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

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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

4

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

company‘s 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 Jahangir‘s reign.

Factory was a place consisting of offices,residences for company‘s 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 company‘s 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 company‘s 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 crown‘s 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 council sat in turn as judge advocate since 1696.

1698 -onwards started hearing appeals from admiralty courts incase of less than 100 pagodas. 1704 – ceased to sit as a regular court.

MAYORS COURT

Corporation Charter of 1687 relied on 1600& 1683- empowered company to constitute a corporation-

Corporation came into existence on Sept. 29, 1688. Mayor(An Englishman, elected every year by aldermen and burgesses) 12 aldermen(for life or during the residency in Madras by Mayor, aldermen & burgesses from burgesses of whom

atleast three should be company‘s covenanted Servants), 60 -120 burgesses(selection by aldermen and mayor)

Reserve power with the governor and councils to remove anybody.

8

Mayors Court

Court of Record

Composition: Mayor and three senior aldermen

Quorum : Mayor and two aldermen Recorder of court-covenant servant – skilled in law – Briggs Jurisdiction : Civil and Criminal, granting probates of wills, letters of administration of

deceased‘s property. Appeal to admiralty court- in civil (over 3 pagodas) criminal – Sentence of laws of life and limb.

Jury in criminal trail.- Justice was dispensed Law applied :- In a summary way according to justice and good conscience and laws made by company- it was not definite- decision uniformity and consistency

It would award death sentence only to Indians

Demerits : 1. Recorder is the judge advocate in admiralty court which would hear appeals from

Mayors court 2. Some of the Council members were part of the corporation thereby the judges in the

mayor‘s court 3. Governor and Council could remove the members of the corporation and appoint someone else.

4. The strained relationship between governor and council affected the functioning of the court

5. Biggs death- Admiralty court was suspended – Mayor‘s court claimed its orders are final but the governor and council did not accede to it. 6. Choultry court lost importance – petty jurisdiction trying small offences and civil

cases upto two pagodas.

BOMBAY

First: 1668 – 1683, Second: 1684 – 1690

Third: 1718 – 1726

Portuguese acquired island of Bombay in 1534 by cession from king of Gujarat & sultan bahadur. In 1661, the Portuguese king, alfonsus Vim transformed the island to Charles II as dowry on

the marriage of his sister Princess Katherine with British king.

Law 9

First – 1668 – 1683

A population of about 10000

Charter of 1668:

Full powers, privileges, jurisdiction, for the administration, legislature and dispensation of justice.

Company was empowered to laws for good governance and improve penalties for breach of such laws.

Law applicable – 1. Company can make the laws.

a. They were to be consonant to reason and were not to repugnant or contrary, but as

near as might be agreeable to English law.

- Company was authored to create courts

- Procedure as established and used in England.

- it concedes imperium and jurisdiction sovereignty with necessary flexibility

Judicial system 1670

Deputy governor and council for administration – under the surat presidency.

Bombay – two divisions 1. Bombay, mazagaon and girgaon.

2. Nasik, sion and worli

Composition A court of 5 judges each. President of the court – customs of of each divisiom

Indians were also appointed 4 judges were the qurom.

Remuneration – not paid, they were honorary. Jurisdiction – 1. Civil – disputed upto 200 xeraphim or rs. 150

2 criminal – cases of small thefts Superior court – deputy governor and council

Jurisdiction – 1. Appeals from divisional court 2, original, jurisdiction in all matters beyond his jurisdiction of devisinal courts. Trial by jury in D.G and council‘s courtscourts are to be maintain records to be submitted to

D G and council. Demerits – elementary, nature.

1. Judges are traders not experts.

2. No remuneration

3. Judiciary was too much identified with executive.

Judicial system of 1672

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Initially the English had not been formally introduced 1672 – English law by a government declaration.

A court with George Wilcox as judge. Jurisdiction – civil, criminal, probate & testamentary, civil care by jury, sit only once a week

to decide civil cases. CRIMINAL JUSTICE

In Bombay the criminal jurisdiction was divided into four- Bombay, Maim, Meagan and Sion.

The Justice of Peace – an Englishman was appointed in each division for parliamentary examination of witnesses. The same court which decided civil cases.

Acted as a committing Magistrate. Sat once in a month with jury. All Justices of peace sat in the court Assessors to help the court.

Appeals – governor general and council at Bombay. Court of Conscience – to decide petty civil cases upto 20 xerafins without jury. Sat once in a week – no fee

Remuneration- Rs. 2000 per annum In actual practice it was not paid – later it was reduced considerably

In 1683 the system came to end due to Keigwin‘s rebellion on the island. SECOND PERIOD -1684-1690

Admiralty Court was set up in 1684 under the Charter of1683. Dr. John, a learned civil lawyer was appointed as the Judge Advocate. The remuneration paid was 200 pounds.The

appointment of legal experts in Bombay didn‘t come well as in the case of Madras. The court had civil, criminal, admiralty and maritime affairs. The Surat Governor Child and the Governor turned into inimical terms. Later the Governor in1685 by divested the admiralty

court its civil and criminal jurisdiction.

NEW COURT WITH VAUX AS JUDGE

The court had to try civil and criminal cases. Disputes arose between Dr John and Vaux as to the jurisdiction in civil matters between the council and the governor‘s council‘s appellate

jurisdiction. Dr.St.John was dismissed in 1687

Conflict between judiciary and executive After Dr.st.John Deputy Governer took over the judgeship of Admiralty Court. Compny objected to it – Vaux was appointed as judge.

1690 Bombay was attacked b Moghul Admiral Siddi – fell on evil days. Put an end to the existing system.

THIRD PERIOD (1718 – 1726)

Composition ( in the year1718) : Chief Justice and nine other judges.

5 were British 4 were Indian judges representing Hindus, Muslims, Portugese, Christians and Parsis known as Black Justices.

C.J and a few were members of G & Council.

Law 11

Jurisdiction : civil, criminal, testamentary, worked as a registration hours for immovable

Properties transfer.

Law applied : justice according to Law, Equity and good conscience, the Company‘s rules and ordinances – due regard to caste customs and English law.

Appeal : Governor and Council no provision for jury trial

- moderate fees were charged. ( 1687 G & Council moved to Bombay from surat.)

Quorum : 3 English judges - Indians role was in the nature of assessors to make familiarize with

local Customs, roles. They were the leading people of the locality – following Mayor‘s court which had Indians.

Merits : outside element in the sense Indians had a place in the composition of the court

however small their role in the court. Demerits :

1. Judges took part in hearing cases in which they themselves are interested.

2. Members who sat in the court were Council members. They again would sit in G & Council as ultimate authority.

3. Executive never interested in having an independent judiciary .

Mayor’s court

Charter by King George I on the 24th of September 1726 – judicial charter

a. uniform system of administration of justice in all the presidencies town

b. courts derived authority from the crown and not from the company

c. initiated the system of appeals to the privy council –established a bridge between

English and Indian legal systems. tried to apply English principles of law were

Indian law was deficient and wanting.

d. established local legislatures

e. introduced English law to india

Charter however followed two traditions

f. justice continued to be administered by non professionals

g. integral relationship with executive and judiciary was maintained

Reasons:-

1. Presidency towns grew in size and population –better system of administration

and delivery of justice was necessary

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2. testamentary jurisdiction with authority was necessary. without this the

verdicts of the company were challenged in the English courts .

Corporation

Mayor

9 Aldermen – 2 could be subjects of any prince who is in amity with the

British- the rest are natural subjects of the crown

mayor holds the post for an year-has to be elected every year among the

aldermen .

Alderman held the post for life or residency in the town- vacancy was to be

filled in by the mayor and aldermen from among the principle inhabitants of

the town.

Governor and Council could remove aldermen on sufficient grounds – appeals

would otherwise lay to the privy council.

Mayor’s Court

Composition- Mayor and Aldermen- 4

Quorum- Mayor or senior aldermen and two other aldermen

Jurisdiction- 1. presidency town and its subordinate factories

2. civil, testamentary matters [could grant probates of will and letters of

administration] Court of Record and can punish for contempt Law applied:- court was to render its decisions according to ―justice and right‖

–administered English law Criminal jurisdiction-

Composition- Governor and five senior members of the council – each of them was to be a justice of peace - three justices of peace formed a court of record-same powers as enjoyed in England –justices acted as committing

magistrates also [ apprehending and preliminary inquiry–decided petty cases, the more serious crimes were referred to the quarter session court

Powers – had the powers of the court of oyer and Terminer and gaol delivery Plenary jurisdiction- formerly, tried criminal cases, felonies and misdemeanors, but later try only those arrested, lodged in prisons –trial by

grand and petty jury Quarter sessions- four times a year

Law 13

Procedural Law- manner and form

The procedure followed by the different organs were to be the same or ― in the like

manner and form as near as the circumstances and conditions of the inhabitants will admit of ― as the similar courts and jurisdictions in England do and proceed.

judiciary independence- not provided for since the members of the governor and council were the judges of criminal cases and appellate jurisdiction – not professionals Before it was court of directors – legislative Governor and council of each presidency town

was given powers to make by- laws, rules and ordinances for good governance and regulation of the corporation and the inhabitants of the settlements. They were to be agreeable to reason

and contrary and repugnant to the laws and statues of England. Were not be effective unless approved court of directors –first time legislatures were created

Mayor‘s court of 1687, Madras Under Charter of 1726

1.Applied only to madras To all presidency towns

2.jurisdiction-both civil and criminal cases Only civil cases

3.appeal to admiralty court Appeal to governor and council and then to privy council

4.charter of company itself Charter of the crown

5.lawyer was attached as Recorder No legal expert

6.was more of a court of equity rather than law

Thoroughly an English court-english law substantial and procedural

7.administered criminal justice also Criminal justice was left to the governor and council-not regarded as a

progressive step

8.sizeable representation of Indians Under-represented

Working of the system-

a. it was not smooth and was marred by hostility and conflict between the government

and the Mayor‘s court

b. the functioning was not as much useful to the Indians –it applied English law and

procedure – was not in conformity with the ideas and traditions of the people

eg.pagoda oath and gita oath

c. the court attempted to arrest independence , its members did not show judicial

restraint or dispassionate attitude

d. council asserted its supremacy all through.

Charter of 1753-

1746 French occupied Madras and surrendered it only in 1749

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- charter of 1726 ceased to exist and new charter was issued-

1. Mayor is appointed by governor and council out of a panel of two

nominations submitted by the aldermen.

2. aldermen were appointed by the council

3. the power of dismissal already law with the governor and council

4. the jurisdiction of the court vis-à-vis Indians restricted- only when both the

parties submitted to its jurisdiction

5. flexibility in administration of the oath

Provisions to make it impartial and effective: -

1. action can be moved against the Mayor

2. interested parties cannot be judges to the same cause

3. can hear suit against the company and the govt. must be the defendant

4. court fee to be deposited with the govt and not with the court

Creation of new court-court of request Composition: Commissioners from 8 to 24 in number. 3 were to form the court

Appointment: First commissioner was appointed by the Government from amongst the servants. Half of them retire every year. New appointments were to made by ballot by remaining commissioners.

Jurisdiction: cases value upto 5 pagodas or Rs.15. Successful court, not much problems- as-indian‘s disputes did not draw much attention from

the council because of the value of the dispute 1753 – hierarchy of courts- Civil side:

Mayor‘s court Court of requests

Governor and council Privy Council

Criminal side: Governor and council-quarter sessions court

Justices of peace Privy council Courts to the Inidians

Madras- Problems with Mayors Court-comment-court of request can decide cases uptto Rs.20

1726- Choultry court was reconstituted appointed justices of peace upto Rs.20 Justices of peace is member of the council and appeal from this court would lie to the

governor and council Sheriff court-abolished later

1796

Law 15

Simple court under a servant of the company to hear cases over 5 pagodas, sat twice a week, gave way to recorders court in 1798

Calcutta-

Due to ban on Mayor‘s to try cases of Indian, Indians did not suffer much, because of the existence of zamindari or collector‘s court trtried cases beyond the jurisdiction of courts of request.

Ban on the mayor‘s court to deal with the cases fortified the position of the zamindari;s court. But dispute arose as to the jurisdiction. Zamindari court had no jurisdiction over

Europeans,Americans, fringys(black mixed Portuguese Christians) Zamindari‘s court was reformed.

Criminal Justices of peace to take cognizance of all criminal caese.

Quorum-3 justices of peace to try only capital offences Capital sentence required approval from the governor and council

Civil Composition-a court of 5 companny servants

Jurisdiction- cases valued more than rs.20 Appeal- to Governor in council over rs.100 Quorum-3 sat ordinarily. One sat to decide the cases.

Quarter Sessions – tried some cases involving Indians Case of lady committed infidelity

Forgery and petty thieving were met with death –penalty following accordance with English laws was beyond the imagination of the Indians –out of tune with their prevailing mores, notions and customs

Bombay- Mayor‘s court continued to exercise its jurisdiction over the Indians for two

reasons that Bombay was ceded to the British crown , consequently the company had full power over the territory –no new courts were created in Bombay

Defects of the judicial system: - a. too much executive ridden

-members were nominated by the govt. -youngsters-servants depended on the grace of the company -not an effective instrument of justice

-could not take detached views were the government or its members were directly or indirectly interested

-power of dismissal system suffered from all weaknesses arising from a combination of executive and judicial authority in the hands of the people who had commercial interests of their own to defend.

justice was too much of a political farce

16

criminal jurisdiction- consisted of members of the executive, too suffered the similar weaknesses-

judges never took impartial decisions were company or its members are interested. jury also failed –refused to take cognizance of such cases matter-

executive –legislative powers on the same body the whole government system of a presidency town was despotic in nature without any adequate safeguard to the people liberty, life and property

a. lack of adequate knowledge of English law on part of the judges

-knowledge confined to material supplied by the company

-judges primarily men of commerce and not of law

-no codes or law reports

-also practiced law without the necessary legal training, cases were

decided according to their sense of discretion, sense of justice and fair

play

-no problem with simple cases but trouble with intricate or difficult legal

questions arose on the criminal side also

The charter of 1726 and 1753 introduced technicalities of the English law

and procedure and forms of the English judicature in the presidency towns

without at the same time introducing any legal element in the composition

neither of courts nor with competent people to work them properly.

b. comments and observations by the company‘s lawyers in England on the

working of the courts

c. arrangements made for the administration of civil justice were poor and

insufficient

-application of English criminal laws which was too harsh proved to be

not in tune with the local laws or customs

e. territorial jurisdiction was confined to the presidency towns –no

mechanism to judge English people who resided outside the presidency

towns.

f. treatment of attorneys – they were dismissed without adequate reason

and at the

company‘s pleasure

Merits:-

Mayor‘s court did constitute an important link in the chain of the

evolutionary process, it was more regular and formal , paved way for more improvements and sophisticated judicial system manned by professional lawyers – continued to exist till

1798 in Bombay and Madras. BEGINNING OF THE ADALAT SYSTEM

Law 17

Adalat system in the territory of Bengal, Bihar and Orissa beyonf the Presidency town of

Calcutta. As time passed the Company expanded its political activities and brought new territories

surrounding the Presidency Towns under its control – known as Moffusil in contradiction with the Presidency Towns

First territorial acquisition of Bengal, bihar and Orissa.

COMPANY BECOMES THE DIWAN

1756- Calcutta was captured by Siraj-ud-Daula :Nawab of Bengal. Who turned out the British.

1757 – Recaptured by Sir Robert Clive (Battle of Plassey in the same year, Nawab was defeated)

Power passed into the Company‘s hands Company appointed as the Nawab

Fiction was maintained due (i)territorial acquisition may invite parliamentary intervention no sov.

(ii)invite international conflict due to jealousy between French and Portugese.

Deputy Nawab was appointed 1764- Battle of Buxar

1765- Moghul Emperor Shah Alam granted the Company the Diwani for the annual payment of Rs. 26 lakhs rest of the revenue went to the Company =de jure Diwan

Diwani Province or Susah Nizamat(Nawab or nizam)

Diwan collecting revenue Positions were held during Military, maintenance of law

Deciding civil & the pleasure of Emperor and order, administration of Revenue cases. Criminal justice.

System of Checks and balances

Division between treasury – Power

Due to disintegration of Moghul Empire—Nawab became more powerful and

appointed as the Diwan.

Emperor became only titular head – fait accompli

Theoritically Nizamat was left to the Nawab

Company wanted to make him powerless

Right to maintain army was taken away

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53 lakhs annually paid for maintaining himself and administration of criminal justice.

EXECUTION OF DIWANI FUNCTION No mention in the firman—given Cali Blandra Company had no acquainted with administration

left to indigenous machinery System proved to ruinous because nobody felt responsibility, companys officials were

corrupt- exploited the country, they involved in private trade Total Anarchy, no security of life & property 1771.Bengal faced a very acute a famine. 1/5 th of the population swept away.

1771- Company decided to stand forth as diwan For good revenue- these must be prosperity .there must be peace and security of life n

property Judiciary was also corrupt

Judicial Plan 1772

Plan of 1772 was devised with a district as the unit. The whole territory was devided into

several districts- collector ineach of these who was to be responsible for collection of land revenue. Applied personal laws native law officers were appointed kazis n pandits CIVIL

a. Mofussil diwani adalats Collector as judge all civil cases , real and personal property , inheritance, marriage, caste ,

disputed accounts , debt, contract ( upto rs 500 was final), partnerships, demands on vast b. Small cause adalats Disputes valued upto rs 10

Presided by head farmer of pergunna c. Sadr diwani adalats

Governor and council members Appeals from mofussil diwani adalats 5 % courtfee, within 2 months

CRIMINAL

a. Mofussil Nizamat Adalat

b. All criminal cases – collector supervise

Judicial plan 1980

Provincial councils were diverted with judicial power Confined to collection of revenue and to decide revenue disputes

Civil

A provisional diwani adalats : was established in each of the 6 divisions Superintendent of Diwani Adalat

Presided over it he was a covenanted servant of company and he had to take an oath that he will increase his powers with fear n power

Jurisdiction Civil cases . inheritance , property, contract, could decide cases relating to the inheritance n succession of zamindaries and talukdaries

Law 19

Native law officer- authorized to expound law Appeal- in case the value exceeds 1000 rupees to sadr diwani adalats

Court fees rangin from 2% to 5% EVALUATION

Clear separation of executive n judicial functions – provincial council had no judicial powers DEMERITS

1 paucity of adalats 2 heavy work load

3 superintendants were junior officer – no legal knowledge or other experience 4 revenue cases decided by provincial cases – judge of its own cause

29th September 1980 Impey was appointed to the sadr diwani adalats – remained for a year there are some sought of regulations for functioning of adalats

1781 Number of diwani adalats increased to 18- adalats were to hv jurisdiction completely separate from the revenue jurisdiction or public revenue

Judicial Plan of 1772: - CRIMINAL

a. Moffusil fordari(nizamat) adalat

All criminal cases – collector supervise

Consisted of muslim law office, kazi, mufti, moulavis,

Death & forfeiture of property with sadar nizamat adalats confirmation.

b. Sadar nizamat adalat

Composition - daroga-i-adalat

assisted by chief kazi, chief mufti & 3 moulavis

Appointed by nawab on the advice of governor

Jurisdiction – confirmation of death sentence & forfeiture of property. General

supervision.

Miscellaneous provisions

Civil – head on open court, were to maintain registers and records, abstracts of records were to be given to sadar adalat, limitation of 12 years, a rough and ready procedure, moderate

fees prescribed arbitration was provided. Criminal – severe punishments – dacoiti were executed – mutilation was not found favours with.

Appraisal of the plan Judges were paid by the govt. – court fees went to the govt.

System commission was abolished – a court in each district easily accessible – zamindars judicial powers were abolished. Traditional division between diwani & nazamat was maintained.

Technically company was only responsible for civil justive as diwan. Criminal justive was with nawab. Warren Hastings forced only to organize them in 15 aformal patterns. Criminal

administration, muslim law officers. Supervision provided for.

20

Bold step – Decided to follow personal laws in civil litigation. Defects – 1772 plan

a. Dacoity of court – districts were inaccessibly due to the distance. Small cause courts

jurisdiction was limited – more number of courts were required.

b. Concentration of power in collector

Revenue collection, administration, civil judge and supervisor of criminal court.

Plan of 1774

a. Collectors were recalled – instead a amil or diwan was appointed for collection of

revenue and to start as judge in mofussil diwani adalats

b. Whole territory divided into six divisions. It consists of several districts-

A provisional council in each division with 5 covenanted servants as judges to hear

appeals from a] mofussil diwani adalat and supervise revenue collection – original

jurisdiction at the place were they sat

Demerits – Council members were more despotic

- Corrupt as they were junior servants than seniors

SUPREME COURT AT CALCUTTA

After the Battle of Plessey, Bengal, Bihar and Orissa were in the grip of confusion, chaos and

anarchy. The Company‘s servants exploited Indians and amassed wealth. They returned to England and led a life out of tune against the existing mores. They got involved into active

politics. They purchased seats in the House of Commons. They also purchased Company‘s shares and attempted to influence its policies. This created doubt in the mind of people in England. Company in India underwent a severe crisis. They requested the Crown to grant

them a loan. The Crown took this opportunity to acquire and regulate the Company‘s affairs. The Parliament appointed a Secret Committee and Select Committee for this purpose.

REGULATING ACT OF1773 The Act aimed at ―establishing certain regulations for the better management of the affairs of the East India Company as well in India as in Europe.‖

1. Directors‘ term was fixed at 4 years. There was also a provision for electing one fourth of them annually.

2. Voting rights were restricted. One can vote only he had stock worth 1000 pounds. 3. Control – correspondence relating to the revenue from India were to be submitted to

the Treasury and on civil and military affairs before the Secretary of State.

MACHINERY FORADMINISTRATION The Governor General and Council of 4 had a tenure of 5 years. They were to act according

to decision of the majority. The presidencies of Madras and Bombay were made subordinate to Calcutta. It put the two Presidencies under the control of Calcutta in matters of war and peace with exception of imminent necessity or direct orders of Court of Directors.

LEGISLATIVE AUTHORITY

Law 21

Governor General and Council were authorized to enact such rules, regulations and ordinances for the good governance of Fort William and factories subordinate to it.

RESTRICTIONS 1. Not to be repugnant to the laws of England.

2. To be reasonable and to impose reasonable penalties for their breach. 3. Rules were not to be effective until they were registered and published in the

Supreme Court.

Appeals were to lie to the King in Council from an aggrieved Indian within 60 days of registration. Suo moto powers of the King in Council to review the rules within 2 years.

One can see elements of JUDICIAL REVIEW of legislation. MISCELLANOUS PROVOSIONS

1. The Governor General and Council members, judges of the SC, officers involved in

the collection of revenue were prohibited from receiving presents or engaging in private trade.

2. King‘s Bench was authorized to punish crimes or misdemeanors committed by the officers.

SUPREME COURT

Composition: Chief Justice and puisne judges. Qualification: only a barrister of 5 years‘ standing.

Appointment: by crown. Tenure: during the pleasure of the Crown. Jurisdiction: civil, criminal, admiralty and ecclesiastical, equity.

Territory: Bengal, Bihar, Orissa PERSONS; The Company, the Corporation of Calcutta, His Majesty‘s subjects residing or

having debt or property in Bengal, Bihar and Orissa, executors or administers of those subjects, any person employed by or being directly or indirectly in the service of the Company, the Corporation or any of His Majesty‘s subjects, any inhabitant if he enter into an

agreement with His Majesty‘s subject agreeing to be subjected to its jurisdiction. EQUITY: Power as nearly as maybe according to the rules and procedure of High Court of

Chancery. CRIMINAL: As a court of oyer and terminer and goal delivery, employed Grant and Petty jury.

- Power to reprieve or suspend the execution of capital sentence till a mercy petition is decided by the Crown

ECCLECIASTICAL: On British subjects in the territory according to the ecclesiastical law prevailing in the Diocese of London. It had the power to issue probates and letters of administration. It also had the power to appoint guardians and keepers of infants and insane

persons. ADMIRALTY: Over the same people civil and criminal maritime issues.

SUPERVISORY: Over courts of Requests, Justices of Peace and Quarter Sessions – similar to the powers of King‘s Bench. WRIT: For the above purpose.

JUSTICES OF PEACE: Empowered to arrest and examine those who were charged with serious offences, and to punish minor offences.

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KING‘S BENCH: Jurisdiction to issue writs such as mandamus, certiorari, prohibition, habeas corpus.

POWERS: Court of Record was authorized to frame such rules of procedure, had to do all such acts as were necessary for the administration of justice and due execution of all powers

conferred on it subject to approval of King in Council. APPEAL: - Civil- If the value exceeds 1000 pagodas and on petition seeking permission from the S.C within 6 months of judgment.

CRIMINAL: Discretion of S.C, absolute power. Reserve powers to admit or refuse an appeal from any judgment, decrees, or order of S.C.

LEGAL PROFESSION: S.C was powered to admit advocates and attorneys, only they could appear, on reasonable cause they could be removed from the role. IMMUNITY: Gov- Gen, Council members Judges of S.C were to be exempt from the

process of court except for treason or felony. MERITS:

1. Judges were professional lawyers 2. Tenure Security- appointed by the king and continued during his pleasure 3. Judges had knowledge of English Law.

4. Independent of Company‘s organizational scheme, separation of Judiciary and Executive.

5. Jurisdiction extended beyond Calcutta, and over Bengal, Bihar and Orissa- could book those Englishmen residing in these areas.

6. It was a combination of ordinary as well as equity jurisdiction.

DEMERITS:

1. Charter had not specifically dealt with regarding Bengal, Bihar and Orissa. Various powers over these territories.

2. Diwani lands were not considered as British territory, yet allowed the S.C writ to run.

It created anomaly and contradiction in the exercising of jurisdiction. Bengal, Bihar and Orissa were Diwani lands. It was not British territory and therefore no

jurisdiction theoretically. But practical emergencies compelled to do so. 3. The terms ‗British Subjects‘ and subjects of His Majesty, persons employed directly

or indirectly in the service of the Company were not clear from the Charter.

4. Regulating Act sought the S.C to control executive, it suddenly overturned the system prevailing, in which Judiciary was controlled by the executive.

–Jurisdiction over such persons- jurisdiction that was exercised by the King‘s Bench

and to issue writs. There were frequent conflicts between G.G in Council and Court

and also between the servants and Courts.

-whether S.C had jurisdiction over matters relating to collection of revenue.

Can the Council interfere with Diwani functions of Company.

5. The Act and Charter did not specify the relationship between the G.G and Council

and S.C. It was not specified in case of dispute between the two which would prevail over the other. The Act did not draw distinction between their governmental and

individual acts.

Law 23

6. Conflict between Company‘s court and S.C since the S.C had got jurisdiction over Bengal, Bihar and Orissa- overlapping of jurisdiction. Whether the S.C got

jurisdiction of Company‘s Courts – their illegality, wrongs or corruption. Interference was not to the liking of Governor General and Council.

7. Judges were to act as Justices of Peace- whether this extended over the Indians also. They were to function according to English principles of law. If Indians were made subject to this jurisdiction the English law would apply. It was contrary to the

principles then followed that natives are governed by Mohammedan criminal law. Issues arising out of commission of an offence by British and Indians together.

8. It vested in each judge the authority and analogous to that enjoyed by the Court of King‘s Bench. It includes the power to issue writs. If the intent of the Act was to control the Company‘s people – it could issue writs. In that event the whole adalat

system would have been brought under the control of S.C. 9. Justices of Peace after committed proceedings satin the Court as judges- investigation

and adjudication were in the hands of same person. 10. The creation of Supreme court gave rise to a host of problems for Indians in the

moffusil since they applied English laws which were totally inconsistent with the

traditions and mores of the Indian people -Question of jurisdiction –they should appeal first and plead lack of jurisdiction – in

effect subjected to the proceedings – bail bond values were very high 11. The Act left wholly untouched the question of law to be administration by the supreme court ― the unregenerate english law, insular, technical , formless , tempered its

application to the english circumstances by the quibbles of judges and the obstinacy of juries, capable of being an instrument of the most monstrous injustice when administered

in an atmosphere different from that in which it had grown‖. Trail of Nandakumar:- Raja Nanadakumar at the instance of the majority of the council members brought a

notion against warren Hastings on the grounds of bribery and corruption before the council –hastings was very annoyed by it- later one mohan Prasad filed certain changes

of forgery against Nandakumar before S.C - he was tried with the help of jury and sentenced to death . An Act of 1728 by Parliament had made forgery a capital offence. Sentence was executed duly

The execution of Nandakumar is said to be a judicial murder – The reasons were based –

-on the question of applicability of English law -on the ground that trail was baised and it was at the instance of Warren Hastings

I. A. Though the English law was made applicable to it was applicable only in so far it suits the local conditions – the question was whether it was suited in the

circumstances prevailing then – forgery was not a capital offence as per the hindu and muslim laws

B. The act which made forgery a capital offence was in the year 1728 During that time

when king introduces his law in a conquered dominion , all such laws as were in force at the time in England at that time when the laws are so introduced , do become the laws of

the dominion . the laws made subsequent to that was to be specially introduced, otherwise

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such laws are most applicable . it was followed that the English law was introduced only in the year 1726. Therefore unless the Act of 1728 introduced specifically it has no

application to Calcutta.

II. 1] The charge preferred against Nandakumar was shortly after he had leveled charges against warren hastings

2] C.J Impey was a close friend of Hastings

3] Every judge of the S.C cross examined the defence witnessed due to which the defence collapsed.

4] Application for granting leave to appeal to the king in council was rejected

5] Nandakumar applied for mercy, it was not forwarded to the S.C . It was granted in another case.

Recorder’s court

Act of 1797 act of parliament authorizing the king to establish mayor‘s courts. Madras 1798 in Bombay also near about that time.

Composition :mayor and three aldermen and a recorder. Qualification: Recorder was to be a barrister with not less tah 5 years standing. Recorder was the president of the court.

Jurisdiction: civil, criminal, ecclestiastical and admiralty. Its authority was similar to that of Supreme Court t Calcutta.

Personal: similar to SC but the jurisdiction of British subjects or his majesty‘s subjects in the territories of native princes in amity with company or in alliance. Restriction: all the restrictions imposed upon the SC at Calcutta was extended to this court

also by the act of 1981. Matters concerning revenue. Wider in nature. Appeal: judicial committee of privy council.

Recorders court absorbed the mayor‘s court and the court of Oyer and terminer and gaol delivery under the charter of 1753. Court of requests: jurisdiction of court of requests established in the presidency towns were

increased from 5 pagodas to 80 rupees. Comparison with old mayor‘s courts

1. Consists of legal expert.

2. Independent of company‘s establishment. Recorder was appointed by the crown.

3. It has both civil and criminal jurisdiction.

4. It has admiralty jurisdiction.

5. Indians subjected to its jurisdiction within the presidency town. But mayor‘s court

was not.

6. Mayor‘s court though an English court could not apply English law due to lack of

knowledge. But recorders could do so.

7. It applied the personal law of hindus and muslims-not mayor‘s court.

Law 25

8. Appeal from mayor‘s court to governor general and council and then to king in

council if value exceeds 1000 pagodas.

Supreme Court Act of 1800 by parliament. Supreme court at Madras. Established in the year 1801. Act of 1823, established in the year 1823.

Federal court Government of India Act, 1935

Federal court 1937 1. Original

2. Advisory- governor general can seek the advice of council.

3. Appellate- with special leave from high court. If no leave is made no appeal can

be made.

Appeal to privy council- 1. Original jurisdiction

2. In other cases by the leave of the federal court.

Sc 212- privy council decision binding Appointment by his majesty. Continue till 65 years. Removal is same as that of high

court judges. The federal court( enlargement of jurisdiction) act, 1948.stopped appeal to privy council from high court.

Privy council abolition act- power of privy council to FC. Privy council King in council –privy council

Star chamber abolition act 1641. Residuary –appeals from its colony

A committee of privy council. 1833- judicial committee act.2 Indian retired judges as

Special features

1. Advisory in nature

2. Report does not contain difference of opinion.

3. Not bound by the rule of precedents.

1949, abolition of privy council jurisdiction act JUDICIAL PLAN:1780

Provincial councils were divested with judicial power. -confined to collection of revenue and to decide revenue disputes.

Civil provincial A provincial adalat :was established in each of the six divisions. Superintandent of the Diwani Adalat presided over it was a convenanted servant of the

company and he had to take another that he will exercise his powers with fear and power.

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Jurisdiction-: Civil cases, inheritance, property, contract could decide cases relating to the inheritance of and succession of Zamindaries and Talukdaries. Wakil law officer,arrested to

expound law. Appeal in case the value exceeded 1000 rupees to Sadar Diwani Adalat: a council court fees

ranging from 2% to 5%. Evaluation: clear separation of executive and judicial functions provincial council had no judicial powers.

Demerits: -paucity of adalats.

-heavy workload -superintendants were junior judicial officers -no legal knowledge or other experiences.

- revenue cases decided by provincial counought of regulations for judging its own cause. 29th September 1980, impey was appointed to the Sadar Diwani Adalat- remained for an

year Some sought of Regulations for the functioning of Adalats. 1781

Number of diwani adalats increased to 18 -Adalats were to have jurisdiction completely separate from the revenue jurisdiction or public

revenue ACT OF SETTLEMENT 1781

Was disliked by everybody: -

- Company- it sought to control the administrative process and interfered with revenue collection.

- Officials – interfered with their actions and sought to discipline them - Europeans – it stood in the way of their self aggrandizement. - Indians – its procedure language and law everything connected with

it was mysterious. Examples of Nandakumar and patna case.

System failed – both the court and government responsible. Act of 1781 was passed.

1. to remove doubts and difficulties which had arisen regarding the true intend and

meaning of certain clauses in the Regulating Act. 2. to support lawful government of Bengal, Bihar and Orissa so that revenue might be

collected with certainty. 3. to maintain and protect the inhabitants‘ enjoyment of all their laws, usages and

previlages.

The act was in favour of the Council. SUPREME COURT – CHANGES

1. Governor General and Council was not subject jointly or separately to the Supreme Court‘s jurisdiction for anything done or ordered by them in the public capacity and acting as Governor General and Council.

No person was to be held responsible in the SC either civilly or criminally for the acts done by him in pursuance of the Governor General and Council‘s order in writing.

Law 27

However immunity is not available against the British subjects and in the process before English courts.

Government was totally immune from the process of SC vis-à-vis Indians. Uncontrollable power with the government increased with immunity.

2. Exempted revenue matters or concerning any act ordered or done in the collection of

revenue according to the usage or practice of the country or the regulations made by

the governor general and council in this regard. Major conflicts arose in this area-

avoided by the exception clause- govt had free hand.

3. Persons employed were not subjected to its jurisdiction in matters relating to

succession inheritance or contract- except in actions for wrongs or trespass in civil

matters by agreement subject to its jurisdiction- Those issue which had nothing to do

with service were excluded- matters of personal law and contract.

4. Can try here and determine all actions and suites against the inhabitance of Calcutta.

Personal laws were applied in matters of inheritance, succession, land and goods, and

contracts. Incase of difference in religious laws, the law of defendant was applied.

5. Family laws and customs were preferred if it was against the English principles of

law.

6. Supreme court was empowered to frame rules to deal with the matters of natives – to

avoid arrest on ―mesne process‖

Sadar Diwani Adalat - Was approved- court of record- consist of Governor Genral and

council- Decisions were to be final and conclusive except on an

appeal to the King in council where the value of subject matter

exceeded 1000 pounds. Entire system of courts created by the

company thus came to be recognized by the parliament- was given

equal status with the supreme court.

- Revenue jurisdiction was conferred on the Sadar Diwani Adalat – to

Hear and determine all offences, abuses and corruptions committed

in the collection of revenue- the control could not mean much in

practice- because the governor general and the council presided.

Immunity

The actions of the judges of the company‘s courts in exercise of their judicial power were

immune from the proceedings of the court.Similary those actions done pursuant to a court direction- but action for corrupt practice would lie on following a definite procedural notice

and shall not be exempted. Persons committed to the prison by the Supreme Court in the Patna Case to be released- Govt. paid the damages

Legislative Powers

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Specifically extended over Bengal Bihar and Orrissa – Basis of plan 1772 and 1774 were created- Argued the plans were framed under Diwani powers- But Diwani is only an

executive function and not a legislative authority. Two Powers : One over Calcutta under the act of 1773

Second over Bengal, Bihar and Orissa under Act of 1781 Distinction

Were to be reasonable and shall not be repugnant to the English law

Restriction with Supreme Court

Normal Restrictions

Limited powers can be exercised only for

Adalats.

COMPREHENSIVE CIVIL PROCEDURE CODE (CPC)

Was established for guidance of Sadar adalats and Moffusil Adalats. The first CPC was a regulation. It had 95 clauses.

Quick and impartial and uniform procedure was established. Codified the existing rules. Procedure for adalats

Sadar Adalats had appellate as well as original jurisdiction on the matters referred to it. It had supervisory jurisdiction over Moffusil Adalats.

The provision for applying personal law was refrained. For left over matters the adalats had jurisdiction to decide cases according to justice, equity and good conscience. This resulted in the passing of judicial legislation.

Impey lost both Chief Justiceship and Adalat Judgeship. The attempt to co-ordinate between the two systems ended abruptly. His appointment was constitutional.

Impey‘s motive was not money. CRIMINAL JUDICATURE

1781- a machinery was created for arresting all culprits and bringing them before the courts. - judges of Moffisil Adalats were appointed as Magistrates also. Persons thus

arrested were sent to the nearest Fozdari Adalat for trial. This resulted in

delay. The persons were compelled to be in prisons till their trial took place after long time.

1785 – the Magistrates were authorized to punish petty cases like assault, pilfery. 1781- a new department was constituted at Calcutta with a Remembrancer as its head under the immediate control and direction of Governor General and Council to have general

administration over criminal justice. Criminal courts were to send periodical reports and returns of their proceedings to the Remembrancer. It gave a clear picture – not effective, no

clear information or false information. It had no control over the courts. JUDICIAL PLAN 1780 The provincial councils were divested with judicial power .

- confined to the collection of revenue and to decrease revenue dispuits. CIVIL

A PROVINCIAL DIWANI ADALAT was established in each of the six divisions. The Superintendent of the diwani adalat presided over it. He was a covenanted servant of the Company and he had to take an oath that he will exercise hi power without fear or favour.

Law 29

JURISDICTION – civil cases, inheritance, property, contract. It could decide cases relating

to the inheritance of and successors of Zamindaris and Talukdaris. Native law officers were to attend the adalat to expound the law.

APPEAL- in case the value exceeded Rs. 1000, to Sadar Diwani Adalat which consisted of Governor General and Council. Court fees ranging from 2-5%

EVALUATION There was clear separation of executive and judicial functions. The provincial councils had

no judicial powers. DEMERIT

- Paucity of adalats

- Heavy workload - Superintendents were junior judicial officer who had no legal knowledge or

other experience. - Revenue cases decided by Provincial Councils Judges of their own cause.

29th sep 1780 Impey was appointed to the Sadar Diwani Adalat-remained for an year there. Some sort of regulations on the functioning of Adalats.

1781 Number of Diwani adalats increased to 18. - adalats were to have jurisdiction completely separate from the revenue jurisdiction or public

revenue.

HIGH COURTS

Two judicial tribunal distinctive & separate functioning concurrently but indep endently of

each other nothing common between them ; a wide gulf separated them ; there was no meeting point between them and they often came in clash in actual operation

4. Transaction and affairs are spread over the two territories- Doctrine of ‗constructive inhabitancy‘

5. Execution proceedings 6. Concurrent jurisdiction

Plea of unification of two systems, Charter of 1833

Second law commission reports- Enactment of several laws.

1858 – Company was dissolved and territories were taken over by the Britain The Indian High courts Act, 1861.

- To establish High Court of Judicature in three presidency towns. Abolish SC and Sadar Adalats.

- Authorised king to establish letters patent under the Great Seal of the U.K to ( ) and

establish High Courts. - The new order and documents of the court abolished here to become the new order

and documents of the new high court,

30

- Composition : A chief justice and puisne judges upto a maximum of 15

Qualifications : 7. Barristers not less than five years standing 8. Members of covenantal civil service of not less than ten years standing, who shall

have served as Zilla judges for at least three years of that period. 9. Persons who shall have held judicial office not inferior to that of principal sadar

amen or judge of a small cause court for a period not less than 5 years. 10. Person who had been pleaders of a Sadar court or High Court for a period not less

than 10 years.

- Not less than 1/3rd including chief justice were to be barristers.

- 1/3rd of the members of covenanted civil service

Tenure Held the office, during the pleasure of King. Jurisdiction

Civil, criminal,admirality, testamentary, intestate and matrimonial, original and appellate Subject to any directions contained in the letters patent and without prejudice to the

legislative powers of the governor general and council – each high court was to have and exercise all jurisdiction and such power and authority what so ever , in any manner vested in any of the courts abolished

All provisions of the Act of Parliament or any of his majesty in council , or charter of any of the Indian legislatures applied to the supreme court were to apply to the high court as they

were consistent with the provisions of the high courts act and the charter issued there under subjected to the legislative process of the governor general and council High courts were to have superintendence over all subjects to its appellate jurisdiction

To prescribe for regulating the practice and proceedings of such courts 1862 High court were consitituted in Calcutta, Bombay and madras

Was a court of record Ordinary original jurisdiction: - -within local limits of Calcutta, or within such local limits as may be declared and prescribed

from time to time by any law by competent legislative authority in India -similar to the supreme court‘s jurisdiction

-excluded the matter‘s that fell within the jurisdiction of the small causes court , value not exceeding Rs.100 -to take cognizance of a suit

A] in which the immovable property situated B] or cause of action wholly or partially within Calcutta

C] or if the defendant at the time of commencing the suit -, dwelt, carried out business or personally wished for jurisdiction within such local limits -jurisdiction confined to local limits of presidency towns

-advantage 1] jurisdiction over revenue matters

2] to take cognizance of cases of every description to apply a remedy for every wrong Extra Ordinary Jurisdiction:- Appellate Civil jurisdiction:

Law 31

To hear appeals from civil courts subordinate to it -initiated from the sadar diwani adalats

-provision for letters patent appeal Ordinary Original jurisdiction:-

Jurisdiction enjoyed by the supreme court extended to moffusils over British subjects Extra ordinary original jurisdiction On charges preferred by advocate general, or by any magistrate, or by any officer

specially empowered to do so. Appellate criminal jurisdiction

Appellate, revisional and reference jurisdiction Law applied

Civil

- Ordinary original civil- the law or equity applied by Supreme court

- Extra ordinary civil- law, equity and the rule of good conscience as would have

been applied to such case by the local courts concerned.

Appellate - Law or equity and the rule of good conscience as would have been applied by

the court to how the suit was originally initiated

Criminal Indian penal code, 1860

Procedure- could frame rules on civil side which as far as possible guided by CPC 1859.

Criminal ordinary original procedure followed by the Supreme court all other criminal cases Cr.P.C 1861. Procedure

Civil Can frame rules, was to be guided as far as possible by the provisions of C.P.C, 1859- all

other cases C.P.C, 1859. Criminal Original criminal empowered to frame rules

- In all other criminal matters Cr.P.C 1861

- appeal to privy council

- Charter was declared to be subject to the legislative power of the Indian

legislature, which could amend or allow it in all respects.

Appraisal 1. Centralized control of subordinate court.

2. Advantage by combining knowledge of lawyers and civil servants.

3. Single procedure for equity and law.

4. Only the courts were combined.

5. The law applied then were different. There was no fusion of laws applied by the company’s

courts and the supreme court.

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Laws enacted after 1861 in India was made applicable uniformly to all courts.

Where such law was wanting the English law prevailed to some extent over certain

disputes.

Indian high courts act, 1911

- Ceiling of 15 judges was raised to 20 judges.

- Authorized the crown to establish such number of high courts.

Curia regis and centralization of justice

Curia regis was the King‘s council, during anglo Saxon period. It was known as Witan. It was not merely a law court- administrative organs for the whole country by means of

which and with whose councel the King governed the realm and controlled royal officers. Curia regis assembled in 2 ways

1. On great occasions of at least all the leading feudal and lords and all royal officials

would ment- it would be making new laws-discarding disputes of high people.l-

decided cases of great men and great causes.

2. This was concerned with every day business, particularly of an administrative

capacity, and especially that of finance. When the work increased different branches

developed, from this ramification it‘s the common law was born and inherited their

peculiar features.

-began on the financial side -the curia regis was fertile a mother of law courts that, under the more modern description of

king‘s council Administration of justice in dual capacity

1. Feudal jurisdiction-holding a court as a feudal lord for its tenants.

2. A jurisdiction inherited from the general principle of Kingship- authority over

persons generally due to the fact that

a. He was responsible for maintaining order

b. All men were to look to him for justice if it were denied elsewhere.

Judges were anxious to increase their work -parties opted the common law courts because it was implemented by a relatively more powerful central government.

-trial by jury-better than old forms of decision making

Common Law – Judicial precedents of early common law court – no substantive law – grievances - sought justice –remedy –with a remedy …….a principle or rule was applied – there ruling became the precedents and in the courts of …laws

Law 33

law common to all- law applied by local courts –local customary law in contradiction to this- law applied in France and Germany was civil law by the courts

statute law equity law

writ- form of action civil action started by an original writ [original because it originated its proceedings] in the case of royal writ the writ from the king through the Chancery, the secretarial

department of the state –original writs from administrative office for a fee – contents varied according to the matter involved

the general purpose was to secure the presence of a party before the royal courts usually through the agency of sheriff of the country – each writ contained a brief statement of plaintiff‘s ground of claim

these write became stylized rapidly claims containing certain types of misconduct came to be recognised and each type of wrong

came to have its own appropriate writ to bring an action means to select an appropriate writ like

- Writ of right- claimed tenant without a claim of right deprived of him his land - Writ of debt – defendant owes him so much money - Writ of detinue- defendant detinued from the plaintiff something which was his

Plaintiff of the case had to pick up the particular writ –if they did not action failed

Stereotyped

Changes – by parliament

- Administrative by the chancery - Innovative judges

Later upon the facts stated and upon the proof by the plaintiff –actual injury suffered by him

all actions were allowed “on the case” – statute = in cases where there was no unit to cover

thethe plaintiff’s claim , but the judges would take the initiative to advance an appropriate

writ

-slow process by analogy –from preceding rules-common law thus grew

Register of write- the sum total of writs contained in the register of writs was the common

at any given point of time

-evolution of common law proliferating forms of action

-about 700 hundred years –pace of growth was slow and sometimes fast- dependency upon

the political and social conditions – depended upon the ruler and the judges also.

Old ones were replaced by new ones –but was a continuous growth

Writ system was abolished by the common law prodecure act, 1852 – judicature act of 1873

During the last century the statutory creation of law was prolific

- still civil actions are based on the principles thus developed.

34

- Maitland “ the forms of action we have buried, but they still rule us from their graves” - The common law as opposed to statute law with its fits and starts is still an evolutionary

creation from its ancient fountain heads - Main defect was the stylization of writs- one had to choose the writ to suit the case or the

action would fail

Equity law- Those who failed to get justice from common law crossed to the hall of Westminster Hall and sought the aid of the Chancellor who applied equity.

Secretary of state to all depts.. – he headed the chancery, the royal secretariat –he was responsible for the use and custody of the great seal of realm

-chancellor was an important member the king in council -reason of failure of common law courts to do justice 1] the common law was defective in some ways- for eg. The early common law remedies for

breach of contract were grossly inadequate 2] the only remedy usually the common law courts would supply was the award of damages ,

this was grossly inadequate to meet the circumstances 3] although the law was adequate to meet the cause , justice might not always be obtained in the common law courts because of the greatness of one of the parties

Chancellor being one of the chief royal officers , he was not bound by rules nor the procedure, nor was he likely to over awed by any man In deciding cases he slowly evolved principles.

Chancellor had no separate court initially, he consulted the council, even the judges Since 15th century, chancellor started sitting independently continued till the judicature act of

1873 was passed Equity – latin , ―aequitas‖ = leveling Later stages only it was systematized

Once it was remarked that early equity varied according to the length of the chancellor‘s foot Equity assumes its law, it did not come to defeat common law but to supplement and fulfill it

Maitland – it acts as gloss or appendix to the law Equity follows the law It acts in personam upon the conscience of the defendant