Legal and Constitutional History of India
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Transcript of Legal and Constitutional History of India
Biyani's Think Tank
Concept based notes
Legal and Constitutional History
of India Law
Lecturer Deptt. of Law
Biyani Girls College, Jaipur
Published by :
Think Tanks Biyani Group of Colleges
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Edition : 2011 Price: Leaser Type Setted by : Biyani College Printing Department
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am glad to present this book, especially designed to serve the needs of the
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Director (Acad.) Biyani Group of Colleges, who is the backbone and main concept provider and
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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.
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
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
- Disputes among the companys servants only
- No regular tribunals
- Charter of 1623 authorised criminal trails
- Justice according to justice and fairplay.
Three stages I stage 1639-1665 Second stage 1665-1686
Third stage 1686-1726
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
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
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
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