JUDICIAL SYSTEM BEFORE 1947

By

Y. SRINIVASA RAO,

M.A (English)., B.Ed., B.L., (LL.M),

First Additional Junior Civil Judge,

Bhimavaram.

'' We are trying to give a good government to people of India

to whom we cannot give a free government.'' -- Macauly

The British ruled India for a period of almost about 190 years. Yet, theEnglish set up a poor copy of the British judicial system as Indian judicialsystem.

The judges , in pre-independence India, were the symbol of imperialpower. Hardly after 20 years of Ranjit Singh's death, the whole continent ofIndia had passed into the hands of East India Company. The motto of theEnglish was not to provide justice to the local people but the only motivebehind these efforts was to replace the existing judicial system to mouldthe local people according to their own desire of ruling them in the longrun. The concept of jury was anathema since it would have involved thelocal people in decision making process. All nations,which came to India,tried to establish their monopoly on trade and started to take part in localaffairs. The Portuguese was the first country which came to India fortrade. Yet, the English only succeeded. Owing to luxuries and weakmilitary position of the Mughal government, the British won in the warswith fulcrum of local rulers. A perusal of world history, it evinces that ifany nation conquered the other nation, they enforced their own system ofadministration. Similarly, the British rulers changed the wholeadministration of our country especially the law and justice. However,Even after Indians were appointed as judges, any contact between judgesand the common people was discouraged.The Europeans came to Indiathrough Sea route as a trading nation, and ultimately gave a new turn tothe Indian history. Their commercial instinct led them to discover the searoute to India. They had no intention to conquer the country; theirobjective was to establish commercial relations with India.

HIGHLISHTS:

-Dravidian- the local inhabitants of India had established their ownsystem of Judiciary.

-Then Arians adopted that system with slight modifications.According to the traditions and customs of Hindu caste system under thepanchayat system, the cases were decided The Raja was the highest courtof appeal. There were civil and criminal courts at local level . The judgeswere advised by the learned Brahamins as to the interpretation of Hindulaw. The punishments were based on caste system.

-The Arabs entered into India in 712. A.D: They introduced Qazisystem for criminal cases in the areas of their influence while retained theold panchayat system as to civil cases.

- Delhi Sultanate: They introduced the several changes in the existingJudicial system and made it more human. The Qazis were appointed todeliver of justice.

- Islamic Judicial System : The Mughals introduced Islamic judicialsystem. Yet , they did not introduce purely Hindu Panchayat system,despite it was the mixture of Islamic, Persion, and local Hindu system. Atlocal level, the Panchayat system was limited up to the religious mattersof Hindu community.

- Having the Turkish occupied and took control of the Mediterranean Sea,the European trade was totally at the mercy of the Muslims. Ultimately, anew trade route was discovered to reach Asia . The English startedchanging the prevailing judicial system in India in order to strengthentheir power.

- Sea route: In 1498, Vasco de Gama discovered sea route to India andreached the port of Calicut. Thus, the Portuguese, the first Christiannation, came to our country. Their policy is ''Divide and Rule''.

- The British, the Danes, the Dutch, and the French reached India:After arrival of Portuguese, the British, the Danes, the Dutch, and theFrench also reached India. All of these nations came to India for trade.But, out of them, the English people succeeded to establish their power inIndia. The Governor and company were authorized to make laws.However, owing to limited legislative right, it led to establish a newJudicial system in India.

-Arrival of the East India Company in Sub-continent: QueenElizabeth granted a charter as to monopoly of Eastern trade for period of15 years in the month of December, 1600.

- Elizabeth I`s charter during the year 1600: Because of this charter,the East India Company empowered it to make laws, constitutions, ordersand ordinances as necessary for the governance of its servants. Thus, theEast India Company empowered to impose punishments subject toEnglish laws and customs.

In 1609, after reaching the court of Emperor Jehangir, the Englishexpressed their desire intention for permission to them for settlement atSurat.

In 1612, nevertheless the Portuguese force attacked the English at Surat,the English defeated the Portuguese.

In 1613, a farman was sent by Emperor Jahangir permitting the English toestablish a factory at Surat.

In 1615, the England entered into a commercial treaty with MughalEmperor.

In 1621, the British East India Company produced the Laws, acompilation of rules: These laws and rules were quite new to India. Thus,the Judicial condition, in those days, was seriously strict and stringent forIndians.

In 1624, the first judicial power that was granted to the company by theKing of Britain: On the request of the East India Company, King James 1granted the judicial powers to punish civil and military personnel ofcompany in India by martial as well as municipal laws.

In 1634, A Golden Farman was granted to the British by the Sultan ofGolconda. It allowed the British to trade in the kingdom of Golconda. TheBritish had to pay 500 Pagodas per year.

In 1639, Inasmuch as Francis Day obtained the lease of a land from theruler of Chandragiri, It became a foundation of new city "Madaras". Thus,the Fort St. George was become the first fort in India by the East IndiaCompany.

In 1651, having grant of concession for trade by Nawab Shuja of Bengal,the English strongly established in Bengal.

-In 1652 ,the Chaultry Court started operation in Madras: In thisCourt, civil cases like cases of debt upto 50 pagodas were settled. Besidesthat cases , as to breaches of peace, were settled. This Court presided byone Indian and two Englishmen.

-In 1661, the Charter Act which was granted by Charles II (1630-1685),made provision for the use of English criminal law in India.

- In 1666, in Madras, an early styled court consisted of the Governor-in-Council.

-In 1668, in response to the issuance of a new Charter, Thomas Papillonand Mr. Moses prepared a draft code of laws. Following their revision andapproval, they took effect in January 1670 in Bombay. Thomas Papillon(1623-1703) was member of the Company`s Court of Committees. Mr.Moses was Solicitor of the East India Company.

-On 2nd February 1670, Gerald Aungier, who was the Governor ofBombay, initiated a scheme for the first provision of justice in Bombay.He established two precincts of justice, each with five Englishmen.

Appeals from these bodies were sent up to the Deputy-Governor andCouncil for hearing. At this appellate level all trials were held with juries.

-On 8th August 1672, Aungier established a Court of Judicature forBombay . George Wilcox was its first judge. During this time the use ofPortuguese laws were abolished to support British law.

-On 16th August, 1672, Wilcox, who was Judge of the Bombay Court ofJudicature, started a Court of Conscious. Because of this, even the poorcould receive free justice. It worked every Saturday.

-On 18th March 1678, under the instructions of Streynsham Master(1640-1724), the Madras Court operated the judicial activities. The newcourt tried civil and criminal cases according to English law.

-The Charter granted in the year of 1683: It authorised theestablishment of Courts of Admiralty in the three Presidency cities.Additionally The Court held the power to apply martial law in wholeIndia.

-In 1685, in Bombay, the President of the Court of Judicature suggestedthat civil appeals from the Admirality Court appeals should pass to theDeputy Governor and Council.

-In 1686, the Madras Court ceased operation in favour of the Court ofAdmiralty. Cases could also be accepted by the latter Court from theMadras Mayor`s Court.

-In 1690, For a time the Deputy Governor and Council handled somejudicial matters inasmuch as no Judge remained to ensure the continuanceof the Court of Judicature due to Sidi's attac in Bombay.

-In 1692, the Government of Bombay established the office of theCoroner.

-In 1694, in Calcutta, the Council possessed a zamindar status. therefore,a Zamindari Court was convened to administer both civil and criminalcases among the Indians.

-In 1698, the Company also acquired zamindari rights at Sutanati andGovindpur.

- In 1698, the new Charter, as granted by King William III (1650-1702),determined that the East India Company would carry out its business inaccordance with such by-laws, constitutions, orders, rules and directionsprovided by its General Court as were not repugnant to the laws ofEngland.

- In 1700, Bengal was established as a Presidency with a Governor-in-Council and therefore the Company granted full judicial authority.

- In 1704: The development and staffing of judicial institutions inBombay had been delayed until the arrival of Sir Nicholas Waite asGovernor of Bombay in November 1704.

-In 1712, the practice of one-person judicial operations practiced duringthe preceding decade was ended inasmuch as the Council of Bombaypassed a resolution declaring that it would sit two days a week to hearjudicial matters..

- In 1716, the East India Company instructed to form a sub-committeeof the Governor`s Council to deal judicial matters.

-In 1717, the Governor-in- Council of Bombay announced as toestablishment of a new Court of administration . The court startedworking since 25th March, 1718. Laurence Parker was the Chief Justice.The court possessed wide civil and criminal jurisdiction. Appeal of itsdecisions could be made to the Governor-in-Council. Justice wasdelivered from the bench.

-In 1726, the Crown granted Letters Patent which provided for the re-establishment of a Mayor`s Courts, which practiced English common andstatue law, in Madras, Calcutta, and Bombay. They were composed of theMayor and nine Aldermen, seven of whom were required to be Britishsubjects. They possessed jurisdiction in civil cases with appeal to theGovernor-in-Council and later to the Privy Council in case of the valueexceeded 4000 rupees.

-In 1753, Because of the measures of the 1726 Charter Act, the newCharter Act modified the jurisdiction of the Mayor`s Court in Bombay,Madras and Bengal. This Act vividly explained that with the consent ofboth parties , the cases between two Indians could only appear before theMayor`s Court. This Act provided for a Court of Record, consisting of thePresident and Council to hear appeals from the Mayor`s Court.

-In 1754, As the Royal troops arrived to India, the terms of the MutinyAct and the Articles of War made applicable to Company`s militaryforces.

-The result of Plassy,in 1757, paved the way for the British conquest ofBengal and eventually of the whole of India.

-In 1765, in Bengal, Nawab granted dewany to the East India Companythat led the responsibility for working Dewany Courts not only in Bengalbut also in Orissa and Bihar.

- In 1769, in recognition of some oppression and judicial chaos in theinterior, or `Mofussil` (places and areas that did not fall under citycategories, remote districts), the Company appointed some CovenantedServants to act as Supervisors of the Country Courts.

-On 28th April 1772, as ordered by the Company`s Court of Directors,Warren Hastings (1732-1818), who was Governor of Bengal, directed thePatna and Murshidabad councils to introduce not only judicialadministration but also revenue administration during this period, theMohamed Reza Khan and Shitab Roy were arrested as ordered byWarren Hasttings. Mohamed Reza Khan and Shitab Roy were formeradministrators of Judicial and revenue functions in India. WarrenHastings became the first governor-general of Bengal.

-On 15th August 1772: Role of Warren Hastings: 1) The first BritishIndian law code, in Bengal, Bihar and Orissa, was introduced duringHastings period. 2) Two courts viz the Fajudari adalat and the Dewaniadalat were introduced. The Fajudari adalat dealt with criminal cases andthe Dewani adalat dealt with Civil cases. 3) Besides that the SadarDewani adalat, as court of appeal in civil cases, and the Sadar Nizamatadalat as criminal cases appeallate court , were established in Calcutta.4) This system was in force upto 1793.

-''Vivadarnava Setu'' (Code of Law): Hindu scholars, of HinduCommission, prepared a code of Law and it was called as ''VivadarnavaSetu''. This code of Law was prepared in Sanskrit during the period of1773-1776.

- "Regulating Act" in 1773 : Based on the recommendations of a selectand a secret committees, ''The Regulating Act'' was passed by theparliament passed in 1773 which introduced parliamentary supervisionover the Company in India and also modified its constitution both inEngland and in India.

-In 1780, the judicial powers of the six (6) provincial Councils weretransferred to six (6) Dewany adalats. These Adalats were presided overby servants of the English Company.

-In 1781 the number of these courts was increased to 18 (eighteen) andthey tried all kind of civil cases. The duties of Faujdars were transferredto the District Judges. The criminals were tried in the Faujdari adalatunder Indian judges, yet, the ultimate control of vested with headquarter.

- In 1784, The British parliament passed an Act defining more clearly thejurisdiction of the Supreme Court, exempting from it the official acts, theGovernor General and Council, the Zamindars or farmers, and all mattersconcerning revenue collection.

-- (1790): The East India Company made it clear that taking control ofCriminal justice system in all parts of India (except Bombay) under theCompany control. Dewany (money) management of was offered to theCompnay by the the Mughal ruler. Zamindars, who coleected revenue,used judicial power and thus the Zamindars came under the control of theBritish.

Judicial reforms underGovernor General Cornwallis:

Judicial reforms under GovernorGeneral Lord Bentick:

During the period ofCornwallis administration,significant changes were madein all branches ofadministration, including thejudicial system.

In 1787, the District Courtswere again placed under thecollectors.

The English collectors vestedwith the powers of a magistratecould try criminal cases withincertain limits.

The more important criminalcases were tried before DistrictCriminal Courts and SadarNizamat Adalat was the courtof appeal. "His (GovernorGeneral) Governing idea in theadministration of India was tohave India, not for Indians butfor England."

i) Lord Bentick took the charge asGovernor General in 1828.

ii) And declared that high office wasopen to all irrespective of race andcreed.

iii) He appointed Indian judges in thelower courts, gave them widepowers, and better pays.

iv) Tylor wrote, "The first reform wasapplied by the regulation of 1831to the judicial department in thecreation of native judges, and theirprimary jurisdiction over civilsuits.

v) This measure not only relieved thejudicial department of a load ofwork which could never becompleted but opened a way toofficial service which during thelast fort}' years, has beenmaterially enlarged in alldepartments of theadministration."

vi) Lord Bentick abolished theprovincial courts of appeal andcircuit, which served no usefulpurpose. It was rather the sourceof delay in prompt decisions.

Preparation of draft of the Indian penal code by Macauly: Thecharter of 1833 provided base for their consolidation of reforms andcodification of laws, and accordingly a law commission was appointedin the year 1834. Macauly prepared a draft of the Indian penal codebut little was done after his departure, and the commission was finallyabolished. Before the return of Macaulay to India, two parties hadbeen formed, called the orientalists and the Liberals. Macauly alsotook part in the controversy. He presided over the deliberations of twoparties and the casting vote of Macauly as President defeated thecontradictory.

" The beginning of modern Indian public law appeared in 1833 withthe creation of the Indian law commission which in due time (1861)produced the Indian penal code and later the codes of criminal andcivil procedure."

Under the Charter of 1853, a new commission was appointment forthe planning to create High Courts in India on the lines of Britishjudicial system and for the compilation of uniform code of lawapplicable to the whole judicial system irrespective of religion andcreed.

"The Indian 'Mutiny' of 1857 hardened the imperial resolve to takeIndia at any cost." The Act of 1858, which embodied these changes,made provision for a council of India and Secretary of State for India.

The most powerful trading company of British died its natural deathand India came under British parliamentary control.

The government of India under the parliamentary control of Britishintroduced the stamp duty on the judicial cases.

The establishment of High Courts in Calcutta, Bombay andMadras: Under the recommendations of commission appointed in1853, The Government introduced important reforms in the judicialsystem. Their recommendations were accepted and in 1861 the IndianHigh Courts act authorized the establishment of High Courts in each ofthe following towns; Calcutta, Bombay and Madras in place of oldSupreme Court, Sadar Fojudari Adalat and the Sadar Dewani adalatwere abolished after having a age of 90 years.

Inasmuch as the penal code and first criminal procedure code cameinto force, the Islamic system of justice disappeared in 1862 .

The Crown was empowered to appoint the Chief Justice and Judgesfor these High Courts. The appeal against the decisions of high courtswas presented before the judicial committee of the Privy Council. ThePrivy Council was situated in London.

"In 1866 a regulation, which was amended in later years, established aChief Court for the Punjab much on the same lines as the High Courts,though the judges were to be appointed by the Governor General inCouncil and not as in the case of the High Courts by the Crown."In 1872 a Court headed by Judicial Commissioner was established inBurma and various improvements were made in 1875. After the extensionof British territory in Burma further amendments became necessary andAct VI of 1900 established a Chief Court in Burma. The Indian National Congress (1885): The congress drew the attentionof the government for separation of judicial and executive functions in theadministration of criminal justice. In 1911, under the Indian High Courts Act, three High Courts wereestablished at Patana, Lahore and Rangoon. This act enabled thegovernment to establish new High Courts and raise the strength of judgesfrom fifteen to twenty. Due to certain reasons the British government hadbeen reluctant to change the Indian legal system in the beginning as far asto respect the local laws and customs.The British government made no change in the composition of HighCourt judge's till the independence in the provisions of the act 1861.

The Government of India Act, 1935:i) Under the Government of India Act, 1935, the governmentabolished the old proportional  arrangements of judges of highcourts.

ii) Thus, the old rule of appointing the Chief Justices exclusivelyfrom among barristers or advocates was modified to the extent thatthey now might be appointed either from among the pleaders ofHigh Courts or from among the officers of the Indian Civil Service.

An important change in the judicial system was proposed to stablethe federation. Sections 200 and 203 of the Government of IndiaAct, 1935 provided for the creation of Federal Court, which was

normally to be located at Dehli and was to consist of a Chief Justiceand not more than six puisne judges.

The qualification of judges: it would be at least five yearsexperience as judge of high court or at least ten years experiencefor barrister and advocates of Scotland or at least ten years ofexperience for pleader of high court of a province.

The eligibility of the chief justice would be at least fifteen yearsexperience as pleader, barrister or advocate.

- The Federal Court:

1. On 1st October, 1937, the Federal Court was constituted. The chiefjustice and Judges of Federal Court were to be appointed by theCrown and were to hold office till the age of 65 (sixty-five).

2. Sir Maurice Gwyer played important role in drafting of 1935Act for India., and hence he became the first chief justice of thefederal court of India.

3. The Privy Council interprets of the constitution.

4. The final appellate authority of Privy Council was kept intactwhile it should vest in the Federal Court, as it is required in thefederation.

5. Macauly's words reflect the thinking of the BritishGovernment for future of India. ''We are trying to give a goodgovernment to people of India to whom we cannot give a freegovernment''.

6. The federal court declared the 'defence of India rules' as ultra vires,proving its independent and impartial authority, indeed was aturning point for the judicial development in India.

CONCLUSION:

To say succinctly, without explaining the long story of struggle forindependence, here it is copious to say that the period from 1940 to 1947was critical for both Congress and Muslim League inasmuch as both theparties took a very aberrant stance on the issue of independence, whichfinally culminated in the formation of two independent states in theSubcontinent,viz, India and Pakistan. With the creation of these two statesthe British rule in India formally came to a climax. It is now needless tosay that the status of Indian Judiciary is being increased afterindependence.

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