Module 1

LEGAL HISTORY OF ANCIENT AND MEDIEVAL

PERIOD IN INDIA
Module 1

Ancient India

Historiography
➔​ Art and skill of writing history
➔​ Historiography involves the charting of a graph depicting the evolution of progress of mankind in as
many spheres as there are human activities as well as the thought processes that create and encourage
them; ideologies
◆​ Ancient Indian Historiography
◆​ Medieval Indian Historiography
◆​ Modern Indian Historiography

Sources of information in Ancient India

➔​ Vedas- Revealed knowledge [Considered as Shruti- Heard forms of knowledge about eternal truth]
◆​ Rigveda-
●​ Brahma- Creator of the Universe
●​ How he created the varnas
●​ Purusha Sukta mentions the Varnas]
◆​ Samaveda- Verses
●​ Suktas- Musical Connotation
●​ Sung at time of sacrifices
◆​ Yajurveda
●​ Subject Matter of laws and legislations
◆​ Atharva Veda
●​ Popular beliefs of the time
●​ Superstitions
●​ How to overcome ‘evil’. To get rid of them
➔​ Vedangas
◆​ Ritualistic descriptions of ceremonies based on Vedic texts
➔​ Sutras-
◆​ Formulated on the bases of the evolving laws and legal principles
➔​ Smritis
◆​ Interpret and record existing laws
➔​ Upanishads
◆​ ‘Upa’ and ‘Nishad’ - To sit near someone and gain secret knowledge
◆​ Works of Pure Philosophies
◆​ 108 upanishads
➔​ Puranas
◆​ Oldest Purana- Matsya purana
◆​ Works on history including genealogy of kings
➔​ Koutilya’s Arthashastra
 ◆​ Chanakya’s works
◆​ Secular Political Theory
➔​ Foreign Travellers Writing
◆​ Chinese travellers
◆​ Indica

Origin of State
➔​ Present Form of State
◆​ Federalism
◆​ Fundamental rights and duties
◆​ Secularism
◆​ Equality
◆​ Representative government with Universal Adult franchise
◆​ Separation of powers between Legislature, Executive and Judiciary,
◆​ Directive principles policy etc.- Defining nature of society and government
➔​ Ancient Form of State
◆​ Starting from Aryan Institution

Nature of State in Early Vedic Period

➔​ From Family to Tribe
◆​ Grama- Family Unit
◆​ Vis- Multiple Gramas (Visapati is the head of a Vis) (equivalent to a clan)
◆​ Jana- Multiple Vis (Janapati is the head of a Jana) (Equivalent to a tribe)
➔​ Emergence of Kingdoms
➔​ Aim of State
◆​ Dharma- Morality, Righteous Living
◆​ Artha- Economy Development
◆​ Kama- Pleasure. Enjoyment of the fruits of one’s labour
◆​ Moksha- Peace. Spiritual Salvation
➔​ Function of State: Protection of people’s life and property and public welfare
➔​ Role of Sabha, Samiti, Vidhata and Mantri Parishad
◆​ Sabha- A gathering of the general population of the tribe or clan to discuss
◆​ Samiti- Gathering of experienced advisors to make constructive decisions. Headed by the King.
◆​ Mantri Parishad- Specific portfolios given to people; ‘mantri’. Supervised by the King, and the
newest model of gatherings for discussion and implementation. Samitis are known to have
dissolved after the Mantri Parishad was established.
◆​ Vidhata- A body said to be older than all. Issues of the tribe were discussed. Only people with
great expertise gathered to discuss and deliberate. Unlike the Samiti, a Vidhata was not headed
by a king and was a neutral body
➔​ Evolution of Absolute Monarchy
◆​ After Janas became wider and larger in size, conflicts broke out.
◆​ This led to the general public to ‘pray’ for a saviour to the gods.
◆​ It is said that out of this belief, the King was established.
◆​ This led to the monarchy system and eventually absolute monarchy
➔​ Emergence of the Mauryan Empire
◆​ The Nandas of Magadha were dethroned by the Mauryas using ‘Chanakya Neeti’; strategies of
Chanakya
 ◆​ Notable for welfare schemes, strategies, political reformation
➔​ Saptanga theory of the nature of State
◆​ Saptanga was mentioned in the Manusmriti and the Shukracharya Smriti
◆​ The seven limbs, or Saptanga were-
●​ Swamin: The ruler or leader
●​ Amatya: The council or bureaucrats
●​ Janapada/ Pur: The territory and people
●​ Durga: The fortress or defensive power
●​ Kosha: The treasury or economic power
●​ Danda/ Bal: The military or offensive power
●​ Mitra: The ally
➔​ Control on King’s powers: Constitutionalism

Constitution and Constitutionalism

➔​ Centralised to Decentralised administration
➔​ The Constitution is a legal document that lays down certain guidelines for the organs of government.
➔​ Constitutionalism: The theory by which the powers of the government can be controlled.
➔​ Rule of Law: Nothing is above the Constitution; Supreme Law
➔​ Doctrine of Basic structure: Certain fundamental features of a constitution cannot be changed by a
legislature

Council of ministers under vedic period

●​ Vedic Period
○​ Purohit
○​ Senani
○​ Suta
○​ Gramani
○​ Bagduk
○​ Sangrahita
●​ Post Vedic Period
○​ Purohit
○​ Pratinidhi
○​ Pradhan
○​ Pradavivaka
○​ Sachiv
○​ Senapati
○​ Amatya

Legal Institutions in Ancient India

➔​ Vedic Age: Sabha and Samiti
➔​ Collective and Personal Justice
➔​ Rise of Monarchy
◆​ State Courts
◆​ King’s Court
◆​ Stationary Court
 ◆​ Kantakshodhana Court
◆​ Popular Courts
➔​ Modes of decision
◆​ Dharma
◆​ Vyavahara
◆​ Rajashasana
◆​ Charitra
➔​ Court procedure mentioned in Narada Smriti
➔​ Forms of Punishment
◆​ Eye for an Eye
◆​ Blood Money
◆​ Cattle
◆​ Dharna- Protest
◆​ Compensation
➔​ Rise of Monarchy and Justice
➔​ State’s Duty to maintain law and order
➔​ Courts-
1.​ State Court
●​ Funded and organized by the state
●​ State laws are adhered to
●​ Hierarchy-
○​ King’s Court- King, Sabhyas
■​ Inquisitorial System
■​ Investigators known as Sabhyas- Equivalent to Jury [Not in terms of
decision-making, but in terms of what the majority opinion they provide
is. Sabhyas provided information to the court]
○​ Fixed and Stationary or Circuit Court- Adhyakshya
○​ Kantakshodhana Court- Pradeshtis
■​ ‘To find a thorn’
■​ Related to usually petty offences and crimes such as food adulteration,
misplacement or forging of documents, fraud, etc
 2.​ Popular Court
●​ Run by the People
●​ Based upon rules of the society
●​ Village Panchayat
○​ Head of the village would be the mediator
●​ Gana/ Puga
○​ Heterogeneous Society
○​ For Multiple Village Panchayats
○​ Usually a court for the district
●​ Kula- Family Court (Role of Gopa)
○​ Gopa was a representative sent by the king during the Mauryan Empire
○​ The Gopa would not mediate, but spectate the dispute and inform to the king
○​ Mention in Arthashastra
●​ Shreni- Representing Merchants and Craftsmen
○​ Own set of Rules

Law in Ancient India

●​ Evolution of Law in Ancient India
○​ Karma and Patriarchal Nature
●​ Four Ashramas
○​ Brahmacharya
○​ Grihasthashram
○​ Vanprasthashram
○​ Sanyas Ashram
●​ Foundation of Ancient Indian Legal Theories
○​ Ruta- Natural Law
○​ Satya- Truth
○​ Dharma- Duty
●​ Origin of Law
 ○​ Worshipping ancestors and Rituals at stages of life
○​ Customs

Sources of Hindu Law

➔​ Vedas
➔​ Dharmasutra/ Vedangas-
◆​ Duties, Stages of Life
◆​ Women
◆​ Civil and Criminal Law
◆​ Varna System
➔​ Dharmashastra/ Smriti- Manusmriti
◆​ Dharmashastras are more structured than Dharmasutras
➔​ Custom and Usage
➔​ Priya Atma- Good Conscience (Morality)
➔​ Royal Edicts
◆​ With the rise of monarchy (rajya shashan), the role of order of king or royal edicts (man-made
law) grew in importance
◆​ These cannot be questioned, despite the morality of it
◆​ Eg.: Ashoka’s Royal Edicts

Role of Parishad
➔​ The role of Parishad is Interpreting rather than Commanding
➔​ 8- 10 people who have the knowledge of Vedas
➔​ They should be able to analyse societal issues using the Vedas and aptly apply and resolve
➔​ Members who belonged to Brahmin, Kshatriya or Vaishya varnas
➔​ Advisory body
➔​ Interpretation of Existing Laws

Classification of Law
●​ Civil Law- Debt, Interest, Commercial Law, Deposits
●​ Criminal Law- Offences and Punishments based on varna
○​ Mention of Crimes such as
■​ Violence
■​ Robbery/ Theft
■​ Arson
■​ Treason
■​ Defamation
■​ Murder
■​ Offences against State
○​ Offences were classified into petty and grave (nishthur)
○​ Popularity of Retribution Theory (Eye-for-an-eye) waned but not completely or officially
abolished
●​ Property Law
○​ Division of shares amongst the family
●​ Inheritance Law- Manu and Yajnavalkya Smriti
Society in Ancient India
➔​ Impact of Race, caste, religion, economic status and occupation on Society
➔​ Theories on basis of caste system
◆​ Racial Origin Theory
◆​ Occupation Theory
●​ Caste System in India
●​ Indus Valley Civilization
●​ Buddhism and Jainism

The Indus Valley Civilization

Medieval India
●​ Medieval India was considered to be a multicultural and multireligious period
○​ The Sultanate in the North
○​ The Kingdoms in the south
○​ Portuguese in the West
●​ Trade was quite developed during this period and thus travel logs and texts can be found such as-
○​ Amir Khusroh
○​ Kalhana- Rajat Rangini
○​ Court Historic Records
○​ Ain-i-Akbari
The Sultanate (1206- 1526)
‘Slave’ Dynasty/ Mamluk Dynasty (1206-1290)
◆​ Qutubuddin Aibak
●​ Mamluk Dynasty (Slave in Arabic- ‫)مملوك‬
●​ 1206-1210
◆​ Iltutmish
●​ 1210-1236
●​ Shifted capitals from Delhi to Lahore
●​ Completed constructions started by Aibak
●​ Established a system of nobles who aided the Sultan in administration
●​ Started the Coinage System
◆​ Razia Sultana
●​ First Ever Sultana of India
●​ 1236-1240
◆​ Noble Rule for 6 years
◆​ Naseeruddin Mahmood
●​ 1246-1260
◆​ Ghiyas Ud Din Balban
●​ Previous Prime Minister
●​ “Greatest” Sultan
●​ Abolished the Nobles System or Chahal Ghani
●​ Introduced Various Persian Systems and Cultures in India
●​ Diwan-i-Ariz
●​ Recognized crimes such as Dacoity and Robbery and introduced harsh punishments
◆​ Muiz ud din Qaiqabad
Khilji Dynasty (1220- 1325)
◆​ Jalal-ud-din Khalji (1220- 1296)
●​ Invading Devgiri
●​ Attempting to lay siege to Ranthambore Fort
◆​ Alauddin Khalji (1296- 1316)
●​ Son in Law and Nephew of Jalal-ud-Din
●​ Killed off Jalal-ud-Din
●​ Notable for expansion
●​ Diwan-i-Mustakhraj- Department of Finance
●​ Conquered Chittor and Dwar Samudra
●​ Curbing rebellions
●​ Administrative reforms
●​ Architectural achievements
◆​ Qutbuddin Mubarak Shah (1299-1320)
●​ Murdered by Khusrau Khan
◆​ Khusrau Khan
●​ Murdered by Ghiyath al-Din Tughlaq
Tughlaq Dynasty (1325- 1351)
◆​ Ghiyath al-Din Tughlaq
●​ Tughlakabad- He added new city near delhi
 ●​Courier system upgraded with horses
●​Gave importance correspondence and communication
●​His son was Jun Khan
●​After his death, the prince, Jun Khan, who was renamed as Mohammed Bin Tughlaq
became second Sultan
◆​ Mohammad bin Tughlaq
●​ Literate and philosopher
●​ His administration was cruel and unjust for 26 years
●​ Imposition on other religions
●​ Records by traveller Ibn Batuta
●​ Introduction of token currency
○​ Did not monopolise so anyone could mint currency
○​ There was no authenticity
○​ Had great toll on treasury
●​ Transfer of capital from Delhi to Devagiri.
○​ He wanted every person to be shifted to Devagiri
○​ Due to unfavourable conditions of Devagiri, many citizens died
○​ He made everyone to shift back to delhi
○​ Due to which, life and property was loss
○​ Because of the loss of treasury he increased the amount of taxes
○​ He started giving loans based on land (Agricultural loans)
●​ Died in desert area due to sun stroke while fighting Tagi (1351)
◆​ Firoz Shah Tughlaq (1351-1389)
●​ Jizya tax was reintroduced
●​ Destructed temples Jwalamukhi temple
●​ He translated hindu scriptures in islam because he wanted to understand
●​ Father of irrigation> he linked many rivers
●​ Created departments​
○​ Diwan- i- Khairat- Charity
○​ Diwan-i- Bandagan- For Slaves
●​ Ikta Daari System- Division System for Administration
●​ Died 1389
◆​ Mohammad Shah
●​ He had linkages with Mongols
●​ He came and looted Delhi, took many artisans from india
●​ Mohammad shah was defeated by the Sayyed Dynasty
Sayyed dynasty (1414-1451)
●​ They were from Afghanistan
●​ The last Sayyed, Alam Shah was a philosopher
●​ Voluntarily abdicated the throne and give it to Lodi because he wanted to live a peaceful
life in 1451
Lodi dynasty (1451-1526)
◆​ Last Sultanate in India
◆​ Bahlul Lodi
●​ Bahlul Lodi was the Founder
●​ He was succeeded by Sikander Lodi
◆​ Sikander Lodi
●​ No Religious Tolerance
 ●​ Shifted the capital from Delhi to Agra
●​ Imposed restrictions on Hindus
●​ Succeeded by Ibrahim Lodi
◆​ Ibrahim Lodi
●​ He had differences with the nobles
●​ Taking advantage of this situation, his own relative Daulat Khan Lodi and the Mewar
King Rana Sangha invited Babar to invade India
●​ 1526- First war of Panipat

Mughal Empire (1526–1857 )

◆​ Babar (1526-1530)
●​ Babar defeated Lodi
●​ Mughal empire started in India
●​ Babar was the founder
●​ Strategy of functioning and war was similar to the Ottomans
●​ He expanded mughal kingdom
●​ He has his biography, was written in turkish language
●​ Succeeded by his son Humayun
◆​ Humayun (1530-1540)
●​ Was not as strong as Babar
●​ He caused a financial crisis and load on the treasury
●​ Various invasions were started during his time
●​ One of them was Sher Shah Suri
●​ He escaped the first battle, but was caught and defeated in the second battle of Chosa
and Kannauj
◆​ Sher Shah Suri (1540-1555)
●​ Suri ruled for 15 years
●​ Sher Shah was a Title.
●​ Various administrative reforms
●​ Created various departments
○​ Wazir Diwan-i-Wizarat:Home Ministry and Finances
●​ - diwan i ariz department for army
●​ - foreign minister diwan i risalat
●​ - communication diwan i insha
●​ - territories were divided into sarkar. two important people. shikdar to maintain law
and order.(military officer) judge munsif to
●​ - accountants karkun
●​ The Grand Trunk road was extended
●​ Purana Killa was made during his time
●​ With the help of Iran, Humayun defeated Sher Shah suri in 1555
◆​ Humayun
●​ 55 to 56 humayun came back
●​ - after 6 months he died from falling from the stairs
●​ - succeded by his 13 yr old son akbar
◆​ Akbar
●​ Diwan i Risalat
○​ Religious Matters
 ○​ Headed by the Sadur U Sudur
●​ Diwan i Arz
○​ Headed by the Ariz
●​ Diwan i Inshah
○​ Department of Correspondence
○​ Headed by Dabir e Khas
●​ Government Under Akbar’s Reign (Ministry)
○​ Diwan- Revenue
○​ Mir Bakshi- Military
○​ Khan I Saman- Public Works
○​ Sadr- Religion, Justice, Education, Charity
○​ Auditor, Judge, Legal Advisor, Censor, etc
○​ 15 Provinces- Called Subhas headed by Subhedars
◆​ Subhas
◆​ Sarkars
◆​ Parganas
●​ Change by Akbar
○​ Wazir
○​ Revenue and Military- Separate
○​ Ahadi Troops
○​ Freedom from Jizya Tax
○​ Improvements in the Iqta System, Mansabdari System
○​ Respecting other Religions. “Secular King”
○​ Land Revenue- Dahsala System
○​ Mansabdari System
●​ Ibadat Khana
○​ Scholarly discussions
●​ Dahsala System
○​ Headed by Todar Mal
●​ Abolished Jizya
◆​ Jehangir
●​ Allowed the British to trade in India
●​ It is said that it was in fact Noor Jahan, Jehangir’s wife, was the one who managed this
era
◆​ Shah Jahan
◆​ Aurangzeb
●​ Military campaigns

Maratha Empire (1674-1818)

◆​ Ashtapradhan Mandal
●​ Peshwa- Validating Royal Documents
●​ Amatya- Finance
●​ Sachiv- Secretariat and Land Revenue
●​ Mantri- Home Minister
●​ Senapati/ Sarnobat- Commander of Forces
●​ Panditrao- Religious Affairs
●​ Nyayadhish- Chief Justice
 ●​ Sumant- Foreign Minister

Legal Institution in the Vijayanagar Empire (1336- 1646)

➔​ Capital in Hampi
➔​ They had a king’s court, known as Mukhya Sabha and Amukhya Sabha
◆​ Mukhya Sabha had regular sessions and cases
◆​ Amukhya Sabha had irregular session, with special cases
➔​ They had stationary court (Pratisthita Courts) and circuit courts (Apratisthita Courts)
➔​ When the king is the judge of the court, it was called as Shastrit court. If not, when the court was
headed by an Appointed Judge with a Mudra (Seal) it was called Mudrit Court

Legal Institutions in Medieval Times in the Sultanate

●​ Notion of Islamic Justice
●​ Duty of Sultans as- ​
○​ Final Arbitrators
○​ Head of Bureaucracy
○​ Head of Military
●​ The Hanafi School of Law
○​ This was the school of law that was practiced in India
○​ It helped the Islamic kings to rule over the non- Islamic subjects without conversions
●​ 7 Courts of Justice Department
○​ Diwan-i-Qza: Chief Justice
■​ Handled the serious offences that were not handled by other specialised courts
○​ Diwan-i-Mazlim- Chief of Bureaucracy
■​ It only dealt with administrative matters
○​ Sultan- Martial Law
○​ Qazi-i-Mumalik- Crimes against God
■​ Headed by Qazi
■​ Dealt with matters of Hadd (Crime against god)
■​ Such as Blasphemy or Disrespect to God
○​ Amir- Dad: To summon and implement decisions of Qazi
■​ Worked to implement rulings of Qazi
○​ Kotwal- Police Officer
■​ Overlooked the implementation of decisions personally
■​ Worked as an investigative body
○​ Muhtasib- Residuary Court
■​ Petty offences

Legal Institutions in Medieval Times in the Mughal Empire

Legal Institution in the Maratha Empire
➔​ The Maratha Empire had the final jurisdiction powers
➔​ The Nyayadhish was the Chief Justice, and was the one who would give the final order
➔​ Peshwa works as the Supreme court to oversee
➔​ The Subhedar had territorial jurisdiction over his own Subha, with a Mutaliki (Seal)
➔​ The Mutsaddi would try petty offences
➔​ Religious Court in Maratha Empire was known as Brahmasabha or Jati Sabha

Law in Medieval India

➔​ Mitakshara and Dayabhaga School of Law
➔​ Rise of Islam in Arabia

Islamic Law
➔​ Sources of Muslim Law
◆​ Koran- All Aspects of Faith
◆​ Hadeees and Sunnah- Legal Principles derived from Story/ Occurrence (Sunnah are Legal
Principles derived from certain occurrences called as Hadees)
◆​ Ijma- Consensus of Jurisdiction (Precedent)
◆​ Qiyas- Analogical Deduction
➔​ Doctrine of Ijtihad- One's own Exertion. (Comments of a Mujair; scholar; can be imbibed in the law)
➔​ Sunni and Shia school
➔​ Five Pillars of Islam
◆​ Kalma- Basic principles/ laws that every muslim should follow
◆​ Zakat- Donations and Charity
◆​ Namaz- Prayer
◆​ Roza- Fasting
◆​ Haj- Pilgrimage
 ➔​ Hegira- First Year of the Islamic Calendar
➔​ Mecca was the place where Prophet Mohammed got the revealed knowledge in his dream by Angel
Gabriel/ Jibra- ee
➔​ With the help of the native tribes of Mecca, Prophet Mohammed, who had previously left for Medina,
came back to Mecca
➔​ Calif/ Khalifa codified the teachings of Prophet Mohammed
➔​ Right of Women
➔​ 4 schools of law under Sunni
◆​ Hanafi
◆​ Hanbali
◆​ Malikiya
◆​ Shafiyya
●​ Hanafi was the school of thought that was used in India since-
○​ It had a scope for flexibility
○​ Reasoning
○​ Jurists would opine that legal principles that legal principles should be based on
purpose, reason, utility and usefulness
○​ It relies on Qiyas as a source of law
➔​ Istihsan- Doctrine of Equity
➔​ In comparison to Islamic law
◆​ Indian law was more reasonable
◆​ Women had the right to property
◆​ Indian law has still remained reasonable while Islamic law has become rigid

Hindu- Muslim Coherence in Medieval India

➔​ The coherence between Hinduism and Islam can be seen with movements such as Bhakti and Sufi.
These movements were flexible, and weren’t restricted to any religion per se. These movements had
the aim of bringing everyone together and to bring Moksha to all, regardless of your religion or belief.
➔​ New forms of prayer such as Kawali were introduced.
➔​ Rulers would adopt a secular justice system, ensuring fair justice to all
➔​ This was how a Common law System was introduced
➔​ Then the British arrived.
Module 2
HISTORY OF COURTS AND LEGISLATURE DURING
EAST INDIA COMPANY’S RULE
Module 2

Timelines
➔​ When the European traders arrived in India, it was the rule of Akbar.
◆​ Dutch
◆​ French
◆​ Danish
◆​ Spanish
◆​ East India Company
➔​ 1601-1857 Entering of East India Company
➔​ Revolt of 1857
➔​ The Crown took over in 1857 till 1947

Development of Authority for East India Company

Charter of 1600
❖​ In December of 1600 (31st December), the Crown granted a charter to the East India Company to
trade in India
❖​ They needed the permission of the local sovereign
❖​ Hence, for the first twelve years, the EIC did not have a permanent settlement
❖​ In 1612, Shah Alam let them have have their settlement in his kingdom, Surat
➢​ Surat was advantageous to the EIC because
■​ It is a port city
■​ It had great riches
■​ Surat, since it was a port city, was a stopover point for many travellers, such as Haj
tourists to Mecca. It had great footfall
■​ In Surat, the EIC set of their factory
●​ A factory was a place where their officers and workers resided
●​ It was a commercial as well as residential area
❖​ They were granted trading Rights
❖​ Legislative Power
➢​ They were granted the power to make reasonable laws for anyone working for the East India
Company
➢​ This only applied to the company servants
➢​ They were allowed to make by-laws that benefited them
➢​ There was a Royal Commission to adjudicate on their voyages
➢​ This was in accordance to English law, so any law not in accordance could be struck down
➢​ They were granted 15 years of trade rights in the charter by The Crown.
■​ If the company failed to gain profit, they would be given a 2 year notice, or they would
be asked to return
Charter of 1609
➔​ Privileges in Perpetuity
➔​ 15 more years of trading rights were granted to the EIC by The Crown
➔​ 1616- Criminal Trial[ of Henry Lelliton
◆​ Henry Lellington was tried for murder by
➔​ 1618- Treaty between EIC and Jehangir
◆​ It was a Farman granted by Jehangir
◆​ This treaty was to grant the EIC greater legislative power.
◆​ James I was the Crown at the time
◆​ Thomas Roe was the one who negotiated this treaty
◆​ The treaty stated about
●​ Trading Rights
●​ Legislative rights
●​ Criminal Proceedings
○​ The Criminal Proceedings talked about which legislation would apply in case of
crimes.
◆​ EIC
●​ Open practice of Christian Religious practice for allowed
●​ The Role of Native Local Authorities
○​ The local governor would grant them protection

Courten’s Association and Joint Stock Merger

➔​ Charter of 1635
◆​ Another trading company, known as the Courten’s Association was also granted trading rights
in India by the Crown
◆​ Till now, EIC was the only British trading company in India
◆​ Due to competition, conflicts started arising between the two
◆​ Hence, in 1657, with the charter of Joint Stock Company, a merger occurred between the two

Charter of 1661
➔​ Territorial lines and structure
➔​ Legislative power of the Company
➔​ Right to administration
➔​ Appointment of Officers
➔​ Security
➔​ Judicial Administration
➔​ Punishment according to English Law
➔​ Analyzing the Charter

Transition from Trading Body to Territorial Power- Company Settlements

●​ They first came to Surat
○​ They were living in temporary residences
○​ No official land was granted to them
●​ Then they came to Madras in 1639
Madras
●​ The local king, Raja Chandragiri granted them the land in Madras called Madras Patnam
●​ Francis Day negotiated the land
●​ With the area given to them, the EIC built their factory at Fort St. George
■​ That area came to be known as White Town
■​ The local area was called Black Town​
○​ The chief administrator in the fort was called as Agent
■​ There was also a council to aid the chief administrator
■​ This Council also did judicial work
●​ Choultry court in Black town for the locals
○​ The village head (Adigar) would preside over this court
●​ The issue arised when the case when the case was between an an Englishmen and a local
○​ The governor of Choultry court, Kannappa was found to be accepting bribes
○​ Raja Chandragiri then allowed him to be replaced with an Englishman, Fox Croft
○​ Both Choultry court and St. George’s Fort were controlled by the British
●​ First English Governor : Fox Croft
○​ Impact of Mrs. Dawes case
■​ There was an absence of regular and systematic administration of justice
■​ Mrs. Dawes of the EIC was accused of murder of an Indian maid
■​ She was found guilty by the council in St. George
■​ The punishment for murder was the death penalty
■​ To go through with the same, permission had to be taken from the Jury in England
■​ The English Jury found Dawes not guilty and was acquitted
■​ Post this, St, George’s fort wrote a letter to the head of the EIC, asking to grant them
legal authority
■​ After asking permission from Raja Chandragiri, he granted them permission to have
their legal authority imposed according to English law.
●​ Second: Streyn Sham
○​ He reorganized the Judicial System in Madras Post 1678
○​ The system would consist of Governor, his council and 12 jury members, who will sit twice a
week
○​ It was made as an appellate court, the case could also come from the Choultry court
○​ They recording of data started being recorded
○​ The entire Choultry court was now presided upon by Englishmen
○​ So now, the entire judicial control of Madras Patnam was in the hands of the English.
○​ They made English as their official language
○​ With this, came the issue of undertrial of prisoners

Bombay
●​ In 1534, the Portuguese acquired islands of Bombay from the Nawab of Gujarat, Bahadur Shah
●​ In 1661, when King Charles married Catherine de Braganza, Princess of the Portuguese, he was
handed Bombay in dowry at a nominal rent.
●​ So Bombay now belonged to the crown
●​ Bombay at the time was not an important place, since the primary occupation was fishing, and was
separated from the Mainland
●​ In 1668, with the Charter of 1668, Bombay was handed to the EIC by the crown.
 ●​ They were given legislative power over the islands, which had to be in accordance with the English
Law
○​ Establishment of the Court of Judicature
○​ Regarding executive governance, since Bombay was a territory of the Surat settlement, the
Governor of Surat would also act as an Ex-Officio Governor of Bombay
○​ There was also a Deputy Governor who would only govern over Bombay
○​ There was a President of each settlement, who would only look over the functions of the
company matters
■​ George Oxenden, President of Surat settlement issued a Company Order to establish
Executive Government in Bombay
■​ Thomas Papillon drafted the Rules for Bombay
■​ Governor of Surat/ Ex-Officio Gerald Aungier guided Papillon in Drafting the Rules for
Bombay

1670- Judicial Reforms in Bombay

➔​ Drafted by Thomas Papillon and Gerald Aungier
➔​ Section of Laws
1.​ Religious Freedom
2.​ Impartial Administration of Justice
3.​ Establishment of Court of Judicature
4.​ Registration of Transactions
5.​ Miscellaneous provisions
6.​ Military Discipline and prevention of disorder

Division of Bombay Island

➔​ Bombay was divided into 2 parts
◆​ Mazgaon and Girgaon
◆​ Mahim, Sion, Parel, Worli
➔​ There was a Court of Judicature for each Division
◆​ It consisted of 5 judges
◆​ A customs officer (Englishman) as a judge
◆​ Appointed Indian Judges
➔​ The Hierarchy of the courts was-
1.​ From the Court of Judicature to the Court of Deputy Governor and Council
2.​ From Court of Deputy Governor and Council to President and Council at Surat
3.​ From President and Council at Surat to finally Governor of Surat and Council

Post Judicial Reforms of 1670

●​ There was a huge lacuna in terms of legal proceedings since there were no legal personnel available
●​ Hence, George Wilcox was appointed as a Legal Personnel
●​ Abolition of Portuguese laws and customs
●​ Court of Judicature as Central Court Independence, Impartiality and Equality Judicial Ethics
●​ Civil, criminal, testamentary matters Introduction of Attorney
●​ Bombay was divided into 4 divisions
○​ Establishment of Justices of Peace in each division, which acted as a court for Petty offences
■​ Petty issues with monetary value of less than or equal to 20 Xeraphins
○​ Court of Conscience
 ■​ It acted as a court for the poor, where they could not afford the legal fees
■​ A type of Pro Bono court
○​ This was the time when Attorneys started appearing in court on behalf of the client
●​ Keignwin’s Rebellion (1683)
○​ When the Maratha Empire’s Naval force attacked Bombay, Keignwin played a key role in the
Marathas’ defeat, thus making him popular
○​ A few years later, when the Company reduced the wages of the soldiers, these soldiers
protested and attempted to overthrow the judicial system, placing Keignwin in the position of
governor
○​
○​ After the rebellion, after the old judicial system was destroyed, the system of Admiralty Court
came to Bombay
■​ Dr. St. John Child was the Judge- Advocate and Chief Justice of Court of Judicature and
Admiralty court
■​ There was a conflict between the Governor and John Child over the theory of Judicial
Administration
■​ Then John Child’s power was limited as the Chief Justice/ Judge Advocate of Admiralty
Court. This court only dealt with mercantile and maritime matters.
■​ Vaux was appointed as the Chief Justice of Court of Judicature, which dealt with civil
and criminal matters
●​ 1690- Invasion of Siddi Yakub
●​ 1690- 1718
○​ Still under the control of EIC, but no sound administration
○​ No courts
●​ Revival of Court of Judicature in 1718
○​ Charles Boone helped reestablish the judicial system
■​ The composition of the court was as such
●​ One Chief Justice
●​ 5 English judges
●​ 4 Indian judges (regardless of their religion)
■​ Rama Kamati Case
●​ He was a servant of EIC for 30 years
●​ He was accused of having connections to the Maratha Naval Admiral, Kanhoji
Angre
●​ The EIC, in order to accuse Rama Kamathi, created and falsified evidence against
him
●​ A special tribunal was created to
○​ Drawbacks
■​ The Indian judges were just for namesake
■​ The Coram always consisted of 3 white men
■​ The Indian judges were never referred to in the decisions or involved in the final
decision making process.
■​ The Indian Judges were simply referred to as Black Judges, and their opinion was never
properly recorded or considered
■​ During 1718 to 1726, the practice of jury was also removed for death penalty for Indians
■​ Practice of Branding was also made common for grave offences
●​ The Mayor Court was established in 1726
Calcutta/ Bengal Settlement
●​ Calcutta was given to the Company by Prince Azim- us- Shah in 1690
●​ Three villages were handed to the EIC: Kalikat, Sutanati, Govindpur
●​ They were given Zamindari rights
○​ The Zamindaar was the collector
○​ They also had some judicial administration rights
●​ Calcutta became a Presidency Town in 1699
●​ The Company Fortification in Calcutta was called Fort William
●​ Judicial Administration
○​ Civil Cases: Court of Kacheri
○​ Role of Arbitrators
○​ Role of Natural Justice and Equity Principles
○​ There was also no codification of law
○​ This led to discrimination, where Engishmen were let off easy, even for grave offences, whereas
Indians were frequently and harshly persecuted against
●​ The EIC also gained the power to collect land revenue
●​ Hence, the concentration of power was now with the in the hands of the collectors
●​ EIC was known as the first area where they gained territorial sovereignty.

Charter of 1726
➔​ Authoritative Introduction of English Law in India
➔​ Application of English Law to Native Indians (Common and Statutory)
➔​ Conflict of Jurisdiction
◆​ Conflict of Power between the Governor and Judiciary
➔​ Bombay- Shimpy Case

Capture of Madras by the French

➔​ Madras was taken by the French in 1746
➔​ It briefly became a colony of Pondicherry and followed the French Civil Law
➔​ It was taken back by the EIC in 1747

Charter of 1753
➔​ To come up with a solution for the previous Charter
➔​ The Crown had to take a decision of whether the judiciary should be independent in the colonies
➔​ New court system was established
◆​ This court used to handle civil matters
◆​ But it was not available to natives, unless one of the parties is English
◆​ It followed the English legal system
◆​ The natives followed their own Ancient Indian legal system
◆​ The Mayor now appointed the Governor and Judiciary
➔​ There was a political change in Madras
➔​ Court of Request
◆​ For petty civil suits
◆​ Handled cases up to 5 pagoda in Madras (And proportionately in Bombay and Calcutta)
➔​ Mayor’s Court
◆​ For Civil Suits
 ➔​ Court of President and Council
◆​ Criminal court and Appellate court for civil matters
➔​ Privy Council
➔​ Pagoda Oath
◆​ They would take the oath by whatever is most binding upon the person’s religion or caste
(Conscience)

Impact of Charter of 1753

●​ Judiciary was subservient to executive
●​ No expertise in law
●​ Judicial Conflict
●​ Expensive appeals
●​ Exclusion of Indians

Warren Hastings

Warren Hastings’ New Plan of 1774

➔​ Each District Provincial Council/ Provincial Sadr Adalat (Appellate court for Civil Matters)
◆​ 6 Mofussil Diwan- i- Adalat became Provincial Sadr Adalat
➔​ Diwan- o maintain accounts of the revenue collections of the districts
➔​ Collector replaced by native superintendents of revenue- Naib (Judge at Civil Court)
➔​ Sadar Nizamat Adalat- Nawab Mohammed Reza Khan as Naib Nazim

The Parliament’s Interference in India

➔​ The Crown had the final say in charters till now
➔​ They were the ones with the Charter granting power
➔​ But as the company began gaining more territories, the Parliament grew interested too.
➔​ Hence, it officially took over from the Crown
➔​ It established two committees
◆​ Select Committee- Administration Power
◆​ Secret Committee/ Committee of secrecy- Judicial Power
➔​ Regulating Act of 1773

Regulating Act of 1773

➔​ Salient Features
◆​ Election of Directors
◆​ Control over correspondence
◆​ Appointment of the governor- General and Council
◆​ Bombay and Madras came under Bengal Jurisdiction
◆​ Establishment of Supreme Court
◆​ Justices of Peace
◆​ Appeals
◆​ Legislative Power
➔​ The Regulative act failed, since it was vague, and tried dictating the jurisdiction of the locals as well as
the British.
Battle of Buxar
➔​ The Battle of Buxar, fought on October 22, 1764, was a decisive victory for the British East India
Company, led by Hector Munro, against the combined forces of Mir Qasim (Nawab of Bengal),
Shuja-ud-Daula (Nawab of Awadh), and the Mughal Emperor Shah Alam II, solidifying British
control over Bengal and Bihar.
➔​ The war took place because
◆​ Company's Expansion and Trade Practices:​
The British East India Company, after the Battle of Plassey, sought to expand its influence and
control in Bengal and other parts of India.
◆​ Mir Qasim's Discontent:​
Mir Qasim, the Nawab of Bengal, became increasingly frustrated with the Company's actions,
including their misuse of trade permits (dastaks and farmans) and their interference in his
administration.
◆​ Qasim's Reforms and British Opposition:​
Mir Qasim attempted to strengthen his administration by modernizing his army and shifting
the capital to Munger, which the British saw as a challenge to their authority.
◆​ Alliance Formation:​
Mir Qasim, along with Shuja-ud-Daula and Shah Alam II, formed an alliance to resist the
Company's growing power and protect their interests.
◆​ The Battle:​
The combined forces of Mir Qasim, Shuja-ud-Daula, and Shah Alam II clashed with the British
East India Company at Buxar on October 22, 1764.
◆​ British Victory and Aftermath:​
The British, led by Major Hector Munro, won a decisive victory at Buxar, solidifying their
dominance in Bengal and Bihar and paving the way for the establishment of British rule in
India.
➔​ Forces Involved:
◆​ British East India Company: Led by Major Hector Munro
◆​ Combined Indian Forces:
●​ Mir Qasim (Nawab of Bengal)
●​ Shuja-ud-Daula (Nawab of Awadh)
●​ Mughal Emperor Shah Alam II
➔​ Significance:
◆​ Confirmed British power over Bengal and Bihar after their initial success at the Battle of
Plassey in 1757.
◆​ Marked the end of the attempt to rule Bengal through a puppet nawab.
◆​ Led to the British East India Company gaining control over a large area of the Indian
subcontinent.
◆​ Paved the way for the gradual erosion of Mughal power in India and British hegemony in the
subcontinent.
◆​ The Treaty of Allahabad in 1765 brought the war to an end.

Act of Settlement 1781

●​ Preamble ‘When it is expedient the lawful Government of Bengal, Bihar, and Orissa should be
supported. In the collection of revenue, the inhabitants should be maintained and protected in the
enjoyment of all their ancient laws, usages, rights and privileges
●​ Objective
1.​ Relief to those suffered by the Supreme Court judgement
 2.​ Indemnification of the Governor General and Council
●​ Salient features of Act
○​ Immunity from Jurisdiction of SC
○​ Revenue matters - Immunity from Jurisdiction of SC
○​ Non-applicability of English laws to natives
○​ Different religion - law of defendant
○​ Voluntary acceptance of jurisdiction of SC
○​ No jurisdiction against judicial officers
○​ Recognition of Company Courts
○​ Sadr Diwani Adalat - Court of Record
■​ The Sadr Diwani Adalat became a court of record
○​ Legislative power of Governor General and Council to frame regulations for Courts not subject
to approval of Supreme Court
○​ Punitive power of family heads
○​ Indemnity - Reference to Patna Case

Pitt's India Act, 1784

➔​ Issues in the Settlement Act brought about the Pitt’s India Act
➔​ Officially recognized the EIC as a political body, not a trading company
➔​ EIC’s property in India was now recognised as british property and acquisition
➔​ Company’s Government before Lord Cornwallis
➔​ Warren Hastings felt threatened by the old act where his position as Governor General was almost
powerful
➔​ When Cornwallis came to India in 1786, he vowed to make changes to make his post more powerful,
hence implementing the Judicial Plan of 1787

Judicial Plan of 1787

➔​ It strengthened the position of the Governor General
➔​ The focus of this was on regular and civil jurisdiction
➔​ Observations by him
◆​ Corruption was rampant, so he interpreted it as the fault of Indians, hence he tried to remove
all Indians
◆​ To reduce the involvement of Indians in the company administration in their own homeland,
he introduced the position of a Collector, to oversee the work of Zamindars.
◆​ He introduced revenue courts.
●​ Mal Adalat was the basic revenue court, headed by the collector
●​ Revenue Board was above the Mal Adalat, headed by experts
●​ Then finally, an appeal would go to the Privy Council, or the King’s Council, as the
company was now seen as the head of the territories in India
◆​ He also reduced the number of districts in the Bengal settlement from 36 to 23, and each
district had one Mal Adalat
➔​ Collector was also made the judge of Civil Court
◆​ The civil court, Mofusil Diwan- i- Adalat was still present, headed by a collector.
◆​ Court of Indian Registrar was established, where the Registrar would make a final decision,
and no appeal would be accepted
◆​ The next was the Sadr Diwan- i- Adalat, and then the Privy Council
◆​ An appeal to the Privy court was recognised as a right
 ➔​ Criminal Matters
◆​ The collector would only act as a judge for petty criminal offences; the cases which would have
a sentence of less than 15 days in imprisonment
◆​ The Faujdari Court System was abolished.
◆​ He found certain defects in the criminal system
●​ He found out that the offences had unproportionate punishments, and there was no
standard punishment to the crimes
●​ The second defect was the system of blood money, which he abolished
●​ Increase of crimes against lives and property against natives
●​ Many criminals were protect
●​ He blamed the mohammedan criminal law, which he abolished
◆​ The actions that he brought along were
●​ Minimal interference of the natives in the administration
●​ For crimes less than 15 days, there was the Collector’s court, in each district
●​ He also established 4 circuit (Moving) courts for offences more than 15 days in each
district; and four districts were made
○​ Calcutta
○​ Dhaka
○​ Patna
○​ Murshidabad
●​ Then came the Sadr Nizamat Adalat, headed by the governor general
◆​ He changed the system of punishment
●​ The system of blood money was abolished
●​ Harsh or cruel punishments such as branding were removed
●​ Evidence of non muslims was now permissible
●​ Where the old system only took into consideration the maxim of actus reus, mens rea
was also introduced

Cornwallis Code, 1794

The hierarchy of the appeals in the matters was as so-
●​ For the revenue matters
○​ It contained regulations related to civil, criminal, commercial and revenue matters
○​ He reduced the powers of the collectors, where they would no longer perform any judicial
function, but would only be reduced to revenue collection
○​ The system of Mal Adalat was abolished, and original jurisdiction of such cases was handed
over to the ​ Mofusil Diwan- i- Adalat, or the District Civil Court
○​ The Revenue Board and
●​ For Civil Matters
○​ First was the Munsif, who would deal with petty matters below 50 rupees of monetary limit
○​ Then above that was the registrar, who would deal with the matters till the monetary limit of
200
○​ Above that, the matters would go to Mofusil Diwan- i- Adalat and then
○​ The Sadr Diwan- i- Adalat was replaced by the Circuit Court, now changed to the Provincial
Court of Appeal
●​ For Criminal Matter
○​ Mofusil Diwan- i- Adalat had the jurisdiction in criminal matters also, and it was the first court
to appeal to.
 ○​ Then, above that was the Circuit court, also known as the
Certain other provisions he introduced-​
●​ The system of open court
●​ He involved native law officers for interpretation of the Mohammedian law
●​ Judges were prohibited from contacting the parties or lawyers, hence preventing unfairness
●​ Executives; administrators; were brought under the jurisdiction of the court for their official and
personal acts (Governor general maintained immunity)
●​ He abolished the court fee altogether, or reduced it in some areas. This, and the
●​ He introduced a provision to the class of legal professionals
●​ He recognised Zamindars as land owners
​ ​ ​ ​
​
​
Module 3
HISTORY OF LEGAL SYSTEM IN INDIA DURING
BRITISH RULE
Module 3

Indian High Courts Act, 1861

➔​ Established by Letters patent
◆​ Establishing
◆​ First High Courts at 3 Presidency Towns
●​ Bombay
●​ Calcutta
●​ Madras
◆​ In 1866, the high court was established in lucknow, and then shifted to Allahabad
➔​ Abolished certain old courts
◆​ All company’s courts, supreme courts and any other courts were now abolished
◆​ Only the high courts remained
➔​ Jurisdiction and Powers
◆​ Procedure
◆​ Jurisdiction
◆​ Power
◆​ Functions of the court
➔​ Number and qualifications of Judges
◆​ The appointment of judges was done by the crown
◆​ The class of legal professionals was established and recognized by the system
●​ Advocates
●​ Vakils
●​ Barristers
➔​ The Indian judicial system is a single- integrated judicial system.

Powers of the High Court System

➔​ It was a court of record
➔​ The High Courts would have supervisory power over the lower courts
➔​ High Court was also given the power to transfer cases to the Privy Council/ or the King and appeals
from the courts also went to the Privy Council
➔​ High courts could also have the powers to transfer the cases to another high court
➔​ High Court would have the original civil jurisdiction, and for criminal matter, it would have appellate
jurisdiction
➔​ High Court was given the power to make rules of procedure
➔​ For civil matters, an appeal was a right, but not for criminal matters.
➔​ The monetary limit for the High court was all matters below 10,000
➔​ This system brought uniformity.

Advantages of Unification
➔​ Number of Courts was reduced
➔​ The dual control (company’s courts and crown’s courts) came to an end
 ➔​ Since high court was given supervisory power, it ensured in increasing efficiency, since supervision by
higher courts
➔​ The quality of the lower courts improved
➔​ The procedure was simplified
➔​ Codified laws (CPC, CRPC)
➔​ Procedure for appeal was uniform
➔​ The conflict between the two courts ceased to exist (company’s courts and crown’s courts)

Rise of the Freedom Movement

Syed Ahmed Khan

●​ Education and upbringing based on Quran and muslim teachings
●​ He worked in the Company when he could not complete his higher education and eventually reached
the position of Shirastedar (Villagers)
●​ He helped the British during the mutiny, but when the british blamed the muslims for the mutiny, he
quickly turned, claiming the Islamic loyalty to the british; distributing pamphlets
●​ He’s considered to be a great educational reformer
●​ Considered Muslims a minority
●​ ‘It is given in the Quran, that muslims don’t share affection or friendship with other people’
●​ He established Mohammedan Anglo- Indian College
●​ Aim was to educate muslims and unify them
●​ This gave rise to the All India Muslim Confederacy

Vernacular Press Act, 1878

●​ The name of the publisher, printer, author and address of the press must be mentioned
●​ Must get scrutinized before publication
●​ This moved to curb the freedom movement

Indian Councils Act, 1892

●​ To have indians involved in the legislative process, to curb the efforts of the freedom struggle
●​ The method of selection was flawed
●​ The governor general still had the power not to give assent to the suggestions of the indians
●​ The merit of this act was that in introducing the elections act to India
●​ But in practice, the natives were still discriminated against, racial discrimination was rampant

Indian National Congress

➔​ The initial Indian National Congress was only established as a body for discussion and deliberation
between educated Indians. They did not bring about any significant political change in the early years,
as their demands were moderate and largely limited to administrative reforms, increased
participation of Indians in the civil services, and greater consultation in legislative processes. The
early Congress leaders, often referred to as the "Moderates," believed in gradual reform and loyalty to
the British Crown, advocating for change through petitions, resolutions, and dialogue rather than
confrontation. It was only in the early 20th century, with the rise of assertive nationalists like Bal
Gangadhar Tilak, Bipin Chandra Pal, and Lala Lajpat Rai—collectively known as the "Lal-Bal-Pal"
trio—that the Congress began adopting a more radical and mass-based approach toward achieving
self-rule.
Indian Councils Act, 1909
●​ Minto- Morley Reforms
○​ Seats were reserved
○​ Minto was the Viceroy and Morley was the Secretary of state
○​ More representation for indians without giving them any actual power
●​ No territorial representation was given
○​ It stated that territorial representation is not suitable of India as representation of every class is
not possible in the subcontinent
●​ Communal Electorate
●​ The main provisions for the act were
○​ It increased the number of Indian representatives in central and provincial legislatures
○​ Three types of Members
■​ Ex Officio Member
●​ Governor
●​ Secretary of State
■​ Certain Nominated Members
■​ Elected Representatives​
○​ Though this act expanded on elections, this system wasn’t fair, and it did not use the principle
of universal adult franchise​
●​ Free discussions were permitted in the council by the Indians; although whether to answer the
queries was to the discretion of the british
●​ Although the Morley Minto Reforms increased the powers of the legislation; the Indians; most
important decisions were still taken by the British Parliament, and such reforms were neither
discussed nor disclosed with the legislation
●​ National security matters were not discussed with the Indians
Module 4
PRE-INDEPENDENCE CONSTITUTIONAL
DEVELOPMENT IN INDIA
Module 4

Political Developments 1937- 1947

●​ WW2 and resignation of ministries
●​ Two nation theory
●​ August Offer
○​ To calm down to members of the INC
○​ The British Government proclaimed to ‘work towards’ the making of an Indian Constitution
●​ Cripps Mission March
○​ To come to a conclusion about the communal violence
○​ Commision of three members to have the conversation of the two nation theory
○​ Constitution for the different groups
○​ It failed in toto
●​ Quit India Resolution, 1942
○​ All India Working Committee of the INC signed the Quit India resolution
●​ Wavell Plan 1945
○​ Proposed for the cooperation between the INC and the Muslim league
○​ The also made a forum, where representatives were chosen and conversations can be made
about the freedom of India
○​ This was called the Simla Conference
●​ Simla Conference and its failure
●​ Cabinet Mission
○​ Focused upon the constitution making and the members of the constituent assembly
○​ Accordingly, the elections happened in India
○​ Muslim League got minority seats eventually
●​ Indian Independence Bill
○​ This bill was proposed in the
○​ This was as per Mountbatten Plan
○​ Received Royal Assent on 18 July 1947
○​ The date was decided as August 15th 1947, the appointed date
○​ The features of this bill included-
■​ There will be two dominions
■​ There will be two nations, India, and Pakistan
■​ The princely states may choose to join either dominions
■​ The royal title of Emperor of India was abolished by this act
■​ By this act, the British Sovereignty over India came to an end, the end of colonial rule
■​ The Viceroy’s office was abolished
■​ The Boundary Commission was established, to demarcate the boundaries of the
countries
■​ This was later headed by Mr Radcliffe
Cabinet Mission Plan (1946)

Introduction

●​ The Cabinet Mission was sent by the British Government in 1946 to discuss and plan for the transfer
of power from British rule to Indian leadership.
●​ Its primary goal was to devise a constitutional framework for a united, independent India while
avoiding the partition of the country.

Members of the Cabinet Mission

1.​ Lord Pethick-Lawrence – Secretary of State for India

2.​ Sir Stafford Cripps – President of the Board of Trade
3.​ A.V. Alexander – First Lord of the Admiralty

Objectives

●​ To secure Indian agreement on the framework of a future constitution.​

●​ To ensure a peaceful transfer of power to Indian hands.​

●​ To maintain Indian unity and prevent partition.​

●​ To establish an interim government until independence was achieved.​

Key Proposals

●​ India would remain united as a federation.

●​ A Union Government would be created with control over:
○​ Foreign Affairs
○​ Defence
○​ Communications
●​ All other subjects would be under the jurisdiction of the provinces.
●​ Provinces would be grouped into three categories:
○​ Group A: Hindu-majority provinces (e.g., Madras, Bombay, United Provinces)
○​ Group B: Muslim-majority provinces (North-West India)
○​ Group C: Muslim-majority provinces (Eastern India: Bengal and Assam)
●​ A Constituent Assembly would be formed to frame the Constitution:
○​ Total of 389 members.
○​ Representatives from provinces and princely states.
●​ An Interim Government would be formed at the centre until the new Constitution came into effect.

Reactions

●​ The Indian National Congress accepted the plan but opposed the idea of compulsory grouping of
provinces.
●​ The Muslim League initially accepted the plan but later rejected it after the Congress’s opposition to
the grouping provision.
●​ Following its rejection, the Muslim League reiterated its demand for Pakistan.
 ●​ The Muslim League declared Direct Action Day on 16 August 1946, leading to widespread communal
violence.

Failure of the Plan

●​ Inability of the Congress and the Muslim League to come to an agreement.

●​ Disagreements over the grouping of provinces and representation.
●​ Growing communal tensions and the hardened demand for a separate Muslim state.

Aftermath

●​ The failure of the Cabinet Mission Plan led to the eventual acceptance of the Mountbatten Plan in
1947.
●​ The Mountbatten Plan led to the partition of India and the creation of Pakistan.

Creation of the Constituent Assembly of India

Background

●​ The demand for a Constituent Assembly to frame India’s Constitution was first made by the Indian
National Congress in 1934, championed by M. N. Roy.
●​ The idea gained traction as Indians increasingly demanded self-rule and constitutional autonomy.
●​ The British Government accepted the idea through the Cabinet Mission Plan of 1946.

Basis of Formation

●​ The Cabinet Mission Plan (May 1946) proposed the formation of a Constituent Assembly to frame a
Constitution for India.
●​ It was to be indirectly elected by the members of the provincial legislative assemblies, not by the
general public.

Composition

●​ Total membership: 389

○​ 292 from British Indian provinces
○​ 93 from princely states
○​ 4 from Chief Commissioner’s Provinces (e.g., Delhi)
●​ The princely states were invited to nominate representatives.
●​ Seats were allotted in proportion to the population.

Elections

●​ Elections were held in July 1946 under the Cabinet Mission Plan guidelines.
●​ Members were elected by the Provincial Legislative Assemblies through proportional representation
with single transferable vote.
●​ The Congress won an overwhelming majority, while the Muslim League initially boycotted the
assembly.

First Meeting

●​ The first meeting was held on 9 December 1946 in New Delhi.

 ●​ Dr. Sachchidananda Sinha was appointed the interim president.
●​ On 11 December 1946, Dr. Rajendra Prasad was elected as the permanent President of the Assembly.

Boycott and Partition

●​ The Muslim League boycotted the Assembly initially and later demanded a separate constituent
assembly for Pakistan.
●​ After the Mountbatten Plan (June 1947) and the Indian Independence Act (July 1947), the Assembly
became the sovereign body for only Indian territory.

Functions and Role

●​ Drafted and adopted the Constitution of India, which came into effect on 26 January 1950.
●​ Functioned as India’s provisional legislature until the first general elections in 1952.

Significance

●​ The Constituent Assembly laid the foundations of the Indian Republic.

●​ It ensured representation from diverse communities, regions, and social groups.
●​ Its deliberations reflected democratic spirit, constitutionalism, and social justice.​

Indian Independence Act, 1947

Background

●​ The failure of the Cabinet Mission Plan and rising communal tensions led to British acceptance of
partition.
●​ The Mountbatten Plan (3 June 1947) proposed the division of British India into two independent
dominions: India and Pakistan.
●​ The Indian Independence Act was passed by the British Parliament to give legal effect to this plan.

Enactment

●​ Passed by British Parliament: 18 July 1947

●​ Came into effect: 15 August 1947
●​ Formally titled: An Act to make provision for the setting up in India of two independent Dominions
and to provide for the governance thereof.

Key Provisions

1.​ Partition of British India

○​ Creation of two dominions: India and Pakistan.
○​ Each dominion was to have complete legislative and executive authority.
2.​ End of British Sovereignty
○​ British rule in India ended on 15 August 1947.
○​ The British Crown ceased to have any responsibility for the Government of India or Pakistan.
3.​ Legislative Sovereignty
○​ Both dominions were free to frame their own constitutions.
 ○​ Until new constitutions were adopted, the Government of India Act, 1935 would serve as
an interim constitution.
4.​ Governor-General
○​ Each dominion would have its own Governor-General, appointed by the British King, but
only on the advice of the dominion’s government.
○​ The Governor-General was to oversee the transition until a permanent constitution was
adopted.
5.​ Constituent Assemblies
○​ Constituent Assemblies of India and Pakistan were given full powers to legislate and frame
their constitutions.
○​ These bodies also functioned as their respective legislatures during the transition period.
6.​ Division of Assets
○​ The Act provided for the division of military, financial, and administrative assets
between India and Pakistan.
7.​ Princely States
○​ Indian princely states were given the choice to join either India or Pakistan or remain
independent.
○​ The lapse of British suzerainty meant the states became independent, subject to accession
or decisions

Significance

●​ Marked the legal end of British rule in India.

●​ Legally established the sovereignty of India and Pakistan.
●​ Enabled the transition to self-rule and formation of independent constitutions.
●​ Set the stage for India's Republic status in 1950.
Module 5
MAKING OF THE CONSTITUTION OF
INDIA AND CONSTITUENT ASSEMBLY
DEBATES
Module 5

Questions and Study Pattern

●​

The Constitution of India

●​ The Constitution is a legal document talking about the structure, power, and functions of the organs
of the government and rights arising from the relationship between people and government and
remedies if those rights are infringed.

Types of Constitutions

Written and Unwritten Constitutions

Written
●​ Codified laws in written form
●​ Unified and consolidated in one document or book
●​ Eg: India

Merit
●​ Clarity and Certainty:​
Written laws are clear, accessible, and easily understandable by the public and judiciary.
●​ Consistency:​
Provides a uniform framework, reducing ambiguity in legal interpretation.
●​ Accountability:​
Legislators are bound by codified rules, making governance more transparent.
●​ Easy Reference:​
Laws can be quickly referred to in courts, educational institutions, and government proceedings.
●​ Predictability:​
Citizens and courts can predict outcomes based on the established law, strengthening the rule of law.

Demerits
●​ This can become exhaustive and non- inclusive
●​ The changes of the society may not be consolidated into the Constitution
●​ This may lead to a rigid Constitution
Unwritten
●​ Non- Consolidated laws, but rather separate laws such as charters, legislations, precedents,
conventions, etc
●​ Example: UK

Merit
●​ Flexibility:
○​ Unwritten laws evolve with societal changes, allowing for organic development without
needing formal amendments.
●​ Adaptability:
○​ Customary and judicial practices can easily adjust to new circumstances or public expectations.
●​ Tradition and Continuity:
○​ Emphasizes the historical and cultural foundations of the legal system.
●​ Reduced Bureaucratic Delay:
○​ Changes can happen through judicial interpretation or evolving customs without lengthy
legislative processes.

Demerits
●​ Uncertainty:
○​ Citizens may find it difficult to know what the law is without a single, clear source.
●​ Inconsistency:
○​ Different interpretations and practices can lead to uneven application of the law.
●​ Dependence on Judiciary:
○​ Heavy reliance on judges to interpret and develop laws can lead to unpredictability.
●​ Democratic Deficit:
○​ Some customary rules and conventions may not reflect contemporary democratic values unless
formally challenged.

Rigid and Flexible Constitutions

Rigid
●​ A rigid constitution is a constitution that is hard to change
●​ Indian constitution has adopted the south african constitution for the flexibility of amendments
●​ Under Article 368, the state’s assent is required for certain provisions. These are called Entrenched
Provisions
Difficult to amend or change; requires a special and complex procedure.​

Higher authority than ordinary laws; constitutional laws and regular laws are kept separate.​

Provides stability and certainty in governance.​

Protects fundamental rights and basic structures more securely.​

Examples:
 ●​ United States Constitution
●​ Australian Constitution

Flexible

Informal and Formal Amendments

Informal
●​ Amendment by way of Judicial Interpretation

Formal

Interpretation and Amendments in India

●​ A.K Gopalan v State of Madras
○​ The court ruled that as per the Preventative Detention Act 1950, the
●​ Maneka Gandhi v Union of India
○​ Even though it is a procedure established by law, the interpretation must be fair
●​ Tharak Singh v State of Bihar
○​ Court ruled against the plaint of Right to Privacy
●​ Justice K.S. Puttaswamy v. Union of India case
○​ Established the right to privacy as a fundamental right under the Indian Constitution

Unitary and Federal Constitution

●​ These are forms of Governments
●​ The constitution is directly linked to the government and its form
●​ Unitary Government: Single Form
○​ Where there is one form of government
○​ Eg: France
○​ Where there is little to no regional diversity
●​ Federal Government: Dual Government
○​ Federalism: Fedus- Treaty
○​ There is a certain surrender of power between the central and state governments
○​ In one country, there are governments at two levels
○​ Eg: India, United States
○​ In cases of a lot of regional diversity
●​ Residuary Power is with the Center (Entry 97 Union list 1)
●​ Single Integrated Judiciary- Lower courts, High Courts and the Supreme Court

Republican and Monarchical Constitution

●​ Forms of the government
●​ Republican
○​ Head of the nation/state is elected
○​ Theoretically, the republican form of government is considered to be responsible and
accountable
 ●​ Hereditary Monarch
○​ Position of head of the nation/state is heriditary
○​ Theoretically, the republican form of government is considered to be responsible and
accountable

Presidential and Parliamentary Constitution

Presidential Constitution

●​ Executive is independent of the legislature.

●​ Same person is the Head of State and Head of Government (e.g., the President).
●​ There is a strict separation of powers between the executive, legislature, and judiciary.
●​ Executive has a fixed tenure (cannot be removed easily by the legislature).
●​ Executive is not directly accountable to the legislature.
●​ Example countries: United States, Brazil.
●​ Leadership style is strong and stable, but there is a risk of deadlock between executive and legislature.
●​ USA has a De Facto President

Parliamentary Constitution

●​ Executive is dependent on the confidence of the legislature.

●​ Different persons act as Head of State (President or Monarch) and Head of Government (Prime
Minister).
●​ There is a fusion of powers between executive and legislature.
●​ Executive has no fixed tenure; stays as long as it has the support of the legislature.
●​ Executive is directly accountable to the legislature.
●​ Example countries: India, United Kingdom, Canada.
●​ Leadership style is flexible and responsive, with less risk of deadlock but possibility of instability
through frequent changes in government.
●​ India has a De Jure President and a De Facto Prime Minister

Features of the Constitution

●​ It is the lengthiest Constitution

Preamble-
●​ Introduction to the constitution
●​ Key to open the mind of the people
●​ Inspired by Objective Resolution formed by Jawaharlal Nehru (Initial Sittings of the constituent
assembly)
●​ Considered as a mirror for a future india and a reference for constitution makers)
●​ Can be divided into 4 parts
○​ Drafters of the constitution; in whom sovereignty lies- Source of the Constitution- “We the
People”
○​ Nature of the Indian Government; Sovereign, Secular, Socialist, Democratic Republic
■​ Sovereign: The state has the right to make its own laws and no external state will
interfere with this.
 ■​ Secular: State does not possess its own religion, it respects all religions equally; this was
added later
■​ Socialist: The era when the constitution was drafted was known as the Social Welfare
era; before which, it was a Police State; this was also added later- Directive Principles of
State: Shows the Socialist nature of Indian State
○​ Objectives of the State: Justice, Liberty, Equality and Fraternity
■​ Justice: Social, economic and Political Justice
■​ Liberty: of thought, belief, faith, expression, and worship
■​ Equality: Of status and opportunity
■​ Fraternity: Assuring dignity among the people
○​ Date of Adoption: In our constitution, in our assembly, on 26 November 1950, we adopt the
constitution
●​ The supreme court had declared that the Preamble is not part of the constitution, although it can be
used for the interpretation of the laws
●​ This was later changed to a certain degree during Kesavanada Bharati
●​ It is still not enforceable as a law

Part 17 of the Constitution: Languages

●​ There will be no national language of India, but instead an official language for the business of the
Union Government; which is Hindi
●​ For the state level, the division of the states was mostly based on languages and cultures, so having
one language for all would not be fair.
●​ A linguistic survey (LSI) was conducted in 1891 by George Grierson, wherein zhe classified the
languages, dialects, etc.
●​ He divided Indian languages into vernacular and classical languages.
●​ Vernacular Languages are languages which are spoken by a minority [<10000]
●​ Classical Languages are languages which are majorly spoken
●​ For provincial administrations, the British used classical languages. However, English was the official
language of British India
●​ In the constituent assembly, the official language of India was decided to be English, but only for the
first 15 years, post which, it will be Hindi (Article 343)
●​ This received great criticism from multiple states, the parliament came up with the Official Languages
Act, according to which both Hindi and English were made official languages of the Union
●​ States were given the liberty to decide their own official state language
●​ Article 348
○​ Outlines the language to be used in the Supreme Court, High Courts, and for official legal
documents.
○​ It mandates that all proceedings in the Supreme Court and High Courts be conducted in
English, but allows for the use of Hindi or the state's official language in High Courts with the
consent of the President and Governor.
○​ This article also covers the official texts of Bills, Acts, Ordinances, and other legal documents,
specifying that they must be in English.
●​ Article 351
○​ It shall be the duty of the union to promote Hindi as an official language to develop it as a
medium of expression for all of India's composite culture.
○​ It also emphasizes enriching Hindi by assimilating styles and expressions from Hindustani and
other languages listed in the Eighth Schedule
Fundamental Rights

Article 15
●​ 15 (1)- Certain grounds on which discrimination cannot be there
○​ Dr. B.R Ambedkar said that discrimination was a menace against which the fundamental rights
should be guarded.
○​ In a country like India, it is possible to practice discrimination on a vast scale, and in a
relentless manner. In this situation, fundamental rights could have no meaning unless
provisions were made for protection against discrimination on the ground of race, creed, or
social status
○​ Religion, race, caste, sex, or place of birth are the grounds

Article 16
●​ Equality of opportunity in matters of public employment
●​ Non discrimination in terms of public employment
●​ Government of India Act, 1935 Section 298 was similar to this
●​ Article 14 is extended even to non citizens, however Art. 16 is only applicable to citizens
●​ Religion, race, caste, sex, place of birth, descent and residence
●​ 16 (3) makes residence as an exception
○​ Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a
class or classes of employment or appointment to an office under the Government of, or any
local or other authority within, a State or Union territory, any requirement as to residence
within that State or Union territory
○​ The laws and regulations regarding residence only resides with the Parliament, not the states
■​ It is expected that the Union will not discriminate against the states
■​ But the state legislature may make discriminatory laws which will benefit them and their
citizens only
○​ Civil Rights Act 1955

Article 19
●​ Talks about the different freedoms
●​ This right is available only to citizens
●​ Inspired by the US Constitution, but ours is not absolute
●​ 19 (a) Freedom of Speech and Expression
●​ Freedom of Press, unlike the US Constitution, is not expressly given in the constitution, as Dr.
Ambedkar opined this might create a different class of people and press. But in the Sakal Papers v.
Union of India, it was
●​ In the US, freedom of speech and expression (press) is without restrictions. This does not follow in
India
●​ The restrictions serve the purposes of-
○​ Putting a limitation on the citizens
○​ Putting a limitation on the state​
■​ The restriction on the state is more to prevent absolute power
■​ Sedition is not a ground under reasonable restriction, as it may come in conflict with the
freedom of speech, and it is already a criminal offence
Article 20
●​ Provides for three rights available to an accused
●​ Also available to non- citizens
●​ Talks about ex post- facto laws
●​ Law should have prospective and not retrospective effect
●​ The second provision in Art. 20 talks about double jeopardy [20 (2)]
○​ You cannot be prosecuted and convicted twice
○​ However, in case of acquittal, you can get convicted in the second trial
■​ Eg: Jessica Lal Case/ Manu Sharma v State (NCT of Delhi) 2001
○​ You can also be tried again under fresh grounds
●​ Article 20 (3)- Right against self incrimination
○​ No person shall be compelled to be a witness against himself
○​ Special Majority
○​ It is easier for the future legislature, it is perfectly possible that this future legislature may
abrogate the rights provided under CRPC, so it is desirable to palace these important provision
beyond the reach of legislature by including them in the constitution

Article 21
●​ Right to life and personal liberty
●​ No person shall be deprived of his life or personal liberty except by procedure established by law
●​ The first draft included due process of law, but it was later changed to procedure established by law
●​ BN Rao met Justice Frankfurter, where he advised him not to use ‘due process of law’ since the word
‘due’ is quite subjective in nature, and the US has faced many problems wherein any legislature
enacted by Legislation is challenged on the ground of not being good.
●​ He was rather advised to use the words procedure established by law
○​ AK Gopalan v State of Madras
■​ The court established that his detention was fair and a procedure established by law
○​ Maneka Gandhi
■​ Procedure should be just, fair, and reasonable

Federalism
●​ India is a Federal system, except in times of emergency, when it is Unitary
●​ Three types of Emergencies-

National
●​ 352 (Similar to GOI Act 1935)
●​ Governor General had the power to declare emergency of Provinces of India
●​ Times when stringent measures need to be taken
●​ The power cannot be given to the state, as they may take actions that will benefit only them and not
the nation
●​ The power should be with the center to ensure that the states are treated uniformly and action taken
is also uniform
●​ “The Constitution can be both federal and unitary; In normal circumstances, it is framed to work as a
federal system, but in times of war it is so designed as to make it work as if it was a unitary system.
Such power of converting itself into a unitary state, no federation can possess” ~Dr. Ambedkar
Circumstances when emergency can be declared
○​ War
○​ Domestic Violence
■​ External aggression
■​ Internal Disturbance/ Armed Rebellion

Legislative Structure during National Emergency

●​ Changes under Art. 353
●​ Change in Fundamental Rights
○​ Art. 358 and 359
■​ Art 358
●​ Deals with the suspension of fundamental rights specifically guaranteed under
Article 19, with reasonable restrictions​
■​ Art 359
●​ Allows the President to suspend the enforcement of all other fundamental rights
(excluding those guaranteed by Articles 20 and 21).
●​ The suspension is beyond reasonable restriction,
●​ H.V Kamath~ ‘Art 19 had been taken care of to provide that exercise of freedoms
is subject to restriction, but only for normal times, and not for war’
●​ “War could not be fought on the principles of Magna Carta and that in a
situation threatened by war in a country with a large population, some people
with possibly divided loyalties, freedom of speech might be used for the purpose
of endangering the State and crippling the resources of the country. If only we
realise that the country must exist, if liberty and all else are to be guaranteed,
there can be possible objections to this article” ~Alladi Krishnaswami Ayyar/
K.M. Munshi​
■​ The suspension cannot be forever, there must be a justified, reasonable time period, and
must only be during emergency
■​ There is no automatic suspension of fundamental rights, unless the president declares
the suspension of certain fundamental rights and their time periods with justification
●​ Art 354- Financial
○​ This provision is consequential in nature, which lays down what the financial consequences
shall be of issue of an emergency proclaimed by president
■​ Distribution of Revenue during Center and State

State (President’s Rule)

●​ Art. 356
●​ Rationale of State emergency is given under Art. 355
●​ Art 355 is about the duty of the union to protect state against external aggression of internal
disturbance
●​ These provisions are similar to the American and Australian Constitution
●​ Failure of Constitutional Machinery
○​ The state government is dissolved
○​ President’s rule is enforced
○​ On Governor’s Report or otherwise
■​ The Governor’s report was made compulsory post the SR Bommai Floor Test
Financial
●​ In situations of Financial or Economic Stringency
●​ States cannot be given power to deal with it individually
●​ Art 360:
●​ “This article in the constitution is a realisation of one supreme fact that the economic structure of the
country is one and indivisible. The center and state are interdependent financially, therefore the
whole financial integrity of the country is one and a time might arise when unitary control may be
absolutely necessary” ~K.M Munshi

Amendments
●​ Art 368.
○​ Art 368 (1) and 368 (2) were present in the original one
●​ Power to make amendments is Constituent power
●​ In the original constitution, the title for Art 368 was Procedure, but now it has been changed to Power
of Amendment
●​ Amendment can done by the Parliament with the help of special majority
●​ Saving of Federal Structure
○​ Gopalswamy Iyengar and Alladi Krishnaswami Ayyar were of the opinion that for all the
amendments, two thirds of the states must give their consent, but it was practically impossible.
○​ Now, only the consent of half the states is required
●​ Constituent Assembly provided a list of provisions-
○​ Entrenched Provisions
■​ Those provisions that affect the federal structure of the country
■​ Only for those provisions’ amendments, the states’ ratification is required