Legal and Constitutional History of India

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Legal and Constitutional History of India

Transcript of Legal and Constitutional History of India

  • Biyani's Think Tank

    Concept based notes

    Legal and Constitutional History

    of India Law

    Sonia Gill

    Lecturer Deptt. of Law

    Biyani Girls College, Jaipur

  • 2

    Published by :

    Think Tanks Biyani Group of Colleges

    Concept & Copyright :

    Biyani Shikshan Samiti Sector-3, Vidhyadhar Nagar, Jaipur-302 023 (Rajasthan) Ph : 0141-2338371, 2338591-95 Fax : 0141-2338007

    E-mail : acad@biyanicolleges.org Website :www.gurukpo.com; www.biyanicolleges.org

    Edition : 2011 Price: Leaser Type Setted by : Biyani College Printing Department

    While every effort is taken to avoid errors or omissions in this Publication, any mistake or

    omission that may have crept in is not intentional. It may be taken note of that neither the

    publisher nor the author will be responsible for any damage or loss of any kind arising to anyone in any manner on account of such errors and omissions.

  • Law 3

    Preface

    am glad to present this book, especially designed to serve the needs of the

    students. The book has been written keeping in mind the general weakness in

    understanding the fundamental concept of the topic. The book is self-explanatory and

    adopts the Teach Yourself style. It is based on question-answer pattern. The language of book

    is quite easy and understandable based on scientific approach.

    Any further improvement in the contents of the book by making corrections, omission

    and inclusion is keen to be achieved based on suggestions from the reader for which the author

    shall be obliged.

    I acknowledge special thanks to Mr. Rajeev Biyani, Chiarman & Dr. Sanjay Biyani,

    Director (Acad.) Biyani Group of Colleges, who is the backbone and main concept provider and

    also have been constant source of motivation throughout this endeavour. We also extend our

    thanks to Biyani Shikshan Samiti, Jaipur, who played an active role in co-ordinating the various

    stages of this endeavour and spearheaded the publishing work.

    I look forward to receiving valuable suggestions from professors of various educational

    institutions, other faculty members and the students for improvement of the quality of the book.

    The reader may feel free to send in their comments and suggestions to the under mentioned

    address.

    Author

    I

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    Legal History

    Legal History Notes- A comprehensive compilation of the landmarks in Indian Legal and Constitutional History1

    Charter of 1600 The governor and company merchants of London trading into the East Indies fifteen years

    life. Can be wound up with 2 years notice. India, Asia, Africa & America falls within its jurisdiction. Exclusive trading rights- violators are punished all members together form general court.

    General court elects the board of directors for one year, the board consists of the governor and 24 directors.

    Legislative powers General court has the authority to make, ordain and constitute laws, orders and constitutions

    for the good governance of itself, its servants and better advancement and continuance of its trade. Punishments can be given for violators, they range from fine, forfeiture and

    imprisonment. Shall not the repayment to laws, customs and statutes in England. No legislative powers over any territory.

    It was the germ out of which the anglo-Indian codes were ultimately developed.

    Kings Commission Involving royal prerogative obtained commission to the captain of the ship. Separate commissions were dispensed with the power was conferred on the company

    In 1615- trail by jury of12 persons.

    1623- Similar powers were given to ordain the settlement on land- on precedents or chief officers. Power to enforce discipline both on land and high seas.

    Charter of 1661

    It authorised the governor and council of each factory to judge all persons, whether belonging to the company or living under them in all causes, civil or criminal according to the laws of England and to execute judgement accordingly.

    1 Sonia Gill , Assistant Professor, Department of Law, Biyani Girls College,Jaipur.

  • Law 5

    1600 1661

    Only to company servants to all living in the settlements including Indians

    No power to award death sentence has got power to award death sentence To enforce discipline creating judicial system to

    companys territory.

    Features 1. No separation of judiciary and executive powers with governor and council.

    2. Applied to English Law.

    Surat Factory Set foot on Indian soil during Jahangirs reign.

    Factory was a place consisting of offices,residences for companys servants and spacious

    warehouses for storage of goods. Factory-Province- Empire.

    Commercial centre- busy port- routed the Portuguese.

    1612 Factory with permission of local moghul governor Firman- James I sent Sir. Thomas Roe to Moghul emperor for obtaining trading facilities directly from him. He issued firman in 1615.

    Features of the Firman

    Established factory in a hired house Allowed to give- their law religious-they settled disputed among the themselves Disputes with natives Local law

    1687- Seat of president & Council was transferred to Bombay.

    Presidencies of Bombay , Calcutta, Madras. -Presidency towns , and territories around them are known as moffusil. Surat had a rudimentary administrative and judicial setup.

    Law - Law was a personal and religious institution.

    - Criminal law Muslim law

    - Civil law personal laws of community

    - English people obtained right to be governed by their own law.

    - Right to self-government was given.

    Judiciary - Governor and Council

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    - Disputes among the companys servants only

    - No regular tribunals

    - Charter of 1623 authorised criminal trails

    - Justice according to justice and fairplay.

    MADRAS PRESIDENCY

    Three stages I stage 1639-1665 Second stage 1665-1686

    Third stage 1686-1726

    First stage:

    Madras was the first presidency town to be established in India Founded by Francis Day-fortified factory-called fort st.George.

    Full powers to govern and dispose of the government of Madraspatanam- a small village lying near the fort.

    The white town and black town together came to be known as Madras. Administration

    Status of agency-agent and a council and subordinate to Surat. Judicial System

    White town-agent and council- complicated matters were referred to companys authorities in England Dictatory and unsatisfactory.

    Black town- Raja left the authority to English- no regular tribunal was set up- choultry court- Adigar-old, traditional- indigenous system-small civil and criminal cases-

    adigar corrupt- English men appointed to that duty-procedure informal- serious crimes referred to Raja. Raja ordered the company to execute-

    1. company had no power to do so under the charter of 1600

    2. did not want to annoy local people and raja

    system was demeritary

    Second stage

    Case of Mrs.Ascentia Dawest (1665) murdering slave girl-was referred to the company in England-decided to invoke charter of 1661-status of agent was raised to governor Thus became Presidency in 1665

    Charter 1665 applicable to all live in the settlement including local people

    Applied English law

    No expert in law

    Justice according to wisdom and common sense

    Governor and council hesitant- being conscious of the lack of power

  • Law 7

    They consulted the authority in England causing inordinate delay Streynsham Master-governor 1667 to 1681

    High court of judicature-1678-governor and councilhas to sit on two days weekly-English law was applied

    Choultry court-upto 50 pagodas small and peety criminal cases-appeals to the high court of judicature

    Third stage

    Admiralty court- all cases mercantile and maritime in nature-trepass, injury or wrong in the

    high seas or within charter limits Composition-person learned in civil law and two merchants Chief Judge called the judge advocate

    Law applied- rule of equity and good conscience and the laws and customs of merchants Founded on the civil law rather than common law

    Procedure- it can settle subject to crowns directions The charter of 1683 by Charles II established one or more courts for people indulging in trade violating the monopoly

    Mercantile and maritime law-based on roman law- based on roman law 1687 John Riggs as Judge Advocate

    After the arrival of the lawyer governor and council relinquished judicial functions. Two Important changes

    1. Expert in law for the first time

    2. Executive was separated from judicial __

    Powers- Civil, criminal, mercantile and maritime in criminal cases jury trial was followed.

    1689- Briggs died , Governor general and council appointed __ Judge advocate and two members of the council __ other judges. Associating with them, two

    merchants, an Armenian & a Hindu to assist the court. 1692- new judge advocate John Dolber was dismissed in 1694, William Fraser a civil servant. Thereafter the members of the cou