwan.

c. Parganas – In each pargana, there were three courts: Adalat-e-Pargana,

Kotwali court, and Kachehri.
● Adalat-e-Pargana, presided over by Qazi-e-Pargana, had jurisdiction over all civil and
criminal cases within its original jurisdiction, including the villages under its jurisdiction.
Four officers attached to this court were Mufti, Mohtasib-e-Pargana,
Darogha-e-Adalat, and Vakil-e-Shara.
● Kotwali court, presided over by Kotwal-e-Pargana, decided cases similar to those found
in modern Police Acts. Appeals from this court were made to the court of the District
Qazi.
● Kachehri, presided over by an Amin, dealt with revenue cases. Appeals from this court
could be made to the District Amalguzar.

d. Villages –
● The village served as the smallest administrative unit during the Mughal period.
● Village councils, known as panchayats, were authorized to administer justice in petty
civil and criminal matters.
● Panchayat meetings were held in public places and were presided over by five panchs
elected by the villagers.
● The panchs were responsible for giving a patient hearing to both parties and
delivering their judgment during the panchayat meeting.
● The Village-Headman, known as the Sarpanch, generally served as the President of the
panchayat.
● Decisions made by the panchayat had no provision for appeal.
● Village panchayats operated mostly based on customary law

3. Judicial Procedure
● A systematic judicial procedure was followed during the Muslim period.
● The courts were regulated by two Muslim Codes: Fiqh-e-Firoz Shahi and
Fatawa-i-Alamgiri.
● The status of the court was determined by the political divisions of the kingdom.
● In civil cases, the plaintiff filed a claim before a court with appropriate jurisdiction.
● The defendant had the opportunity to accept or deny the claim.
● If the claim was denied, the court framed the issues and both parties presented
evidence and witnesses.
● The presiding authority weighed the evidence and delivered judgment in open court.
● In criminal cases, a complaint was presented to the court, and a public prosecutor
(Mohtasib) instituted prosecutions.
● The court could call the accused for immediate hearing or hear the complainant's
evidence first.
● Judgments were generally given in open court, but in exceptional cases, they might be
withheld to protect the state's interests or when the accused was influential.
 ● Evidence was classified into three categories: tayvatur (full corroboration), ihad
(testimony of a single individual), and iqrar (admission/confession).
● Tayvatur (full corroboration) was preferred by the court.
● Believers in God were considered competent witnesses, and their testimony was
presumed to be truthful unless proven otherwise.
● Oaths were administered to all witnesses.
● Women were competent witnesses, but at least two women witnesses were required to
prove a fact that could be proven by one man's testimony alone.
● Estoppel and res judicata principles were recognized in Muslim Law.

4. Appointment of judges and judicial standard

● During the Mughal period, the Chief Justice (Qazi-ul-Qazat) and other judges of
higher rank were appointed by the Emperor.
● Eminent lawyers were sometimes directly appointed as Chief Justice and other judges.
● Men of high scholarship and reputed character were preferred for these positions.
● Chief Provincial Qazis with a strong judicial reputation could be promoted to the
position of Chief Justice.
● Provincial and district Qazis were appointed from lawyers practicing in the courts.
● Lawyers could also be appointed as Chief Mohtasibs of the Province.
● Corrupt judicial officers were punished and dismissed to maintain the integrity of the
judiciary.
● Emperor Aurangzeb's instructions for judicial officers emphasized justice, honesty, and
impartiality.
● Trials were to be held in the presence of parties at the courthouse and the seat of the
government.
● Judicial officers were prohibited from accepting gifts or attending entertainments from
the people they served.
● Poverty was considered a source of pride for a judicial officer.

5. Institution of Lawyers
● During the Medieval Muslim period, litigants were represented in court by professional
legal experts known as vakils.
● The legal profession flourished during this period, although there was no formal
institution like the "Bar Association" as it exists today.
● The duties of a vakil were clearly stated in the Muslim Indian Codes of Fiqh-e-Firoz
Shahi and fatwa-e-Alamgiri.
● Historical accounts, such as Ibn Batuta's book, mention the presence of vakils during
the reign of Mohammed Tughlaq.
● Mawardi emphasises the importance of specialised legal knowledge for both acting as
a Qazi and practising law.
● Contrary to some misconceptions, the legal profession did exist during the Muslim
period in India, as supported by contemporary materials.
● Government advocates were first appointed during the reign of Shah Jahan to defend
civil suits against the State.
● Full-time lawyers, known as Vakil-e-Sarkar or Vakil-e-Shara, were appointed in every
district during Aurangzeb's reign.
 ● They were appointed by the Chief Qazi of the Province or sometimes by the Chief
Justice (Qazi-ul-Qazat).
● Some vakils were appointed to provide free legal advice and assistance to poor
litigants.
● Vakils had the right of audience in court and was expected to maintain a high
standard of legal learning and behaviour.
6. Trial by ordeal
● The Muslim Law prohibited the use of trial by ordeal to determine guilt.
● Trial by ordeal was mostly used during the ancient Hindu period and was not favored
by the Muslim rulers in India.
● In non-Muslim states under the protection of the Sultans and Mughals, the old system
of trial by ordeal continued.
● Sultan Jalal-ud-Din Khilji made an early attempt to adopt trial by ordeal but was
opposed by judges who refused to allow it.
● Emperor Akbar also tried to encourage trial by ordeal, possibly to please the Rajputs,
but Muslim Law experts strongly opposed it.
● Trial by ordeal fell into disuse overall in India due to the impact of Muslim Law.
7. Crimes and punishments
● Islamic Law or Shara was followed by all the Sultans and Mughal Emperors during the
Muslim period.
● Under Muslim criminal law, violations of public rights were considered offences against
the State, and it was the duty of the Muslim ruler to punish criminals and maintain law
and order.
● Three forms of punishment recognized by the Muslim Law were:
1. Hadd: Fixed punishments prescribed by Islamic Law for crimes such as theft,
robbery, whoredom, apostasy, defamation, and drunkenness. It applied to both
Muslims and non-Muslims, and no compensation was granted.
2. Tazir: Punishment for crimes not classified under hadd, including counterfeiting
coins, gambling, causing injury, and minor theft. Courts had discretion in
awarding suitable punishment, which could include new methods invented by
the courts.
3. Qisas: Blood-fine imposed in cases of homicide. The murderer could pay
blood-money to the family of the victim if not sentenced to death. Courts could
exercise discretion in compounding homicide cases.
● Treason (ghadr) was considered a crime against God, religion, and the State. Those
found guilty of treason were usually punished with death, regardless of their rank,
religion, or caste. The ruler had the authority to consider mercy petitions.
● Contempt of court was a serious offence and was severely punished during the Muslim
period.

V. CITIZENSHIP
● Non-Muslims during the Muslim period did not have full citizenship rights and were
considered "zimmis" (protected subjects).
● They faced several drawbacks, including being treated unequally in the eyes of the
law, their evidence being inadmissible against Muslims in court, limited rights and
privileges compared to Muslims, the requirement to pay an additional tax called jizya,
and higher tax rates than Muslims.
 ● However, once they accepted the suzerainty of the ruler and paid their taxes, they
were entitled to protection for their mode of worship and enforcement of their personal
laws.
● Emperor Akbar implemented a policy of tolerance and repealed discriminatory laws
regarding citizenship. He promoted a common citizenship and a unified system of
justice for all. He abolished the Hindu pilgrims' tax and jizya, allowed the construction
of temples and churches, permitted reversion to original religions for forced converts,
prohibited slavery, and introduced various reforms related to personal laws, including
monogamy, prohibition of child marriages and marriages between close relatives.
● Unfortunately, Akbar's policies were not upheld by his successors, and the
discriminatory taxes were reinstated.

VI. NEXT PHASE

● The English East India Company, comprised of adventurers from England, arrived in
India during the reign of the Mughals.
● Initially a trading body, the English East India Company obtained some sovereign
prerogatives and transformed into a sovereign entity.
● The motives of the individuals sent from England varied, with some driven by noble
intentions and others hostile to Indian interests.
● Despite their detachment from local disputes, they were able to develop an efficient
system of justice that emphasised fairness.
● English justice, both in their own country and in India, was pragmatic in nature.
● Certain rules were established to protect the ruling power, but some of them were not
conducive to a proper administration of justice.
● The British period marked a significant departure from past Indian practices and
traditions, representing a major breakthrough in governance and legal systems.

2. ADMINISTRATION OF JUSTICE: EMERGENCE OF EAST INDIA

COMPANY AND EARLY ROYAL CHARTERS
Charters
East India Company - EIC
Development of authority in the EIC is shown under the Charters.
Initial Charters includes 1600, 1609, 1635, 1657 and 1661
Subsequent Charters include 1668, 1683, 1686, 1693 and 1698 which show the transition of the
company from a trading body to a territorial power.

Charter of 1600
The British were concerned on falling behind the dutch on the new trading routes so the
Queen passed the
● The British were concerned on falling behind the dutch on the new trading routes so
this charter was passed by Queen Elizabeth (I) on December 31st, 1600
● It was called ‘The Governor and Company of Merchants of London trading into the
East Indies’.
● Defined the constitution, powers and privileges of the company.
● Further granted legislative power to the company. Very limited powers. Can make their
own laws but cannot contradict English law. Did not include the rights to govern
 territories. By laws, rules and ordinances for fair administration. Could give
punishments to servants like fines, imprisonment etc. but no capital sentences so crimes
like murder could not be dealt with by the company's laws.
● It was only for trade and not intended for dominion in India
● People trading without a licence were liable for punishment and seizure of goods by
the company.
● Managed by a governor and 24 other directors
● Initially established for 15 years

Charter of 1609
● Renewed by King James I on May 31st. Also known as Second Virginia Charter.
● Authorised to enjoy all its privileges, powers,and rights which were under the 1600
Charter
● EIC’s monopoly of trade was made continuous and no limit as to the tenure of the
company
● The company could be terminated with a 3 year notice if detrimental to the British
interest
● To enable the company to punish its servants the first Royal Commission was secured in
1601.
● On December 14th, 1615, the king authorised the company to grant its captains such
commissions to maintain discipline on long voyages. One condition being that in case
of capital offences like murder and mutiny, a jury of 12 servants of the company will
give the verdict.
● The criminal trial of Gregory Lellington which was held on 28th February 1616, on the
ship Charles at the Surat Port. This trial was held as Lellington killed Henry Barton, an
Englishman. He was convicted on his own confession and was sentenced to death. This
is the earliest available account of a trial held on the shores of India.
● With these powers, the English came to Surat in 1612 during the regime of Emperor
Jahangir. To strengthen their power and secure advantages, the directors of EIC
approached the emperor.
● In 1618, Sir Thomas Roe was successful in gaining the Emperor’s favour. The EIC and
the Emperor entered into a treaty.
● The Mughal Emperor gave the right of self government to the English by issuing an
order(Firman order) and this was a turning point in the legal history of India. The
order provided the following privileges :
1. Disputes among EIC servants will be regulated by the company itself.
2. The English can enjoy their own religion and laws in the administration of the
company.
3. Local native authorities will settle disputed cases in which Englishmen and Hindus or
muslims were the parties.
4. The Mughal Governor or Qazi of a designated place will provide the English with
protection from any oppression and injury.
● Therefore due to these privileges the Englishmen were living under two systems of law,
sometimes under the Indian law and sometimes under the English law.
● But the Englishmen also exploited the native judiciary for their advantage because of
the prevailing corrupt practices in the local courts.
Charter of 1635, 1657, 1693 and 1698 (grouped)
● Charles (I) permitted Sir William Courten to establish a new trading body to trade
with the East Indies. It was under the name of Courten’s Association.
● This led to a competition between the old company and the new company and other
difficulties in England, continuing up to 1657.

● Oliver Cornwell granted a new charter in 1657 which combined the various joint stocks
into one joint stock.
● This also ended the rivalry between the old company and courten’s association as it
united them into one.
● This charter changed the character of the company. The new joint company according
to Hunter is said to have transformed from a weak mediaeval trade guild into a
developed modern joint stock company.

● Progress of the old company created jealousy so when Whigs came to power in
England, a new company was established in 1693 to break the monopoly of the old
company.
● This new company received recognition under the name General Society in 1698.
● Conflicts arose between the companies and steps were taken to remove them. Lord
Godolphin gave his famous award on 29th September, 1708, which equalised the
capital of both the companies and also settled other difficulties between them.
● Godolphin united the companies under the name of “The United Company of
Merchants Trading into the East Indies”.

● On 13th April, 1698 William (III) granted a charter which created certain changes to
the existing rules of the company to improve administration.
● This Charter created a Court of Directors and the authority and control over the
affairs of the United Company was given to the Court of Proprietors.
● This constitution continued till the Regulating Act was released in 1773 which
completely overhauled the constitution of the company.

Charter of 1661 (Local gov.)

● In the reign of Charles (II) the company gained unexpected prosperity and changed its
character from a purely trading company into a territorial power.
● Charles (II) granted this charter on 3rd of April, 1661. It extended the privileges of the
company to new territorial lines and also reorganised its structure.
● Reorganised the company on a joint stock principle. Each person who had a share
capital of 500 pounds was given a right to vote in the General Court of the company.
● In order to be more effective the company’s power and command over the fortress was
strengthened. Was authorised to appoint Governors and other officers for proper
administration. The power to govern and punish its employees was enhanced.
● This charter further authorised the Company to place a governor and council at each
one of its factorie/trading centres at Madras, Bombay and Calcutta. This was done to
administer the employees under both the Civil and Criminal English law.
● If 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 with a Governor.
COMPARISON OF THE 1600 AND 1661 CHARTER

CHARTER 1600 CHARTER 1661

The power given to them was only applicable Handed over extensive power to the
to the company’s servants and capital Governor and Council of a factory. The
punishments could not be awarded. powers extended to everyone living in the
company’s settlements and all penalties
including the death penalty could be
awarded.

It was designed to maintain discipline This was to develop into a govt for the
among the servants. locality and to give a judicial system to the
company’s territorial possessions.

It drew no distinction between the executive

and the judiciary and justice was given only
according to the English law.
Both the charters guarded and protected the rights of Englishmen and put the Indians at a
great disadvantage.

Charter of 1668 (Bombay)

● Charles (II) Bombay(Got it as dowry from Portugal) to the EIC for annual rent of 10
pounds.
● Authorised to make laws, orders, ordinances and constitutions for a good govt of
Bomaby.
● Laws and regulations should not be contrary and be as near as possible to England
law.
● Empowered company to establish courts of judicature similar to England for proper
administration of justice.

Charter of 1683 and 1686 (Admirality court)

● Granted by Charles (II). Authorised the company to raise military forces
● Provided that the court of judicature should be established at places that the company
considers suitable. It should consist of one person who is learned in civil laws and two
merchants (appointed by the company).
● EIC was authorised to establish Admiralty courts in at places of its own choice.

● 1686 was granted by James(II) which renewed and added to the powers and privileges
of EIC.
● Authorised EIC to appoint admirals and other sea officers, with power of 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, it was authorised to establish a municipality and a Mayor’s court at Madras.
● Under Sir Josiah Child, the Governor of the Company and Chairman of the Court of
Directors, company declared in 1687 in one of its dispatches, its determination to
establish establish such a policy of civil and military power and create and secure so
much revenue that may be the foundation of large and well grounded and sure
 English dominion in India for all time to come. (basically declared that they are
determined to come to such a point that they would rule India forever)
● The constitutional government was further extended to the Company’s territories in
India.

English’s Settlements in India

The company kept growing in power and after the death of Aurangzeb in 1707, the Mughal
Empire began to disintegrate and the English got an opportunity to lay a strong foundation
in India. The company already owned factories and settlements in Bombay, Calcutta and
Madras and they gradually exercised wider authority under the changing conditions.

The president or governor and the council at the three places governed the factories and
settlements. Members of the council are taken from senior merchants of the Company.
Governor - executive head of the council and looks after the administration of justice in his
area. The power and authority exercised in these settlements was derived from two sources, i.e,
Crown and parliament of England and Mughal Emperor and other native rulers in India.

The company had to deal with different local political powers at these settlements.
Bombay - EIC exercised its powers as a representative of the crown.
Madras - granted by raja in 1639, EIC ruled both Englishmen and the Indians but authority
over the englishmen was derived from the royal charters and for the Indians it was derived
from the grant of the raja.
Calcutta - EIC purchased the zamindari of 3 villages which came to be known as Calcutta.
Exercised authority under the Mughal Emperor’s grant of Zamindari.
Policy of the company kept changing according to the principle by which control had to be
exercised.
By the end of the 17th century EIC was firmly established at Surat, Madras, Bombay and
Calcutta even though it still called itself as a purely trading economy. The gradual passing of
these Charters to regulate the company’s territories and administration is what eventually led
to the setting up of the British Empire in India.

Settlement at Surat
● Surat was a famous international port and was used by muslims in our country to get
to Arabia for Hajj purposes. PLace from where the ships sailed was called the Makkai
Darwajah.
● The factory was in a hired house. The English were granted an empire in which they
get speedy justice, protection from all injuries and oppressions and to aid and entreat
them as friends with courtesy and honour. With this grant the British defeated their
competitors, the Portuguese from Surat.
● The English were not interested in being governed by the law in India as the civil law
was done under both Hindu and Muslim law and the criminal law was entirely muslim.
The Mughal also did not want to interfere with their internal affairs and granted them
the right to self governance.
● It was merely traders who had no knowledge of law who administered justice. They had
no moral values. Often took law into their own hands, extracted “justice” themselves
from Indians without resorting to local courts.
● Surat had no contribution whatsoever to the development of administration of justice.
Its importance was reduced because of the transfer of the establishment from Surat to
Bombay in 1687. Surat was subordinated to Bombay.
Madras Settlement and Administration of justice from 1639 to 1726
● On 22nd July, 1639, Francis Day acquired Madrasapatnam from Raja Chandragiri for
EIC.
● Consequence of this grant was that Francis built Fort St. George in 1640 for the factory
and residence of the English people working for the company. This Fort was later
known as ‘White town’ whereas the village where Inians lived came to be known as
‘Black town’.
● Raja empowered the company to mint money and govern the whole city. Trade and
commerce gradually developed and some villages also gained importance and
progressed.

➢ A. First phase : 1639 - 1678

➔ (1) Charters and Courts - EIC’s factory at Fort St. George was under the administration
of someone called ‘Agent’. The Agent and Council were authorised to decide both civil
and criminal cases of English people at Fort St. George.
(a.) Though the raja granted the rights to administer justice to the English they
thought it better to allow traditional courts to continue governing the natives.
According to the old native system, a Choultry Court was administering justice. The
authority in this court was with the Adigar(village head) also known as the governor.
★ Kannappa, a Brahmin was appointed as the first Adigar and Magistrate of the
town in 164. Due to corruption and bribing charges he was arrested. A petition
against him was handed over and he was found guilty by the Agent and
Council and was dismissed from the office. The main consequence of this
incident was that a European person was appointed as the authority in the
Choultry Court in 1648.
★ Captain Martin and John Leigh were appointed to sit as magistrates. The
period from 1639 to 1661 justice at Madras was administered by two separate
bodies. The Agent and Council acted as supreme judicial authority of the
English and natives in Black town were under the Choultry Court.
★ Serious cases were taken to the raja for reference who always said the accused
should be tried under the English law. There was no fixed procedure and the
courts all decided each case in its own way.
(b.)Charter 1661 - This charter played a historical role in improving the judicial system
of the Company at Madras.
★ Empowered the company to employ a Governor and Council who were
authorised to judge all people belonging to the company and living under them
according to England law.
★ Later on we realised that it was a defective provision because the Governor
and Council were not legal experts. Foxcroft was appointed as the first governor
of Madras under the 1661 charter.
★ Sir Edward Winter was a rival of Foxfort. In 1665, Foxfort wrote a letter to the
company against the two Magistrates appointed by Edward and used this
opportunity to appoint William Dawes as Magistrate.
★ To gain the favour of natives and English, Foxford invited the chiefs to a
ceremony and advised William Dawes to administer equal justice to all men.

➔ (2) The trial of Mrs Dawes - First trial by jury in Madras under Foxfort. In this case Mrs
Ascentia Dawes murdered an Indian slave girl named Chequa/ Francisca. Mrs Dawes
 was charged with a capital crime. Jury found her guilty but not in the manner and form
stated by the prosecution.
★ Surprising part of the trial was that the foreman of the jury Mr. Reade gave a
not guilty verdict. Due to this the court acquitted Mrs Dawes was acquitted.
This situation arose because the court had no person who was learned in law to
actually guide it.
★ This exposed the ignorance of the court. As a result of this trial the agency was
raised to the status of presidency at Madras. The Agent became the Governor.
★ Even though charter 1661 stipulated administration according to English law, no
steps were taken to appoint a legal expert to assist the court.
★ The Charters issued in 1669 and 1674 made it clear that the King of England
actually favoured the establishment of Courts of Judicature to be administered
by the EIC.
Therefore, in the first phase due to weak judicial methods, systematic administration of
justice was absent. Two bodies were administering justice : the President and the
council for the White town and the Choultry Court for the Black town.

➢ B. Second Phase : 1678 - 1683

➔ (1) Reorganisation of the Judicial system - Streynsham Master was appointed as
Governor in 1678. He was Governor of Madras from 1677 to 1681. The whole judicial
system was reorganised under him.
★ The court of Governor and Council was designated as the High Court of
Judicature. It 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.
★ This court sat for the first time on 10th April, 1678 to decide a case between
John Tivil and William Jearsey.
★ Another important step was to reorganise the Choultry Court. According to his
scheme the Indian officers were replaced by the English officers of the
Company.
★ The number of judges was increased to three out of which not less than 2 were
required to preside over the trial of cases and registration of bills for the sale
of property. The Justices were directed to sit in the court for two days each
week (Tuesday and Friday).
★ The judges were also required to take care that a proper account is maintained
of all alienation or sale of slaves, houses and other property in a separate
register.
★ The Choultry court was empowered to try civil cases up to 50 pagodas and
petty criminal cases. The High Court of judicature was authorised to hear the
appeals of Choultry Court.

➔ (2) English as Court Language - In 1680, Streynsham declared that English was the
only official language of Madras. Till 1680 3 languages were used in the court namely
Portuguese, Tamil and Malayalam. This played an important role in moulding the
natives in favour of political leadership controlled by English people.

➔ (3) Trial of Gilbert and De Lima - William Gilbert an Englishman was alleged of
murdering John Hartley and Manoell Brandon De Lima a Portuguese man was alleged
of murdering a black Christian. The Governor and the Council sought instructions from
the EIC so the trial was delayed and the accused had to remain in jail under trial for a
 long period of time. A serious study of the 1661 Charter would show us that it was not
the lack of power but hesitation and apathy to use it that led to the sorry state of
affairs.

➢ C. Third Phase : 1683 - 1726

➔ (1) Admiralty Courts - In order to stop unauthorised trading, the company obtained a
Letters Patent from King Charles II in 1683. It empowered the company to establish
Courts of Admiralty in India.
★ Its main purpose is to try all traders committing various crimes on the high seas.
The court was empowered to hear and determine all cases of seaborne
trade/naval matters, trade transactions and also deal with cases of
loss/wrongdoing of ships, piracy, trespass, injuries etc.
★ The court will be guided by the laws and customs of merchants as well as the
rules of equity and good conscience.
★ An Admiralty Court was established on 10th July, 1686. John Grey was appointed
the judge and John Lyttleton and Nethanial Higginson were appointed as his
assistants. 7 months later John Hill was appointed the Attorney General . On
22nd July, 1687 Sir John Biggs who was a learned civil lawyer and Recorder of
Plymouth was appointed the Chief Justice at Madras’s Admiralty Court.
★ Sir John Biggs first duty was to preside at the Quarter Sessions. He tried four
criminals, convicted them for robbery and sentenced them to death. This
created terror and the criminals turned into assets as they became slaves of the
company.
★ The court became famous as the General Court of the town during his tenure
but he unfortunately died in 1689. A year before his death the Mayor’s Court
came into existence.
★ They realised in 1690 that the powers of the Mayor’s court were limited so they
revived the old Court of Judicature established by Streynsham.
★ Earlier the court of judicature was superseded by the Judge-Advocate and
suffered a temporary eclipse. The Governor, Judge-Advocate himself became
one of the five judges of the new court.
★ This court included the name of an Indian in the list of judges - Allingall Pillai.
He was the earliest Indian judicial officer appointed to the Bench at Madras.
Daniel Du Bos was appointed Attorney General.
★ In 1692, John Dolben was appointed the Judge-Advocate in the place of Sir John
Biggs. He was independent and gave judgements even against company
employees. The company officials were not happy with this and Dolben was
made the victim of a bribe-giver and was dismissed. He was called back in 1694
but he refused it.
★ William Frazer took Dolben’s place. Then John Styleman, a senior member of
the council replaced him in 1696.
★ The court of Admiralty received a lot of attention till 1704 but after that the
company paid more attention to the Mayor’s Court. And they gradually
disappeared from the judicial scene. Its jurisdiction including hearing appeals
from the Mayor’s Court was also shifted to the Governor and Council.
★ The Governor and Council gradually replaced the Admiralty court at Madras.
The Admiralty court exercised a wide jurisdiction in all civil, criminal, maritime and
mercantile. It was in 1687 that a professional lawyer was actually appointed to administer the
justice and also the same year in which the executive judicial functions in favour of the AC.

➔ (2) Establishment of Corporation of Madras : The Mayor’s Court

 ★ The Company issued a Charter in December 1687 which authorised it to create
a Corporation of Madras and establish a Mayor's Court which was a part of it.
★ It was empowered to carry out judicial functions. The Company preferred to
establish the court under its own authority, as it was not willing to invite English
officers who were working in the judiciary of England under the Crown. As they
were appointed under a Royal Commission, it made them arrogant and
haughty as the wind of extraordinary honour entered their minds. 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,
12 Aidermen and 60 or more Burgesses. In the first instance, the Company's
Charter nominated the persons who would occupy these positions in the
Corporation.
★ Elected : Englishmen Mayor – Every year by Alderman. Alderman – for
life/residence in Madras. The Mayor and Aldermen were to elect Burgesses
from amongst the people who were in the Company's service
★ Out of 12 Aldermen 3 were required to be Englishmen. The quorum fixed for
sitting of the court was a Mayor and two Aldermen.
★ The Mayor's Court exercised its jurisdiction in civil cases where the value of the
cases exceeded three pagodas, and in criminal cases with the assistance of
juries. An appeal was allowed to go to the Court of Admiralty from the
decisions of the Mayor's Court in all civil cases exceeding three pagodas, and in
criminal cases where the accused was given the death sentence.
★ The Charter also provided for the appointment of an expert in law as Recorder,
to assist the Mayor's Court in deciding cases. Sir John Biggs, the Chief Judge of
the Court ofAdmiralty was also appointed first Recorder of the Mayor's Court.
★ The procedure of the court was not any definite procedure of law. Its decisions
were on an ad hoc basis and lacked uniformity. It imposed death sentences in
several cases against the natives.

➔ (3) Drawbacks of the Court

★ 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.

➔ (4) The Choultry Court

★ After the Mayor's Court came in the scene, the Choultry Court, an important
institution earlier, lost its importance and functioned as a court of
petty jurisdiction trying only small offences and civil cases up to two pagodas.
★ Two Aldermen constituted a quorum. They were to sit two days a week​.
★ In criminal cases, it inflicted punishments of fine, imprisonment, pillory, whipping
and even slavery.
★ The Choultry Court continued its work in the Madras Presidency until 1726.

With the dawn of the 18th century, there were four different courts working in ,
Madras—firstly^ the Mayor's Court as the court of Record; secondly, the Court of
Admiralty with the Judge-Advocate as President to try pirates; thirdly, the Old Choultry
Court whose presiding officer was called the ChiefJustice of the Choultry; 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. These Courts
continued up to 1726 when the Charter of George I introduced a uniform set of courts
in all the three Presidency Towns.

➔ (5) Standard of Justice

★ There was no standard or criteria for imposing penalties or methods of
execution. Conditions of imprisonment were horrible. The cases were decided
and the quantum of punishment which had absolutely no relation to the gravity
of the offence was being imposed according to whims and fancies and
prejudices of the judges.
★ No principle of substantive or procedural law governed the judicial proceedings.
Judgement-debtors and criminals were sent to prison for indefinite periods.
Englishmen guilty of serious offences were being sent to England. The Governor
could pardon the death sentence. Pirates and interlopers were awarded the
death penalty. Robbery was punishable with death. Forstealing, punishment was
slavery.
★ The modes of punishment were generally inhuman and barbarous and were
being used against those who were caught to deter others

Administration of Justice in Bombay : Bombay Settlement

A. Political position – 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, Alfbnsus 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 was not economically profitable and difficult to control
from England so he transferred it to the company in 1668 for an annual rent of 10
pounds.
➔ 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 ofBombay.
➔ Stated that such laws should be consonant to reason and not repugnant or contrary to
the laws ofEngland and they were also required to be as near as may be agreeable to
the laws ofEngland. The system of courts and procedure was to be similar to that
established and used in England.
➔ In September 1668, the President of Surat, Sir George Oxenden, received orders from
the English East India Company to visit Bombay and establish executive government.
➔ Sir George Oxenden visited Bombay in January 1669, but the laws enacted by the
Company under the Charter of 1668 came into force only after his death in July 1669.
➔ Thomas Papillon drafted these laws, which underwent revisions by the court of
Committees and the Solicitor General.
➔ Gerald Aungier, the Governor of Surat, brought the finalized laws to Bombay in 1670

B. Charter of 1668
➔ The Charter of 1668 granted the English East India Company extensive powers,
privileges, and jurisdiction.
➔ The Company had the authority to create laws, ordinances, and constitutions for
effective governance.
➔ The Company was empowered to impose appropriate penalties, including fines,
imprisonment, and even death.
➔ The power of administration, legislation, and the administration of justice was granted
to the Company.
➔ The laws enacted were required to be reasonable and in line with English laws to the
extent possible.
➔ The Company established courts to judge all individuals and actions.
➔ The establishment of courts allowed for the exercise of legal authority and the
resolution of disputes.
➔ Perry J, in the case of Peerozeboye v. Ardeshir Cursetjee, expressed the extent of power
and authority granted to the Company under the Charter.

C. Judicial reforms of 1670

➔ Gerald Aungier, in 1670, reorganised the judicial system of Bombay and classified the
existing laws into six sections.
➔ The first section guaranteed freedom of worship and prohibited abusive language
towards other religions, with offenders subject to fines or imprisonment.
➔ The second section focused on the impartial administration of justice, confirming
existing rights and ensuring fair trials by a jury of 12 persons.
➔ The third section established a Court of Judicature to handle criminal cases, with
judges appointed by the Governor and Council, and trials conducted by a jury of 12
Englishmen (or a mix of Englishmen and Indians).
➔ The fourth section regulated the registration of land and house transactions.
➔ The fifth section included miscellaneous provisions specifying penalties for various
crimes, often reducing the severity of English law.
➔ The last section addressed military discipline and penalties for mutiny, sedition,
insurrection, or rebellion.
➔ Aungier introduced reforms gradually, recognizing the need to respect the existing
Portuguese legal system and appointing Indian judges to assist English customs
officers in the courts.
➔ Two divisions were created, each with its own Court of Judicature, consisting of five
judges, with appellate jurisdiction to the Deputy Governor and Council.
➔ Within two years, the judicial system was found to be defective, with judges lacking
legal knowledge and the same individuals exercising judicial and executive powers.
➔ Aungier requested the Company to provide legal experts, which initially received little
attention.
➔ Eventually, George Wilcox was selected, and in 1672, Aungier and Wilcox devised a
new plan for the administration of justice in Bombay.

D. New Judicial plan of 1672

➔ In 1672, the government issued a proclamation introducing English Law into Bombay,
abolishing the previous Portuguese laws and customs.
➔ A new central court called the Court of Judicature was established, inaugurated by
Governor Gerald Aungier on 8 August 1672.
➔ Aungier emphasised the principles of independence, impartiality, and equality for the
administration of justice in Bombay.
➔ George Wilcox was appointed as the judge of the Court of Judicature, which had
jurisdiction over civil, criminal, and testamentary cases.
➔ The court held weekly sessions, employed juries, and charged a fee of five percent of
the suit's valuation from litigants.
➔ Justices of the Peace were appointed to administer criminal justice, with Bombay
divided into four divisions, each having an English Justice of the Peace.
➔ The Court of Conscience was established to handle petty civil cases, meeting once a
week and providing a final decision with no further appeal.
➔ Poor individuals were exempted from court fees, earning the court the reputation of
being the "Poor man's Court."
➔ George Wilcox was also the presiding judge of the Court of Conscience.
➔ Several changes occurred in the judiciary, including the appointment of James Adams
and later Niccolls as judges, with Niccolls being suspended and dismissed by the
Council.
➔ Gary succeeded Niccolls as judge until 1683, during which the Council's power and
position increased, and the judge's salary and rank were reduced.
➔ Keignwin's rebellion from 1683 to 1684 severely impacted Aungier's judicial system in
Bombay.

E. Admiralty Court conflicts with Council: 1684 to 1690

➔ Development of Courts in Bombay was interrupted by Keignwin's rebellion.
➔ Efforts were made to establish a regular judicial system in Bombay after suppressing
the rebellion.
➔ The Company's authority to establish courts in Bombay came from the Charter of 1683
granted by Charles II.
➔ The authorities in Bombay were aware of the judiciary established in Madras under the
same charter.
➔ The Charter allowed for the establishment of courts to handle maritime causes and
cases of trespasses, injuries, and wrongs committed at sea or in Bombay.
➔ Each court was to be presided over by a learned judge in civil law, assisted by two
individuals chosen by the Company.
➔ These courts were required to decide cases based on equity, good conscience, and the
laws and customs of merchants.
➔ An Admiralty Court was established in Bombay in 1684, with Dr. St. John selected as
the Judge-Advocate.
➔ Dr. St. John also gained authority from the Governor to act as Chief Justice of the
Court of Judicature.
➔ Conflict arose between Governor John Child and Chief Justice Dr. St. John due to
differences in accepting judicial independence.
➔ In 1685, the Governor withdrew Dr. St. John's powers as Chief Justice, appointing Vaux
as the new judge.
➔ The conflict between the Governor and Chief Justice escalated, leading to Dr. St. John's
dismissal from the Court of Admiralty in 1687.
➔ The incident made the Company reluctant to appoint professional lawyers as judges in
India.
➔ Sir J. Wyborne succeeded Dr. St. John as the judge of the Admiralty Court, followed by
Vaux in 1688.
➔ The court's independence was compromised due to the strong positions of the
Governor and the President of the Board of Directors in London.

F. Siddi Yakub's invasion and set-back to judicial administration

➔ The invasion of Siddi Yakub, Admiral of the Mughal Emperor, in 1690 led to the end of
the judicial system in Bombay.
➔ Judge Vaux, who was serving in the Company's military and a member of the Council,
was sent back to England to seek Aurangzeb's forgiveness.
➔ From 1690 to 1702, there were no separate courts established, and the administration
of justice was entrusted to the Governor and his Council.
➔ The Company faced difficulties in finding qualified and honest lawyers to appoint as
judges in Bombay during this period.
➔ The absence of a proper judicial system persisted until 1718, resulting in a paralyzed
state of affairs for the administration of justice in Bombay.
➔ The period from 1690 to 1718 is considered a dark period in Bombay's legal history.

G. Revival of judicial machinery:period 1718-1728

➔ A new period in Bombay's judicial history began with the revival and inauguration of a
Court of Judicature on March 25, 1718, by Governor Charles Boone.
➔ The court was established by the order of the Governor and Council and later
approved by the Company authorities.
➔ Unlike the earlier Court of Judicature, which was established under Aungier's judicial
plan of 1672, the 1718 court was constituted according to the laws of the Company
rather than by the Governor and Council.
➔ The Court of Judicature of 1718 consisted of 10 judges, including five English judges
and four Indian judges representing different communities (Hindus, Muslims,
Portuguese-Christians, and Parsis).
➔ The English judges, who were also members of the Governor's Council, held a superior
status compared to the Indian judges. Three English judges formed the quorum of the
court.
➔ The court had jurisdiction over civil and criminal cases, guided by the laws, equity, and
good conscience. It considered Indian customs and usages and also served as a
Registration House for the registry of sales.
➔ Appeals from the court's decisions were allowed to the Court of Governor and Council
for cases involving amounts of ?100 or more, with prescribed fees for filing an appeal.
➔ The court was known for its impartiality, speedy justice, and affordable process, despite
meeting only once a week.
➔ In civil cases, the court followed English practices for debt recovery, including
imprisonment for debtors without property. Whipping in public and banishment were
common punishments in criminal cases, with summary trials for perjury and malicious
complaints.
➔ The application of laws was vague and uncertain, lacking proper codes, law reports, or
law books in the old records.
➔ Instances of applying English and international law, even though vague and
underdeveloped, led to vagueness, uncertainty, and potential injustice in the court's
decisions.
➔ The famous trial of Rama Kamti is cited as an example of grave injustice where lies
and forgeries were involved, and even Governor Boone was implicated.

H. “Rama Kamti" case^Q: the dark justice at Bombay

➔ Rama Kamti, a wealthy and influential supporter of the Company, was arrested on
charges of corresponding with the pirate chief Angria, who was troubling the Company.
➔ During Kamti's trial, there was no conclusive evidence against him, only a gossip story
from a witness. His servant was tortured and a forged letter was produced to implicate
Kamti.
➔ Kamti was found guilty, sentenced to indefinite imprisonment, and had his property
confiscated and auctioned.
➔ Governor Boone and his council drew the charges against Kamti, and the trial was held
before an ad hoc tribunal presided over by Governor Boone and consisting of members
of the Council and Chief Justice Parker.
 ➔ Chief Justice Parker objected to the torture of Kamti's servant, resulting in his dismissal
from office by Governor Boone.
➔ After Kamti's death, it was revealed that he was innocent and the trial was a plot with
fabricated evidence.
➔ The trial highlights the methods and standards of justice in those days and the moral
attitude of the judges.
➔ Justice was rough and ready, with miscarriages of justice and no proper codes or
procedural laws to follow.
➔ The Kamti case demonstrates the dark side of the legal and judicial system in Bombay
and has been strongly criticised.
➔ The court of 1718, despite its flaws, served a useful purpose during its ten years of
existence.
➔ The court of 1726 introduced trial by jury, an important English ideal in India, but the
executive continued to control the judiciary's independence.
➔ Under the Charter of 1726, the Mayor's Court was established in Bombay in 1728,
replacing the old court of 1718.

Administration of Justice in Calcutta

a. Grant of Zamindari rights to the company – The English East India Company
constructed Fort William for its factory in Bengal in 1690.
● In 1698, the Company was granted zamindari rights over Calcutta, Sutanati, and
Govindpur by Prince Azimus-Shan, the subedar of Bengal.
● The grant of zamindari rights allowed the Company to exercise powers similar to those
of native zamindars under the Mughal administrative and judicial system.
● The Company appointed a Collector to administer the three villages and established a
Zamindari Court for civil and criminal cases.
● Initially, prisoners from Calcutta were sent to Madras for trial due to certain privileges
being held in abeyance by the Emperor.
● In 1699, Calcutta was elevated to the status of a Presidency, and its Governor and
Council were given administrative and judicial powers.
● The Company's Collector also became a member of the Governor's Council in Calcutta.
● The Company obtained a legal and constitutional status similar to that of a zamindar,
thanks to the grant of powers by the Mughal King.
● This decision by the Mughal King was a political shortsightedness as he blindly trusted
the Company's merchants.

b. Justice of Civil and Criminal cases – The Company decided to adopt the existing
Mughal pattern to administer justice in criminal cases in Calcutta.
● A Faiydari Court, presided over by an English Collector, was established to handle
criminal cases of the natives of Sutanati, Govindpur, and Calcutta.
● The Faiydari Court had the authority to decide cases summarily.
● Capital punishment was not inflicted without the confirmation of the sentence by the
Governor or President and Council of Calcutta.
● Whipping to death was the method of execution for death sentences at that time,
rather than hanging.
● The Faiydari Court also had jurisdiction over petty crimes committed by English
people.
● Serious crimes committed by English individuals were to be tried by the Governor and
Council, as authorised by the Charter of 1661.

c. Justice in Civil cases – A civil court, known as the court of Cutchery, was presided over
by the Collector in Calcutta.
● Civil cases were typically referred to arbitrators by the Collector.
● The Collector decided civil cases in a summary manner, considering the prevailing
customs and usages of the country.
● In the absence of native customs, cases were decided based on principles of natural
justice and equity.
● Appeals to the Governor and Council were only allowed in rare and significant cases.
● As a Zamindar, the Collector also had the responsibility of collecting land revenue
from the natives of the three villages (Sutanati, Govindpur, and Calcutta).

d. Concentration of power in collector –

● The office of the Collector in Calcutta held significant importance, dealing with civil,
criminal, and revenue matters.
● The Collector was authorised to decide petty civil and criminal cases involving
Europeans in India.
● The Governor and Council had the power to decide serious criminal cases and
important civil cases.
● This arrangement of overlapping judicial and executive powers between the Collector
and the Governor and Council led to conflict and confusion, resulting in dissatisfaction.
● Prior to the Company's acquisition of diwani (revenue collection rights), the Mughal
judicial system in Calcutta was in disarray, with corrupt and incompetent individuals
holding positions of authority.
● The Company officers took advantage of this power vacuum and asserted themselves,
gaining more power and authority.
● The English Company acted as a territorial sovereign within their zamindari, seeking
confirmation of death sentences from the Governor and Council instead of the Nawab.
● Appeals from the Collector's court were directed to the Governor and Council,
bypassing the Nawab's courts.
● The Company aimed to exclude the Nawab's authority from the governance and
administration of Calcutta, despite being only a zamindar.
● The 1726 Charter marked an improvement in the situation and laid the foundation for
the evolution of the judicial system in Calcutta.

e. Effective introduction of English laws –

● The Charters of 1668 and 1726 granted by the English East India Company introduced
English laws in addition to the personal laws of Hindus and Muslims.
● These Charters marked the first instance of English laws being implemented alongside
the existing legal systems.
● The process of incorporating English laws into the judicial system was further
accelerated through subsequent Charters.
● The case of Mayor of Lyons v. East India Co and other similar cases provide
explanations and insights into the implementation and application of English laws
within the Indian context.
f. "Mayor ofLyons v. East India Co” –
● The case involved a dispute over the application of English law regarding land
ownership by aliens in India.
● Martin, a native of France, had left behind properties in Calcutta and Oudh (a region
in India).
● The question at hand was whether the English law, which prohibited aliens from
holding land in England, applied to the properties in India.
● The Calcutta Supreme Court initially applied the English law and declared the
properties escheated (reverted) to the Crown.
● However, on appeal, the Privy Council (the highest appellate court at that time)
overruled the Supreme Court's judgement.
● The Privy Council held that the principle of English law prohibiting aliens from holding
land did not apply in this case.
● The Privy Council's decision was based on the consideration that applying such a law
would cause great hardship and inconvenience to the settlers in Calcutta.
● This case established the principle that English laws should be applied in India with
caution, taking into account the local circumstances and avoiding unnecessary
hardship to the residents.

g. Other cases –
● In Attorney General of Bengal v. Ranee Surnomoyee Dossed, the English Law was held
inapplicable to Calcutta, and the property of a person committing suicide could not be
forfeited to the government.
● Bhoosi Money Dossee v. Natobar Biswas established that the English common law
applied in Calcutta, allowing the right to recover damages for slander.
● Naoroji v. Henery Rogers determined that the English Law of immovable property
applied in Bombay according to the Bombay High Court.
● Initially, the Supreme Court made the law of limitation applicable but later made it
inapplicable to Hindus and Muslims.
● Param Shook Doss v. Rasheec clarified that the English Law prohibiting arrest on
Sunday was inapplicable to a Mohammedan in India, as India was not considered a
Christian country.
● The Statute of Frauds requiring three witnesses to a will was extended to India.
● The law relating to prohibited degrees for marriage was held inapplicable to India,
suggesting that the matter be decided based on customary law.
● A contract violating the principles of champerty and maintenance could not be
declared void.
● The application of English Law through the 1726 Charter was a subject of controversy
in each case until the court made a decision.
● Statutes passed by the British Parliament after 1726 did not automatically extend to
India unless expressly done so.
4. MAYOR’S COURT AND THE ADALAT SYSTEM
MAYOR’S COURT
A. Early Mayor’s court at Madras
1. Charter of 1687 : Creation of Mayor’s court at Fort St. George.
● Consisted of 1 Mayor and 2 Aldermen.
● Court of record for the town. Jurisdiction in Civil and Criminal cases.
● In civil cases where value exceeded three pagodas and in criminal cases where
the accused was given a death sentence. These cases could go for appeals to
the Admiralty court.
● Judges do not have full legal knowledge so a provision for appointment of a
recorder.
● Sir John Biggs, Judge-Advocate was the first recorder.

2. Admiralty court at Madras : Established in 1686 under the charter granted by James II.
● John Grey was the first judge with two assistants. Succeeded by Sir John Biggs
who paved the way for English Law into India.
● John Dolben after the death of Sir John. Removed for corruption.
● William Fraser and John Styleman were appointed and the Admiralty Court
worked up to 1704.

3. The Four Courts : to administer justice there were Admiralty Court, Mayor’s Court, For
small causes of less than 2 pagodas, Court of the President/Governor in council.
● The Court of the President heard appeals from Mayor’s and Admiralty.
● At Mayor’s court cases were decided based on justice and good conscience and
not on fixed legal rules.
● It was realised the process was really slow and uncertain.
● Personal prejudices and whims were bound to creep in as the Mayor’s and
Choultry was presided over by non-professional people which resulted in lack of
uniformity and consistency in decisions.

4. Drawbacks : Decisions of Indian courts were not recognised so people were tried again
in England for causes which arose in India.
● The growing discontent and weakness of the state affairs was realised and
efforts were made to find suitable means.

B. Origination of New Charter

● No suitable machinery to administer justice in the 3 presidency towns.
● Directors of the company presented a petition to George I that there was great need
for proper and competent power and authority for speedy and effective administration
of justice in civil cases.
● So for these reasons the Charter of 1726 was passed.

C. Provisions of Charter of 1726

1. Establishment of Corporations
 ● Provided for an establishment of a corporation in Bombay, Calcutta and
Madras.
● Each consisted of a Mayor and 9 Aldermen Mayor would be elected every year
by the Alderman was appointed either for life or for the term of residency in
the town.
● Governor in council was empowered to dismiss an Alderman for a reasonable
cause.
● This Charter for the first time created a subordinate legislative authority.

2. Mayor’s Court
● Also constituted of a Mayor’s Court for each town. A mayor and 9 Aldermen.
The Mayor and two other Aldermen were to be present to form the quorum of
the court.
● Declared to be the Courts of Record and was authorised only to try Civil
matters.
● Authorised exercise jurisdiction over all living in the town and working in the
factory and to issue letters of administration to legal heirs of deceased people.

3. Procedure
● A sheriff(officer of the court) to serve the processes of the court. Directed the
sheriff to order the defendant to appear before the court.
● If the defendant failed to appear a warrant was issued to the sheriff to arrest
the defendant and present him before the court to face charges.
● Court was empowered to release the defendant on bail or security as it
considered suitable.
● The judgement was followed by a warrant of execution. The sheriff was
authorised to arrest and imprison the defendant.

4. Right of appeal
● For the first time an appeal from the Mayor’s court was allowed to the General
in council.
● A period of 14 days from the date of judgement to file an appeal. The decision
of the general in council was final in all cases involving a sum of less than 100
pagodas. If it was more than 1000 pagodas a further appeal was allowed to be
filed to the king in council.

5. Justices of Peace
● In each town the Governor and five senior members of the council will have
criminal jurisdiction and would be justices of peace.
● Empowered to arrest and punish persons for petty cases
● The Charter of 1726 made the beginning of importing English ideas, technical
forms and procedure of criminal justice into India.

6. Legislation
● Empowered the Governor and the Council to make by laws, rules and
ordinances and to prescribe punishments for its breach which should not be
contrary to English law.
D. Consequences of 1726
● Saw the abolition of Admiralty court at Madras and enlargement of the powers of the
Mayor’s court.
● Established Mayor’s courts in all three towns and introduced a uniform judicial
machinery in India.
● Civil and Criminal courts that were established received their authority from the King
not from the Company
● The king in England in whose name justice was administered in England also became
the fountain of justice for courts in India. Added prestige to courts in India and in
England and are hence called the Royal courts.
● The common allegiance to the king, in the field of judicial set-up, paved the way for
importing English ideas of law and justice, into India. The principles of English Law
greatly influenced Indian law and legal institutions.
● . Due to its tremendous significance the Charter is usually characterised as the "Judicial
Charter”.

E. Distinction between the Madras Charter of 1687 and The Charter of 1726

Grounds 1687 1726

Scope of Only Madras. All presidency towns, i.e, Madras

Application Calcutta and Bomaby

Creation Mayor’s court was a company’s court Royal Courts as they were created by
King's Charter

Jurisdiction d Mayor's Court at Madras was were entrusted with civil jurisdiction
empowered to exercise its jurisdiction only, and from their decision, first
over all civil and criminal matters appeal was allowed to the
and an appeal was allowed to go to Governor-in-Council. A further appeal
the Admiralty Court. was allowed to go to the
King-in-Council in all cases involving
a sum of 1000 pagodas or more.

Law and No specific rules of law and Were required to follow a

Procedure procedure were laid down. well-defined procedure based on
English Law and practice.

Recorder Recorder was attached to advise the No such officer was appointed.
court.

Participatio Some Indians were authorised to sit Representation of Indians was

n of Indians as judges together with English practically negligible. In fact, no
Aidermen. Indian was ever appointed.

Position of This was not so under the provisions Entrusted judicial powers to the
Executive of the Charter of 1687. The Charter of Governor-in-Council who had all the
1687 is considered to be superior to executive powers.
1726 as the modern progressive ideas
 of separation of judiciary from the
executive were deeply rooted in it.

F. The Working of the Mayor’s Courts from 1726 to 1753

1. Application of English law
● The English law completely ignored the Indian customs and traditions, and was hardly
suitable to Indian conditions in those days.
● All these excesses and peculiarities in the name of justice enforced by the English
people created great dissatisfaction and unrest amongst the native inhabitants of
each Presidency Town.
● The Mayor's Court was constituted to work independently but its relationship with the
executive, Governor-in-Council, was not stated clearly.

2. Conflict about jurisdiction

● The following few cases, will reveal the growing conflict and reflect on the extent to
which the relations between the Governor In-Council and the Mayor*s Courts became
strained.

a. “Shimpy” case Bombay – As early as 1730, Governor Cowan and the Mayor's Court at
Bombay came into conflict regarding the court's jurisdiction over natives, in matters of
their caste and religion.
● This situation arose in a case where a Hindu woman of Shimpy caste changed her
religion and became Roman Catholic. She had a son of 12 years of age.
● After the mother changed her religion, the son left her and decided to stay with his
Hindu relatives. The mother filed a suit in the Mayor's Court against her
Hindu relatives on the ground of unlawfully detaining some jewels and the boy.
● As a consequence, the court ordered the relatives to hand over the boy to his
mother. The heads of the caste filed a complaint to Governor Cowan and the matter
was duly considered by the Governor and Council.
● They held that the Mayor's Court was not authorised to exercise its jurisdiction over
"causes of religious nature or dispute concerning caste among the natives" and a
separate warning was issued to the Mayor's Court stating that in future the court
should not interfere in such cases.
● The court strongly protested against the stand taken by the Governor-in-Council on the
ground that the matter in dispute was not at all religious and the court was
empowered to decide such cases under the authority of the Charter of 1726.
● The Mayor retorted by declaring that so long as he presided over the court, he would
take every step to safeguard the prerogatives of the court and he would even go to
England to file an appeal to the King-in-Council.
● The Governor removed the Mayor from the post of 'Secretary to the council', a post
which the Mayor occupied together with his main work of the Mayor's Court.
● Ultimately, the conflict was reported to the Court of Directors of the Company.
The directors of the Company denounced the rash and extreme attitude of the
Bombay Council and issued general orders to prevent repetition of such a conflict.

b. Arab Merchant case –

● In the same year, in the Arab Merchant case, the Council and the Mayor's Court again
came into serious conflict.
● An Arab merchant sued a person in the Mayor's Court for recovery of the value of his
pearls.
● The merchant stated that the defendant extorted the pearls from him while he was
rescued near the coast of Gujarat from a burning boat.
● The Governor-in-Council suggested to the Mayor's Court that the claim suit filed by the
Arab merchant was invalid as the defendant was tried for piracy earlier and was
acquitted.
● But the Mayor's Court paid no attention to the Governor's suggestion and decreed the
suit in favour of the merchant.
● On appeal before the Governor-in-Council, the decision was reversed by the casting
vote of Governor Cowan.
● Due to the casting vote of the Governor, the Mayor's Court expressed great doubt and
challenged the legality of the reversal order.
● This added fuel to fire and the existing tense relations between the Mayor's Court and
the Governor further became strained.

c. Torriano Case –
● Torriano, secretary to the Madras Government, and Mayor Naish met at a dinner
party and entered into a bet which Naish lost and refused to pay.
● Torriano sued him in the Mayor's court which held that the Mayor was immune from
legal action in the court.
● The Government maintained that the Court could have no authority under its Charter
to inflict penalties.
● The Court replied that the Council could not direct it in the discharge of its duties.
● Sometime later it was also revealed that the relations between Naish,
the Mayor, and the Governor became tense due to their personal rivalry, jealousy and
personal hatred against each other.
● In 1734, when Naish was re-elected as Mayor, the Governor of Madras refused to allow
him to take the oath of office on the plea that the re-election of the Mayor was not
permitted by the provisions of the Charter.
● As a result of this a new Mayor was elected by the Corporation.
● Though a new mayor occupied the office, the relations with the Governor did not
improve.
● It shows that the causes of conflict between the two were deep-rooted.

d. Sunku Rama Case –

● In 1735, the executive filed a suit against a person, Suku Rama, for a breach of
contract before the Mayor's Court.
● The court of appeal, i.e. the Council directed the Mayor's Court to issue a warrant
of execution.
● The Court delayed in doing so.
● The Mayor's Court displayed a difference towards Suku Rama.
● At this, the Council felt insulted and issued orders to its solicitor to file a complaint to
the Council against the Mayor and each of the Aldermen for not obeying the
directions of the court of appeal.
 ● The Mayor's Court raised legal objection to the relevance of the Council's step which
was itself a party to the suit.
● As the courts records are silent on what happened later in this case, perhaps at that
stage, the directors of the Company intervened and advised both the litigants not to
proceed further in that issue.
● It was surprising to note that both the parties, the Mayor's Court and the
Governor-in-Council, justified their claims on the basis of the Charter of 1726.

e. “Pagoda Oath” Case –

● The Mayor's Court also came into conflict with the local inhabitants of Madras.
● The court insisted that the Hindu witnesses must take “Pagoda" oath (oath upon a
cow) instead of "Geeta" oath.
● The "Geeta" or "Gita" is a holy book of Hindus. A Gujarati merchant was fined by
the court for refusing to take "pagoda" oath.
● When the matter came before the Governor-in-Council, they remitted the fine.
● Sometime later in 1736 two Hindus were even imprisoned, at the instance of the
Mayor's Court, on their refusal to take "pagoda" oath.
● This incident excited the Hindus emotionally and their expression of
great dissatisfaction posed a problem of law and order.
● The Governor, therefore, intervened and released them on parole under his orders.
● This incident and the role of the Governor further added to the already tense relations
with the Mayor's Court.

f. At Calcutta — At Calcutta, the Mayor's Court was established in 1728 under the
Charter of 1726. In its actual working and dealing with the Governor-in-inCouncil, the
condition was in no way better at Calcutta than Bombay and Madras. Similar conflicts
arose between the Mayor's Court and the Governor-in-Council.

g. At Madras – In Madras, a study of the working of the Mayor's Court during this period
reveals that the relations between the Mayor's Court and the Governor-in-Council were
not cordial.
● On many occasions they came into conflict with one another. Whenever any decision
was made either by the Council or the court asserting independence and superiority of
one over the other, conflict arose between the two.
● Whenever the Mayor and Aldermen while acting as grand jury at the quarter sessions
failed to show due consideration and respect to the authority of the
Governor-in-Council, there was a clash between them involving a question of prestige.
The Mayor's Court expressed its indignation when the Corporation tried to utilise
money collected by the court as fines for the purpose of public works.
● The court always insisted on its independent authority and original jurisdiction in
administering justice and made it clear that the Governor and the Council had no
power to dictate or interfere in its working

3. Result of the Conflicts

● In all these clashes and conflicts, even English people were divided into two camps and
were working against each other.
● The inhabitants of Bombay, Madras and Calcutta were the greatest sufferers due to
the constant conflicts.
 ● A petition was, therefore, sent to the Court of Directors of the Company on behalf
of the inhabitants of all the three Presidency Towns.
● In their reply to the petition, the directors of the Company made it quite clear that
regarding conflicts and litigation between the natives in which the king's subjects were
not involved, this may and should be decided among themselves according to their own
customs or by justices or referees to be appointed by themselves... but if they
request and choose them to be decided by English Laws, those and those only must be
pursued, and pursued according to the directions of the Charter; and this likewise
must be the case when differences happen between the natives and
subjects of England where either party is obstinate and determined to go to law.

G. Political Changes in Madras (Sep 1746 – Aug 1749)

● On 14 September 1746, the French captured the city of Madras.
● The victory of the French brought Madras under the temporary rule of Pondicherry.
● It gave a death blow to the Mayor's Court at Madras.
● In 1749 the city of Madras was recaptured by the English from the French.
● The English Company realised the necessity of a suitable judicial machinery at
Madras.
● It was considered reasonable to revive the Mayor's Court under a new Charter.
● The Mayor's Court was re-established at Madras by a Charter of George II in 1753.
● The existing defective state ofjudicial affairs was quite clear before the directors of the
Company.
● A petition, stating the difficulties and hardships faced by the inhabitants of the
Presidency Towns of Bombay and Calcutta, was already lying with the directors of
the Company for serious consideration.
● The directors considered it suitable to utilise this opportunity to remove the
defects of the Charter of 1726.
● The Charter of 1753, Royal Charter, was therefore issued by King George II.

H. Charter of 1753
● The new Charter re-established the Mayor's Courts at Madras, Calcutta and Bombay.
● It also introduced some reforms in the Charter of 1726 to tackle the conflicting
situation and also to gain favour of the local men residing in the Presidency Towns
by removing their hardships.
● It excluded from the jurisdiction of the court all suits and actions between
natives only, and directed that these suits and actions should be determined amongst
themselves unless both parties submitted them to the determination of the Mayor's
Court.
● It was an important restriction imposed on the jurisdiction of the courts in the
Presidency Towns.
● It made the Mayor's Courts subordinate to the government of the Company by
making certain important changes in its constitution which made the Mayor the
government's nominee.
● Consequently the Mayor's Court lost its independence.
● It appears that the underlying policy was to strengthen the hand of the executive
government and its political power.
● Regarding "taking of oath", the Charter made it clear that the main purpose was to
oblige the witness to speak the truth before a court. It provided a particular oath
for Christians. For Hindus, it was stated that the oath must be taken in a manner which
is considered most binding on their conscience according to their own castes.
 ● It was also provided that the Mayor's Court was empowered to hear suits against
the Mayor and Aldermen. But in such cases the interested person was not allowed
to preside over the court.
● The Mayor's Court was authorised to hear and decide cases against the Company.
● In such cases the government was required to defend its case with the aid of its
legal experts.
● The Charter also created a Court of Request at each Presidency
Town of Bombay, Calcutta and Madras to decide civil cases involving a sum not
exceeding five pagodas.
● Its chief aim was to give cheap and quick justice to the poor.
● It consisted of Commissioners numbering from 8 to 24.
● These Commissioners were required to sit in a quorum of three in rotation once a week.

1. Courts Established by the Charter for the towns

1. The Court ofRequests, to hear civil suits up to five pagodas.
2. The Mayor's Court to hear civil suits for more than five pagodas
3. The courts of the President and Council. It was empowered to act as Justices of
the Peace and the Court of Quarter Sessions to hear and decide criminal cases.
It was also empowered to act as civil appellate court and in that capacity to
hear civil appeals from the Mayor's Courts in the respective towns.
4. The King-in-Council (the Privy Council) as the highest court of appeal, heard
appeals from the court of the President and Council in all civil cases involving a
sum of 1000 pagodas (Rs. 3000) or more.
2. Conflict continues ​
● The new Mayor's Court at Madras found it difficult to escape from it own
tradition of conflicts.
● In 1754 one Ephraim Issac accused one of the Aldermen of the Mayor's Court of giving
dinners to two others in order to make them support him

I. Criticism of the Charter .

Executive’s upper hand​
● The Charter of 1753 made the judicial machinery more or less a
branch of the Company's executive government and it failed to provide for the
due administration of justice.
● The Mayor's Court was presided over by persons who were selected from the junior
servants of the Company.
● They were inexperienced, ignorant of law and untrained in the art of
administering justice.
Judges ignorant of Law​
● Similarly, the Governor-in-Council were quite ignorant about the
technicalities of English criminal law, on the basis of which they were expected to
decide cases in India.
● Ignorant of the law, they also misused their position for private interests.
Indefinite jurisdiction​
● Only the Presidency Towns were under the jurisdiction of the Mayor's Courts, but the
position was not made quite clear about the cases arising beyond such area.
Expensive appeals​
 ● Provision was there for appeals to the King in-Council; but based on the records, it can
be said that for a long period of time hardly any appeal was taken to England, as it
was highly expensive task to go to London for an appeal.
Exclusion of Indians
● The Mayor's Courts practically excluded Indians from having any share in the
administration of justice in India.
● They were not appointed to the Bench.
● Under the Charters of 1726 and 1753, the only capacity in which Indians were allowed
to participate in the administration of justice was as jurors in the Sessions Court.
● The privilege was restricted to those only who accepted the Christian religion.

J. Abolition of the Mayor’s Court and Constitution of New Courts

Calcutta
● At Calcutta the defective state of judicial affairs continued for some time till the
House of Commons appointed a Committee of Secrecy in 1772.
● Apart from certain inherent defects in the recruitment of persons to preside over the
Mayor's Court, the court also came into conflict on the one hand with the President
and Council, and on the other, with the native Zamindar's Court.
● Persons presiding the Mayor's Court were mostly ignorant and inexperienced in legal
work.
● The Mayor's Court always considered the Zamindar's Court as an encroachment on its
jurisdiction.
● Though, because of the provisions of the Charter of 1753 the Mayor's Court
was helpless in attracting native litigants, still it came into conflict with the Zamindars
Court on the issue of jurisdiction.
● The Committee of Secrecy reported that many of His Majesty's subjects residing in
Bengal, were "neither under the protection or control of the Laws of England, nor
amenable to the criminal judicature of the country,".
● In its Seventh Report, the Committee of Secrecy severely criticised the working
executive and judicial system in Calcutta and submitted its report to the British
Parliament.
● It recommended that immediate steps should be taken to introduce reforms in the
judicial system.
● The British Parliament intervened and passed a new Act, known as The Regulating Act,
1773.
● The Act of 1773 abolished the Mayor's Court at Calcutta and in its place a Supreme
Court was established in 1774.
● These changes were made at Calcutta only and not at other Presidency Towns.
● It appears that the British Parliament considered it suitable to introduce the reforms
on an experimental basis at Calcutta and assess its working so that if it proved
successful, the same may be introduced at Bombay and Madras also at a later stage.

Madras
● At Madras, the Mayor's Court continued to function somehow or the other until 1797.
● The Charter of 1753 provided that in matters between natives the jurisdiction of the
Mayor's Court depended on their submission.
 ● In practice it made very little change since the natives of Madras had no
effective substitutes for the Mayor's Court as was the case at Calcutta.
● Dealing with the working of the Mayor's Court, a dispatch was sent to the Company
from Fort St. George in 1791.
● It stated one defect which required immediate rectification viz. that the judges of the
Mayor's Court were not skilled in law and this disqualification really produced grave
injustice in particular cases.
● It was also reported that due to increase in jurisdiction of the courts its work also
increased.
● Professional judges were, therefore, required to be appointed.
● Consequently the Company decided to abolish the Mayor's Court at Madras
and under the Charter of 1798 the Recorder's Court was established in its place.
● The constitution of the Recorder's Court at Madras was the same as at Bombay.
● The Recorder was an expert in English Law.
● Apart from improving the judicial system, its object was to bring the administration of
justice in Madras into line with the machinery of justice in Calcutta.

Bombay
● At Bombay, the Mayor's Court was abolished in 1798 and, in the same year, the
Recorder's Court was established in its place.
● The Mayor's Court functioned for nearly 70 years with its inherent defects of principle
and personnel.
● The Recorder's Court at Bombay consisted of a Mayor, three Aldermen and a
Recorder appointed by the Crown.
● It was provided by the Charter that the Recorder must be a Barrister of not less than
five years' standing.
● In fact the Recorder was the real judicial authority to enlighten the court with
legal provisions applicable in each case.
● In 1798, Sir William Syer was appointed as the first Recorder of Bombay.
● As noted, with all their shortcomings the Mayor's Courts were much better than the
courts existing prior to them and they did constitute important links in the chain of the
evolutionary process of the Indian judiciary.
● With their end, also came to an end of the system of entrusting administration of
justice to non-lawyer servants of the Company.

K. The Courts of Requests

● Established for the first time by the Charter of 1753 at the 3 towns to decide civil suits
of small pecuniary amounts.
● authorised to hear all civil suits involving a sum up to five pagodas. Where the sum
involved was more than five pagodas, the Mayor's Court exercised its jurisdiction.
● The President and Council were empowered to appoint the first Commissioner to
preside over the Courts of Requests in each Presidency Town. Subsequent
appointments were made by the Commissioners themselves.
● The Charter of 1774 provided fbr the continuance of the Courts of Requests and made
it subordinate to the Supreme Court at Calcutta.
 ● The Act of 1797 enlarged the monetary jurisdiction of the Courts of Requests to ?80
and in 1802, it was enlarged to ? 100 and by another proclamation dated 29 October
1819 its jurisdiction was further extended and the maximum limit was fixed at Rs.400
● As stated earlier, after the abolition of the Mayor's Courts and the Recorder's Courts,
the Courts of Requests were made subordinate to the Supreme Courts in each
Presidency Town. The Supreme Court was authorised to supervise these courts in the
same manner as the inferior courts in England were made subject to the order and
control of the Court ofQueen's Bench.
● In 1850, the Courts of Requests were abolished and in its place Small Cause Courts
were established. The creation of courts with exclusive jurisdiction over petty causes
with power to give a final decision in respect of such causes saved a good deal of
public time as well as enabled the higher courts to devote more time for cases
involving complicated questions of law and fact
● In 1864, the Presidency Towns Small Cause Courts Act was passed. It extended the
jurisdiction of these courts to cases concerning the recovery of any debt, damage or
reward involving even more than Rs.500 but not exceeding 1000, provided that the
cause of action had arisen or the defendant at the time of bringing the action was
dwelling or carrying on business or personally working for gain within the local limits of
the court's jurisdiction. In cases exceeding Rs.500 in value, the judges were directed to
reserve doubtful questions of law fbr the opinion of the High Court and to deliver
judgement on the basis of that opinion.
● In order to suitably adjust the working of the Small Causes Courts in the then existing
judicial system of India, and also to remove certain defects which came into limelight
in its actual working, a new Presidency Small Cause Courts Act was passed in 1882. The
Act of 1882 repealed all prior enactments and constituted the Small Cause Courts at
the Presidency Towns of Bombay, Calcutta and Madras, subject to various exceptions
as specified in the Act. They were subordinate to the respective High Courts and
exercised jurisdiction over such areas as were under the original civil jurisdiction of the
High Court.
● Mofussil Small Cause Courts or Provincial Small Cause Courts were established in 1860.
The law relating to them was amended in 1865. The Provincial Small Cause Courts Act
was passed in 1887. It reconstituted the courts of Small Causes established beyond the
local limits of the ordinary original civil jurisdiction of High Courts of judicature at
Bengal, Madras and Bombay. The object of the Act of 1887 was to ensure the speedy
administration of justice in small suits of pecuniary nature and comparatively simple in
character.

Adalat System
1. Courts in Bengal under the Mughals
● In the later Mughal period from 1750 onwards, the Mughal Empire started to
disintegrate, and the Provinces gained independence under subedar Nawabs.
● In Bengal, the courts administering civil and criminal justice can be described as
follows:
○ At the provincial headquarters, three courts were established: Nazim-e-Subah,
Darogha-e-Adalat Diwani, and Darogha-e-Adalat Aliah.
■ The court of Nazim-e-Subah was the highest court in the Province and
dealt with criminal appeals from District Courts, murder cases, revision
 petitions, and cases referred due to differences of opinion between Qazi
and Mufti.
■ The court of Darogha-e-Adalat Diwani heard local civil suits and
appeals, including matters related to real property and land, from the
District Civil Courts.
■ The court of Diwan had jurisdiction in all revenue cases, both original
and appellate.
■ The court of Darogha-e-Adalat Aliah handled all revenue work on
behalf of the Diwan.
○ In each district, courts were established to handle civil and criminal cases.
■ For civil litigation, three courts were established: Qazi, Zamindar, and
Qanungo.
● The court of Qazi heard claims of property transfer and matters
related to inheritance.
● The court of Zamindar heard other civil and common pleas.
● The court of Qanungo dealt with revenue cases.
■ In each district, there were also four criminal courts: Faujdar, Zamindar,
Qazi, and Kotwal.
● The court of Faujdar handled criminal and common-law cases.
● The court of Zamindar dealt with petty criminal cases in a
summary manner.
● The court of Qazi had the authority to conduct full investigations
in murder cases and had to report to the court of
Nazim-e-Subah.
○ Appeals from these courts were allowed to the court of Nazim-e-Subah.
○ The Kotwal acted as the "peace officer" and had the power to decide petty
criminal cases.

2. Organisation of a legal vacuum

● The Mughal authority was weakened and had control over only a portion of the
country when the British arrived in India.
● The territories not under the Mughal Emperor's suzerainty had their own rulers.
● Initially, the British traders obtained permission from Indian rulers to establish their
factories, primarily in the regions that later became known as the Bombay, Madras,
and Bengal Presidencies.
● The Mughal government had an elaborate governmental system and laws to govern
their subjects but had no specific laws to govern foreigners.
● The Mughal government was not interested in making foreigners subject to their laws,
except for police and revenue matters or disputes between Indian subjects and
foreigners.
● This created a legal vacuum in the inter-affairs of foreigners in the settlements,
allowing the foreign governments to establish their legal and political authority.
● With the decline of the Mughal Empire, the authority of foreign governments grew and
extended to other Indian territories as they came under their influence and jurisdiction.
● The weaknesses and administrative shortcomings of the Mughals made them
vulnerable and easily succumbed to foreign powers.
 A. Defects of the judicial system
● In many areas, influential landlords known as Zamindars were authorized to maintain
law and order and were empowered to try petty civil and criminal cases during the
later Mughal period.
● The Zamindars exercised both civil and criminal jurisdiction within their territories,
guided by loose and indeterminate laws such as the Koran, its commentaries, and local
customs.
● Litigation before the Zamindar's Court often resulted in arbitration instead, as
corruption and deficiencies in the local system deprived peasants of justice even
according to customary law.
● The judicial system became a tool of oppression and exploitation, with the courts
serving as instruments of power rather than delivering justice.
● The Company's servants would seize Indians residing near the Company's settlements
and hold them prisoner until they paid claims, without seeking permission from the
Nawab's government.
● The revolution that placed Mir Kasim in power further disrupted the course of justice,
with Englishmen exerting influence on the administration of justice and encroaching on
native authority.
● Warren Hastings, transferred to the Governorship of Bengal in 1772, aimed to tackle
these problems and remove corruption from the administration of justice.
● He replaced the office of Naib Diwan with a British agency for revenue collection,
implemented fixed-term farms, designated revenue supervisors as Collectors, and
established a Committee of Circuit to address defects in the administration of justice
and develop a comprehensive plan for civil and criminal justice.

3. Grant of Diwani
● The Battle of Plassey in 1757 marked a turning point where the real authority of the
Nawabs of Bengal was transferred to the English East India Company.
● The Battle of Buxar in 1764 further solidified British power in India, as it resulted in the
defeat of not just the Nawab of Bengal but also the Emperor of India, weakening the
sovereignty of the Mughal Emperor.
● The Court of Proprietors of the East India Company sent Clive to India to address the
situation and its consequences. Clive arrived in India as the Governor of Bengal and
Commander-in-Chief of the Company's forces.
● Clive negotiated a treaty with the Mughal Emperor Shah Alam in August 1765,
granting the diwani (revenue rights) of Bengal, Bihar, and Orissa to the East India
Company.
● In return for the diwani rights, the Company agreed to pay the Mughal Emperor a sum
of ?26 lakhs and the Nawab of Bengal an annual fixed sum of 753 lakhs.
● The Nawab, in turn, relinquished independent military control to the Company's
authorities, allowing the Company to strengthen its position and develop a powerful
army under the name of the Nawab of Bengal.

4. Dual Government of Bengal

● The Nawab of Bengal, who represented the Mughal Emperor, had two main functions:
diwani (revenue collection and civil justice) and nizamat (military power and criminal
justice).
● The East India Company obtained diwani rights while leaving the nizamat work with
the Nawab, who had lost real power and became a mere figurehead.
● The Company appointed native officers under its supervision for the administration of
civil justice and revenue collection, such as Mohammed Reza Khan and Raja Shitab
Roy.
● The division of power and responsibility between the Nawab and the Company in
Bengal, Bihar, and Orissa became known as the "dual government."
● The Company gradually took over all administrative powers, diminishing the authority
of the Nawab and reducing him to a position devoid of substantial power or function.
● The "dual government" system resulted in the misuse of power by English Company
servants, leading to exploitation, corruption, and a decline in revenue.
● The inefficient administrative machinery and corruption further worsened the situation,
making the courts instruments of power and oppression rather than justice.
● Warren Hastings was called upon to address the defects and corruption in the
administration of justice and governance.

5. The Company as Diwan

● Clive left India in January 1767, and Governor Verelst succeeded him.
● Clive's policy of dyarchy in Bengal resulted in anarchy and a lack of responsibility in
the government.
● Governor Verelst introduced new measures for revenue collection and corruption
investigation in 1796, but the experiment failed, leading to an increased workload for
supervisors.
● The directors of the Company blamed Indian officers for the problems and decided to
change their policy.
● In 1771, the directors declared their resolution to take full responsibility for revenue
management as "Diwan" through their own servants.
● Warren Hastings was transferred from Madras to the Governorship of Bengal in 1772
to implement the changed policy.
● The Controlling Councils of Revenue took charge of revenue and civil justice, and a
proclamation was issued to announce the Company's control over these matters.
● The Company aimed to bring revenue collection and civil justice under direct control to
eliminate intermediaries and alleviate hardships for both the ryots (peasants) and the
government.
● The Nawab's authority over criminal justice was still recognized, but the Company's
servants took over the revenue collections completely.

6. Warren Hastings plan of 1772

The Committee ofCircuit, under Warren Hastings as its Chairman, prepared the first
judicial plan on 15 August 1772. It was the first step to regulate the machinery of
administration of justice and the plan being a landmark in the judicial history became
famous as "Warren Hastings plan of 1772”

● A. Collector for each unit – —Under this plan the whole of Bengal, Bihar and Orissa
were divided into districts. The "district" was selected as the unit for the collection of
revenue and for the administration of civil and criminal justice. In each district an
English officer, called Collector of the district, was appointed. His primary duty was to
control the collection of revenue.
● B. Mofussil Diwani Adalat – —As regards the administration of civil justice in each
district a Mofussil Diwani Adalat was established. The District Collector presided over
it. The Mofussil Diwani Adalat was empowered to decide all civil cases dealing with
real and personal property, inheritance, caste, marriage, debts, disputed accounts,
contracts, partnerships and demands of rent.25 Its decision was final in all suits up to
the valuation of Rs.500.

● C. Sadr Diwani Adalat.—At the seat of the government, i.e. Calcutta, one Sadr Diwani
Adalat, a court of superior jurisdiction, was also established. It was the chief court of
appeal and was empowered to hear appeals from all district Mofussil Diwani Adalats
in such cases where the valuation of the suit was more than Rs.500.

● D. Small cause Adalat – —Besides these courts, the Head Farmers of parganas were
authorised to decide petty disputes relating to property up to the value of Rs.10

● E. MofussilFaujdari Adalat.—In the sphere of criminal justice, the plan provided for the
establishment of a Mofussil Faujdari Adalat in each district for the trial of all crimes
and misdemeanours under the Collector of the district. One court like the Mofussil
Faujdari Adalat was established at Calcutta to decide local criminal cases and was
placed under the charge of a Member of the Council who served in rotation. In each
district, a Qazi and a Mufti with the help of two Maulvis, who were appointed to
expound the law, were to hold trials for all criminal cases. The Collector was authorised
to supervise the working of the court

● F. Sadr Nizamat Adalat – A Sadr Nizamat Adalat was established in Calcutta.

➔ The Sadr Nizamat Adalat served as an appellate court, hearing appeals from the
Mofussil Faujdari Adalats of the districts and overseeing their operations.
➔ The Sadr Nizamat Adalat was presided over by a Darogha or Chief Officer, who was
appointed by the Nawab.
➔ The Darogha received assistance from a Chief Qazi, a Chief Mufti, and three Maulvis
in carrying out his duties.
➔ The court had the authority to review and revise important proceedings of the Mofussil
Faujdari Adalats.
➔ The Mofussil Faujdari Adalats were not authorised to pass capital sentences without
the approval of the Sadr Nizamat Adalat.
➔ For severe sentences related to grave offences, the prior approval of the Nawab was
required, as he was considered the head of the Nizamat Adalat.

● G. Personal laws safeguarded –

➔ Article 27 of Warren Hastings' 1772 plan directed the Diwani Adalats to decide cases
based on the Laws of the Koran for Muslims and the Laws of the Shastra for Hindus.
➔ This provision aimed to safeguard the personal laws of both Hindus and Muslims,
treating them equally.
➔ Macaulay described this provision as a "far-sighted policy" that recognized the
importance of preserving and respecting diverse religious laws.
➔ Rankin acknowledged it as an act of enlightened policy, showing an understanding
and appreciation for religious and cultural differences.
Warren Hastings made efforts to dispel the notion prevalent in England that the people of
India had no regular laws of their own.
● He acknowledged that Mohammedan Law was already contained in a digest prepared
by the order of Aurangzeb and acknowledged by the Indian courts.
● Hindu Law, on the other hand, had not been systematically codified, so Warren
Hastings invited 10 learned Pandits to Calcutta and commissioned them to prepare a
digest for the guidance of civil courts.
● Warren Hastings transmitted sample portions of the English translation of the digest
to the directors to convince them that the people of India had their own laws and did
not require a new standard for their property.
● He believed that it was the sacred right of Indians to retain their own system of law
and justice, and he emphasised the importance of respecting local customs.
● Warren Hastings considered even the most seemingly injudicious or fanciful customs as
preferable to any imposed in their place, as these customs were interwoven with
religion and seen as equitable by the people.
● Safeguarding the personal laws of the natives of India was seen as a wise step taken
by Warren Hastings, demonstrating his farsightedness.
● Native law officers assisted the courts, but over time, there were unavoidable defects in
their handling of evidence and passing orders, according to Rankin.

● H. Other procedural safeguards – The plan introduced specific rules for the trial of civil
suits, ensuring a structured procedure.
● If the defendant attempted to evade or delay their response, the court could pass
judgment against them.
● The hearings of cases were conducted in open court to promote transparency and
fairness.
● The Collector was responsible for receiving petitions of complaint, emphasizing the
importance of addressing grievances.
● Parties involved in certain cases were encouraged to submit to arbitration, and the
arbitration award would be treated as the decree of the Diwani Adalat.
● Measures were implemented to prevent oppression by wealthy creditors and
moneylenders.
● Registers of decrees and proceedings were to be maintained, ensuring proper
documentation.
● Complaints that were over 12 years old were no longer actionable.
● Provisions were made for the payment of salaries to Qazis and Muftis (Islamic legal
officers), addressing the issue of financial support.
● Efforts were made to uproot corruption and establish moderate court fees in civil
cases, promoting accessibility to justice.

7. Defects in the plan

● The plan had a limited number of courts, with the head farmers given power to decide
petty cases up to a certain monetary limit. This proved insufficient considering the
population and size of each district, leading to a need for more subordinate courts.
● One major defect was the concentration of power in the hands of the Collector, who
held administrative, tax collection, and judicial responsibilities. This resulted in the
Collector being overwhelmed and unable to effectively regulate all these affairs.
● The combination of executive and judicial powers in one person led to various issues,
including the potential for misuse of powers and conflicts of interest.
● Upon realising the problems, Warren Hastings prepared a new judicial plan in
November 1773, which was implemented from 1774. This revision aimed to address the
shortcomings of the original plan and provide more impartial and efficient justice to
the people in the Mofussil (rural areas).
● The new plan brought credit and honour to Warren Hastings, showcasing his
commitment to ensuring fair and affordable justice and laying the foundation for
future development in the judicial system.

8. New plan of 1774

● Organisational changes were made in the judicial plan of 1772 in 1774, known as the
"New Plan of 1774."
● Revenue collections were brought to the Presidency and administered by a committee
of experienced Company servants under the inspection of the President and Council.
● Provincial Councils were established in each district to hear appeals from the decisions
of the Mofussil Diwani Adalats.
● A Board was established in Calcutta to issue instructions to all six Provincial Councils.
● Native superintendents of revenue called Naibs replaced English Collectors and
performed revenue collection and judicial functions.
● Each Provincial Council, also known as Provincial Sadr Adalat, administered justice in
civil cases for all districts in the division and heard appeals from the districts.
● In 1775, the Sadr Nizamat Adalat came under the authority of the Nawab, with
Mohammed Reza Khan serving as its Naib Nazim.
● The entire criminal jurisdiction was transferred from the Governor-General-in-Council to
the Nawab's supervision.
● Warren Hastings considered the plan of 1774 as a temporary measure, but due to the
Regulating Act and changes in the Council, he had to reorganise the Adalats and
introduce significant changes in the judicial system in 1780.

9. Reorganisation ofAdalats in 1780: characteristics

a. Separation of revenue from judiciary –
● Warren Hastings prepared a new judicial plan to reorganise the existing
Provincial Adalats.
● The plan came into effect on 11 April 1780.
● One important feature of the plan was the separation of revenue from the
administration of justice.
● The Provincial Councils of revenue continued to exist at six provincial divisions:
Calcutta, Murshidabad, Burdwan, Dacca, Dinajpur, and Patna, but their judicial
power to hold civil courts was taken away.
● In each of these six provincial divisions, a provincial court of Diwani Adalat was
established.
● The provincial courts were presided over by a covenanted servant of the
Company
b. Jurisdiction of Provisional Diwani Adalat -
 ● The new judicial plan empowered the Provincial Diwani Adalats to decide all cases of
property, including those related to inheritance and succession to zamindaris and
talukdaris.
● Previously, these matters were under the responsibility of the Governor-General and
Council.
● This transfer of jurisdiction to the Provincial Diwani Adalats aimed to decentralise the
administration of justice and give more authority to the local courts in property-related
cases.
c. Appeal – Where the amount involved exceeded this value, an appeal was allowed to
the Sadr Diwani Adalat at Calcutta. The Governor-General and his Council constituted
the Sadr Diwani Adalat.
d. Miscellaneous – —The court fee was fixed at two per cent to five per cent depending
upon the valuation. Native law officers were required to assist the court. Before
entering the office, the Presiding Officer of the court was to take an oath that he
would administer justice without fear or favour.

Provisions regarding the process of court work, maintenance of records,

appointment of local law officers, taking of oath and evidence continued to be the
same as were laid down under the plan of 1772

10. Defects of the reorganisation plan

● Insufficient number of courts: The scheme of 1780 suffered from a lack of an adequate
number of courts, resulting in litigants having to travel long distances to seek justice.
● Lack of trained legal personnel: The officers appointed for the Adalats (courts) were
not adequately trained in law and legal work. This oversight neglected the importance
of having competent individuals administering justice.
● Appointment of Zamindars and Public Officers: The scheme included the appointment
of Zamindars (landlords) and Public Officers to decide petty civil cases up to ? 100.
However, these appointments were honorary, meaning that these officials were not
adequately compensated for their services. This situation led to corruption and
compromised the fairness and integrity of the judicial process.

11. Appointment ofImpey as Chief of the Sadr Diwani Adalat

● Warren Hastings appointed Sir Elijah Impey as the Chief Justice of Sadr Diwani
Adalat to address the difficulty in deciding civil cases in appeal.
● Sir Elijah Impey was already serving as the Chief Justice of the Supreme Court of
Calcutta and his appointment as Chief Justice of both the Supreme Court and Sadr
Diwani Adalat provided relief to the Governor-General and Council, who were not legal
experts and primarily engaged in political matters.
● The appointment of Sir Impey was objected to by the British government on several
grounds, including allegations of favouritism, prohibited additional remuneration,
violation of the Regulating Act, inability to devote sufficient time to the Supreme
Court, and compromising the independence of the Supreme Court with the Company.
● Sir Impey offered to refund his entire salary, demonstrating his good sense and
commitment to establishing the rule of law and ensuring justice without discrimination.
● Ultimately, Sir Impey was recalled to answer to the charges brought against him.

12. Reforms of 1781: initiative ofImpey and Warren Hastings

● The provisions and reforms introduced by Sir Elijah Impey in the Diwani Adalats:
 1. Regulation passed to regulate the procedure of Diwani Adalats, limiting the
involvement of native law officers to questions of personal law.
2. Retention of Zamindars' jurisdiction in petty civil cases, with a requirement to submit
records of proceedings to the respective Mofussil Court.
3. Compilation of old regulations and necessary alterations made to meet judicial
requirements.
4. Preparation of the first civil code for the administration of civil justice in India, which
was later incorporated with amendments and additions in a revised Code adopted in
1781.
5. Increase in the number of Mofussil Diwani Adalats from 6 to 18, with covenanted
servants of the Company serving as judges and subject to the orders of the Sadr
Diwani Adalat and the Governor-General-in-Council.
6. Authorization for Mofussil Diwani Adalats to hear, try, and determine all civil suits,
including inheritance and succession to zamindaris and talukdaris.
7. Requirement for Mofussil Diwani Adalats to send copies of judicial proceedings to the
Sadr Diwani Adalat, where appeals were allowed for suits exceeding a valuation of ?
1000.
8. Emphasis on the separation of judicial and revenue functions, with judges of Diwani
Adalats having a distinct jurisdiction from revenue officers.
9. Authority vested in judges of Mofussil Diwani Adalats to summon Zamindars or
revenue farmers to appear and answer to actions in court.
10. Modification and additions to the provisions regarding the application of personal laws
of Hindus and Muslims, ensuring justice, equity, and good conscience in the absence of
specific directions.
11. Prohibition of delegation of judicial work to native law officers, emphasizing that
judges must handle the judicial work themselves, while the native law officers expound
the law based on the facts decided by the judge.
12. Appellate jurisdiction granted to the Sadr Diwani Adalat to hear appeals from
Mofussil Diwani Adalats in cases exceeding a valuation of ? 1000, and the exercise of
original jurisdiction in matters referred by the Governor-General-in-Council.
13. Authority of the Sadr Diwani Adalat to exercise control and supervision over
subordinate Diwani Adalats, including the power to suspend judges for misconduct or
corruption and forward the matter to the Governor-General for final orders.
14. Emphasis on record-keeping, requiring the entry of processes, orders, complaints,
replies, rejoinders, and depositions in the court registers, with monthly copies sent to
the Sadr Diwani Adalat for review.
These reforms aimed to improve the administration of justice, ensure separation of functions,
uphold the rule of law, and expedite the disposal of cases.

13. The First Civil Code

The contributions and significance of the first civil code introduced by Warren Hastings and
Elijah Impey CJ:
● Centralization of administration: Establishment of the Sadr Diwani Adalat in Calcutta,
responsible to the Governor-General-in-Council, resulted in the centralization of civil
justice administration, ensuring control, supervision, and uniformity in the subordinate
courts.
● Improved governance of personal laws: Through the provisions of the Civil Code, Elijah
Impey CJ devised a better mode of governing Hindu and Muslim laws. By establishing
proper processes and rules of evidence, the foundation for a separate institution of the
 legal profession was laid, which played a crucial role in shaping the judicial process in
India.
● Separation of judiciary and revenue: The recognition of the principles of separation
between judiciary and revenue, led by Elijah Impey as Chief Justice of the Sadr Diwani
Adalat, established the independence and impartiality of the judiciary. This
contributed to the implementation of the rule of law in the country, and even
Zamindars, talukdars, and revenue farmers were placed under the jurisdiction of civil
courts.

14. Recall ofImpey and civil justice

the events and perspectives surrounding the removal of Sir Elijah Impey from the post of Sadr
Diwani Adalat and the criticism faced by Warren Hastings:
● Criticism and removal of Impey CJ: Due to growing criticism in England regarding
Impey CJ accepting two appointments, the directors of the Company ordered his
removal from the post of Sadr Diwani Adalat. On 15 November 1782, the
Governor-General and Council decided to resume the duties of the Sadr Diwani Adalat
in place of Impey CJ. Impey CJ was subsequently recalled to England by the House of
Commons to explain his conduct.
● Warren Hastings' far-sighted policy: Despite severe criticism in India and England,
Warren Hastings' decision to appoint Elijah Impey as Chief Justice of the Supreme
Court and Sadr Diwani Adalat was regarded as a far-sighted policy. It laid the
foundation for Indian legislation being directed by the Legal Member of the Council
and established the High Court's superintendence over the Mofussil Courts.
● Focus on political control: During this period, the directors of the Company and the
ruling party in the British Parliament prioritised establishing British sovereignty and
political control in India. Their emphasis was on strengthening executive power for
further expansion rather than introducing significant reforms in the judiciary. This
approach aimed to support their political policy in India.

15. Reforms in the administration of criminal justice

The key points about the administration of criminal justice under Warren Hastings:
1. Glaring defects in criminal justice: Warren Hastings recognized the significant flaws in
the existing administration of criminal justice as early as 1772.
2. Judicial plan of 1772: Under this plan, Hastings established a Sadr Nizamat Adalat in
Calcutta and Mofussil Faujdari Adalats in the districts to administer criminal justice.
3. Administration in the name of the Nawab: Despite the defects, Hastings preferred to
leave the administration of criminal justice in the hands of the Nawab. The criminal
justice system operated in the name and under the seal of the Nawab to maintain the
independence of the Nizamat Adalat and avoid interference that could hinder the
Company's political policy.
4. Control passed to native judicial officers: With the withdrawal of Collectors from the
districts in 1774, the control of the Faujdari Adalats also passed to native judicial
officers. This reduced the scope of the Sadr Nizamat Adalat to control the Provincial
Faujdari Adalats.
5. Shifting of the Sadr Nizamat Adalat: In 1775, the Sadr Nizamat Adalat was shifted to
Murshidabad to avoid interference and conflicts with the Supreme Court. Mohammed
Reza Khan, who had been declared innocent, was restored to his office of Naib Nazim
of the Sadr Nizamat Adalat. He was given the authority to oversee the administration
of criminal justice and police throughout the Provinces.
 A. Plan ofMohammedReza Khan
The administration of criminal justice under Mohammed Reza Khan's plan:
1. Mohammed Reza Khan's plan: After his reappointment, Mohammed Reza Khan
prepared a plan to improve the administration of criminal justice, which was adopted
in January 1776 and continued until April 1781.
2. Establishment of Faiydari Adalats: Under the plan, 23 Faiydari Adalats were
established, with fixed monthly salaries for the judicial officers.
3. Sadr Nizamat Adalat: The constitution of the Sadr Nizamat Adalat remained
unchanged, but it now came under the superintendence of the Naib Subah, who had
direct powers over his subordinates. Sadarul Haq Khan continued as the Darogha of
the court.
4. Reduction of establishment charges: By fixing salaries for each judicial official,
Mohammed Reza Khan was able to reduce the establishment charges of the Sadr
Nizamat Adalat and Mofussil Faujdari Adalats.
5. Guided by the judicial plan of 1772: The plan made it clear that the courts would be
guided by the provisions of the judicial plan of 1772 in matters related to criminal
justice.
6. Misuse of power: Under the administration of unscrupulous judicial officers, the
criminal courts became instruments of oppression and torture. The inadequacy of
police forces and the role of Zamindars further worsened the situation.
7. Challenges in enforcing the decree: Due to the protection of Europeans and the
influence of high officials, it became difficult for Mohammed Reza Khan to punish
corrupt officers. Loyalty had shifted to the British, and the assistance of the Company's
sepoys was necessary to enforce the Nizamat's decree.
8. Role of Zamindars: The Zamindars took advantage of the weak state of the Nizamat
and acted independently, withholding support from Faujdars and harbouring dacoit
chiefs, thereby evading punishment.

B. Reforms ofWarren Hastings

the changes introduced by Governor-General Warren Hastings to improve the administration
of criminal justice:
1. Empowerment of Mofussil Diwani Adalat judges: Judges of the Mofussil Diwani
Adalats were given the authority to act as Magistrates in their respective jurisdictions.
They could arrest suspected criminals and had police powers. Their duty was to
immediately commit criminals to the nearest Mofussil Faujdari Adalat and submit
written charges for their arrest.
2. Establishment of a control department: A separate department was established in
Calcutta to control and supervise the functioning of the Faujdari Adalats. These
Adalats were required to submit monthly reports, return of proceedings, details of
charges, lists of persons arrested, and reports of trials conducted by the Magistrates to
this department. A covenant servant of the Company, known as the Remembrancer of
the Criminal Courts, presided over this department, reporting directly to the
Governor-General.
3. Reduction of Faiydari Adalats: Warren Hastings reduced the number of Faiydari
Adalats from 23 to 18, with the aim of reducing administrative expenses. In 1785,
Magistrates were authorised to try petty offences, ensuring a speedy administration of
criminal justice.
4. Weaknesses in control: Although the appointment of the Remembrancer and the
establishment of the control department were significant steps towards reform and
coordination, the control exercised by the Remembrancer proved to be weak and
ineffective in practice. The courts, in order to present a favourable picture and gain
 favour from the Remembrancer, submitted reports that often concealed the true
deteriorating state of affairs, misleading the Remembrancer in decision-making.
This system anyhow continued to function until Lord Cornwallis in 1790 completely overhauled
the old set-up ofMohammedan criminal courts and introduced important changes in the
Mohammedan Criminal law and procedure.

C. Defects and its reasons

The limitations faced by Governor-General Warren Hastings in implementing comprehensive
reforms in the criminal justice system:
1. Partial reforms: The reforms introduced by Warren Hastings only addressed certain
aspects of the criminal justice system and did not tackle the fundamental issues that
required significant changes.
2. Unaddressed factors: Important factors such as the constitution of criminal courts,
defects and severity of Muslim criminal law, and the mode of trial and proceedings in
the criminal courts were left untouched and in need of reforms.
3. Constructive ideas and plans: Warren Hastings had his own ideas and plans to improve
the judicial system, as demonstrated by his judicial plan of 1772. However, he faced
limitations in implementing these ideas due to various factors.
4. Limitations and conflicts: Warren Hastings faced limitations in terms of power and
means equal to his responsibilities. He encountered conflict with hostile Members of the
Council, wavering support from the Company's directors in England, and the
prejudiced interests of political parties in England, which hindered his ability to
implement reforms.
5. Frustration and helplessness: Warren Hastings expressed his frustration and
helplessness in being responsible for measures he disapproved of and being unable to
prevent the resulting ruin.

D. Contribution ofWarren Hastings

The appreciation of Warren Hastings' contributions and reforms:
● Lord Macaulay regarded Warren Hastings as one of the most remarkable men in
British history due to his achievements in the internal administration of India, despite
its flaws.
● Hastings dissolved the double government and transferred the direction of affairs to
English hands, bringing a degree of order out of the previous anarchy.
● He played a significant role in establishing the organisation for dispensing justice,
collecting revenue, and maintaining peace throughout the vast territory of Bengal.
● Lord Macaulay acknowledged that the initial system was imperfect, but constructing a
government from scratch on such a large scale deserved admiration.
● Professor Penson also recognized that subsequent Governor-General Lord Cornwallis
built upon the foundations laid by Hastings and emphasised the principles established
by his predecessor.
● Warren Hastings' reforms demonstrated his capabilities as both an administrator and
an inventive genius.
● He was not afraid to take bold steps and employed a "trial and error" approach to
address the existing flaws in the judicial and executive systems.
● Despite facing condemnation in certain unfortunate cases, Hastings never lost courage
and dealt with critical situations to the best of his ability.
 ● As the first Governor-General, he proved himself to be a faithful servant of the English
East India Company and played a crucial role in strengthening the foundation laid by
Clive for the future expansion of the British Empire in India.

5. THE REGULATING ACT OF 1773 TO THE GOVERNMENT

OF INDIA ACT OF 1858
I. CIRCUMSTANCES PRIOR TO ACT OF 1773
1.
British Parliament and the Company
●
The British Parliament faced the challenge of determining its relationship with the East
India Company.
● Lord Clive suggested in 1759 that the Crown should take over the Company's territories
in India.
● Three viewpoints were presented to Parliament:
a. Maintain the Company's privileges and powers.
b. Transfer full sovereignty of the Company's territorial possessions to the Crown.
c. The Crown enters into partnership with the Company, assuming a controlling
and dominant role.
● The third viewpoint gained acceptance, and Parliament pursued a partnership
approach with the Company.
● In 1767, an Act allowed the Company to retain its territorial acquisitions and powers for
two years, with the condition of paying £400,000 per year to the Crown.
● Parliament demanded increasing financial contributions from the Company, assuming
that it was making fortunes in India.
● Eventually, it was discovered that the Company was in debt, but Parliament still
asserted its right to sovereignty over Indian territories.
● The British nation imposed heavy financial burdens on the Company's gains, regardless
of their origin or financial condition.
2. Causes for taking over the company
● Public opinion against the Company gathered momentum in England.4
● Corruption amongst the servants of the Company.5
● Complicated administrative problems of dual government.6
● Lack of proper judicial administration.
● Lack of central authority to control and guide the affairs of the Company.
● Deteriorating financial condition of the Company and its heavy debts.7
● Company's defeat in 1769 at the hands ofHaider Ali ofMysore.
● Terrible famine in Bengal which took a heavy toll of its population.8
● The Company applied for a loan of one million pounds in 1772
3. Appointment of Parliamentary Committees
● The British Parliament appointed two Parliamentary Committees: a Select Committee
and a Secret Committee.
● The Committees were tasked with studying the financial position of the East India
Company and addressing corruption in its administrative and judicial machinery.
● The Committee of Secrecy reported that the Company's courts of justice operated
under despotic principles, serving as instruments of power rather than justice, leading
to oppression and injustice.
 ● In March 1773, the Company appealed for a loan, and in May, the House of Commons
passed a resolution stating that acquisitions made under the influence of military force
or treaties with foreign princes belong to the state.
● Parliament passed two Acts in 1773:
1. The first Act granted the Company a loan of £1,400,000 at four percent
interest.
2. The Company was prohibited from declaring dividends exceeding six percent
and was required to submit accounts to the Treasury every six months.

4. Main Objects of the Bill

● The Regulating Act of 1773 was introduced by Lord North in the House of Commons as
the Regulating Bill.
● The Act had three main objectives: reforming the constitution of the East India
Company, reforming the Company's government in India, and providing remedies
against illegalities and oppressions committed by the Company's servants in India.
● The Act brought about changes in the Company's constitution at home and
restructured the government in India.
● It also established a system of supervision of the Company by a ministry, although this
oversight was considered inefficient.
● The introduction of the Regulating Act faced criticism, with Edmund Burke denouncing
it as an infringement of national rights, faith, and justice.
● Despite the criticism, the Act was passed by a large majority in the House of Commons
on June 10, 1773, and subsequently received approval from the House of Lords and
royal assent on June 21, 1773.

II. SALIENT FEATURES OF THE REGULATING ACT, 1773

● The Regulating Act of 1773 allowed the East India Company to maintain its territorial
possessions in India.
● However, the Act aimed to establish control over the management of the Company,
both in India and in England, through the partial control of the Crown and Parliament.
● This Act can be seen as the first attempt by Parliament to establish a proper
government for India and to intervene in the administration of the East India
Company.
● The primary objective of the Act was to impose supervision and control over the
Company and its servants, both in India and in England.

1. Election for directors

● The Regulating Act of 1773 brought significant changes to the constitution of the East
India Company in England.
● Directors of the Company were elected for a term of four years, with one-fourth of
them retiring each year and being ineligible for re-election.
● This provision aimed to ensure stability and continuity in the policy of the directors.
● The voting qualification for the Court of Proprietors, the governing body of the
Company, was increased from holding a stock of £500 to £1000.
● However, a drawback of the Act was that individuals possessing a stock of £3000 were
given two votes, while those with a stock of £10,000 were given four votes each.
 ● This provision did not effectively improve the quality of the Court of Proprietors or
prevent the easy acquisition of power by Company servants returning with the riches
gained from India.

2. Control over Correspondence

In order to assert Parliament's control over the Company, the directors were required to
regularly place all their correspondence, regarding civil and military affairs with the Indian
authorities, before the Secretary of State. All correspondence relating to revenues in India was
required to be placed before the Treasury in England.

3. Appointment of Governor General and Council

The Regulating Act made certain important alterations in the structure of the
Company's government in India.134 A Governor-General and four Councillors
were appointed by the Presidency of Fort William in Bengal. The Governor of
Bengal was designated as the Governor-General ofBengal.

4. Decision by majority present

The Act stated the names of the first Governor-General and four Councillors.15
Warren Hastings16, who was GovernorofBengal, was appointed the first GovernorGeneral.
Their term of office was for five years and the King was empowered to
remove them even earlier on the recommendation of the Court ofDirectors.

5. Extent of Governor General Power

The Governor-General-in-Council was given all the powers to govern the
Company's territorial acquisitions in India, to administer the revenues ofBengal,
Bihar and Orissa and to supervise and control the general civil and military government ofthe
Presidency.

6. Bombay and Madras under control of Governor General

● The Presidencies of Bombay and Madras were placed under the control and
superintendence of the Governor-General-in-Council.
● The Governor-General and Council were given the power to make decisions regarding
war and peace in the Bombay and Madras Presidencies.
● The Governor-General and Council were required to keep the Court of Directors fully
informed about their activities that impacted the Company's interests.
● They were obligated to work in complete obedience to the orders and instructions
issued by the Court of Directors.

7. Establishment of the Supreme Court of Judicature

Section 13 of the Regulating Act empowered the Crown to establish by Charter
a Supreme Court of Judicature at Fort William in Calcutta. This provision was
specially made to remove the defective state of the judiciary as it existed under
the Charter of 1753.
a. Constitution, power and jurisdiction – The Supreme Court consisted of a Chief Justice
and three puisne judges, who were barristers with at least five years of standing and
appointed by the King.
● The Supreme Court had full jurisdiction over civil, criminal, admiralty, and ecclesiastical
matters.
● In criminal cases, the Supreme Court acted as a Court of Oyer and Terminer and
Gaol-Delivery for the town of Calcutta and its subordinate factories.
 ● The Supreme Court had the authority to establish rules of practice for the subordinate
courts to ensure the administration of justice and the execution of its powers.
● It was recognized as a court of record, meaning its proceedings were officially recorded
and had legal validity.
● The jurisdiction of the Supreme Court extended to British subjects residing in Bengal,
Bihar, and Orissa.
● The Supreme Court had the power to handle complaints regarding crimes,
misdemeanours, and oppressions.
● It also had jurisdiction over the servants of the East India Company.

b. Immunity of Governor General and his Council – The Regulating Act explicitly stated
that the Supreme Court was not authorised to exercise its criminal jurisdiction over the
Governor-General and any of his Councillors.
● The court lacked the power to arrest or imprison the Governor-General and his
Councillors in any legal action.
● This provision was established to protect the Governor-General and his Councillors
from unnecessary harassment and to maintain their prestige as the heads of the
executive.

c. Justices of peace – —Section 38 authorised the Governor-General, members of the

Council and the judges of the Supreme Court to act as Justices of the Peace and to
hold Quarter Sessions.

d. Appeals — — he Act further empowered the Crown to issue a Charter to make provision
for appeals from the judgments of the Supreme Court to the King In-Council and also
to state the conditions and circumstances under which such an appeal was to be
allowed

III. LEGISLATIVE POWER UNDER THE ACT OF 1773

1. General power – The Governor-General and Council were authorised to make and issue
rules, ordinances and regulations for the good order of civil government ofCompany's
settlements at Fort William and other subordinate factories and places.
2. Restrictions – The regulations enacted by the Governor-General and Council were
required to be just, reasonable, and not repugnant to English laws.
● The regulations had to be registered in the Supreme Court with its consent and
approval to be considered valid and enforceable.
● A 20-day waiting period was mandated before the registration of the rules and
ordinances.
● Appeals against the regulations could be filed by any person, whether in India or
England, to the King-in-Council within 60 days after their publication.
● The King-in-Council had the power to set aside and repeal any laws that were
considered defective.
● Within 60 days of registration, an appeal challenging the legality of the regulations
could be made to the Supreme Court in Calcutta.
● Copies of the regulations were to be sent to the Secretary of State in England.
● The King reserved the power to disapprove the regulations within two years from the
date they were passed by the Governor-General and Council.
 ● Company officials were prohibited from engaging in private trade and accepting
presents in various forms.
● English courts were empowered to punish English individuals for crimes or
misdemeanours committed during their service under the Company in India.

The intentions and implications of the qualifications imposed by the Regulating Act of 1773:
● Safeguarding the interests of the British people.
● Safeguarding the imperial policy in India.
● Checking the hasty actions of the Governor-General-in-Council in making rules,
ordinances, and regulations.
● Preventing abuses and corruption in the administration of the Company.
● Stripping the Company of its political power in India and transferring it to Parliament.
● Establishing effective control of Parliament over the Company's affairs.
● Paving the way for the eventual complete takeover of the Company through the
enactment of the Government of India Act, 1858.
These qualifications and provisions aimed to ensure greater accountability, oversight, and
alignment with British interests in the administration of the East India Company and its
activities in India.

IV. CHARTER OF 1774 AND THE SUPREME COURT AT CALCUTTA

● The Regulating Act of 1773 empowered the Crown to establish the Supreme Court in
Calcutta.
● The Charter of 1774 established the Supreme Court, with Sir Elijah Impey as the first
Chief Justice and three puisne judges.
● The judges were appointed for their qualifications as barristers of England and Ireland
with at least five years of standing.
● The judges held office at the pleasure of the King and had authority and jurisdiction
as judges of the King's Bench in England.
● The Supreme Court had the power to establish rules of practice and process, appoint
subordinate staff, and regulate court fees with the consent of the Governor-General.
● The Supreme Court had civil jurisdiction, hearing cases in the first instance where the
cause of action exceeded £500 and hearing appeals from decisions of Mofussil Courts.
● Appeals could be made to the King-in-Council within six months from the decision of
the Supreme Court if the valuation of the suit exceeded 1000 pagodas.
● In its criminal jurisdiction, the Supreme Court acted as a Court of Oyer and Terminer
and Gaol-Delivery in Calcutta and the factories under its jurisdiction.
● Offences under the Supreme Court's cognizance were to be tried by a jury of British
subjects resident in Calcutta.
● The Supreme Court had the power to superintend other courts, issue writs of certiorari,
mandamus, error, and procedendo, and exercise ecclesiastical, civil, criminal, and
admiralty jurisdiction.
● The court could admit attorneys and advocates, nominate persons for the office of
sheriff, and had jurisdiction over British subjects, Company servants, inhabitants of
Calcutta, and Indians residing in the three provinces (Bengal, Bihar, and Orissa).
● The establishment of the Supreme Court granted it extensive jurisdiction and powers in
civil, criminal, ecclesiastical, and admiralty matters, making it a significant judicial
institution in British India.
V. CRITICAL ESTIMATE OF THE PROVISIONS OF THE REGULATING ACT, 1773
AND THE CHARTER OF 1774

1. Defects of the Act –

a. Conflict between Governor-General and Councillor – The Regulating Act of 1773
established a Governor-General and four members of the Council.
● The Act named the individuals who were to occupy these positions.
● Richard Barwell and Warren Hastings, who had experience and knowledge of Indian
affairs, were appointed from the Company's servants working in India.
● Three new Councillors, Clavering, Monson, and Francis, were sent to India from
England.
● The three new Councillors were politically influenced and held prejudices against
Warren Hastings and the Company's officials in India.
● The presence of the new Councillors led to conflicts and constant disagreements
between Governor-General Warren Hastings and the majority faction of the Council.
● The conflicts and frictions affected the efficient working of the Governor-General and
Council, which was the highest authority in India for policy-making and
decision-making regarding the Company.
● The appointment of the Governor-General and Council under the Regulating Act
resulted in a mix of experienced and knowledgeable individuals as well as new
Councillors who lacked understanding of Indian affairs. This led to ongoing conflicts
and challenges in decision-making within the Council.

b. The “imminent necessity” undefined – The Regulating Act granted the

Governor-General of Calcutta control over the Presidencies of Bombay and Madras.
● However, the Act included an exception that allowed the Presidencies of Bombay and
Madras to make independent decisions in cases of "imminent necessity."
● This exception created conflict as the Governors of Bombay and Madras took
advantage of these emergency powers without consulting the Governor-General.
● The Governors of Bombay and Madras declared wars with the Marathas and Hyder
Ali respectively without seeking approval from the Governor-General and Council in
Calcutta.
● This led to conflicts between the ambitious Governors of Bombay and Madras and the
Governor-General.
● The actions of the Presidencies of Bombay and Madras without proper consultation
weakened British control over Indian territories.
● The abuse of such power eventually prompted the British Parliament to take steps to
control and regulate these actions.

c. Undefined position of the Company – The Regulating Act did not clearly define the
legal position of the East India Company in India.
● The Company held its powers in India from the British Crown and the Mughal Emperor.
● The Company's legal position in India was as the Diwan of the Mughal Emperor.
● The British Parliament hesitated to assume complete sovereignty over India and was
cautious about asserting its rights over the Company's diwani lands.
● The Act was vague in its terminology on vital issues, making it difficult to maintain a
clear distinction between the Company's authority as an agent of the British Crown
and as an officer of the Mughal Emperor.
● The Act did not explicitly address the Company's assertion of rights over the diwani
land or its relationship with the Mughal Emperor.
● The drafters of the Act seemed to avoid grappling with the complexities of the
situation and did not want to proclaim the King of England as the sovereign of Bengal.
● The Act aimed to avoid explicit interference with either the Mughal Emperor or the
Company claiming under him.

d. Conflict between judiciary and executive – The Regulating Act established a Supreme
Court at Calcutta and appointed judges to preside over it.
● The Governor-General and Council were also constituted under the same Act.
● The judiciary and executive, represented by the Supreme Court and the
Governor-General and Council, respectively, came into serious conflict over certain
issues.
● Both the judiciary and the executive claimed superiority over the other based on their
appointment by the Crown.
● The Regulating Act did not define the mutual relationship between the judiciary and
the executive.
● No procedures were laid down in the Act to prevent or resolve future conflicts between
the judiciary and the executive.

e. Vague terms and wide interpretations – The jurisdiction of the Supreme Court was
limited to "British subjects" in certain respects, while native inhabitants were exempted.
● The Act and the Charter of 1774 did not provide a clear definition of who qualified as
"British subjects."
● The lack of a clear definition led to confusion and uncertainty regarding the meaning
of "British subjects."
● Judges, taking advantage of the vague terms, interpreted them broadly to expand the
court's jurisdiction.
● As a result, individuals employed directly or indirectly by the Company and those
employed by British subjects were brought under the jurisdiction of the court.

f. Uncertain law – The Regulating Act did not provide clear guidance on which law was
to be administered by the Supreme Court.
● It did not specify whether the law of the plaintiff or the law of the defendant should be
applied.
● It also did not clarify whether Hindu law or Muslim law should be followed in relevant
cases.
● The judges appointed to the Supreme Court were unfamiliar with Hindu and Muslim
law, having knowledge primarily of English law and customs.

g. Conflict between Company’s Courts and the Supreme Court – The Regulating Act did
not establish provisions to address the relationship between the Company's Courts and
the newly established Supreme Court.
 ● The Company's Adalats (Courts) derived their authority from the Mughal Emperor and
treaties with the Nawabs of Bengal, while the Supreme Court was a Crown's Court
established under the authority of the Regulating Act.
● The Act made the jurisdiction of the Supreme Court partially concurrent with that of
the Adalats, without unifying the sources of sovereignty from which each derived
authority.
● As a result, conflicts arose between the Adalats and the Supreme Court, with the
Council at Calcutta supporting the Adalats and emphasising their authority, while the
judges of the Supreme Court asserted their superiority and sought to implement their
decisions.

h. Conflict between Council and Supreme Court –

● The Regulating Act did not clearly specify whether the management and government
of the territorial acquisitions and revenues of Bengal, Bihar, and Orissa, vested in the
Governor-General and Council, were exempt from the jurisdiction of the court.
● The collection of revenues provided opportunities for oppression by individuals
employed by the Company, leading to conflicts between the Council and the Supreme
Court.
● The period following the Regulating Act (1774-1780) was marked by numerous conflicts
and problematic situations, as highlighted in significant cases such as Raja Nand
Kumar, Patna case, Raja of Kasijurah, Kamal-ud-din, Rani of Burdwan, Swarup Chand,
and others.
● The conflicts not only occurred between the Governor-General and his Councillors but
also between the Council and the Supreme Court, exposing the inefficiency and
defective provisions of the Regulating Act and the Charter of 1774.
● The Supreme Court's role during this period was described as a reign of terror,
creating a sense of fear and anticipation.
● The Regulating Act, despite its admirable objectives, was seen as a crude attempt at
providing a satisfactory governmental machinery, violating the principles of
administrative mechanics.
● The Act established two rival and independent powers in India—the Supreme Council
and the Supreme Court—leading to natural conflicts between them.
● James Mill noted that Parliament established these two powers without foresight,
resulting in inevitable conflicts between them.

2. Achievements of the Act

● The Regulating Act brought about changes in the personnel of the Governor's Council,
aiming to control the actions of the Company's servants who had previously engaged
in misgovernance.
● The Act replaced a court composed of Company's servants, who were subject to
removal by the Company, with a court of king's judges and legal professionals.
● Despite these intended achievements, the Act's defective provisions led to serious
conflicts and resulted in anarchy.
● The policy of controlling the Company's government through the King's Court, as
envisioned by the Regulating Act, failed.
● Cowell's assessment of the Act suggests that while the policy behind it was
well-intentioned, its execution was hasty and uninformed.
 ● The anarchy that followed continued until the policy of the Regulating Act was
reversed.

VI. SOME LANDMARK CASES

● The establishment of the Supreme Council through the Regulating Act worsened the
situation in India.
● Defective drafting of the act led to conflicts between the Supreme Court and the
Supreme Council.
● Ambiguity and uncertainty in the law and procedures created unrest and a tense
atmosphere in the country.
● Two years after the opening of the Supreme Court, Philip Francis, a Member of the
Council, highlighted the undetermined question of sovereignty.
● The Supreme Court had jurisdiction over British subjects and natives, even though no
clear right of sovereignty by the King of Great Britain had been claimed or declared
over the natives.
● Conflicts between the executive government of the East India Company and the
Supreme Court in Calcutta were frequent.
● Critical analysis of some important decisions of the Supreme Court reveals their
far-reaching effects on the future actions of the government in India.

1. The trial of Raja Nandakumar : the judicial murder

● The trial of Raja Nand Kumar marked a significant event in the escalating conflict
between the Supreme Court and the Council.
● The trial introduced English principles of law and procedure into India, which were
previously unknown to Indians.
● The judges of the Supreme Court emphasised the independence of the judiciary,
despite interference from the Council.
● This trial initiated a new era in the administration of justice in India.
● The trial held great historical importance as it was part of the charge on which Warren
Hastings and Impey were impeached by the House of Commons upon their return to
England.

A. Events before the trial

● Raja Nand Kumar, a former Governor of Hugli, brought bribery and corruption
charges against Governor-General Warren Hastings in 1775.
● Nand Kumar presented a letter of complaint against Hastings to Francis, a member of
the Council.
● The Council received a second letter from Nand Kumar offering to produce vouchers
supporting his bribery allegations.
● Monson moved a motion to call Nand Kumar before the Council, which was opposed
by Hastings.
● Despite Hastings' opposition, the motion was carried by a majority vote, leading to the
dissolution of the Council meeting.
● Clavering was elected to preside over the meeting in place of Hastings.
● Raja Nand Kumar produced a Persian letter written by Munni Begum as evidence
during his examination before the Council.
● Nand Kumar disclosed that Warren Hastings' associate, Kanta Babu, had approached
him for Munni Begum's letter.
● Kanta Babu, summoned to appear before the Council, avoided appearing on Hastings'
instance.
● The Council, by majority vote, dismissed Nand Kumar and found the charges against
Warren Hastings to be true.
● They held that Hastings received a bribe of 3,54,105 rupees.
● The Council directed Hastings to pay the same amount into the Company's Treasury
through a resolution.

B. Facts of the case

● Raja Nand Kumar was arrested for conspiracy alongside Fawkes and Radhacharan at
the behest of Governor-General Warren Hastings and Barwell.
● The trial of Nand Kumar for conspiracy and forgery began, with the judgement on the
conspiracy case delivered in July 1775.
● The charge of forgery against Nand Kumar pertained to a bond or deed claimed to
be an acknowledgment of debt from Bulaki Das.
● The case was initially heard by the Justices of the Peace, Le Maistre and Hyde, who
found sufficient evidence for prosecution.
● Nand Kumar was ordered to be kept in safe custody until the trial.
● The trial commenced in the Supreme Court on 8 May 1775, with Chief Justice Impey
and three puisne judges presiding.
● Nand Kumar pleaded not guilty, and the trial lasted for eight days without
adjournment.
● Language barriers and cultural differences caused delays and necessitated the
translation of documents and statements.
● The judges cross-examined defence witnesses extensively, assuming the role of the
prosecuting counsel.
● On 16 June 1775, Chief Justice Impey summed up the case, and the judges unanimously
declared Nand Kumar guilty.
● The jury also delivered a guilty verdict, and Nand Kumar was sentenced to death
under an Act of the British Parliament passed in 1729.
● Attempts were made to save Nand Kumar's life, including filing an appeal to the
King-in-Council and seeking assistance from the Members of the Council, but they were
unsuccessful.
● Despite receiving a letter from the Nawab recommending suspension of the sentence,
no action was taken.
● Raja Nand Kumar was hanged on 5 August 1775 at Cooly Bazar near Fort William.

C. Two important questions raised in the trial

● There was an objection raised regarding the jurisdiction of the Supreme Court over
Raja Nand Kumar, arguing that he should have been tried by the Faiydari Adalats, as
the offence was committed before the establishment of the Supreme Court.
● The judges had differing opinions on the applicability of the English Act of 1729, which
made forgery a capital offence, to India and the execution of Raja Nand Kumar.
● Justice Chambers believed that the Act of 1729 was specifically tailored to the
circumstances of England and did not apply to Bengal.
● However, Chief Justice Impey, along with Judges Hyde and Le Maistre, disagreed and
held that the Act of 1729 did apply to India.
● Impey argued that English criminal law, including the Statute of 1729, had been
administered in India by English courts before the establishment of the Supreme Court.
● Impey further asserted that when the King introduces his law in a conquered dominion,
all laws in force in England at that time become the laws of the dominion, unless
expressly mentioned otherwise in subsequent laws.
● According to Impey, the Charter of Justice granted by King George II in 1753 extended
English criminal laws, including the Statute of 1729, to the town of Calcutta.
● Therefore, the Statute of 1729 was deemed applicable in India based on the Charter of
1753.

D. Some peculiar features of the trial

● The timing of the charges against Raja Nand Kumar, shortly after he had levelled
accusations against Warren Hastings, raised suspicions of ulterior motives.
● Chief Justice Impey's close friendship with Warren Hastings raised concerns about bias
and impartiality in the trial.
● The practice of every judge cross-examining the defence witnesses, leading to the
collapse of Nand Kumar's defence, was seen as improper and against the prevailing
rules of procedure.
● Nand Kumar's application for leave to appeal to the King-in-Council was rejected
without due consideration by the Supreme Court.
● The Supreme Court did not forward Nand Kumar's plea for mercy to His Majesty,
despite being empowered to do so under the Charter of 1774.
● The case of Radha Charan Mittre, who was tried for forgery earlier, showed a different
approach by granting a pardon, which raised questions about the inconsistency in
handling similar cases.
● The contention was made that the English Act of 1729, under which Nand Kumar was
sentenced to death, was not applicable to India as English law was introduced in 1726,
not in 1753.
● The fact that neither Hindu nor Mohammedan law regarded forgery as a capital crime
added to the controversy surrounding the trial.
● The trial and execution of Raja Nand Kumar were widely condemned as unjust and
unfortunate, leading to strong criticism of Chief Justice Impey.
● Impey and Warren Hastings were subsequently impeached by the House of Commons,
and the execution of Nand Kumar became an important charge against them.

E. Opinions ofMacaulay^ Mill, Beveridge, Stephen, etc.

● The trial and execution of Raja Nand Kumar were seen by many English historians as
being influenced by Warren Hastings, with Nand Kumar being punished not for
forgery but for daring to accuse the Governor-General.
● P.E. Roberts suggests that the sequence of events surrounding the case is shrouded in
mystery and secret motives, leading to the belief that Nand Kumar's death served the
purpose of silencing his accusations against Hastings.
● J.F. Stephen defends the conduct of Impey and Hastings, stating that Mohan Prasad
was the actual prosecutor and that there was no conspiracy or understanding between
Hastings and Impey.
 ● Macaulay and Beveridge, however, accuse Impey and Hastings of conspiracy,
suggesting that Hastings manipulated the charges against Nand Kumar to protect
himself from the pending accusations in the Council.
● The legality of Nand Kumar's trial was questioned, with Sir Gilbert Elliot, Macaulay,
Mill, Beveridge, and even Stephen expressing doubts about the applicability of the Act
of 1729 in India.
● Keith argues that English law was introduced in India in 1726, and subsequent charters
and acts could not be seen as reintroductions of English law. The literal application of
English law in this case was considered a miscarriage of justice.
● Impey's refusal to grant respite to Nand Kumar pending submission of his case for
consideration by the Sovereign was a serious charge against him. Stephen defends the
judges' decision, while critics like Beveridge believe it was motivated by a desire to
secure Hastings' safety.
● Keith criticises the Supreme Court's role, describing its actions as odious and possibly
instigated by a British Governor-General.
● Beveridge accuses Impey of allowing his partiality for Hastings and his animosity
toward the majority to prejudice the trial, resulting in Nand Kumar's execution to
protect corrupt officials and Hastings.
● Macaulay criticises Impey for refusing to respite Nand Kumar and suggests that it was
done to support Warren Hastings politically.
● Dr. B.N. Pandey's study on the trial of Raja Nand Kumar supports Impey's decision to
extend the English Act of 1729 to India, similar to J.F. Stephen's views.
● However, there are doubts about Dr. Pandey's conclusions. Warren Hastings remitted a
significant amount of money to Europe during his administration, raising questions
about his additional income.
● Warren Hastings used Indians to further his political and personal interests, supporting
them when useful and condemning or getting rid of them when they became hostile.
● Raja Nand Kumar had a serious conflict with Hastings, and Hastings expressed his
detestation of Nand Kumar.
● Warren Hastings expected assistance from Impey due to their close friendship and
their shared background in Westminster.
● Dr. Pandey's interpretation is criticised for not giving enough importance to the
aforementioned facts and not correlating them adequately.
● The existence of a conflict between Nand Kumar and Hastings becomes evident when
considering Nand Kumar's charges of bribery and corruption against Hastings.
● The close ties between Impey and Hastings compromised the impartiality and
independence of the judiciary.
● The trial proceedings and the use of the English Act of 1729 to pass a death sentence
were widely condemned by Indians and critics in England.
● Nand Kumar was found guilty by the judges and jury, and his mercy petition was not
forwarded to the King, raising doubts about a judicial murder.
● P.E. Roberts suggests that even if there was no judicial murder, there was a miscarriage
of justice, primarily due to the actions of the Supreme Court and Hastings' opponents
on the Council.

2. Kamaluddin case (1775)

● The case of Raja Nand Kumar holds historical importance due to its implications
regarding the jurisdiction of the Supreme Court over the actions of Company servants
working as Collectors of Revenue.
● Subsequent developments indicate that the Council and the court clashed, highlighting
the tensions between these two entities.

A. Facts and Decision

● Kamaluddin held a salt farm at Hijli on behalf of Kantu Babu.
● In 1775, Kamaluddin, as a farmer, fell into arrears of revenue.
● The Revenue Council of Calcutta issued a writ for Kamaluddin's committal without bail
based on the arrears.
● Kamaluddin obtained a writ of habeas corpus from the Supreme Court to be set free
on bail.
● The Supreme Court granted him bail, stating that the returns submitted by the Council
were defective in form.
● The Council omitted to express a power to commit without bail or mainprise, although
similar wording was present.
● Mr Cottrell, the President of the Calcutta Revenue Council, admitted that it was
customary to grant bail in such cases.
● The judges of the Supreme Court held that in a case of disputed accounts, the
defendant should be granted bail until the inquiry regarding the obligation to pay was
complete.
● The judges further stated that Kamaluddin should not be imprisoned again until his
under-renter had been called upon to pay the arrears and proven to be insolvent.

B. Conflict
● The Members of the Supreme Council expressed resentment towards the judges of the
Supreme Court for granting bail to Kamaluddin.
● They argued that the Supreme Court had no authority to take cognizance of matters
or causes related to revenue.
● The Supreme Council believed that they had exclusive jurisdiction as confirmed by the
Regulating Act, with the Company acting as Diwan of Bengal.
● The majority of the Supreme Council decided to order the Provincial Council to
re-imprison Kamaluddin and ignore any orders from the Supreme Court or its judges in
revenue matters.
● However, Governor-General Warren Hastings refused to support the proposed steps of
the majority of the Supreme Council.
● Chief Justice Impey clarified that the Supreme Court was not claiming jurisdiction over
the original cause but intervening to prevent the Company's officers from committing
injustice under the guise of legal proceedings.
● Impey emphasised that the court was enforcing customs and usages of the Collections
rather than using legal forms to oppress the people.
● The case of Kamaluddin highlighted the defective provisions of the Regulating Act,
leading to conflicts between the Supreme Court and the Supreme Council, as well as
widening differences between Governor-General Warren Hastings and the majority of
his Council.
3. The “Patna” Case
A. Issues involved
● The case involving the jurisdiction of the Supreme Court and the right to try actions
against judicial officers of the Company in their official capacity was a landmark in the
legal history of India.
● It raised the question of whether the Provincial Diwani Adalats, comprised of the
Members of the Provincial Council, were legally constituted courts of justice.
● The judgment of the Supreme Court in this case provoked the members of the Council
and led to conflicts between the Supreme Court and the Council.
● The ruling also caused panic among the local population of Calcutta, as it had
significant implications for the administration of justice and the authority of the
Provincial Diwani Adalats.
● The case highlighted the complex legal and jurisdictional issues that arose from the
establishment of the Supreme Court and its interactions with other governing bodies in
India.

B. Facts
● Shahbaz Beg Khan, an Afghan military adventurer, settled in Patna and accumulated
a large amount of money and property.
● After Shahbaz Beg Khan's death in December 1776, a conflict arose between his widow,
Naderah Begum, and his nephew, Bahadur Beg, over the inheritance of his estate.
● Bahadur Beg claimed the property as the adopted son of the deceased, while Naderah
Begum claimed it based on a dower deed, gift deed, and acknowledgment.
● The Provincial Council at Patna referred the case to the Mohammedan Law Officers
(Qazi and Muftis) for investigation and recommendation.
● The Law Officers reported that the will and gift deed were forged documents and
recommended dividing the property into four parts, with three parts going to Bahadur
Beg and one part to the widow.
● The Provincial Council accepted the recommendations and ordered the division of the
property. They also initiated a trial against the agents of the widow for forgery in the
Faujdari Adalat.
● Naderah Begum refused to accept her share, declined to hand over her title deeds,
and sought refuge in a Dirgah (Muslim holy shrine).
● The matter remained unresolved, and Naderah Begum appealed to the Sadr Diwani
Adalat (consisting of the Governor-General and Council Members) against the
Provincial Council's decision.
● Due to conflicts and busy routines, the Sadr Diwani Adalat did not take action on the
appeal, leaving Naderah Begum disappointed.
● Naderah Begum then filed a suit before the Supreme Court against Bahadur Beg,
Qazi, and Muftis, alleging battery, unlawful imprisonment, and deprivation of property.
● The Supreme Court issued orders for the arrest of the defendants, and they were
brought from Patna to Calcutta for trial.
● The Chief Justice of the Supreme Court declared that the allegations of forgery made
by the Qazi and Muftis were unproved and that the documents presented by the
widow were genuine.
● The Supreme Court held the Law Officers of the Provincial Council liable for assault
and false imprisonment, awarding damages of Rs.3,00,000 and costs of ?9208 to the
widow.
● As the defendants were unable to pay, they were imprisoned and later sent to Calcutta
under guard.
● An Act of the British Parliament in 1781 directed their discharge, and they remained in
prison until then. The Qazi died during transportation.
● The Provincial Council decided to file an appeal to the Privy Council against the
judgement of the Supreme Court, but the appeal was dismissed in 1789.
● The case highlighted the power dynamics and conflicts between the Supreme Court,
Provincial Council, and the widow's claim to inheritance, leading to significant legal
and judicial repercussions.

C. Important points raised before the supreme court

● The Supreme Court held that Bahadur Beg, as a farmer of the revenues of certain
villages in Bihar, was within its jurisdiction.
● The other three persons, including the native law officers, were also considered servants
of the Company and subject to the court's jurisdiction.
● Criticisms were raised against the Supreme Court's jurisdiction over the case based on
the following factors:
○ The Charter of 1774 did not clearly specify the court's jurisdiction over
Zamindars or individuals with interests in lands or rents.
○ The case involved matters of personal law governed by the Mohammedan Law
of inheritance, applicable to Muslims.
○ There was no written agreement between the parties to submit the case to the
Supreme Court for a decision

● The issue of working method and procedure in the case focused on the liability of the
judicial officers of the Company who acted under the delegated authority of the
Provincial Council.
● The judicial officers, Qazi and Muftis, argued that they were acting within their
delegated authority and that it was the established custom of the Provincial Councils
to refer cases involving Muslims and the Mohammedan Law of inheritance to them.
● The Supreme Court rejected this plea and deemed the proceedings of the Qazi and
Muftis in this case as illegal, stating that the Provincial Council had no right to
delegate the hearing of the suit and make a decision based solely on their report.
● Criticisms were raised against this decision, arguing that the Qazi and Muftis were
regular law officers of the Provincial Council and followed the procedure laid down by
the Governor-General and Council at Calcutta. The responsibility for the proceedings
ultimately lay with the judges of the Provincial Council, not the native law officers.
● Governor-General Warren Hastings criticized the irregularity in the proceedings of the
law officers and their involvement in examining witnesses, stating that their duty was
solely to declare the laws.
● The decision of the Supreme Court was supported by the observation that the irregular
exercise of powers by the Provincial Councils and their lack of interest in the
administration of justice necessitated the intervention of the Supreme Court judges.
 ● Sir Elijah Impey, Chief Justice of the Supreme Court, opposed the irregular exercise of
powers by the Provincial Councils.

D. Effect of the Patna" case on the Company's government in India

● The Patna case exposed the weaknesses in the Company's administrative machinery in
India and highlighted the deteriorating state of justice administration in the country.
● Chief Justice Impey pointed out the lack of separate books and confusion in
proceedings when the gentlemen of Patna served both as a Council of Revenue and
State and as a court of justice.
● The case revealed the failure of the Mofussil Courts under the Company's control to
deliver justice to the Indian population.
● The reaction to the Patna case was that local Zamindars refused to continue their
revenue collection work for the Company, fearing the jurisdiction of the Supreme Court.
● Approximately 40 Zamindars submitted their resignations to the Council after the
Supreme Court's judgment in the Patna case, and both Zamindars and native law
officers expressed their inability to cooperate with the Company's Council in the
Provinces and Calcutta.
● The Patna case highlighted the inadequacy of the administration of justice under the
Charter of 1773 and played a significant role in the enactment of the Act of Settlement
in 1781 to address the issues caused by the Regulating Act.
● The Act of 1781 provided relief for individuals imprisoned in Calcutta under the
judgment of the Supreme Court and indemnified the Governor-General, Council, and
all officers who had acted under their orders or authority in resisting the process of the
Supreme Court.
● Unfortunately, the Patna case became the subject of the second article of
impeachment against Sir Elijah Impey, the Chief Justice of the Supreme Court.

4. The "Cossijurah” case (1779-1780)

A. Facts
● Raja Sundernarain, the Zamindar of Cossyurah (Kasijora), owed a significant debt to
Cossinaut Babu (KashinatH).
● Cossinaut Babu attempted to recover the money through the Board of Revenue at
Calcutta but was unsuccessful.
● In response, Cossinaut Babu filed a civil suit against Raja Sundernarain in the Supreme
Court at Calcutta.
● Cossinaut Babu argued that the raja, being a Zamindar involved in revenue collection,
fell under the jurisdiction of the Supreme Court.
● The Supreme Court issued a writ of capias for the arrest of the raja, but he avoided
service by hiding.
● The Collector of Midnapur, where the raja resided, informed the Council about the
situation.
● After seeking legal advice from its Advocate General, the Council issued a notification
stating that landholders were not obligated to comply with the process of the Supreme
Court unless they were Company servants or had consented to the court's jurisdiction.
● The Council specifically informed the raja about this, and when the sheriff of the
Supreme Court arrived with a writ to arrest the raja, his people drove the sheriff away.

B. Conflict
● On 12 November 1779, the Supreme Court issued another writ of sequestration to seize
the property of Raja Sundernarain's house and compel his appearance in court.
● The sheriff of Calcutta, accompanied by armed force men, marched to Cossijurah to
execute the writ. They imprisoned the raja and allegedly violated the sanctity of the
family idol and entered the zenana.
● In response, the Governor-General and Council directed Colonel Ahmuty to detach a
force to intercept and arrest the sheriff and release the raja.
● Lieutenant Bamford, with the help of William Swainston, successfully arrested the
sheriff and his party while they were returning and kept them in confinement for three
days before sending them as prisoners to Calcutta.
● Cossinaut Babu brought a trespass action against the Governor-General and the
members of the Council individually. Initially, they appeared in court, but upon
realizing they were being sued for acts done in their official capacity, they withdrew
and refused to submit to any process of the Supreme Court.
● The Council declared that persons outside Calcutta need not submit to the court and
assured that their interests would be safeguarded, even by the use of armed forces if
necessary.
● Writs were issued against all members of the Council, except Governor-General Warren
Hastings and Barwell. The Supreme Court refused to include them in the rule, stating
that they would not grant a rule they couldn't enforce.
● Army officials prevented the Supreme Court's officials from serving the writs to the
Members of the Council, leading to anger and perceived insult by the judges.
● The Supreme Court took action against North Naylor, the Company's Attorney
General, for contempt of court. He was tried, committed to prison, and denied bail.
● While no action was taken against the Members of the Council, Impey CJ maintained
that they were not exempt from civil action and could be subject to civil jurisdiction.
● The Councillors declared that subjecting them to the Supreme Court's jurisdiction in
suits by Indians would weaken the administration and decrease respect for the
government among Indians.
● The Supreme Court would not allow the Councillors to withdraw their appearance but
had no power to compel their appearance.
● At a critical stage, on 12 March 1780, Cossinaut Babu withdrew his suit against the
Governor-General, the Members of the Council, and the raja of Cossijurah, leading to
a resolution of the case.

C. Observations on certain vital issues

● The Cossijurah case raised two important questions for consideration: whether
Zamindars were subject to the jurisdiction of the Supreme Court and who had the
authority to decide this issue.
● The Council's policy towards Zamindars lacked principles and aimed to protect its own
power and prestige, rather than safeguarding the interests of the Zamindars.
● The Council evaded judicial inquiry into the rights and status of the Zamindars, as
seen in both the Futty Singh case and the Cossijurah case.
● The judges of the Supreme Court were unable to investigate the status of the
Zamindars due to the Council's policies and actions.
 ● The judges of the Supreme Court asserted that the court itself was the competent
authority to determine the legal status of the Zamindars, denying such power to the
Council.
● Despite personal friendship between Warren Hastings, the Governor-General, and
Impey CJ, the Council used force against the court to enforce its orders.
● Warren Hastings prioritized the interest of the British nation over his personal
friendship with Impey and took strong action to safeguard the Council's superior
position.
● Impey acknowledged that he had no authority to command troops but could put those
who did command them in a situation where they would answer for contempt of His
Majesty's Authority.
● The Cossijurah case, along with other matters related to the Supreme Court, caused
wild excitement and turmoil among the European inhabitants of Calcutta.
● Petitions were sent to the British Parliament, signed by prominent British inhabitants,
Company servants, and Zamindars, against the excesses of the Supreme Court in
Bengal.
● The Governor-General and the Council also submitted a petition to the British
Parliament, resulting in the appointment of a Parliamentary Committee to investigate
the conflict between the Supreme Court and the Council.
● The Committee presented a detailed report, leading to the passage of the Act of
Settlement in 1781 by the Parliament.

5. “Radha Charan Mitran case (1775)

● After the Sadr Faujdari Adalat was moved from Calcutta to Murshidabad in 1775,
criminal justice administration was entrusted to Nawab Mubarikuddoaula, who had
complete sovereignty and no interference from the Supreme Court.
● Warren Hastings filed a complaint of conspiracy, including Radha Charan, the vakil
(representative) of the Nawab, as one of the accused.
● The Council members wrote to the Supreme Court, arguing that Radha Charan, as the
Nawab's vakil, was entitled to rights, privileges, and immunities according to the Law
of Nations.
● The case was heard on 28 June 1775, and despite arguments and evidence presented
that the Nawab was a sovereign prince administering criminal justice, coining money,
and maintaining troops, the court rejected the plea and accepted the arguments
stating that the Nawab was under the control of the Company and did not exercise
any act of sovereignty.
● This case is considered a precursor to the well-known Nand Kumar case.
● Radha Charan had previously been sentenced to death in 1765 for forgery but was
pardoned due to representations from the inhabitants of Calcutta.
● The case highlights the negative consequences of introducing English law in India and
foreshadows the sacrifice of Nand Kumar in the future.

6. “Saroop Chand,, case

● Saroop Chand was a surety responsible for paying the Company's revenue from
Duckan (Dacca) Sevagepore Pargana.
● A balance of ?10,000 was due, but Saroop Chand disputed the amount.
 ● As the treasurer of revenues for the Dacca Provincial Division, he was found in default
to the Treasury for an amount of ?66,745.
● Saroop Chand claimed that he had advanced ?10,000 to John Shakespeare, a member
of the Council. John admitted to having financial transactions with Saroop Chand but
denied this specific transaction.
● Due to non-payment of both dues, the Provincial Council imprisoned Saroop Chand
until he paid the outstanding amounts.
● Saroop Chand filed a writ of habeas corpus before the Supreme Court, which released
him upon providing security to answer any future lawsuits.
● The court held that imprisoning a person without bail for revenue dues was an
arbitrary abuse of power.
● Regarding Saroop Chand's liability as treasurer, it was deemed a matter of contract,
and the Council had to pursue appropriate civil proceedings instead of acting as a
judge in its own cause.

7. "Gora Chand Dutt v. Hosea"

● Gora Chand sued Mirza Jaileel to recover a certain amount of money.
● Hosea, the superintending member of the Murshidabad Council, not only dismissed
Gora Chand's action but also made a decree against him, accepting a counterclaim
made by the defendant.
● Hosea seized the properties of Gora Chand, even though no suit had been filed by
Mirza Jaileel.
● Dutt, dissatisfied with Hosea's actions, sued him for the irregularity committed.
● The Advocate General of the Company stated that Hosea's irregularity was serious
and indefensible.
● The Council questioned the maintainability of an action brought against acts done in a
judicial capacity, as it was the first time such an action had been brought. They sought
clarification on whether such actions were permissible.
● The Supreme Court declined to interfere in such cases unless there were allegations of
manifest corruption.
● The court emphasized that the only recourse against irregularities of the Diwani
Adalat was to appeal to the Sadr Adalat.
● Although the decision favored the Company's court, the case exposed serious
irregularities being committed by them.

The period from 1774 to 1780 witnessed numerous problems and conflicts arising from the
provisions of the Regulating Act of 1773 and the Charter of 1774.
● The Cossijurah case and the subsequent events highlighted the intensifying conflicts
between the judiciary and the executive branches.
● Petitions were submitted to the King in England by both the Governor-General and
Council and the inhabitants of Bengal, expressing their concerns over the interference
of the Supreme Court in revenue collection, oppressive actions by officers, exploitation
of local people by Europeans, and the court's actions against Muslim Law Officers in
the Patna case and Zamindars of Cossijurah.
● The explosive state of affairs indicated by the Cossijurah case acted as a catalyst for
further administrative reforms.
 ● The British Parliament appointed a Select Committee, chaired by Burke, to investigate
the administration of justice in Bengal.
● Based on the committee's report, the British Parliament once again intervened, leading
to the passing of the Act of 1781 for the reformation of the administrative structure.

VII. ACT OF SETTLEMENT, 1781: SALIENT FEATURES

1. Immunity of Governor-General and Council: The Act declared that the
Governor-General and Council were immune from the jurisdiction of the Supreme
Court for their actions and orders made in their public capacity as the
Governor-General and Council.
2. Lack of immunity before English Courts: The Governor-General and Council, along with
any person acting under their orders, did not have immunity before English Courts.
3. Exclusion of revenue matters: Revenue matters and issues arising from revenue
collection were excluded from the jurisdiction of the Supreme Court.
4. Preservation of personal laws: English Law was not applicable to natives. Hindu and
Mohammedan personal laws were preserved in matters related to succession,
inheritance, lands, rents, goods, contracts, and dealings between parties.
5. Religious differences in cases: Cases involving parties of different religions were to be
decided according to the laws and usages of the defendants.
6. Jurisdiction of the Supreme Court: The Supreme Court had jurisdiction in actions for
trespass and civil cases where parties had agreed in writing to submit their case to the
Supreme Court. However, the Supreme Court would not entertain cases against judicial
officers in county courts for any wrong or injury done by their judicial decisions.
7. Establishment of provincial courts: Civil and criminal provincial courts were recognized
independently of the Supreme Court. This provision reversed the policy of the
Regulating Act.
8. Sadr Diwani Adalat: The Sadr Diwani Adalat was established as the court of appeal,
presided over by the Governor-General and Council. It heard appeals from county
courts in civil cases and cases related to revenue and the use of undue force in revenue
collection.
9. Rule-making power: The Governor-General and Council were authorized to frame
regulations for provincial councils and courts, independently exercising their
rule-making power.
10. Punishment within families: The Act recognized the right of family heads or managers
to inflict certain punishments on family members.
11. Indemnity: The Act provided for the release of defendants arrested in the Patna case
and indemnified the Governor-General and Council, Advocate General, and persons
acting under their orders for disobedience of Supreme Court orders between 1770 and
1780.

VIII. MAJOR DEFECT OF THE ACT OF SETTLEMENT, 1781

1. Break to "rule of law” by favouring the executive
● Favouring Governor-General and Council: The Act of Settlement 1781 was enacted by
the British Parliament to favour the Governor-General and Council over the Supreme
Court.
● Policy decision: It was a policy decision by the British Parliament aimed at supporting
the Governor-General and Council to acquire territory and establish the British Empire
in India.
 ● Rejection of English principles: The British Parliament refused to allow the Supreme
Court to introduce English principles of judicial independence and the rule of law in
India.
● Legislative reversal: The Act of Settlement 1781 is seen as a legislative reversal of the
Supreme Court's authority and powers, limiting its influence.
● Criticisms by Gilbert and Cowell: Ilbert criticised the policy as being dilatory and
expensive, while Cowell viewed it as an imposition of a policy opposed by Indians and
one they were determined to subvert.

2. Other defects
● (a) Undefined relationship with the British Crown: The Act of 1781 did not clarify the
relationship between the Indian territories and the British Crown. There was no explicit
policy statement or provision in the Act regarding this matter.
● (b) Unclear term "British subjects": The Acts of 1773 and 1781 used the term "British
subjects," but it was not explicitly defined whether it included Indian natives. The
inclusion or exclusion of Hindu and Muslim inhabitants from the term "British subjects"
was unclear.
● (c) Uncertain jurisdiction of dual courts: The Act of 1781 did not specify whether the
Provincial Courts had concurrent or exclusive jurisdiction with the Supreme Court. The
distinction between the Presidency Towns and the Mofussil (provincial areas) continued
to exist, and it was unclear how jurisdiction was allocated between these courts.

IX. SUPREME COURT OF CALCUTTA

● The Supreme Court of Judicature was established in Fort William, Calcutta in 1774.
● Its establishment was authorized by the Regulating Act of 1773.
● The Act empowered the King to establish the Supreme Court through a Charter or
letters patent.
● A Charter was issued by King George III on 26th March 1774, officially establishing the
Supreme Court in Calcutta.
● The Mayor's Court was abolished, and its records and proceedings were transferred to
the Supreme Court.
● The Supreme Court was designated as a court of record, which means its proceedings
were recorded and preserved for future reference

1. Constitution and Jurisdiction

● The Supreme Court consisted of one Chief Justice and three puisne judges.
● All members of the court had to be barristers and were appointed by the Crown.
● They were granted jurisdiction and authority equivalent to the justices of the court of
the King's Bench in England.
● All writs, summons, and orders were issued in the name of the King and attested by the
Chief Justice.
● The first Chief Justice appointed under the Charter of 1774 was Elijah Impey.
● The first puisne judges appointed were Robert Chambers, Stephen, Ceaser LeMaister,
and John Hyde.
● The Supreme Court had the authority to try and determine all actions and suits within
Bengal, Bihar, and Orissa involving British subjects and inhabitants of India with
British subjects.
 ● The court could also hear cases when Indian inhabitants agreed in writing to have
their disputes resolved in the Supreme Court.
● Additionally, the Supreme Court functioned as a Court of Equity, Court of Oyer and
Terminer, and Gaol-Delivery.

2. Effect of Acts: 1781-1861

● The Act of Settlement in 1781 was passed to avoid conflicts between the Supreme Court
and the Council of East India Company.
● The Act declared that the Supreme Court would have no jurisdiction over the
Governor-General and the Council for their acts or orders in their public capacity.
● The jurisdiction of the Supreme Court in revenue matters was restricted, and it was
specified that no action could be brought against judicial officers in county courts for
their judgments or orders.
● The Act limited the territorial jurisdiction of the Supreme Court to the town of
Calcutta.
● The personal law of Indians was to be administered in the Supreme Court.
● The Act maintained the separation of powers and independence between the
Company's Courts and the Supreme Court.
● In 1784, the Statute of George III made all subjects and servants of the Company
amenable to the courts for criminal offences.
● In 1793, the Supreme Court's admiralty jurisdiction was extended to try offences
committed on the high seas by British subjects.
● In 1858, the Act for the better Government of India transferred the possessions of the
East India Company to the Crown.
● The High Courts were established in India in 1861, and the jurisdiction and powers of
the High Court of Judicature at Fort William in Bengal were defined by letters patent
issued in 1862.
● The District Courts became subordinate to the High Court, bringing all the courts in
Bengal under one unified system of control by the Crown.

X. SUPREME COURTS OF BOMBAY AND MADRAS

● The establishment of the Supreme Court at Calcutta was considered experimental, and
the authorities wanted to observe its outcomes before establishing similar courts in
other provinces.
● The conditions in Madras and Bombay were different from Calcutta, leading to a delay
in the establishment of Supreme Courts in these provinces.
● Instead, when changes were needed in the existing Mayor's Courts, the Company
authorities recommended the establishment of Recorder's Courts at Madras and
Bombay.
● Only after the abolition of the Recorder's Courts were the Supreme Courts eventually
established in Madras and Bombay.

1. Recorder’s courts
● The Mayor's Courts, established by the Charter of 1753 in Madras and Bombay, were
abolished by an Act of the British Parliament in 1797.
● The Act authorised the Crown to issue a Charter to establish the Recorder's Courts in
place of the Mayor's Courts.
● The Recorder's Court consisted of a Mayor, three Aldermen, and a Recorder, with the
Recorder serving as the President of the court.
● The jurisdiction of the Recorder's Court extended to civil, criminal, ecclesiastical, and
admiralty cases involving British subjects residing within the British territories and the
territories of friendly native princes.
● The Recorder's Courts had the power to frame rules of practice and acted as Courts of
Oyer and Terminer and Gaol-Delivery.
● The jurisdiction of the Recorder's Courts was similar to that of the Supreme Court at
Calcutta, with some restrictions imposed by the Act of 1781.
● The personal laws of Hindus and Muslims were protected, and the Governor and
Council, as well as officers working under their orders, were immune from the
jurisdiction of the Recorder's Courts.
● Direct appeals to the King-in-Council were allowed from the decisions of the Recorder's
Courts.
● Despite their effectiveness and reputation, the Recorder's Courts could not sustain
themselves due to growing demands for justice system reforms.
● Ultimately, the Recorder's Courts were replaced by the establishment of the Supreme
Courts at Madras and Bombay.

2. Supreme Court at Madras

● In 1800, the British Parliament passed an Act empowering the Crown to establish a
Supreme Court at Madras, replacing the Recorder's Court.
● The Crown issued letters patent on 26 December 1800, abolishing the Recorder's Court
and establishing the Supreme Court at Madras.
● The Supreme Court at Madras came into existence on 4 September 1801.
● The powers of the Recorder's Court were transferred to the Supreme Court, which was
directed to exercise similar jurisdiction and be subject to the same restrictions as the
Supreme Court of Judicature at Calcutta.
● Sir Thomas Strange, who was already serving as the Recorder, was appointed as the
Chief Justice of the Supreme Court.
● The two other puisne judges appointed were Henry Gwillim and Benjamin Sullivan.
● The Supreme Court at Madras continued its operations until it was replaced by the
establishment of the High Court of Judicature under the Indian High Courts Act, 1861.

3. Supreme Court at Bombay

● In 1823, the British Parliament passed an Act authorizing the Crown to abolish the
Recorder's Court in Bombay and establish a Supreme Court in its place.
● The Crown issued a Charter on 8 December 1823, formally establishing the Supreme
Court at Bombay.
● The Supreme Court at Bombay was inaugurated on 8 May 1824, with Sir E. West as the
Chief Justice, and two other puisne judges, Sir Charles Chambers and Sir Ralph Rice.
● The Supreme Court at Bombay had full powers and authority similar to those exercised
by the Supreme Court of Judicature at Calcutta, with one exception.
● According to Section 30 of its Charter, the Supreme Court at Bombay was prohibited
from interfering in any matter concerning revenue, even within the town of Bombay.
● Natives were exempted from appearing before the Supreme Courts at Madras and
Bombay, unless circumstances compelled their appearance, similar to a native court.
● The jurisdiction of the Supreme Court was strictly limited to the town and Island of
Bombay and did not extend to the Company courts in the Mofussil (provinces).
● The Charter also restricted the Supreme Court's powers regarding maritime crimes,
which were only applicable to persons subject to its ordinary jurisdiction, rather than all
crimes committed by any person, as authorized by the Charter Act of 1813.

4. Conflicts between the Supreme Court and the Government of Bombay

● The issuance of the Charter of 1823 aimed to make the Supreme Court at Bombay
serve as a check on the government of the East India Company. However, this
objective was not achieved due to conflicts that arose between Sir E. West, the Chief
Justice, and Governor Elphinstone from 1828 to 1858.
● In 1826, the Supreme Court at Bombay clashed with the government over a proposed
draft law sent by the Bombay government for approval under the Charter of 1807.
● The government's proposed law sought to restrict the publication of newspapers unless
licensed by the Governor with revocable authority. Chief Justice Sir E. West rejected the
draft law, stating that there was no justification in Bombay for such a restriction on the
liberty of its subjects.
● When certain newspapers criticized the Chief Justice's viewpoint, he accused them of
being government papers. However, the Governor denied any affiliation between the
newspapers and the government.
a. In 1828, a conflict arose when Moro Raghunath, a 14-year-old boy detained by his
grandfather in Poona, had a relative file a writ of habeas corpus in the Supreme Court.
The Advocate General opposed the writ petition, arguing that the court had no
jurisdiction over the boy and his father, who were natives residing in Poona. However,
the court disregarded this argument and issued the writ.
● In September 1828, another case involving Bappoo Gunness occurred. The Supreme
Court issued a writ of habeas corpus to the jailor, ordering the production of the
prisoner Bappoo Gunness, who was arrested under the orders of the Company's court.
The Governor-in-Council instructed the jailor not to send the prisoners to the Supreme
Court, asserting that the court had no authority to release someone imprisoned under
the orders of a native court.
● In April 1829, Chief Justice Sir John Grant became involved in a heated conflict with the
Bombay government and unilaterally closed the court. He submitted a petition to the
King, protesting the government's interference in the court's proceedings and
requesting the issuance of directives to protect the dignity and lawful authority of the
Supreme Court at Bombay.
b. The Privy Council considered the petition and affirmed the report against the Supreme
Court in the conflict between the court and the Bombay government.
● The Privy Council stated that the writs were improperly issued and should be directed
against a person who is personally subject to the jurisdiction of the Supreme Court.
● The court was found to have no power to issue writs to the gaoler or officer of a native
court, as the Supreme Court cannot discharge persons imprisoned under the authority
of a native court.
● The Supreme Court was required to recognize the jurisdiction of the native court
without having it specifically set forth in the return to a writ of habeas corpus.
● Despite the order being reversed, the government at Bombay was obligated to obey
the order unless stayed by the Privy Council, highlighting the judicial independence
and fearlessness exhibited by Grant J.
 ● Instances of conflict between the Supreme Court and the Bombay government
occurred in 1830, 1841, and 1858, including the closure of the court for a month, a
contempt case, and disputes over the authority of the Police Commissioner to transfer
prisoners without the Supreme Court's sanction.
● The conflicts were partly fueled by the fact that the Supreme Court had no
involvement in the ordinary administration of justice in the Mofussil.
● The Supreme Court continued to function in Bombay until 1862 when the High Court of
Judicature was established under the Indian High Courts Act, 1861.
● Over time, the judicial administration in Bombay gained purity and prestige.

XI. LAWS ADMINISTERED IN THE SUPREME COURT

● The Supreme Courts of Calcutta, Madras, and Bombay had jurisdiction over civil,
criminal, equity, ecclesiastical, and admiralty cases.
● The laws applied and administered by the Supreme Courts can be classified under
eight categories:
○ The common law as it existed in England in 1726, which remained unchanged
unless altered by specific statutes extending to India or Acts of the
Governor-General-in-Council.
○ The statute law in England as it stood in 1726, unless modified by the
Legislative Council of India.
○ Statute laws expressly extended to India since 1726 that had not been repealed
and statutes extended to India by Acts of the Governor-General-in-Council.
○ The civil law was applied in the Ecclesiastical and Admiralty Courts in England.
○ Regulations made by the Governor-General-in-Council and
Governors-in-Council, registered in Supreme Courts prior to the Charter of 1833.
○ Acts of the Governor-General-in-Council passed under the Charter of 1833.
○ The Hindu Law and usages applicable in actions concerning inheritance,
succession to lands, rents, goods, and contractual matters involving a Hindu
defendant.
○ The Mohammedan Law and usages applicable in actions concerning
inheritance, succession to lands, rents, goods, and contractual matters involving
a Muslim defendant.

XII. THE AMENDING ACT OF 1780-1781

● The dissensions between the executive government and the Supreme Court led to open
opposition and strained relations.
● The government members were indemnified for their acts and proceedings against the
lawful authority of the Supreme Court.
● The government officials were excluded from the jurisdiction of the Supreme Court
regarding their official acts, with complaints to be forwarded to the proper court in
England.
● The Governor-General in Council's orders were considered a bar to further proceedings,
except for orders affecting British subjects.
● The Supreme Court had no jurisdiction over revenue matters or acts related to revenue
collection according to the country's practice and government regulations.
 ● The jurisdiction of the Supreme Court did not extend to individuals possessing land or
interests in Bengal, Behar, and Orissa provinces, nor to employees of the Company or
Europeans in general.
● No action for wrong or injury lay in the Supreme Court against judicial officers in the
country courts for their orders, judgments, or decrees.
● The Supreme Court retained jurisdiction over natives, inhabitants of Calcutta, but was
guided by the laws and usages of the parties in matters of inheritance, succession,
contracts, and dealings.
● The Act recognized the civil and criminal provincial courts as independent of the
Supreme Court and established the Governor-General and Council as the chief
appellate court.
● The Council was empowered to frame regulations for provincial courts, independent of
the Supreme Court, thus limiting its jurisdiction over natives in the mofussil.
● The Supreme Government and its courts and offices in the various districts obtained
legal status and full legislative, judicial, and administrative authority over the
provinces.
● The Regulating Act's original policy was subverted by the amending act, which
established a practical and workable settlement.
● In Madras and Bombay, the same system was introduced as in Bengal.
● A revised code was issued in Bengal in the same year as the important act, as previous
legislation had been minimal.
● The various actions, including the Act of Parliament, the Revised Code, recognition of
Sudder and Provincial Courts, grant of legislative authority, restrictions on the
Supreme Court, and declaration of rights for Hindus and Muslims, were all
implemented in 1781.

XIII. COMMISSIONERS FOR THE AFFAIRS OF INDIA AND THE SUPREME AND
LOCAL GOVERNMENTS IN INDIA
● Statute 33, Geo. III., Cap. 52 (1792-93) established the appointment of five
Commissioners for the Affairs of India.
● The Commissioners consisted of two principal Secretaries of State, the Chancellor of
the Exchequer, and two Crown-appointed individuals.
● A quorum of three Commissioners was required to make decisions.
● The Commissioners were granted full power to oversee, direct, and control all matters
concerning the civil or military government and revenues of the territories acquired by
the East India Company in India.
● The East India Company's affairs were managed by their own Board of Directors in
England.
● The Governor-General and Council in India, nominated by the Directors, were
responsible for the administration of the Company's affairs in India.

1. The Company as Trustees

● Statute 3 and 4, William IV., C. 85 (1833) marked the beginning of the third phase of
government by the East India Company.
● The Act transformed the East India Company from a trading company to trustees for
the Crown, with the government vested in the Company.
● Shareholders received a fixed dividend charged upon the revenues in India.
 ● The Governor-General of India in Council was granted superintendence, direction, and
control over the civil and military government of British territories in India.
● The Governor-General became the supreme authority, and extensive powers of
legislation were conferred, eliminating the need for registration in the Supreme Court.
● Legislative power over the Supreme Court and its jurisdiction over European British
subjects required prior sanction from the Directors.
● The Act established the division of Bengal into two presidencies: Fort William and
Agra, each with a Governor and three Councillors.
● The Crown and the Company both had the power to remove or dismiss officers.
● The Board of Commissioners for the affairs of India and the Secret Committee of
Directors were retained as checks on the executive government.
● The Act mandated the Indian Government to frame laws for the protection of natives
and opened the Company's service to British subjects without discrimination based on
creed, birthplace, descent, or colour.
● Instructions were given for the mitigation and amelioration of the state and condition
of slaves, with the aim of eventually extinguishing slavery.
● The Act was to remain in force until 1854, and subsequently, Statute 16 and 17, Vic.,
Chapter 95 (1853) extended the existing government until further legislation.
● The Bengal Presidency remained undivided due to the Company's power to suspend
the division, which was exercised.
● The Statute of 1853 allowed the Bengal Presidency to continue under the control of the
Governor-General, with Lieutenant-Governors in Agra and Calcutta.
● The Company was granted the authority to create new provinces under
Lieutenant-Governors as needed.
● Indian Law Commissioners were appointed under the Statutes of 1833 and 1853 to
inquire into existing courts, police establishments, judicial procedures, and laws
prevailing in the country, with a focus on caste distinctions, religious usages, and
customs.

7. HIGH COURTS : ORIGINS & ESTABLISHMENTS

I. Early Efforts to Unite -
● Efforts to unite two sets of courts began much earlier than 1861. As a matter of policy
it was considered better to first introduce basic uniformity in the laws according to
which justice was administered. When this was achieved separate sets of the judicial
institutions were brought together under one system in 1861.
● The Charter Act of 1833, empowered the Governor-General-in-council with the help of a
law member to legislate for all provinces.
● The centralisation of legislative machinery introduced unification in laws and removed
conflicts and confusion which were created by the enactment of Regulation laws by
legislature of the different Provinces
● Charter 1833 provided that the acts passed by the Governor-General-in-council will be
binding on all courts including all the supreme courts. Also laid special emphasis on
uniform law for all without any discrimination based on caste or religion. To carry this
out it appointed the First and Second Law Commission.
● The IPC, Civil Procedure Code and the Criminal Procedure Code were the
achievements of the Commission.
 ● In 1858 the EIC was abolished and the crown took the direct responsibility of the
Government of India which made it easier to unite the two sets of courts. Uniform
codes were passed and the next step was to implement uniformity in the administration
of justice. This was achieved by the Indian High Courts Act, 1861.

II. The Indian High Courts Act, 1861

● In 1852, it was urged upon the Parliamentary Committee for East Indian affairs that it
was desirable to combine the legal learning and the judicial experience of English
barristers.
● With Lord Dalhousie’s conquests and annexations, the company’s territories and
responsibilities increased. The company could not match the responsibilities as there
was a mal-administration on a wide scale and this led to hate of Indians towards
foreign rule.
● The first war of Independence in 1857 by Indians made the political change inevitable,
which led to the crown’s assumption of the sovereignty of British India and Parliament’s
direct responsibility for its government.
● This required complete overhauling of the judicial system and as a result Indian High
Courts Act was passed on 6th August, 1861.
● This Act empowered the Crown to establish high courts of judicature, by letters patent,
at Calcutta, Bombay and Madras abolishing the Supreme Court and the courts of
Sadr Diwani Adalat and Sadr Nizamat Adalat.
● The jurisdiction and powers of the high courts were fixed by letters of patent. Sections
2 and 3 made provisions for the number of judges, their qualifications and their tenure.
● The High Court was given the power to call for returns, transfer of any suit or appeal
from one court to another and to make general rules.
● Her majesty could enlarge jurisdictions by granting letters of patent.

III. Letters Patent Establishing High Courts

(1.) High Court of Judicature at Calcutta – Empowered to enrol and remove advocates.
Constituted to be a court of record.
a. Jurisdiction and powers –
The jurisdiction of the High Court in Calcutta, established by the Indian High Courts Act 1861,
was primarily focused on civil matters. The Act of 1919 further defined its limits. Here are the
key points regarding its jurisdiction:
● Original Civil Jurisdiction: The High Court had ordinary original civil jurisdiction,
allowing it to hear and decide civil cases that originated directly in the High Court.
● Small Causes Court: The jurisdiction of the Small Causes Court was separate from the
High Court. It had its own jurisdiction to handle specific cases falling within its purview.
● Extraordinary Original Jurisdiction: The High Court had the power to exercise
extraordinary original jurisdiction, enabling it to try and determine suits falling within
the jurisdiction of any court within or outside Bengal, subject to its superintendence.
● Appellate Jurisdiction: The High Court had appellate jurisdiction, meaning it could
hear and decide appeals from lower courts. It replaced the Company's appeal courts,
namely the Sadr Diwani Adalat and Sadr Nizamat Adalat.
● Jurisdiction over Persons and Estates of Infants and Lunatics: The High Court had
jurisdiction over matters concerning infants and lunatics, including their persons and
estates.
 ● Relief of Insolvent Debtors: The High Court had jurisdiction to provide relief to
insolvent debtors in Calcutta.
● Additional Jurisdictions: The High Court was also vested with specific jurisdictions, such
as admiralty jurisdiction, probate jurisdiction (relating to wills and estates), and
matrimonial jurisdiction (relating to marriage and divorce).
Overall, the High Court in Calcutta, under its various jurisdictions, aimed to serve as a
comprehensive court with diverse legal powers and responsibilities.
B. Procedure –
● The High Court had the authority to create rules and orders to regulate all civil and
criminal proceedings brought before it. This power aimed to establish uniformity in
procedure across the High Courts and subordinate courts.
● Appeals in non-criminal matters from the decisions of the High Court were allowed to
the Privy Council. However, for an appeal to be eligible, the sum or matter in issue
needed to be valued at no less than £10,000.
● The High Court had the power to certify a case as suitable for appeal to the Privy
Council, indicating that it met the necessary criteria for consideration by the higher
court.

(2.) High Court of Judicature at Bombay

● The High Court of Judicature at Bombay was established on 26 June 1862 by letters
patent issued by the Queen.
● The establishment of the Bombay High Court resulted in the abolition of the existing
Supreme Court, Sadr Diwani Adalat, and Sadr Nizamat (Faiydari) Adalat.
● The letters patent for the Bombay High Court were similar to those issued for the
Calcutta High Court, granting the Bombay High Court similar powers and authorities.
● The establishment of the Bombay High Court brought about a uniform system of law
and procedure throughout the Presidency of Bombay, contributing to the development
of the judicial system and the rule of law in the region.
● The Bombay High Court currently has a Bench located in Nagpur.
● The legacy of independence and legalism left by English lawyers and judges
associated with the Bombay High Court is considered a valuable contribution to the
judicial system.

(3.) High court of Judicature at Madras

By letters patent issued on 26 June 1862, the Queen established the High Court
ofJudicature at Madras11 and on its establishment the chartered Supreme Court
and the Sadr Diwani Adalat and Sadr Nizamat (Faujdari) Adalat were abolished
at Madras. Their jurisdiction and powers were transferred to the High Court at
Madras.12 The letters patent stated the jurisdiction and powers of the Madras High
Court to be similar to the jurisdiction and powers of the Calcutta and Bombay
High Courts.

(4.) High Court of Judicature at Allahabad

● Under the Indian High Courts Act, 1861, letters patent were issued on 17 March 1866 to
establish a High Court of Judicature at Agra for the North-Western Provinces.
● The establishment of the Agra High Court led to the abolition of the Sadr Diwani
Adalat and Sadr Nizamat Adalat in the region.
 ● The provisions of the letters patent of 1866 for the Agra High Court were similar to
those of the letters patent of 1865 for other High Courts, with certain exceptions.
● In 1875, the High Court was shifted from Agra to Allahabad and became known as the
High Court of Judicature at Allahabad.
● The constitution, jurisdiction, powers, and privileges of the Allahabad High Court were
similar to those of the Presidency High Courts, with the exceptions mentioned earlier.
● In Oudh, a Judicial Commissioner's Court was established in 1865, which later became
the Chief Court of Oudh through the Oudh Courts Act, 1925.
● In the United Provinces, separate courts of appeal were operating in Lucknow and
Allahabad.
● The United Provinces High Courts (Amalgamation) Order, 1948 was issued to
amalgamate the courts of Lucknow and Allahabad, creating a single High Court
known as the High Court of Judicature at Allahabad.
● Since the amalgamation, a Bench of the Allahabad High Court has been functioning
in Lucknow.

IV. Advantages of Unification

● For a period of 80 years, two separate and parallel systems of courts operated in the
Presidencies and Mofussil Areas of India: the Royal Courts or Crown's Court, and the
Adalats of the Company.
● These courts had different sources of powers and authority, and their jurisdictions were
vague and ill-defined, leading to conflicts similar to those between common-law courts
and Chancery Courts in 17th century England.
● The Indian High Courts Act, 1861 brought about the fusion of the two systems of
administration of justice: the Supreme Courts and the Sadr Diwani Adalats.
● The fusion of the two systems had several advantages:
1. Decreased the number of courts.
2. Ended dual control.
3. The High Court assumed supervision over lower courts.
4. Improved the quality of work in lower courts.
5. Increased efficiency of judges.
6. Simplified procedures.
7. Established uniformity in the appellate procedure.
8. Accelerated the process of codification by removing disparities in different laws.
9. Reduced clashes and conflicts between the two systems, leading to simplicity,
harmony, and efficiency in the administration of justice.

V. Indian High Courts Act of 1865 and 1911

● The High Courts Act, 1865 granted the Governor-General-in-Council the authority to
make necessary alterations in the territorial jurisdiction of the chartered High Courts
established under the High Courts Act, 1861.
● The power of the Governor-General was subject to the approval of the Crown.
● The Indian High Courts Act, 1911 empowered the establishment of High Courts in any
territory within the Indian dominions.
● Under the Act of 1911, a High Court could be established for any territory, regardless of
whether it was already within the limits of another High Court.
● The Act of 1911 increased the maximum number of judges in each High Court from 16
to 20, including the Chief Justice.
VI. The Government of India Act, 1915
● The Government of India Act, 1915 consolidated and re-enacted existing statutes
concerning the Government of India and the High Courts.
● The Act re-enacted the provisions of the High Courts Acts of 1861 and 1911.
● Each High Court was to consist of a Chief Justice and additional judges appointed by
His Majesty.
● The High Courts were granted original and appellate jurisdiction, including admiralty
jurisdiction over offences committed on the high seas.
● They were declared courts of record and had the power to make rules for regulating
court practices.
● The High Courts did not have jurisdiction over revenue matters or the power to set
aside acts related to revenue collection according to local usage and customs.
● They had supervisory powers over subordinate courts within their respective
jurisdictions.
● The Presidency High Courts of Calcutta, Madras, and Bombay, in suits involving
inheritance, succession to land, rents, goods, and contracts between parties, could
apply personal law or custom having the force of law when both parties were subject
to the same custom or law. Different personal laws or customs of the defendant would
be applied when the parties were subject to different personal laws or customs.
● The Act of 1915 authorised His Majesty to establish new High Courts in any territory.
● The High Court at Patna was established by His Majesty through letters patent in 1916,
following the proclamation to form a separate Province of Bihar and Orissa. Previously,
Bihar and Orissa were under the jurisdiction of the Calcutta High Court.
● Orissa became a separate province in 1936, and a separate Orissa High Court was
established after independence in 1948.
● The High Court at Lahore was established as the Chief Court of Punjab in 1865 and
was elevated to the status of a High Court in 1919. However, after partition in 1947,
Lahore became part of Pakistan. A separate High Court for Punjab was created, which
had jurisdiction over Delhi and present-day Himachal Pradesh.
● The current successors to the High Court at Lahore are the High Court of Punjab and
Haryana at Chandigarh, the High Court of Delhi at New Delhi, and the Himachal
Pradesh High Court at Shimla.

VII. The Government of India Act, 1935

● The Government of India Act, 1935 provided a new constitution for regulating the
functions of the legislature, executive, and judiciary in India.
● Every High Court was to be a court of record consisting of a Chief Justice and other
judges appointed by His Majesty.
● The Act empowered the King-in-Council to determine the number of judges for each
High Court, removing the previous maximum limit of 20 judges.
● Qualifications for High Court judges included 10 years' standing as a barrister or
advocate, or 10 years' service as a member of the Indian Civil Service.
● A High Court judge who served for three years was eligible for the position of Chief
Justice.
● The Act introduced provisions for the appointment and removal of High Court judges,
with judges holding office until the age of 60. Removal could only occur on grounds of
 misbehaviour, infirmity of mind or body, and the recommendation of removal by the
Privy Council.
● The jurisdiction, laws administered, and powers of the existing High Courts remained
the same under the Act.
● The Act maintained the prohibition on the three Presidency High Courts from
exercising original jurisdiction over revenue matters.
● Salaries, allowances, and pensions of High Court judges were to be fixed by His
Majesty upon appointment, with no changes allowed to the disadvantage of a judge
after their appointment to ensure judicial independence.
● Administrative control of the High Courts was placed under the Provincial Government,
despite controversy as the Statutory Commission recommended central government
control. The Act aimed to safeguard judicial independence and protect judges from
political pressures.
● The Act allowed for appeals to the Federal Court from judgments, decrees, or final
orders of the High Courts.
● His Majesty was empowered to issue letters patent establishing or reconstituting a
High Court for a province or part of it.
● The Nagpur High Court was established under the Act of 1935, replacing the Judicial
Commissioners Court for the Central Provinces. Its jurisdiction and powers were similar
to those of the Allahabad High Court.
● After the reorganisation of states in India, Nagpur merged with Maharashtra. The
Madhya Pradesh High Court, initially at Nagpur, was later shifted to Jabalpur, with a
bench at Gwalior and currently at Indore as well.

8. PRIVY COUNCIL AND THE FEDERAL COURT OF INDIA

1. INTRODUCTION
● The expansion of the British Empire in the late sixteenth century led to the
transformation of the Privy Council from a mediaeval institution into a global
appellate court.
● Lord Brougham played a crucial role in restructuring the Privy Council appeal, leading
to the establishment of the "Judicial Committee of the Privy Council" in 1833.
● Nationalists from various parts of the Empire often accused the Privy Council of
upholding London's policy objectives, but there is no substantial evidence to support
these claims.
● The Privy Council played a role in maintaining Imperial unity, particularly in federal
systems like Canada and Australia, where it acted as an independent adjudicator to
preserve unity.
● The Privy Council also retained London's oversight over key economic policies in
self-governing parts of the Empire.
● Additionally, the Privy Council became involved in the development of human rights,
bringing enlightened values to the peripheries of the Empire.
● The policies and actions of the Privy Council had a profound impact on the history and
development of the British Empire, and many of these policies remained relevant even
after the Empire declined.
● The decline of the Privy Council's jurisdiction in the twentieth century was influenced by
claims that it was incompatible with the interests and values of individual parts of the
Commonwealth.
● Understanding the history of the Privy Council appeal can provide insights for
international courts in the twenty-first century dealing with multiple jurisdictions and
differing histories and cultures.
● The themes of legal instrumentalism, modernization, and national identity are relevant
to the policies and actions of the Privy Council.
● The lack of published work examining the Privy Council in its global context has
hindered a comprehensive understanding of its impact on key Empire-wide policies.
● A broader approach, focusing on thematic and comparative studies, is advocated to
overcome the limitations of national and regional studies in understanding the Privy
Council appeal.

2. The Privy Council Appeal as a pillar of Imperial Unity

● The Privy Council was widely seen as a crucial institution upholding the unity of the
British Empire, often referred to as the "golden link" or "sheet-anchor" of the Empire.
● It was perceived as maintaining uniformity in the interpretation of statute law and
common law across the self-governing parts of the Empire.
● Some supporters of greater autonomy for the Dominions questioned the need for
maintaining uniformity in these areas of law, suggesting that adaptation to local needs
might be preferable.
● Critics argued that applying laws and precedents from one part of the Empire to
another with different conditions could lead to inappropriate outcomes.
● Despite criticism, the role of the Privy Council in maintaining legal unity was often seen
as vital for preserving the political unity of the Empire.
● The Privy Council appeal was sometimes viewed as an agent of globalisation,
contributing to the unification of the Empire.
● As the self-governing Dominions gained more power and confidence in the early
twentieth century, critics argued that consultation, rather than imposition by a judicial
body, would be a better means to achieve uniformity in the law.
● The Privy Council appeal played a significant role in enforcing the supremacy of
Imperial legislation, which held superior status over local colonial or Dominion laws.
● The supremacy of Imperial legislation over local laws was maintained through common
law and the Colonial Laws Validity Act 1865.
● The Judicial Committee of the Privy Council upheld this supremacy by invalidating
local laws that were incompatible with relevant Imperial statutes.
● In the early twentieth century, the Privy Council became less inclined to use its power in
relation to the self-governing Dominions, but it was still active and influential.
● The Privy Council enforced the supremacy of Imperial legislation in cases such as
Nadan v. The King in Canada and the Irish Free State's Articles of Agreement for a
Treaty.
● Some argue that the practice of judicial review in former British colonies has roots in
the Privy Council's function of striking down inconsistent local laws.
● The diversity of litigants appearing before the Privy Council was celebrated, but
achieving diversity among the judges themselves proved challenging.
● Efforts were made to increase diversity in judicial representation, but factors like
distance, expense, and reluctance from Dominion governments limited the presence of
non-UK judges.
● Religion, in addition to race, served as a barrier to appointing multi-racial judges, as
seen in the case of Syed Ameer Ali, a Muslim judge accused of judicial bias.
● Indian judges were appointed to the Privy Council due to the large number of appeals
from India, including figures like Dinshah Fardunji Mulla, who contributed indigenous
perspectives to the court.
● African representation on the Privy Council was lacking until 1962, by which time most
African colonies were on the path to independence.
● The composition of the Privy Council, local reactions to appointments, and the absence
of representation from certain regions warrant further investigation.
● The Privy Council had a unique rule established in the seventeenth century that only
allowed a single unified judgement to be delivered, with dissenting judgments kept
confidential.
● Despite strict secrecy, dissenting judgments occasionally leaked out, causing
embarrassment and division.
● Some judges refused to participate in Privy Council appeals as long as the rule of
delivering only a single judgement was maintained.

3. The Privy Council as Overseer of Systems of Federal and Devolved Government

● The Privy Council appeal was perceived as a source of both Imperial and local unity.
● In North America, the appeal was seen as a unifying institution among the thirteen
colonies before the declaration of independence.
● In British India, it was credited with giving a national character to the law and unifying
different parts of the country.
● The Privy Council played a role in interpreting the division of powers in federal unions
such as Canada and Australia.
● Analogies were drawn between the Privy Council and the US Supreme Court in terms
of their functions.
● The Privy Council served as the arbiter of autonomy limits under home rule bills in
Ireland and was envisioned as part of a potential federal settlement for the entire
United Kingdom.
● The role of the Privy Council in federal settlements sometimes led to criticisms,
particularly in Canada and Australia, where it was perceived to favour provinces and
states over federal institutions.
● Abolition efforts in Canada and Australia were initially unsuccessful due to support
from provinces and states, but the Privy Council appeal was eventually abolished in
both countries.
● The Privy Council also settled boundary disputes within the Empire, which sometimes
resulted in condemnation and resentment from those unhappy with the final
determination.
● An example is the Privy Council's 1927 determination of the Labrador boundary, which
heavily favoured Newfoundland over the French-speaking province of Quebec.
● The Privy Council had a minor role in the creation of the boundary commission for
revising the border between the Irish Free State and Northern Ireland.
● The decisions made by the Privy Council in this dispute did not improve its reputation
among Irish nationalists.
● The Boundary Commission eventually collapsed in 1925, and the Irish border remained
unchanged.
● The issue of the Irish border continues to be controversial in modern times.

4. Oversight of Economic Policy

● The Privy Council played a role in promoting British Imperial policy in economic
matters in the 19th and early 20th centuries.
● Key economic areas like merchant shipping and copyright were considered within the
realm of Imperial competence and regulated by special Imperial statutes.
● The Privy Council appeal was seen as providing reassurance for British firms to invest
in the colonies, particularly the self-governing Dominions, by safeguarding British
investors from irresponsible actions by local governments.
● Colonial secretary Joseph Chamberlain argued in favour of the Privy Council appeal,
stating that it protected the interests of British investors in Dominion securities and
business undertakings.
● The Privy Council appeal and Imperial policies in the economic sphere were criticised
for suggesting a lack of trust in the legislatures and courts of the self-governing
Dominions.
● The perception of the Privy Council as the protector of sectional interests damaged its
reputation in some quarters.
● Critics, such as H. Duncan Hall, argued that the Australian Labor Party campaigned
for the abolition of the Privy Council appeal to achieve greater equality in justice and
exercise control over absentee capitalists.
● In the Irish Free State, the Privy Council's decision in the Lynham v. Butler case was
seen as influenced by protecting the interests of Irish landlords, generating controversy.
● In Canada, the Privy Council struck down key parts of the Canadian 'New Deal' during
the Great Depression, leading to further controversy.

5. The Privy Council Appeal and Human Rights

● The Privy Council took on a new role in advancing a 'progressive' agenda from the
centre to the peripheries of the British Empire in the early twentieth century.
● In the case of Attorney General for British Columbia v. Attorney General for Canada,
the Privy Council invalidated discriminatory immigration legislation against Japanese
migrants passed by British Columbia in the 1920s.
● The Privy Council's decision in the Kenyan case of R v. Kuruma established the
principle of excluding prejudicial evidence in criminal trials throughout much of the
former territories of the British Empire.
● The "Persons Case" (Edwards v. Attorney General of Canada) is a celebrated instance
of the Privy Council advancing a human rights agenda. It ruled that women could be
considered "persons" and sit in the Canadian senate, establishing the "living tree
doctrine" of interpreting the constitution to adapt to current circumstances.
● The Privy Council was seen as a protector of minority communities, including the
French-speaking population of Canada, English-speakers in South Africa, the
Protestant population of the Irish Free State, and the Maoris in New Zealand.
● However, the perception of the Privy Council as the protector of minority or vulnerable
communities generated hostility among dominant communities, jeopardising the
appeal's survival.
● The Irish Free State protested against the Privy Council's role in safeguarding the
rights of the Protestant minority, and attempts to enlist support from Canada to limit
or abolish the Privy Council appeal were unsuccessful.
● The Irish Free State became the first Dominion to abolish its appeal to the Privy
Council in the 1930s.
● The Privy Council's potential involvement in adjudicating racial status laws in South
Africa fueled the movement to abolish the appeal, and it was abolished shortly after
the implementation of apartheid in 1948.
● The Privy Council was also seen as the protector of the black majority in Southern
Rhodesia (Zimbabwe), leading to its abolition by the Rhodesian government in 1969
following their unilateral declaration of independence in 1965.

6. Conclusion
● The enactment of the 1931 Statute of Westminster marked a decline in the perceived
role of the Privy Council in maintaining Imperial unity, especially with regard to the
self-governing Dominions.
● The statute signalled a shift away from enforcing the supremacy of Imperial statutes
over Dominion laws, as advocated by Dominion nationalists.
● While there was a recognition of the importance of maintaining uniformity in key areas
of law, such as maritime law, supporters of greater Dominion autonomy argued that
consultation should replace enforcement by an Imperial court.
● The Commonwealth Merchant Shipping Agreement of 1931 exemplified this new
approach by replacing the supremacy of Imperial legislation in maritime law with a
voluntary agreement.
● The Statute of Westminster aimed to retain legal uniformity in essential areas of law
but discontinued the use of the Judicial Committee of the Privy Council as a means of
enforcing such uniformity.
● After the abandonment of the overall policy of legal uniformity in 1931, the Dominions
were initially reluctant to fully accept the impact of the Statute of Westminster,
resulting in a gradual transition and increased uncertainty.
● The Privy Council faced the challenge of enforcing uniformity in some areas of law
while tolerating diversity in others, requiring a delicate balancing act. The court's
handling of this balancing act received praise in Australia, but further research is
needed to understand how it was maintained in other regions.
● The long-standing rule of delivering a single judgement without publicising dissenting
opinions was abandoned in 1966, offering potential for future scholarship. Regional
differences in opinion on this rule, as seen in Canada, highlight the need for greater
examination of the reasons behind such variations.
● The association of national identity with judicial sovereignty played a significant role in
the decline of the Privy Council's jurisdiction worldwide. Nationalist sentiment and the
desire for independent courts were key factors in diminishing the role of the Privy
Council.
● Comparative analysis of the Privy Council appeal and national identity can extend
beyond local reasons for abolishing the appeal. Further study can explore national and
regional reactions to appointments to the Privy Council and proposed reforms, such as
establishing an itinerant court.
● Examining the failures of proposed alternatives to the Privy Council appeal, such as
the Commonwealth Tribunal, can provide valuable insights. Comparisons with other
courts, both from European colonial powers and post-colonial regional courts, can also
contribute to a comprehensive understanding of the Privy Council's significance.
● The role of the Privy Council in overseeing federal settlements within the Dominion of
Canada and Australia was criticised for hindering the emergence of strong central
governments. However, it was also credited with safeguarding the rights of Canadian
provinces, particularly Quebec, and maintaining the unity of the Dominion.
● Future research should explore the attitudes of minority communities in the British
Empire and Commonwealth towards the Privy Council appeal. Even if direct evidence
is elusive, investigating the perceptions of majority communities regarding the
attitudes of their respective minority communities is valuable.
● The Protestant community in the Irish Free State has received attention for their
attitudes towards the appeal. Similar analyses could be conducted on the attitudes of
the Maori community in New Zealand, where their perceived support for the appeal
played a role in its longevity until 2003.
● The attitudes of the French-Canadian population in Canada during the nineteenth and
twentieth centuries are of particular interest due to the significance of Canada in the
British Empire and Commonwealth's history. Different viewpoints existed within this
community, ranging from denying the appeal as a minority safeguard to preferring it
over the Supreme Court of Canada.
● The policy arguments promoting the Privy Council appeal as a reassurance for British
investment had unintended consequences, creating an image of bias towards large
vested interests or British commercial interests. Similar impressions of bias may have
existed in other British colonies, warranting further examination.
● The Privy Council appeal gained prominence as a perceived progressive and
modernising human rights court in the early 20th century, and was even promoted as a
model international court of human rights after World War II.
● However, this role led to accusations that the Privy Council decisions were out of touch
with local values and national identity, which resulted in its decline in recent decades.
● The case of Jeyaretnam v. Law Society of Singapore in 1988 showcased the growing
dissatisfaction with the Privy Council's interference in local affairs, leading to reduced
appeals and eventual abolition in Singapore.
● In the Caribbean, the Privy Council's stance on capital punishment in the Pratt and
Morgan case faced criticism for being out of touch with Caribbean values, prompting
many nations to consider abolishing the appeal.
● The introduction of sharia law in Brunei in 2014 poses new challenges for the Privy
Council as its final court of appeal in civil cases, as decisions based on human rights
principles may be seen as out of touch with local values.
● Even during the appeal's heyday in the late 19th and early 20th centuries, accusations
of being out of touch with local values were made, including in the British-descendant
majority Dominions.
 ● Unpopular decisions by the Privy Council and accusations of incompetence or being a
colonial relic often led to criticism and calls for abolition, which were amplified by its
nature as a court sitting in another jurisdiction with foreign judges.
● The Privy Council was promoted as a model for an international human rights court
before the creation of the European Court of Human Rights and other international
human rights institutions, making its analysis relevant to contemporary discussions on
human rights enforcement.
● The fate of the Privy Council appeal serves as a cautionary example for international
human rights institutions and courts in the volatile circumstances of the early 21st
century.
● The Judicial Committee of the Privy Council has defied predictions of its impending
demise for nearly a century.
● It has shown an ability to adapt and reinvent itself, allowing it to survive and maintain
relevance.
● The Privy Council seamlessly transitioned from being a pillar of political and economic
unity in the British Empire to acting as a neutral arbiter in a free Commonwealth and
a champion of human rights.
● Its evolution is ongoing, and as the appeal becomes increasingly limited to British
overseas territories, which often serve as tax havens, it may further evolve into a court
that curbs the excesses of such regimes.
● The ability of the Privy Council to defy successive predictions of its demise is a
fascinating area of study.

Privy Council (From VD)

I. Origin
TheNorman Conquest in 1066 played a very important role in shaping the
English Law and the constitution of courts of justice in England.1 It introduced
a powerful Central Government in England controlling the executive, legislative
and judicial department.

1. The Curia Regis

● The Normans governed England through the Curia Regis, a Supreme Feudal Council.
● The Curia Regis gradually evolved into two distinct bodies: the Magnum Concilium
(larger Council) and the Curia Regis (smaller Council).
● The Curia Regis consisted of high officials, members of the Royal Household, and
selected important clerks chosen by the Crown.
● Within the Curia Regis, the division of work among its members led to the
development of specialised institutions.
● The Curia Regis played a significant role in the establishment of law courts.
● The King's Council, a more modern version of the Curia Regis, gave rise to additional
courts known as the Conciliar Courts.
● All the Royal Courts share a common origin, but their growth and characteristics were
influenced by the date of their establishment

2. Three Divisions
● Reforms introduced by King Henry II resulted in increased judicial work for the Curia
Regis.
● The justices within the Curia Regis became a separate professional body.
● The Curia Regis transformed into two common-law courts: the Court of King's Bench
and the Court of Common Pleas.
● The Court of Exchequer also became distinct from the Exchequer on its fiscal side.
● Separation of these three courts with different functions occurred during the reign of
Edward I.
● The Privy Council originated from the smaller Council of the king and gained exclusive
power to adjudicate upon appeals from colonies during the Tudor era.
● An Order-in-Council was issued to regulate appeals from the Channel Islands.
● The Privy Council delegated its authority to a Committee known as "The Committee for
the Business of Trade" in 1667.
● In the 18th century, the work of the Privy Council's Committee greatly increased with
the growth of the British Empire.
● Lord Brougham criticised the predominantly laymen councillors and the infrequent
meeting schedule of the Privy Council's Committee in 1828.

3. Acts establishing Judicial Committee of the Privy Council

● Lord Brougham's protest against laymen hearing appeals led to the passing of the
Judicial Committee Act, 1833 by the British Parliament.
● The Statute of 1833 established a statutory permanent committee of legal experts to
hear appeals from the British Colonies and handle other matters referred to them by
the King.
● This statutory committee became known as "The Judicial Committee of the Privy
Council."
● The Act of 1833 transformed the Privy Council into a highly authoritative Imperial
Court.
● Since 1833, the seven Lords of Appeal in Ordinary have been members of the Judicial
Committee.
● The first sitting of the newly appointed Judicial Committee of the Privy Council took
place on 27 November 1833.
● The Judicial Committee became the final court of appeal under the throne

4. Composition
● The constitution of the Judicial Committee of the Privy Council has been modified by
several Acts, including those in 1844, 1908, 1929, and others.
● The current composition of the Judicial Committee includes the Lord Chancellor, the
existing and former Lords President of the Council (who do not attend), Privy
Councillors with high judicial office experience (including retired English and Scottish
judges), the Lords of Appeal in Ordinary, and judges or former judges of superior
courts from the Dominions and colonies appointed by the Crown.
● The Judicial Committee typically has a quorum of three members, but in important
cases, five members often preside over the Committee meeting to hear appeals.

5. Procedure
● The Judicial Committee of the Privy Council is an advisory board and not a court of
law.
● Its duty is to report to the King and provide their opinion and advice on appeals
submitted to them.
● Appeals are addressed to "The King's Most Excellent Majesty in Council" and sent to
the Judicial Committee under a general order passed in 1909.
● The advice submitted by the Judicial Committee is in the form of a judgement that
ends with the words "and we humbly advise, etc."
● There is only one judgement issued by the Privy Council, and there are no dissenting
judgments as in the case of appeals heard by the High Courts.
● The judgement represents a unified voice, ensuring that His Majesty is not faced with
conflicting advice from his trusted advisers.
● Privy Councillors are obligated not to disclose the advice they have given to His
Majesty.
● Upon receiving the advice, a draft Order-in-Council is prepared and presented for
approval at a meeting of the Privy Council, typically held in Buckingham Palace.

6. Jurisdiction
● Lord Brougham highlighted the jurisdiction of the Judicial Committee in his speech
before the House of Commons in 1828.
● The Judicial Committee determines colonial law in plantation cases and acts as the
final judge in all prize causes.
● They hear and decide on plantation appeals, making them the supreme judges in the
last resort for all foreign settlements.
● The Privy Council exercises immense jurisdiction over property rights, personal rights,
political rights, legal rights, and all questions arising from a vast area.
● The Privy Council exercises this jurisdiction alone, without assistance.
● In the Eastern possessions, the variations in law are even greater, with English
jurisdiction limited to British settlers and the inhabitants of the three Presidencies in
India.
● The jurisdiction of the Judicial Committee is based on the royal prerogative of the
sovereign, as defined in R. v. Bertrand.
● The King, as the fountain of justice, has the inherent right to administer justice.

7. Right of Appeal
● Lord Cave, then Chancellor, described the right of appeal to the Privy Council in the
case of Nadan v. R in 1926.
● The practice of appealing to the Privy Council from any court in His Majesty's
Dominions has been established throughout the British Empire.
● Initially, such appeals may have been mere requests for the sovereign's protection
against unjust administration of law.
● Over time, the practice has evolved into a privilege belonging to every subject of the
King.
● The right of appeal to the Privy Council is considered a privilege and is available to
individuals within the British Empire.

8. Peculiar Nature
● Lord Haldane, in the case of Alexander E. Hull & Co. v. A.E. McKenna, described the
nature of the jurisdiction and constitution of the Privy Council.
 ● The Privy Council is a Committee of the Privy Council, although it functions as a court
of law. The Sovereign himself gives the judgement and acts upon the report made by
the Committee.
● The Committee represents the entire Empire, rather than any single nation, and it does
not have a fixed location.
● The Sovereign, as the Sovereign of the Empire, retains the prerogative of justice.
However, in criminal cases, the Sovereign's intervention is limited to exceptional cases.
● The Judicial Committee is generally not advised to intervene in cases unless they
involve significant principles or have wide public interest.
● The report of the Privy Council is in the form of advice, and only one opinion, without
dissent, is pronounced.
● The Privy Council is not bound by precedents and has the flexibility to make decisions
based on the principles of justice.

9. Three rules guiding appeals to the Privy Council

● His Majesty's prerogative extends to both criminal and civil cases.
● The Privy Council will only interfere in criminal cases if there is a disregard for legal
process or a violation of the principles of natural justice, following the rule in the Dillet
case.
● The Privy Council will intervene if there is a miscarriage of justice, a violation of legal
principles, or procedural irregularities.

II. Appeals From India to the Privy Council

1. Charter of 1726 and 1753
● George I's Charter of 1726 allowed for appeals to the Privy Council from India for the
first time in Indian legal history.
● The Charter established Mayor's Courts in Calcutta, Madras, and Bombay, with a
provision for first appeals to the Governor-in-Council in the respective provinces.
● The Charter of 1753 re-established the Mayor's Courts in the three Presidency Towns,
following the provisions of the Charter of 1726.
● Until the passing of the Regulating Act in 1773, there were no recorded cases of Indian
appeals to the Privy Council.
● However, before the Regulating Act, there were four appeals filed by English
individuals from India to the Privy Council, but these cases did not involve Indian
parties. These disputes were amongst English people and, therefore, cannot be
● considered as Indian cases, in appeal to the Privy Council

2. The Regulating Act and Subsequent Charters

● The Regulating Act of 1773 empowered the Crown to establish a Supreme Court in
Calcutta through the Charter of 1774, which replaced the Mayor's Court.
● Section 30 of the Charter granted the right to appeal from the Supreme Court's
judgement to the King-in-Council in civil cases where the amount involved exceeded
1000 pagodas.
● The Recorder's Courts replaced the Mayor's Courts at Madras and Bombay through
the Crown's Charter under an Act of 1797, allowing for direct appeals to the
King-in-Council.
 ● In Madras, the Recorder's Court was replaced by the Supreme Court in 1801, and in
Bombay in 1823, with the same appeal rights to the King-in-Council as in Calcutta.
● The Act of Settlement in 1781 provided for appeals to His Majesty from the Sadr
Diwani Adalat at Calcutta in civil suits valuing £5000 or more.
● In 1818, the monetary condition for appeals from the Sadr Diwani Adalat at Madras
was removed, allowing appeals in all cases.
● The right of appeal to His Majesty from the Sadr Diwani Adalat at Bombay was
allowed in 1812.
● In 1818, the condition regarding the valuation of the suit in appeal was removed for
appeals from the Sadr Diwani Adalats of Bombay and Madras, leading to a significant
increase in the number of appeals to the Privy Council.
● The removal of the valuation condition was welcomed as it encouraged more appeals,
although it also brought about inconveniences and increased expenses for the parties
involved.

A. Case of Andrews Hunter

● Before 1833, only 14 appeals were filed to the King-in-Council from India: 11 from
Calcutta, 1 from Madras, and 2 from Bombay.
● Andrews Hunter v. Rajah of Burdwan was the earliest case to reach the Privy Council.
● In the case, Hunter filed a suit on August 4, 1790, against the Rajah for the recovery of
money advanced to his grandmother.
● The Mofussil Diwani Adalat at Burdwan dismissed the suit on May 6, 1791, ruling that
the Rajah was not liable for the debts incurred by his grandmother.
● The Sadr Diwani Adalat reversed the decision on February 23, 1792, and remanded the
case for trial on the facts.
● The suit was again dismissed on November 26, 1793, and this judgement was confirmed
on appeal by the Sadr Diwani Adalat on November 22, 1795.
● The Privy Council affirmed the decision on February 6, 1798.
● The case took about eight years to reach its final resolution.

B. Reorganisation of the Privy Council

● The Judicial Committee Act of 1833 was enacted by William IV to regulate the system
of appeals to the Privy Council and define its constitution, composition, and
jurisdiction.
● The Act established a permanent body of the Judicial Committee to handle appeals
and other matters from the Colonies.
● Two retired Indian judges were appointed as assessors to the Judicial Committee under
the Act. They attended the Privy Council sittings but did not have voting rights.
● The inclusion of Indian assessors provided the Privy Council judges with detailed
knowledge about Indian peculiarities and legal positions.
● The appointments of assessors were made from retired judges of the Supreme Courts,
not from the retired judges of the Sadr Diwani Adalat.
● The Act reintroduced the condition of valuation of the suit, which led to a reduction in
the number of appeals from courts in India to the Privy Council.

3. Appeals to the Privy Council from the High Courts

 ● The Indian High Courts Act of 1861 allowed the Crown to establish High Courts through
Charters and merged the Supreme Court and Sadr Diwani Adalat and Sadr Nizamat
Adalat in Calcutta, Madras, and Bombay.
● The establishment of High Courts replaced the King's Courts and Company's Courts in
each Presidency Town.
● The Charters of the High Courts outlined the circumstances in which appeals could be
made to the Privy Council. Appeals were generally allowed in all matters except
criminal cases, where an appeal could be made from the final judgement of the High
Court. Appeals were also permitted for any other judgement when certified by the
High Court as a fit case for appeal.
● The Civil Procedure Code also provided provisions (Sections 109 to 112) for appeals
from the High Courts to the Privy Council, including cases involving important
questions of law and fit cases for appeal as certified by the High Court.
● Early Charters of the High Courts granted the right of appeal to the Privy Council in
criminal cases if the High Court declared it as a fit case for appeal. However, the Privy
Council's role in criminal appeals was limited to cases involving infringements of
essential principles of justice, rather than re-trying the criminal case.
● The Criminal Procedure Amendment Act of 1943 introduced Section 411-A, which
established certain conditions and regulations for appeals to the Privy Council in
criminal cases.

III. THE FEDERAL COURT UNDER THE GOVERNMENT OF INDIA ACT, 1935
● The Government of India Act of 1935 introduced a Federal Constitution in India and
established the Federal Court.
● The Federal Court, inaugurated on October 1, 1937, had exclusive original jurisdiction
over cases between the Centre and the constituent units.
● The Federal Court's advisory jurisdiction was limited to cases referred to it by the
Governor-General for advice on legal questions of public importance.
● The Federal Court had limited appellate jurisdiction, allowing appeals from the
decisions of the High Courts. An appeal to the Federal Court was permitted if the High
Court certified that the case involved a substantial question of law related to the
interpretation of the Constitution.
● The Federal Court had the power to grant special leave to appeal, but a certificate
from the High Court was required for such an appeal.
● Section 208 of the 1935 Act provided for an appeal to the Privy Council from the
decisions of the Federal Court.
● In constitutional matters, both the Federal Court and the Privy Council had the
authority to decide cases. However, after 1937, appeals to the Privy Council were only
allowed in civil cases exceeding ₹10,000.

1. Abolition of the Privy Council jurisdiction in respect ofIndian cases

● The issue of abolishing appeals from Indian High Courts to the Judicial Committee of
the Privy Council had been under consideration for a long time.
● In 1933, the British government issued a White Paper proposing constitutional reforms
in India.
● The White Paper suggested the establishment of a Supreme Court, separate from the
Federal Court, to hear final appeals from the Indian High Courts.
 ● The Government of India Act of 1935 implemented the establishment of the Federal
Court and expanded its jurisdiction to potentially encompass higher appellate
functions in the future.
● Instead of creating a new higher appellate court, the Act focused on strengthening the
role and jurisdiction of the Federal Court.

2. The Federal Court (Enlargement of Jurisdiction) Act, 1948

● The British Parliament declared India as an Independent Dominion on August 15, 1947.
● Due to this declaration, it was necessary to make changes to the old system of appeals
to the Privy Council.
● The Central legislature of India passed the Federal Court (Enlargement of Jurisdiction)
Act in 1948.
● The Act expanded the appellate jurisdiction of the Federal Court in all civil cases, in
accordance with Section 206 of the Government of India Act, 1935.
● The Act abolished the previous system of filing direct appeals from the High Courts to
the Privy Council, both with and without special leave.
● However, the provisions of the Act did not apply to appeals that were already pending
before the Privy Council or cases in which special leave had already been granted by
the Privy Council.

3. Abolition of the Privy Council Jurisdiction Act, 1949

● The Constituent Assembly passed the law on September 24, 1949, which ended the
jurisdiction of the Privy Council in entertaining new appeals and petitions, as well as
disposing of pending appeals and petitions.
● The jurisdiction of the Privy Council ceased to exist from October 10, 1949, except for
the appeals that were set down for hearing during the next sitting of the Council.
● Six appeals that were pending before the Privy Council at that time were transferred
to the Federal Court of India.
● Section 5 of the law granted the Federal Court all the powers and jurisdictions
previously held by the Privy Council in relation to hearing appeals from Indian High
Courts.
● This provision was considered an interim measure as the new Constitution of India was
being formulated.
● The case of NS Krishnaswami v. Perumal Goundan from Madras was the last appeal
from an Indian High Court that was decided by the Privy Council on December 15,
1949. The appeal, which involved a claim by ryots for permanent tenancy under the
Madras Estate Land Act, was dismissed by the Privy Council.

IV. PRIVY COUNCIL: A UNIQUE INSTITUTION

● The Privy Council played a significant role in shaping Indian law and the judicial
system from 1726 to 1949.
● It delivered over 2500 judgments during its existence and established fundamental
principles of law for guidance in Indian courts.
● The law declared by the Privy Council in the pre-Constitution period is still binding on
the High Courts, except when the Supreme Court of India has ruled differently.
● The Privy Council's contributions in the fields of Hindu Law and Mohammedan Law
are particularly noteworthy.
 ● Despite certain flaws in its constitution, such as being staffed by English judges and its
location in England, the Privy Council commanded great respect among lawyers,
judges, and the Indian public.
● The Privy Council's contributions to statute law, personal law, commercial law, and
criminal law were of great importance.
● Even in independent India until 1949, the Privy Council decided many important cases.
● The principles of integrity, impartiality, independence, and the rule of law set by the
Privy Council continue to be followed by the Supreme Court of India.
● The decisions of the Privy Council, while not legally binding on the Supreme Court, are
given great respect, and the High Courts are bound by them unless a contrary decision
by the Supreme Court exists.

Federal Court
I. Public Opinion and Early Efforts up to 1935
● The British Parliament considered the establishment of a central court of final appeal
in India under the Government of India Act, 1935.
● Sir Hari Singh Gour introduced a resolution in 1921 in the Central Legislative Assembly,
proposing the establishment of an all-India court of final appeal.
● Gour highlighted several points in support of establishing a court of final appeal in
India, including the advisory nature of the Privy Council, prohibitive expenses of
appeals, delays in case disposition, inadequacy in deciding cases involving Hindu and
Muslim laws, and limitations on hearing criminal appeals.
● Despite multiple attempts by Gour and others, the resolution and subsequent bills for
establishing a Supreme Court in British India were not successful.
● The Indian Central Committee and the Indian Round Table Conferences recognized the
importance of establishing a Supreme Court in India.
● In 1931-1932, the Legislative Assembly of India passed a resolution for the
establishment of the Supreme Court in India.
● The Joint Select Committee of both Houses of Parliament recommended the
establishment of one Federal Court in India in its report in November 1934.
● The Government of India Act, 1935, was passed by the British Parliament, which
included provisions for the establishment of a Federal Court of India.

II. Foundation of the Federal Court

● The Government of India Act, 1935, transformed the Indian government structure from
unitary to federal.
● The Act laid the foundation for a federal framework in India, involving a distribution of
powers between the central government and constituent units.
● The establishment of a Federal Court was deemed essential under the federal
constitution.
● Section 200 of the Government of India Act, 1935, provided for the establishment of a
Federal Court in India.
● On October 1, 1937, the Federal Court was inaugurated in Delhi, with Sir Maurice
Gwyer as the Chief Justice and Sir Shah Mohammed Sulaiman and Mukund Ramrao
Jayakar as puisne judges.
● The jurisdiction of the Federal Court was limited, and appeals were still allowed to the
Privy Council in certain cases.
● The Federal Court was a court of record and held sessions in Delhi and other
designated places.
● The appointment of judges to the Federal Court was made by the king and initially
consisted of a Chief Justice and up to six puisne judges.
● Qualifications for a judge included five years' experience as a High Court judge, 10
years' standing as a barrister or advocate, or 10 years' standing as a pleader in a High
Court.
● The salaries, allowances, leave, and pensions of the judges were determined by His
Majesty, with the Chief Justice receiving a salary of £7000 per month and other judges
receiving £5000 per month.

1. Jurisdiction of the Federal Court

● Original jurisdiction:
○ Confined to disputes between units of the Dominion or between the Dominion
and any of the units.
○ Could not entertain suits brought by private individuals against the Dominion.
○ Decisions were not enforceable directly but with the aid of civil and judicial
authorities.
○ Appeals allowed to the Privy Council if the decisions involved interpretation of
the Constitution Act or any Order-in-Council.
● Appellate jurisdiction:
○ Constitutional cases:
■ Appeal from any judgement, decree, or final order of a High Court if
certified by the High Court.
■ No appeal without a certificate.
■ The Federal Court criticised certain High Courts for issuing certificates
in cases where none should have been issued.
■ Empowered to hear appeals from High Courts in acceding States on
constitutional matters.
○ Civil cases:
■ From 1948, civil appeals previously going to the Privy Council were heard
by the Federal Court.
■ Appeals to the Federal Court with or without special leave, no appeal to
the Privy Council.
○ Criminal matters:
■ Federal Court's jurisdiction in criminal matters followed the principles
laid down by the Privy Council.
■ No provision for appeals to the Privy Council in criminal proceedings as
of right, except with special leave from High Court judgments.
■ Three Presidency High Courts had the power to grant certificates for
appeals to the Privy Council.
■ The Federal Court followed the same principles as the Privy Council in
granting leave to appeal in criminal cases.
● Advisory jurisdiction:
○ Federal Court empowered to give advisory opinions to the Governor-General.
○ Governor-General not bound to accept the opinion.
 ○ The Federal Court is not bound to give its opinion in every reference, but should
not refuse except for good reasons.
○ Gave advisory opinions in four cases, expressing some misgivings about the
consultative role.

2. Form of Judgement
● Execution of judgments:
○ The Federal Court had no machinery of its own to execute its judgments.
○ It sent the case with its decision back to the respective High Court.
○ The High Court substituted the order of the Federal Court for its own order.
● Amendment through the Privy Council (Abolition of Jurisdiction) Act, 1949:
○ Amended the provisions of Section 209 of the Act of 1935.
○ Made the Federal Court's orders enforceable in the manner provided by the
Civil Procedure Code or any law made by the Dominion legislature.
● Supplementary powers:
○ Section 215 empowered the federal legislature to provide supplementary powers
to the Federal Court.
○ These powers should be necessary or desirable for effectively exercising the
jurisdiction conferred upon the court under the Act of 1935.
○ The supplementary powers should not be inconsistent with any of the Acts.

3. Authority of law laid down by the federal court

Government of India Act, 1935:
● Section 212 introduced the English Doctrine of Precedent in India.
● Law declared by the Federal Court and judgments of the Privy Council were binding
on all courts in British India.
● High Courts and subordinate courts in British India were absolutely bound by the
decisions of the Privy Council and the Federal Court.
● Courts in India were not allowed to question the principles enunciated by the Privy
Council.
Constitution of India:
● Article 374(2) was inserted to settle the position regarding the authority of law laid
down by the Federal Court.
● Suits, appeals, and proceedings pending in the Federal Court were transferred to the
Supreme Court.
● Judgments and orders of the Federal Court delivered before the Constitution's
commencement were given the same force and effect as if made by the Supreme
Court.
● Decisions of the Federal Court were not binding on the Supreme Court but were
entitled to great respect.
● The Supreme Court had the power to take a different view from the decisions of the
Federal Court and the Privy Council.
● Article 374(2) was a transitory provision to meet the situation after the abolition of the
Federal Court and the establishment of the Supreme Court.

4. Expansion of Jurisdiction
 ● The Federal Court of India was initially given limited jurisdiction under the Government
of India Act, 1935.
● The Indian Independence Act, 1947 resulted in a geographical reduction in the
jurisdiction of the Federal Court, as areas that became part of Pakistan were excluded.
● Indian leaders decided to follow the Act of 1935 as the governing framework until a
new Constitution was drafted.
● The Federal Court and High Courts continued as subordinate courts to the Judicial
Committee of the Privy Council for the time being.
● In December 1947, the Federal Court (Enlargement of Jurisdiction) Act, 1947 was
passed to meet the growing national demand and satisfy public opinion in India.
● The Act enlarged the appellate jurisdiction of the Federal Court, allowing civil appeals
from the Indian High Courts.
● The old system of direct appeals from the Indian High Courts to the Privy Council was
abolished.
● Civil appeals from the Federal Court to the Privy Council were still possible.
● The Act did not sever India's ties with the Privy Council, as the Privy Council retained
its jurisdiction in other matters and could grant special leave in civil cases even after
the judgement of the Federal Court.

III. Abolition of the Federal Court

● In 1949, the Constituent Assembly of India decided to grant full judicial autonomy to
the Indian judiciary.
● The draft of the new Constitution of India was nearing completion, and a smooth
transition was desired.
● The Abolition of the Privy Council Jurisdiction Act was passed by the Assembly in 1949
to sever all connections between Indian courts and the Privy Council.
● The Act came into force on October 10, 1949, and repealed Section 208 of the
Government of India Act, 1935, which provided the basis for the Privy Council's
appellate jurisdiction over the Federal Court.
● Pending appeals, except those at an advanced stage, were transferred to the Federal
Court of India for final disposal.
● The last appeal heard by the Privy Council was on December 15, 1949, in the case of
N.S. Krishnaswami v. Perumal Goundan.
● Following the enactment of the Act in 1949, the "Period of Federal Courts' Golden Age"
began, lasting until the establishment of the Supreme Court of India on January 26,
1950.
● Under the Constitution of India, the country became a "Sovereign Democratic
Republic."

IV. Federal Court : An Assessment

● The Federal Court of India was established in October 1937 and was replaced by the
Supreme Court in 1950.
● Despite its short existence of a little over 12 years, the Federal Court had a significant
impact on the legal history of India.
● It was the first constitutional court and the first all-India court with extensive
jurisdiction.
● The court was created as an important component of the Federation envisioned by the
Government of India Act, 1935.
● Despite the transitional period without a written constitution and the absence of
essential federal agencies, the court operated successfully and effectively.
● The court played a crucial role in unifying 11 Indian Provinces into an organic whole,
highlighting its importance in challenging circumstances.
● The Federal Court had two English Chief Justices and six Indian Justices during its
existence.
● The judges, both English and Indian, upheld noble traditions of independence,
impartiality, and integrity.
● They contributed significantly to the establishment of a strong federal judiciary in
India.
● The Federal Court's commitment to independence and integrity set a solid foundation
for its successor, the Supreme Court of India.