Indian Legal and Constitutional History

Dr. Saurabh Chaturvedi

East India Company

The 1st East India Company was incorporated in England under a Charter granted by Queen Elizabeth on 31st Dec 1600 AD, in the name of

“ The Governor and Company of Merchants of London trading into East Indies”

The members of the Company had to elect 24 members annually to form Court of Directors and a Governor, eligible to re-elect.

Having exclusive rights to trade all parts of Asia, Africa and America except Europe.

Initially the charter was granted for 15 years renewable to 15 more years.

East India Company• The Company was authorized to make legislations including civil and

criminal laws, Orders and the Constitution applicable on its people( English) for

• good governance• Advancement and continuance of its trade and trafficThe Company was empowered to impose Punishments by way ofImprisonment ,Fine & forfeiture of goods/vessles. King’s CommissionIssuance of Royal Commission by Queen Elizabeth (1601) and empowerment of

Commander-in-Chief to award capital punishment to wrongdoers(Subject to the approval of a Jury constituted by 12 members of Company itself)

Era of James I,Empowerment of Company to grant Royal Commission(1615) In 1623 granted the Company’s Presidents/Chief Officers the same powers

applicable in their Company’s establishment/port or land

East India Company

Issues1. The English law could germ out of which Anglo-

Indian codes were ultimately developed.2. The Company was armed with adequate authority

to enforce discipline amongst its servants both on the high seas and on the Indian soil

Bombay 1684-1690• Bombay 2nd Statge • Establishment of Admiralty Court(1684) having Jurisdiction on

Civil, Criminal and Maritime matters• Appointment of Dr. John St. John as Advocate General• Conflict in between The Governor Child and Dr. John on various

issues• Reduction of Jurisdiction of Admiralty Court to maritime matters

only• Appointment of Vaux as a Judge in a new Court to look into Civil

and Criminal matters• Conflict in Jurisdictional issue between the Courts of Vaux and Dr.

John • Conflict between Executive and Judiciary

Bombay 1684-1690• Dismissal of Dr. John Issues• Overlapping powers of Executive & Judiciary• Attitude problem of Legal professionals• Intolerance of Judicial independence• Judge made laws exceeding English laws n

interpreting differently• End of Bombay Judicial System by attack of Moghul

Admiral Siddi Yakub in 1690-1718 as dark period

Bombay 1718-17263rd Stage• Establishment of a new Judicial system after 30

years in 1718• Appointment of a Chief Justice and 9 other Judges• Five British n 4 India Judges from Hindu, Muslim,

Portuguese Christian + Parsis, one each.• Jurisdiction to judge all cases of Civil, Criminal,

Military and Testamentary• Work as Registrar of immovable Property• The Court had wide powers to execute its decrees

Bombay 1718-1726• No equal status to Indian Judges• Due regard to caste custom and local traditions

along with English laws• Appeal to Governor and Council• Inexpensive and quick award based on common

sense• Stringent punishment to criminal and Debtors • Rama Kamati’s Case

Calcutta 1690-1726The Company secured Zamindari of 3 adjacent villages ,Sutanti,

Calcutta and Govindpur@ 1195 Rs. P.a. from Prince Azmaish shah( Grand Son of Aurangzeb, then Subedar of Bangal)

In 1668 a fortified factory was constructed as Fort WilliamOn the bank of river Hugli(Sutanti)a few Englishmen landed on

24th Aug.1690,under the leadership of James Charnock.Acquisition of zamindari was a significant event for Company

through it company secured a legal and constitutional status within Moghul administrative machinery.

Company became entitled to exercise all those functions and powers within the zamindari territory.

Calcutta 1690-1726Dec.1699 Calcutta became Presidency.A Governor(President) and a Council was appointed to

administer the settlement. English Judicial System in CalcuttaThe zamindari functions of the Company, within the

settlement of Calcutta, were entrusted to an English Officer called Collector, who used to be a member of Governor’s Council

Collector had judicial powers in all Civil, Criminal and Revenue cases pertaining to the Indian inhabitants

Calcutta 1690-1726

Besides this a parallel Court of Zamindar was also in existence and dealing with civil cases of local Indian people according to customs and usage and discretion for which appeals lay to the Governor and Council.

EvaluationParallel justice administration system of Nawab &

Company and approval before capital punishmentLack of impartial administration of justiceConcentration of extensive Power in the hands of

Collector

Charter of 1726The Charter of 1726 was a big advancement of Company’s

establishment in India which was requested to fetch more powers from Crown.

King George I issued a fresh charter to Company where all three Presidency were brought under a uniform Judicial system.

Establishment of Civil and Criminal Courts in each Presidency deriving authority from the Crown

Designated as Royal Courts these Courts were equivalent to English Courts having formal, regular and definite base

An appeal from India could be made directly to Privy Council

Charter of 1726

The Charter established a bridge in British and Indian legal system

It became a channel through which British Crown could directly apply their legal interpretations and applications

Where ever Indian laws were absent British laws were guiding them to find the way

Charter of 1726

Provisions1. Establishment of separate Corporation in each

Presidency consisting a Mayor and 9 Aldermen. The First Mayor is appointed by the Crown for one

year after retirement the Mayor remains an Alderman only.

Two Alderman are appointed from the local jagirdar and rest are natural born subjects of the company.

Aldermen is appointed for life but could be removed by the Governor and Council subject to appeal to King-in-Council in England

Charter of 1726

2. Judicial SystemIn each Presidency a Mayor’s Court was established

consisting a Mayor and two senior AldermenThe Court had jurisdiction only to the Civil Matters along

with Testamentary and Court of Record for contempt.An appeal could be made to the King-in-CouncilSheriffHe was responsible for implementation of Mayor’s Court’s

directions including summons, seizure of property ,execution of warrant etc, having jurisdiction over the entire Presidency and 10 miles around.

Appointed by Governor for one year duration

Charter of 1726Criminal JurisdictionVested with the Governor and 5 senior members of

the Council each was a Justice of the Peace.Powers to arrest like police and punish for petty

offences Grand and Petty jury to sit 4 times in one year and to

look into serious crimesAll technical forms and procedures and manners of

English law were introducedThree justices of the Peace were collectively forming

Court of Record(To hear and Determine)

Charter of 1726EffectsThe post charter period was not smooth arising

conflicts between Governor and The Mayor’s CourtNeither Law nor Justice was accordedMayor’s Court became autonomous and the Governor

sought to interfere with the functioning of the Court.

No clarity on personal laws and religious mattersConflict in between Court and The Council

The Adalat SystemBackgroundCalcutta was captured by Nawab Siraz-ud-daula 1756Clive recaptured Calcutta under guidance of Clive from Madras

1757Battle of Plassy in between Nawab and company (1757) ,who

wins and projects Mir Jaafer as Nawab .Mir Jaafar was succeeded by his minor son Nijam-ud-daula.With every change in Bengal Company increased in power and

influence.The battle of Buxar(1764) gave path to Company to get Diwani

of Bangal, Bihar and Orissa from Moghul Emperor Shah AlamThe Company remained actual power keeping Nawab as a

puppet.

The Adalat System

The Company kept Nawab for two reasons1. If Company assumes direct administration the

Crown would interfere due to English Constitutional Law provision that no British subject can acquire Sovereignty over any territory for himself. It must vest in the Crown so the Parliament becomes entitled to legislate for the territory.

2. The possibility of French and Portuguese interference which could create international problem

The Adalat System

The Company agreed to pay Rs 26 Lakh to the Emperor and to retain the rest for their own use.

The power of Diwani gave a big status and legitimacy to the Company.

It used to have to senior officers Nawab/Nizam and Diwan, appointed by the Emperor in India.

The Nizam was the head of Military, Maintenance of Law & Order and Administration of Criminal Justice system.

Diwan was responsible for collection of Civil & Revenue matters and also to manage funds for the Govt.

The Adalat SystemThe company wanted to have all control in its hand by

merging both Nizam and Diwan powers in favor of Company.

Through a contract Nawab(who was a minor) surrendered to company all powers of Diwani and Nizam both and accepted a sum of 53 lakh p.a. for maintenance of himself and criminal judicature.

Thus Company acquired all legitimated powers in its hand and became responsible for administration of Civil Justice and revenue Collection.

Company appointed two Naib nazim to control the working of machinery at Mushirdabad and Patna under the supervision of two English Officers.

The Adalat System

Effects1. The system was very faulty due to lack of

accountability among English officers and helplessness of Indian officers due to lack of power against English People.

2. Private trade by company officers including Governor and his council members

Warren Hastings and Judicial Plan of 1772Warren Hastings’s administrative plan of 1772 divided the

whole Bengal into smaller districts.In each district an English servant was appointed as Collector

responsible for collection of revenue.For Judicial plan, he established the following..1. Mofussil Diwani Adalat..was established in each district

with Collector as a Judge, authorized to decide all civil cases like Real and personal Property, Inheritance, marriage, caste, bad debts, disputed accounts, contracts, partnerships and Renting arrangement.

For Inheritance, marriage,or caste related issues KORAN or SHASTRAS were to be taken into consideration as per Kazi or Pandit expound based on religion and interpretation.

Warren Hastings and Judicial Plan of 1772Mofussil Fozdari AdalatIt was supervised by the Collector,who had to see the witnesses

and to render judgments Crimes were heard by the Kazi and Moulvis who used to give

Fatwas against Crimes and Criminals.Death sentence or forfeiture of property were to be submitted to

Sadar Nizamat Adalat for approval.Sadar AdalatsOver Mufussil Diwani and Fauzdari two superior courts, Sadar

Diwani (Consisting Governor and Cuncil) and Sadar Nizamat Adalat (Consisting a Daroga-i-Adalat to assist Chief Kazi,Chief Mufti and Three Molvies)were established at Calcutta (1773)

Small Cause Court

Warren Hastings and Judicial Plan of 1772

Appraisal of the PlanA credible achievementImpartial and inexpensive justiceEstablishment of Anglo-Indian Judicial SystemReplacement of Commission to Court Fees going to the

Govt. not to judgeAbolition of Judicial powers of ZamindarsDivision of power in between Nizam and DiwanSeparate Courts of civil and Criminal courtsConcentration of Excessive power in the hands of

Governor

Warren Hastings and Judicial Plan of 1772

Plan of 1774The collectors were recalled from the Districts and an

Indian officer, called Diwan, was appointed at the place of Collector.

Responsible for collection of revenue and also to act as Judge in the mofussil Diwani Adalat.

Division of entire province into six divisions having headquarter at Calcutta.

A provincial council consisting 4-5 English servents,was appointed to supervise the collection of revenue and to hear appeals

The Supreme CourtSupreme Court at Calcutta• The Regulating Act created a Supreme Court at Calcutta in

1773.• Besides managing internal management and administration

of East India Company, it re-organised the structure of the Calcutta Government .

• Appointment of 1st Governor General and a Council of 4 English persons vested with whole power of Civil and Military Govt. For a duration of 5 years, he could be removed by the King on the recommendations of Company’s Directors

• It includes Ordering, Management and Government of all territorial acquisition and revenues in the kingdom of Bangal, Bihar and Orissa.

The Supreme Court

Effects• Each Presidency was independent of each other and

had a direct relation with the Court of Directors in England

• Madras and Bombay Presidencies were brought under direct supervision of Calcutta Presidency in matters of Peace and War in necessity

• The subordinate Presidencies were required to transmit regularly to the Governor general regarding, Govt. revenue, or interests of the company

The Supreme CourtA Supreme Court was established at Calcutta by King

George III on 26 March 1774 through a Royal Charter It was having 3 judges(having a qualification of a

Barrister of minimum 5 yrs experience) appointed by the crown for a term extending up to the pleasure of the Crown.

It had jurisdiction on Civil. Criminal & Admiralty casesThe Court was empowered to hear civil cases against the

Company & The Corporation of Calcutta also.It had jurisdiction only on the persons of Company or His

Majesty’s subjectAn appeal could be made in King in Council

Trial of Raja Nand KumarConflict between Governor General and the CouncilCharges against Warren Hastings by Raja Nand KumarCharges by Mohan Prasad against Raja Nand KumarJury found him guilty under British Act of 1728 and sentenced deathCJ Impay was tried for impeachment for committing Judicial murderIssues1. Whether the trial was impartial2. Whether committing forgery suited to death sentence in the

prevailing conditions of calcutta?3. Whether British Criminal Laws of 1728 were applicable in

Calcutta having retrospective effect4. Why Raja was not allowed to make an appeal to Privy Council

Patna Case Succession by a Muslim widowShahbaz beg Khan(died 1776),Bahadur Beg(Nephew)

and Nadirah Begum(Widow)IssuesA gift deed was executed in favor of Nadirah by ShahbazBahadur Beg claimed the property on the basis of

adopted son so filed a case against Begum in Patna Provincial Council.

The case was delegated for dealing to Mufti and Kazi for(A) Making an inventory of the entire property(B) Sealing it to maintain status quo

Patna CaseAll proceeding in Patna Council were ex parte without notice to

Begum.No witness was examined on oath and some could not present

themselves in personBegum’s plea of gift alleged as forgedOutcome1. Begum’s house was sealed and only one room was left open2. She was given only 1/4th part of her deceased husband and

rest 3/4th was handed over to Bahadur Beg on behalf of his father(Shahbaz’s Brother)..as per Hanafi Muslim School

She approached to Supreme Court and filed an action against Bahadur Beg, Mufti and the Kazi for assault, false imprisonment, breaking and entering her house etc and asked for damages of 6 lakh

Patna CaseSupreme Court issued a writ of Capias, for arrestment

of Kazi, Mufti and Bahadur Beg.They were brought to Calcutta and asked to furnish a

bail of Rs 4,00,000,on failing put in the prison. Issues1. Whether the Law officers could be empowered by

the Council, which was also a Court, by delegation of its powers to perform judicial actions by executives and to decide the questions of fact and law.

2. Whether the Supreme Court at Calcutta was having jurisdiction over native Indian people

Patna CaseThe Supreme Court held that the procedure and practice

adopted by law officers was illegal on the following grounds

1. The power to administer justice was vested in Patna Council.

2. The Council left the whole case to Law officers who exercised the reflecting powers of the Council

3. The Council was not authorized to delegate its powers

The declared the gift deed genuine and said that Begum is entitled for the entire property left by her husband and also awarded Rs 3,00,000 for damages

Cossijurah Case

Background1. Mr Kashinath landed a large sum to the Zamindar of

Cosijurah n did not return the same even after repeated remainders.

2. Kashinath brought a case in Supreme Court in 1779 against the Zamindar.

3. Court issued a Writ of Capias warranting arrest of the Zamindar,who became underground and the WRIT remained unexecuted.

4. The Govt. sought an opinion from Advocate general,who suggested that the Zamindars etc. do not fall within the jurisdiction of Supreme Court.

Cossijurah Case

5. The Zamindar of Cossijurah was suggested to not to appear,plead or do any such act which shows the jurisdiction of Court on him.

The Advocate General suggested the Govt to not to assist the Court and leave the entire execution on the Court itself.

The Govt. did the same and gave a notice to all Zamindars and land lords informing that they do not fall within the jurisdiction of the Supreme Court.

On the other hand the Supreme Court issued another Writ of Sequestration for forfeiture of the property of the Zamindar and to force him to appear before the Court and also sent Sheriff’s force to execute the writ.

Cossijurah Case

The Govt. sent an another force to stop the Sheriff’s force, which arrested the Court’s force and brought them to Calcutta.

Kashinath brought an action against the Governor General and members of the Council individually for traspass, who initially appeared in Court but later withdrew themselves as their action was in official capacity as they had done nothing in personal capacity and were also exempted from criminal proceedings in advancement of their official work

Development of Criminal Law 1772-1886When the company assumed responsibility for

administrating Bengal, Bihar and Orissa the Muslim criminal law was very well entrenched in that territory.

The British administrators did not immediately disturbed the status quo’ and allowed this law to continue.

The law however had a number of glaring defects. Many of its principles were not in accord with the British notion of justice, common sense and good government

The Muslim criminal law formally remained in operation in the Mofussil of Bengal, Bihar and Orissa for over 100 years after the company had taken over the administration.

Development of Criminal Law 1772-1886

The traditional Muslim criminal law broadly classified crimes under three heads:

• Crimes against god(apostasy, drinking intoxicating liquors, adultery, etc.)

• Crimes against sovereign( theft, robbery & robbery with murder)

• Crimes against private individuals( murder, rape etc.)The Muslim criminal law arranged punishments for various

offences into four categories, kisa or retaliation meant life for life, it was applied on willful

killing and grave hurt. It was regarded as a right of a man and gave to the injured party or his heirs a right to inflict a like injury on the wrong doer as he had inflicted on his victim.

Development of Criminal Law 1772-1886DIYA- Diya meant blood money. In certain cases, like

unintentional injuries, diya was awarded to the victim on a fixed scale.

In cases where kisa was available, it could be exchanged with diya, or blood money.

The injured person or his heir could accept diya or kisa as he liked.

In case of murder, the heir of the victim could accept diya and forgo his right to claim death on the murderer.

In cases of intentional wounding or maiming, the victim could accept diya in lieu of kisa

Development of Criminal Law 1772-1886HADD- meant boundary or limit. In criminal law, it meant

specific penalties for specific offences. The underlying idea was to prescribe, define and fix the nature,

quantity and quality of punishments for certain particular offences which the society regarded as anti-social or anti-religious

The judge had no discretion in the matter, the punishments prescribed under crimes could not be varied, increased or decreased.

The prescribed punishments for certain offences were: for zina or illicit intercourse, death by stoning,for theft, amputation of limbs like the right hand or the left foot; for falsely accusing married woman of adultery, eight stripes. Etc.

Development of Criminal Law 1772-1886

TAZEER- Tazeer meant discretionary punishments. These punishments were inflicted at the discretion of the judge as there were no fixed rules to prescribe such punishments.

Status of WitnessWillful murder or Unintentional deathPattern of punishments

Development of Criminal Law 1772-1886

Issues 1. Law was very uncertain2. Differences of opinion among the Muslim jurists3. Muslim law of crimes appears to be very severe in

punishments4. Muslim law and theory was based on such relations of

State and Social relations which were obsolete from the west

5. Doctrine of Tazeer gave unwarranted power in the hands of Judges

6. Fatwa were appeared inconsistent with the view of enlightened Europeans

Development of Criminal Law 1772-1886In 1773, Warren Hasting formulated certain proposals for its

modification:-• He suggested that the intention and not the nature of the

weapon used be made the test of willful murder. If the intention of murderer be clearly proved, no distinction should be made with respect to the weapon by which the crime was perpetrated. The murderer should suffer death and the fine be remitted.

• He suggested abolition of the privilege granted by the mohammedan law to the sons or the nearest of kin to pardon the murderers of their parents or kinsmen .According to him, it was a “law of barbarous construction, and contrary to the first principle of civil society ,by which the state acquires an interest in every member which composes it , and right in his security”.

Development of Criminal Law 1772-1886• He advocated abolition of the rule which required the

children, or the nearest of kin of the deceased, to execute the sentence passed on the murderers of their parents or kinsmen.

• He suggested that the fine imposed for manslaughter should be proportionate not only to the nature of the crime, but both to the nature and the degree of the crime and to the substance and means of the of the criminal.

• Warren Hasting submitted his proposals to the council for consideration and approval. But the council took no decision thereon as it regarded it a very delicate matter to change the established law