(Code K-2005) at Calcutta. Amherst, Lord Administration. Codification, Development

Transcription

1 LEGALL HISTORY (Code K-2005) Unit I : Unit II : Unit III : Unit - IV : Unit - V : Formation of East India Company, Early Settlement, and Administration of Justice at Surat, Madras, Bombay and Calcutta by East India Company, Charter of1726, Mayor s Court, Charter of Acquisition of Diwani Rights, Judicial Reforms of Warren Hastings, Regulating Act Effects of regulating Act, Act of Settlement, Pitt s India Act. Supreme Court at Calcutta. Different Governor Generals Lord Carnwallis Reforms introduced by Sir John Hasting Lord Amherst, Lord William Bentick, Development of Administration of Justice in Madras and Bombay Presidency. Indiann High Court Act 1861, Federal Court 1935, Modern Judiciary System, History of Appeals of Privy Council, Charter of 1833, Law Commission and Codification, Development of criminal Law, Preservation of personal Laws, History of prerogative writs in India, Law reporting in India. Constitutional History Position of Native States and the Development of the Doctrine of paramountcy, Development of legislative Institutions, Indian Council Act, 1861, Govt. of India Act Govt. of India Act 1919,Simon Commission. Cripp s mission plan, Round Table

2 conference, Govt. of India Act 1935, The Indian Independence Act, 1947 and the story of framing of the Indian Constitution. Book Recommended: 1. M.P. Jain : Outline of Indian Legal History 2. J.K. Mittal : History of Indian Law 3. M.P. Singh : Indian Legal History 4. Cowell : History and Constriction of Courts & Legislature in India 5. Rankin : Background of Indian Law 6. J.K. Mittal : Indian Legal History 7. V.D. Kulsherestha : Land Marks in Indian Legal & Constitutional History

3 THE EAST INDIA COMPANY AND ITS EARLY SETTLEMENTS THE EAST INDIA COMPANY The First East India Company was incorporated in England under a Charter granted by Queen Elizabeth on 31st December, Its official tide was "the Governor and Company of Merchants of London trading into the East Indies". It was given the-exclusive right of trading in all parts of Asia, Africa and America beyond the Cape of Good Hope eastward to the Straits of Magellan. The trading area so defined covered almost every part of the world except Europe. No other British subject could trade in this area without obtaining a licence from the Company. 'The charter was granted for 14 years and it could be renewed for another 15 years only if it did not prejudicially effect the Crown and its people. The company was managed by Court of Directors. The members of the Company in a general meeting, called "the Court", elected annually a Governor and twenty-four directors to look after and manage the affairs of the Company. Powers of the Company. - By majority vote the Court could make any reasonable/laws; constitutions, orders and ordinances as it found necessary and convenient "for the good government of the said Company, and of all factors, matters, marines, and other officers, employed or to be employed in any of their voyages and for the better advancement and continuance of the said trade and traffic". For any violation of these laws the Court could also provide for such pains, punishments, and penalties as were deemed necessary. These laws and penalties were subject to the condition that they had to be "reasonable, and not contrary or repugnant to the laws, statutes or customs" of England. Ilbert has called these powers of the Company "the germ out of which the Anglo-Indian codes were ultimately developed". A number of Charters

4 granted subsequently (Charters of 1609, 1661, 1668, etc.) preserved these powers of the Company. A Second East India Company, to which the Commerce of India was exclusively granted, was incorporated under a Charter of 5th September, 1698 issued by William III. The two companies were united into one in 1709 under an award of Lord Godolphin. The new united company came to be called "The East India Company." The Charter of 1698 which formed the basis of the constitution, powers and functions of the new Company added only few things to the Charter of Under the new Charter the total number of members of the Company constituted the General Court. The General Court elected annually twenty-four directors, called the Court of Directors, for the purpose managing and directing the affairs of the Company. In addition to the powers granted under the Charter of 1600, the Charter of 1698 also provided that subject to the sovereign rights of the Crown the Company shall have the power to govern its factories and forts. To establish the accountability of the Company to the Crown the Company was required to submit annually its accounts to the British Parliament. This constitution of the Company remained unchanged until the enactment of the Regulating Act, 1773 discussed below. In addition to the above-mentioned wide general powers, the Company acquired from time to time specific powers from the British sovereign. Among such powers we may mention the Royal Commissions and the Charter of Royal Commissions.-Within a short time of its creation the Company realised that the powers in its hands were insufficient to control the lawlessness and disobedience in respect of its functioning and operations. Therefore, the Company sought the help of the Crown to punish people for capital offences. This the Crown did by issuing Commissions. By such Commissions the Crown authorised the Commander-in-Chief of each voyage separately to punish for serious offences. The first such Commission was issued in On 14th

5 December, 1615 the Crown gave a general power to the Company to issue such commissions to its Captains. The power of the Company in this regard was subject to the limitation that in capital offences of murder and mutiny the trial should be by a jury of twelve servants of the Company. Subsequently, when the Company established its business at different places, on 4th February, 1623 King James II granted to the company the power of issuing Commission to any of its Chief Officers authorising them to punish persons, subject to a jury trial in case of capital punishment. Charter of The Charter issued on 3rd April, 1661 by Charles II has a special significance in the Indian legal history. By this Charter the company was empowered to appoint a Governor and Council at its factories. In addition to other powers1, the Governor and Council were authorised to judge all persons belonging to or living under the Company "in all cases, whether civil or criminal" according to the laws of England and to execute judgment accordingly. In places, which had no Governor and Council, the Chief Factor and Council were empowered to send offenders for punishment either to a place where there was a Governor and Councilor to England. Thus the Charter of ) authorised the Company to try and punish all persons living under it, including the Indians, 2) opened the doors for the introduction and application of English law in India, and 3) conferred judicial powers on the executive, viz., the Governor and Council. SETTLEMENT AT SURAT The Company established its first factory in India at Surat in 1612 during the time of Mughal Emperor Jahangir. To gain the favour and protection of the Emperor, King James I, sent Sir Thomas Roe to him in 1615 as his

6 Ambassador. The Emperor issued a 'Firman' granting certain facilities to the English people to carryon their activities in a hired house at Surat; to live according to the laws, religion and customs of England and to be judged by their own laws in their disputes. But a dispute arising between an Indian and an English was to be decided by the local Indian courts. Constitution and Functions of the Factory.-The factory was administered by a President and Council who were appointed by the Company. The decisions of the majority of the members of the Council were the decisions of the Company. Apart from exercismg their powers for trading purposes the President and his Council also had the power to administer law and justice. But very little is known about the British judicial system at Surat. This much is clear that the English people were governed by a dual system of laws, namely:- (a) In their own matters by the laws of England; and (b) In matters with Indians by the native laws of this country. The native courts at Surat also did not enjoy good reputation. They suffered from many evils. According to Dr. U.C. Sarkar "during this time the administration of justice by the Mughal emperor also was very unsatisfactory particularly in cases which were not adjudicated by the emperors themselves". There was no set pattern of crimes and punishments and corruption among the judges was rampant. Many cases of indiscriminate punishment and letting off of criminals on acceptance of bribe by the judge are cited by Malabari in his book: Bombay in the Making and by Kaye in his Administration of the East India Company. Many English people, therefore, took law into their own hands and did not care for these courts. The Surat settlement of the Company remained in prominence until Due to the transfer of the seat of the President and Council to Bombay in that year, Surat lost all its importance for the Company.

7 SETTLEMENT IN MADRAS Madras was founded by Francis Day in 1639 on a piece of land granted to him by a Hindu Raja. A fort named as Fort St. George was established there. The Raja also authorised the Company "to govern and dispose off the Government of Madras Patnam" -a small village adjacent to the fort. Inside the fort lived the English and outside in Madras Patnam lived the native people and accordingly the two were known as the White Town and- the Black Town respectively. The two towns together later came to be known as Madras. The legal system that existed in Madras upto 1726 may be divided into three stages. First Stage (1639 to 1665).- To begin with, Madras was an agency subordinate to Surat. Its Chief Officer was called 'Agent' who administered the affairs of the Company with the help of a Council. The judicial system that existed at this stage was conspicuous by the absence of any systematic and regular administration of justice. The only system that existed was- (a) The agent and his Council for the White Town; and (b) The Choultry Court for the Black Town. The jurisdiction and powers of he former were not clearly laid down. It could not decide serious offences and generally sent them to the Company's authorities 'in England. No decision could be given in such cases for years due to the lack of effective and expeditious means of communication. The Choultry Court was a native court presided by the village headman known as Adigar. In 1652, Company's two servants wee appointed to sit in this Court, after the dismissal of the then Adigar on ground of dishonesty. This Court could decide only petty civil and aimina1 matters. What happened in cases of serious nature, is hardly blown. Apparently there was no specific and regular procedure to deal with such matter in the Black Town and the procedure and punishment differed from case to case. Generally the matter used to be referred to the native Raja who either gave a specific direction in the case or authorised the English

8 authorities to decide the matter according to the English law. Charter of 1661 was granted by Charles II and radical changes were brought by it as under it the Company could II appoint Governors and other officers in India". Company's authority was was excluded over the natives i.e., non-employees of the company. Justice was to be imparted according to the English Law. Second Stage (1665 to 1686).- Although the Charter of 1661 provided that the Governor and Council could decide every matter according to the laws of England, nothing was done until 1665, when the Dawes case arose. Mrs. Ascentia Dawes was brought on a charge of murder before the Agent and Council. As per practice, the Agent and Council could only refer the matter to England. To get rid of this procedure the Company thought it proper that the Governor and Council should be appointed under the. Charter of 1661 so that such cases may be decided then and there. Accordingly, in 1665 the Company raised the status of Madras to a Presidency and appointed a Governor and Council who could also work as Court. The case of Mrs. Dawes was decided by this Court. Perhaps because of the absence of any legal expert in the Court the lady got acquitted. Many requests were made by the Governor and the Council to the Company to send a legal expert, but none was heard. In 1678, the Governor and Council resolved that they would sit as Court for two days in a week to decide the cases in all civil and criminal matters with the help of a jury of twelve men. The Court was called as the High Court of Judicature. This Court decided important cases both in civil and criminal matters and also heard appeals against the decisions of the Choultry Court. Third Stage (1686 to 1726)- Admiralty Court.-As noted above proper administration of justice was absent in the Presidency and the same was the case with other establishments. Crimes were increasing and occurred more

9 frequently on ships transporting goods from one place to another. To face this difficulty and to avoid the evils arising from it, it was found necessary that a Court having the jurisdiction to decide the maritime cases should be established. Therefore, on 9th August, 1683, Charles II granted a Charter to the Company making a provision for the establishment of the Admiralty Courts. Admiralty Court was to consist of three members, one of whom was to be 'learned in the civil law,' and the other two were merchants, appointed by the Company. The Court had to hear all cases, mercantile and maritime concerning all persons coming within the limits of the Charter, e.g., the cases of trespass, injuries, wrongs, etc. committed at the high seas. The Court had to apply the principles of equity justice and good conscience and the customs of the merchants. Subject to the directions of the Crown, the Court could determine its procedure. The proposed Court was established in Madras on 10th July, The first members of the Court were three civil servants who were also members of the Governor's Council. In the year 1687, a lawyer-member with the designation of Judge-Advocate was appointed to this Court. The lawyer was Sir John Biggs. On the arrival of the Judge-Advocate, Governor and Council found that there was no need of the Governor and Council administering justice separately and they, therefore, relinquished their job in favour of the Court of Admiralty which henceforth decided all types of cases whether civil, criminal, maritime or mercantile. Criminal cases were decided with the help of jury. In 1689, Sir Biggs died and the post of the Judge-Advocate fell vacant. In the absence of any lawyer-member, the Governor himself assumed the charge of the Judge-Advocate. This composition of the Court was against the nature of the original Charter which required a civil lawyer as the Judge- Advocate. Hence in 1692, a new Judge-Advocate was appointed who was dismissed in 1694 on a charge of bribery. In 1696, the Company directed that the members of the council would successively work as Judge-Advocate. But

10 none of them was a civil lawyer, hence the Court lost its importance. After 1704, the Court ceased to work regularly. In the meantime other Courts were established to decide the disputes. Establishment of Corporation and the Mayor's Court.-Under a Charter of 30th December, 1687, the East India Company proposed to establish a Corporation in Madras. The purpose of the Corporation was- (1) to provide a representative local government. (2) to impose local taxes, and (3) to have the powers for the speedier determination of small controversies of little importance frequently happening among the unarmed inhabitants. The first Corporation in Madras was established on 29th September, It had one Mayor, 12 Aldermen and from 60 to 120 Burgesses. The Mayor was to be elected annually. The Corporation was subject to the authority of the Governor and Council who could remove any of the member of the Corporation including the Mayor. Mayor's Court.-The Mayor's Court consisted of the Mayor and all the Aldermen. The quorum for the Court was three-1 mayor and 2 Aldermen. A lawyer member, called Recorder, was appointed by the Mayor and Aldermen for helping them in deciding the cases of -considerable value and intricacy". The jurisdiction of the Court extended to all civil and criminal matters. It had power to inflict any punishment on any Indian as ~el1 as Englishmen subject to the condition that no Englishman could be punished to death. In criminal cases the Court had to take the help of jury. Appeals against the judgment of this Court both in civil and criminal matters, went to the Admiralty Court. In civil matters, an appeal could be filed only when value exceeded 3 pagodas and in criminal cases when the loss of life or limb was involved.

11 The law to be applied by this Court was not specifically laid down. The only provision made in the Charter was that the Court would decide the disputes "in a summary way according to justice and conscience," and according to the laws made by the Company. The Court, although provided a forum for deciding the disputes of the people, it could not enjoy the independence needed by the judiciary. It always depended on the Governor and Council because they could remove the Mayor and any Alderman. Moreover, the Mayor and the Alderman were also the members of the Council and, therefore, they could not do full justice in the matters related to the Company and its executive. Choultry Court.-After the establishment of the Mayor's Court the Choultry Court, which used to impart justice to the natives, lost its importance. Its jurisdiction was limited only to petty criminal cases. It could impose only minor punishments of fine, imprisonment and whipping. In civil matters it could hear the cases upto the value of 2 pagodas only. The Mayor's Court, the Choultry Court and the Court of Admiralty were three Courts which functioned in Madras. The Admiralty Court ceased to function after 1704 and its jurisdiction was exercised by the Governor and council. They also heard the Mayor Court's appeals till 1727 when a Mayor's Court was established under 1726 Royal Charter. Conc1usion.- The overall picture of the administration of justice in Madras was not very good in these early stages. The system suffered from many drawbacks. The most outstanding of them are the following:- 1) Absence of proper judicial system. 2) Uncertainty of laws.- The Courts and the people did not know the law applicable to them and their disputes. 3) Severe punishments.-usually, the punishments were barbarous and inhuman. They were based on the mixed idea of deterence and prevention.

12 4) Lack of facilities in the jails.-the inmates lived in inhuman conditions. 5) Unfair trial.- The English principles of fair trial such as the principles of natural justice and benefit of doubt to the accused were not observed. The ''benefit of clergy" was however available to the Britishers. SETTLEMENT IN BOMBAY The island of Bombay was under the occupation of Portuguese since In 1661, the Portuguese king gave this island to King Charles II of England as a dowry in the marriage of his sister. The King (Charles II) gave island to the East India Company in 1668 at an annual rent of 10. In the same year Charles II issued a. Charter which conferred requisite authority on the Company for the general' administration of island including the administration of justice and making of laws. The Company could make necessary laws, ordinances, regulations, etc. for its good governance and could impose fines and penalties including the death sentence on those who disobeyed the laws of the Company. But, as noted in the very beginning of this Chapter, these powers could be exercised reasonably and consistent with the laws of England. For the administration of justice, the Company could establish Courts which had to follow the procedure of English Courts. In the beginning Bombay was put under the authority of a Deputy Governor and Council. The Deputy-Governor and Council were subject to the Presidency at Surat. The first Deputy-Governor of Bombay was Gerald Aungier. He was a good administrator and took much interest in establishing a good judicial system on the island. Like Madras, the judicial system in Bombay upto 1726, may also be divided into three stages. First Stage (1668 to 1683).-During this period two judicial systems - ere established. The first of them was established in According to Ibis, Bombay was divided into two divisional. Each division had a Court consisting

13 of five judges. The Custom Officer of the Division was the President of the Court. Some of the judges in these Courts were Indians. The jurisdiction of this Court extended to petty criminal cases, e.g., thefts involving the stolen property upto 5 xeraphins2 and similar other cases. The civil cases which came before this Court, were also of petty nature. It had no jurisdiction to decide cases involving more than 200 xeraphins. Appeals against the judgments of this Court could be filed in the Court of the Deputy- Governor and Council. The Deputy-Governor and Council worked as a superior Court having both original and appellate jurisdiction, in all civil and criminal cases. In civil cases, it had the jurisdiction to entertain matters of the value exceeding 200 xeraphins. All the serious offences, which could not be entertained by the Divisional Court, were tried by this Court with the help of jury. The appellate jurisdiction of this Court was confined to appeals against the decisions of the Divisional Courts. The judicial system established in 1670, was quite elementary and primitive. No distinction was made between the executive and the judiciary. Nor was there any provision for a lawyer-member in the Courts. Many requests were made by the Deputy-Governor to the Company for providing a man learned in law, but it did not care. Ultimately it authorised the Deputy- Governor to select any lawyer-member of its choice available in India. The Deputy-Governor selected Mr. George Wilcox to be a lawyer-member in the judicial administration. Soon after the selection of Wilcox, the judicial system of 1670 was abolished and a new system was established in On 1st August, 1672, a governmental proclamation was made. By this proclamation the existing Portuguese law in the island was replaced by the English law. From then onwards, the English law became the law of the island in all matters. Under this proclamation a new judicial system was also established under which three types of Courts were created.

14 Court of Judicature.-A Court with Wilcox as its judge, was established to hear all civil and criminal cases. The Court also had jurisdiction in matters of probate and testaments. For civil matters the Court sat once a week. All the cases were decided with the help of jury. A Court-fee at the rate of 5% was also imposed in civil cases. For deciding criminal cases, the Court used to sit once in a month. For the purpose of criminal administration of justice, Bombay was divided into four sections. For each section one Justice of Peace was appointed' who worked as a committing magistrate. The Justices of Peace sat in the Court as assessors at the time of the trial. Court of Conscience.- This Court was also presided over by Wilcox, it was called as Court of Conscience because it provided quick.and summary justice. It entertained only petty cases and decided civil matters of value upto 20 xeraphins. There was no provision for any court-fee. This Court did not have any jury. It could be said that the judge decided the matter to the best of his judgment. Court of Appeals.-The Deputy-Governor and Council functioned as Court of Appeal. They heard appeals against the judgments of the Court of Judicature in all matters. The judicial system which was so established under the plan of 1672 worked well. It was quick, inexpensive and efficient. Its main defect was that the Judges did not enjoy independence required for good administration of justice. They were not paid properly; were always under the subjection of the executive and could be harassed by the officers of the Company. This system worked till 1683 when the Keigwin's rebellion brought it to an end by capturing the island. The island remained under the rebellions for about a year. It was recaptured by the Company in After its recapture the company established a new judicial system in it.

15 Second Stage ( ).-Under the new system of judicial administration, a Court of Admiralty was established in Bombay on the lines of the Court of Admiralty established in Madras under the Charter of Basically the Court had jurisdiction in admiralty and maritime matters. But due to the absence of any other Court, even civil and criminal matters went to this Court. After some time dispute arose between the Governor and Council and the Judge-Advocate of the Court of Admiralty about their respective jurisdictions. Consequently this Court was deprived of civil and criminal jurisdiction in To deal with the civil and criminal matters, a Court was established on the lines of the Court of Jurisdicature created under the plan of But the jurisdiction of this Court and of the Court of Admiralty were not clearly demarcated. Therefore, disputes of jurisdiction, between these two continued to arise. Bitterness between the Judge-Advocate and the Governor increased to the extent that after the retirement of the first Judge-Advocate, no other lawyermember was ever appointed to the Court of Admiralty. In the absence of the lawyer-member the Court could.x function on the expected lines. In 1690, one Siddi Yakub, Admiral of the Mughal Emperor, attacked the island of Bombay and captured it. It remained under his occupation till Nothing is known about the judicial system which existed on the island during Siddi's occupation. In 1718, when the Administration of the island again came into the hands of the Company a new judicial S\'Stem was established for it. Third Stage (1718 t6'1'(26).-on 25th March, 1718 a Court with Chief Justice and 9 judges was established. Out of the 9 judges, five were English and four were Indians. The Court thus represented the major Indian communities through the four judges who were known as 'Black Justices'. The Court had jurisdiction in all criminal and civil matters. In the administration of justice, the Court applied the principles of equity, justices and good conscience, and the rules made by the Company from time to time.

16 Application of law, however, had to be in confirmity with and not contrary to the laws of England. Apart from deciding civil and criminal matters, the Court also had the jurisdiction in the matters of probates, and testaments. It also functioned as Registration Office. The Court used to sit once a week to decide all cases. There was no specified law which the Court had to apply and, therefore, it gave a summary and ready justice in all cases which came before it. No rules of procedure or evidence were prescribed for the Court. Civil cases which came before the Court were small in number and petty in nature, not involving any intricate issues. Many of these cases used to be decided according to the personal laws of the parties or the customs prevailing among the communities to whom the disputes related. Criminal cases which came before the Court were of varied nature. They extended from minor offences to capital offences. The Court could give judgment and punishment in every minor or major offence. In enforcing punishments generally the rules of English law were observed, yet the punishments were severe and sometimes there was no relationship between the punishment and the offence. A curious punishment which no body will support today was the punishment of detention in jail. No time limit of imprisonment was prescribed, whipping was a common punishment. The presumption of innocence of the accused and benefit of doubt to him also did not get recognition in this Court. The jury system which existed earlier was also given up and the Court decided all cases without jury. In Ram Kanati's case, Kanati was arrested on the charge of being involved with a dacoit Angira on a dancer's hearsay evidence who told that dacoit Angira told her the same. Ram Kanati's property was confiscated and he was granted perpetual imprisonment, because of fictitious charges which the Governor and Council had framed.

17 Conclusion.-The system established in 1718 was an improvement upon the earlier system-at least to the extent that the participation of Indian judges was allowed in the administration of justice. This helped the Court in winning the confidence and respect of the local people. The internal position of the Company did not, however, allowed the Court to function properly. A little bit separation of executive from the judiciary had been introduced by the Court of 1718, yet the executive, i.e., the Governor and Council always interfered with the independence of the judiciary. Apart from that many of the English judges in the Court were the members of the Governor's Council as well as of the Court. The judges were also the prosecutors. In many cases the Government of the company itself was involved. In those cases the judges could not impart impartial justice. Examples "are available where these judges prepared and procured evidence against the persons who were brought before the Court for justice. Another anomaly was that being members of the Court as well as of the Governor's Council, these judges heard appeals as Governor and Council against their own decisions. In this way" the judicial system was wanting in so many respects. The canons of natural justice and the principles of law were violated by the defects which have been just mentioned. SETTLEMENT IN CALCUTA Job Charnock, a servant of the company, laid the foundation of the British settlement in Calcutta, on 24th August, It began with the establishment of a factory at Sutanati on the banks of river Hugli. A fort was built which was named as Fort William. Eight years after, in 1698, the Company secured the zamindari of three villages, namely Calcutta, Sutanati and Govindpur from the Subedar of Bengal, Prince Azimush-sher, one of the grandsons of Aurangzeb. As zamindar the company obtained all the privileges available to the zamindars. The zamindars enjoyed almost unlimited rights and privileges. If

18 the ruler got the revenue in time, he did not care about the acts of zamindars within their zamindari. Although the Mughal mlers had established a hierarchy of Courts1 and also a good administration of justice, yet after Aurangzeb, it began to tremble and lost its importance and prestige. The Nawab had no proper control/over them. He became idle and left his judicial work to his subordinates. Similarly, at the lower levels the persons to whom the administration of justice was assigned did not perform it properly unless they were paid some gratification. In these circumstances it could be assumed that the zamindars, who were responsible for the collection of the revenue, exercised all those powers which they thought were necessary in their interest. They could inflict any punishment on any person without any fear of action. No action could be taken against them even if they condemn a person to death. In civil matters they decided as they wished without regard to the claims of the parties. This was the state of affairs when the company became the zamindar in Bengal. Judicial system under the Company.-Company as zamindar appointed an officer with the designation of Collector to collect the land revenue from the tenants. He was also given civil, criminal and revenue powers to decide disputes arising within his jurisdiction. There was no specific direction to the Collector about how the law was to be applied in deciding disputes which came before him. Therefore, he generally decided matters according to his own discretion or according to the customs and usages applicable in the locality. Appeals against the judgment of the Collector went to the Governor and Council. If the Collector gave any death sentence, it was to be confirmed by the Governor and Council. Serious criminal and civil matters relating to Englishmen did not come within the jurisdiction of the Collector and were decided by the Governor and Council.

19 Although the Company was merely a zamindar under the Mughal Nawab just like any other zamindars at that time, two important differences were made. First, while the appeals against the judgments of other zaminelars went to the Courts of the Nawab, the appeals from the Collector went to the Governor and Council. Second, in the case of other zamindars the death sentence was confirmed by the Nawab, while in the case of Company, that job was performed by the Governor and Council without reference to the Nawab. From these differences it appears that the Company began to exercise its independence at Fort William from the very beginning. The judicial system established by the Company in Calcutta was very elementary. No specific provision was made about the procedure the courts had to follow and the canons of law and justice they had to observe. This arrangement could hardly be called judicial system. It was merely a matter of administrative convenience. It continued until the Charter of 1726 established a new and uniform judicial system in all the three Presidencies.

20 ESTABLISHMENT OF CROWN S COURTS IN INDIA: THE MAYOR S COURT CHARTER OF 1726 The Charter issued by King George I on 24th September, 1726 marks the beginning of Crown's courts in this country. The Company under the previous Charters was finding itself unable to cope up with the problems which arose due to its extended and enlarged establishments. Therefore, it requested the King to issue a Charter by which special power could be granted to the Company. The main reasons for such request appears to be the following:- 1) One reason mentioned in the request of the Company was the "real want at Madras, Fort William and Bombay of a proper and competent power and authority for more speedy and effectual administration of justice in civil cases, and for the trying and punishing of capital and other criminal offences and misdemeanors". In the preceding chapter we have noted the kind of poor judicial system that existed at the above mentioned places. 2) Another reason was the lack of jurisdiction with the then existing courts to grant probates and letters of administration in cases where the executors of the deceased or his legal representatives if he died intestate, were not in the British settlements in India. According to the then existing practice, in such cases the Council took possession of the effects of the deceased servant and sold them by public auction and deposited the proceeds in the Company's treasury for the benefit of the Indian Legal & Constitutional History deceased's heirs. But this arrangement sometimes gave rise to troublesome suits against the Company, which, the Company not only had to defend but also had to pay compensation and costs sometimes.

21 3) A third reason connected with the second was the seizure of property by the Governor and Council of the covenanted servants of the Company alleged to be indebted to the Company Such seizure of property could be disputed by the concerned servant in the courts in England. If the courts came to the conclusion that the seizure was illegal or that the property was of more value than the amount of debt, the Company had to pay the penalty for illegal seizure and interest on excessive amount. The Company wanted to avoid this kind of litigation in England. Therefore, not only it wanted the establishment of courts "with civil and testamentary jurisdiction to take cognizance of such cases, but also to establish them under authority that would be recognized by the English Courts". 4) A fourth, but weak, reason mentioned by Fawcett was the absence of a proper authority to deal with the indiscipline and the serious crimes committed by the military persons. A court was needed in India to punish all such acts effectively. Accepting the request of the Company, the king granted the Charter of 1726 which provided for the following judicial machinery. Mayor's Courts.-A Mayor's Court was established superseding all the existing courts established in Bombay, Madras and Calcutta. The Court consisted of a Mayor and nine Aldermen, seven of whom including the Mayor, were required to be natural born British subjects. Aldermen were elected from among the leading inhabitants of the settlement to hold office for life. The Mayor was elected from among the aldermen. Subject to appeal to the King-in- Council they could be removed from office by the Governor and Council, on the ground of misbehaviour. The Court was declared a Court of Record and was empowered to try, hear and determine all civil suits, actions and pleas

22 between the parties arising within the Presidency towns or factories subordinate to them and to grant probate of wills and letters of administration. The Charter did not specify the law applied by this Court. It simply said that the Court will try, hear and determine all matters "according to justice and right". In view of the past practice and &e Charter of 1661 these words were interpreted to mean "according to the laws of England". Subsequent history, however, established that the statutory laws of England passed after the issuance of the Charter of 1726 were not applicable in India. Since the Court applied the English law, it also followed the practice and procedure of the courts in England. Appeals from the decisions of the Mayor's Court were filed in the Court of the Governor and Council. A second appeal in cases valued at 1,000 pagodas or more could be made to the King-in-Council in England. Court of Governor and Council.- The Charter of 1726 also constituted a Court of Record consisting of the Governor and Council of each Presidency to hear civil appeals against the decisions of the Mayor's court and to decide criminal cases. The Governor and five members of the Council were appointed Justices of Peace and constituted a criminal court of Oyer and Terminer, and were authorised and required to hold Quarter Sessions four times a year for the trial of all offences except high treason. A petty jury of twelve persons for the actual trial and a grand jury of twenty-four persons for preliminary finding of all offence assisted the Court in the same manner as did under the Commissions of Oyer and Terminer and Goel Delivery in England. Legislative Powers.-The Charter of 1726 authorised the Governor and Council of each Presidency to make bye-laws, rules and regulations for the good governance of the Company and of the inhabitants of the Presidency. This power was, however, subject to the following limitations:- The laws made by the Governor and Council

23 1. must be "agreeable to reason" 2. must not be "contrary to the laws and statutes of England", and 3. were ineffective until confirmed and approved by the Company's Board of Directors in England. Main Features of the Charter.- The following are some of the main features of the Charter of 1726:- 1. The Charter for the first time established the Crown's Court in India. Hitherto, whatever courts existed had their origin in the Company. The courts established by the Charter were the Royal Courts having full recognition in the British legal system. 2. The Charter created a uniform system in' all the three Presidencies of Bombay, Madras and Calcutta. The different systems existing till then were replaced by the new. 3. The judicial system established by the Charter was much more regular, clear and definite than the earlier systems. 4. For the first time the jurisdiction of the King-in-Council was extended to India. Here lies the introduction of the principles of English law through judiciary into our land. 5. The Charter created a legislature in each Presidency with the power of making necessary laws. 6. The Charter is also important for the reason that the statutory laws of England passed after its issuance did not form a part of the laws of this country. More important than this is the fact that this Charter introduced into the Presidency towns the then existing laws of Englands-both common and statutory. Mayor s Courts under the Charter of 1687 and 1726: Comparison.- In Chapter 1we have noted that the Charter of 1687 had also established a Corporation and Mayor's Court in Madras. But apart from the apparent

24 similarity of names there was a vast difference between the two Charters. The main differences may be enumerated as under: 1) The Charter of 1687 applied to Madras only while the Charter of 1726 applied to all the three Presidencies. 2) The Mayor's Court established under the Charter of 1726 had the jurisdiction in Civil matters only in addition to its testamentary and probate jurisdiction, while the court under the Charter of 1687 had the jurisdiction in criminal matters also. 3) Appeals against the judgments of the Mayor's Court under the. Charter of 1687 went to the Court of Admiralty while from the Mayor's Court under the Charter of 1726, to the King-in-Council. 4) The Mayor's Court of 1687 was a Court of the Company while the court established under the Charter of 1726 was the Court of the Crown:', 5) The Mayor's Court under the Charter of 1687 was better in one respect that it had a lawyer-member called Recorder while in the Court under Charter of 1726 there was no provision for any lawyer-member. 6) In procedural matters, the court under the Charter of 1726 had to observe the technicalities of the courts in England while the Court under Charter of 1687 was guided by its own procedure of convenience. 7) In the Court under Charter of 1687 there was good representation of Indians while under the Charter of 1726 in spite of the provision for two Indian members none was ever appointed in practice. 8) Under the Charter of 1726 the criminal jurisdiction was completely assigned to the executive, i.e., the Governor and Council, while under the earlier Charter it belonged to the Mayor's Court and the Admiralty Court. Working of the Charter of l726-the provisions of the Charter were implemented quickly and the new courts started functioning in all the three

25 presidencies by February Requisite independence was assured to the Mayor's Courts and to supervise their functioning the Company required all the three courts to submit annually the registers of their proceedings to be scrutinised by counsel appointed by the Company. "With the Charter the Company had sent each Presidency a book of instructions and multifarious forms as to the Method of Proceedings in civil suits, Sessions trials, probate and administrative work". Thus "the Company made considerable efforts to keep the courts in straight and narrow path of English law". Very soon, however, the independence of the courts and their strict adherence to English law became the cause of the following difficulties:- 1. Hostility arose between the Mayor and the Governor and Council. Mayor wanted to exercise judicial independence but the Governor and Council did not like any person to be fully independent from its authority. Therefore, they began to dictate their terms to the Mayor's Court in the exercise of its judicial functions. Relation between the two worsened and things went to the stage of breaking down. 2. About the natives, jurisdiction of the Mayor's Court was not clearly specified. It was not clear whether the matters belonging to the natives were within the jurisdiction of the Court or not. In a case the Mayor's Court ordered the release of a Hindu son Indian Legal & Constitutional History from the custody of his father on the application of his mother who had converted to Christianity. The Court's order was reversed by the Governor and Council on the ground that the Mayor's Court had no jurisdiction to interfere in the religious matters of the natives. 3. In Madras, a dispute arose on the taking of oath before the Court. A Hindu would like to take oath on the cow or the Gita, but the Mayor's Court insisted upon the taking of pagoda (temple) oath. The Hindus complained to the Governor and Council on this matter which not only increased the bitterness between the Mayor's Court and the Governor

26 and Council but also compelled the Directors of the Company to write a letter favouring the Governor and Council. 4. The Mayor's Court annoyed the natives by applying the principles of English law to them without regard to their personal laws and customs. On each occasion when such issues arose the natives complained to the Governor and Council who sided with the natives. The Governor and Council had to administer the territory and therefore, they never liked that any court should cause resentment among the natives against the Company. 5. The Governor and Council heard appeals, from the decisions of the Mayor's Court. Whenever the wishes of the former were not represented in the decision of the latter they reversed the decision in appeal. These are some of the instances of discord and difficulties under the Charter of Such was the case almost in all the Presidencies. The judiciary did not possess expert staff with required training for administering justice and the executive did not have respect for the judiciary which is needed for good administration of justice. In 1746, the French occupied Madras which remained under their administration till they surrendered it to the British in August During this occupation, the judicial system established under the Charter of 1726 remained suspended in Madras. The Company availed of this opportunity to request the king to remove the difficulties caused by some of the provisions in the Charter of Particular attention was drawn to the application of English law to Indians. Accepting the request of the Company, King George II issued a Charter on 8th January, CHARTER OF 1753

27 Except the following few changes the Charter of 1753 left the system under Charter of 1726 intact. 1. To avoid the disputes between the Governor and Council, and the Mayor's Court, the Charter put the latter under the subjection of the former. The election of Aldermen was abolished and it was laid down that the Aldermen shall be appointed by the Governor and Council. The Mayor, instead of being elected by the Aldermen, was also to be selected by the Governor and Council out of two names of Aldermen suggested by the corporation. 2. Suits and actions between the natives were expressly excluded from the jurisdiction of the Mayor's Court unless both parties submitted them to its determination. Natives were also left to take oath "In such manner as they accorded to their several castes... to be most binding on their conscience, to oblige them to speak the truth". 3. The jurisdiction of the Mayor's Court was restricted to suits of the value of over 5 pagodas. 4. A Court of Requests was created to hear small civil cases upto the value of 5 pagodas. The Court used to sit once in a week. The judges of the court were called Commissioners who were appointed by the Governor and Council from amongst the servants of the Company. The number of the Commissioners were between 8 to 24. Three of these Commissioners used to sit in the court at one time by rotation. The Court used to give quick judgments in the cases coming before it. It also had the jurisdiction to decide the matters of native people. Criticism.- The judicial plan of 1753 and of 1726, though made some farreaching changes, were not enough to provide a sound administration of justice. In many respects it was defective and in some respects it took retrograde steps. Some of the outstanding defects may be enumerated as below:-

28 1) The judicial system which was established by this Charter was executive ridden. The Mayor's Court was fully subjected to the authority of the Governor and Council by putting the nomination and appointment of the Aldermen in the hands of the Council. Being under the pressure of the executive the court always worked according to their wishes at the cost of its independence. 2) The constitution of the court was such that no impartial justice could be given in those cases where the dispute was between a Company's servant and an Indian, because the members of the court themselves were servants of the Company and they never Indian Legal & Constitutional History liked that their co-brothers should be harassed in their disputes with the Indians. 3) There was no difference between the executive and the judiciary in the criminal matters as all the judges of the criminal court were the members of the Governor's Council. 4) The judiciary suffered from lack of legal knowledge. It knew neither the English law nor did it understand the laws and customs of the natives. Whatever it decided was the self interpretation of law and full discretion of its members. The observation of Kaye is worth noting in this respect. He says "Justice gained little by the establishment of the Mayor's Court" as it was composed of "the Company's mercantile servants-men of slenderest legal attainments, and the slightest judicial training." 5) There was no proper control or supervision over courts. The only control was of the executive, i.e., the Governor and Council, which was not conducive to the administration of justice. Provision was made for appeals to the King-in-Council in matters of high amount but in practice hardly anyone took an appeal to that court. Therefore, the King's Council also could not exercise effective control.

29 6) The jurisdiction of the court was limited only to Presidency towns. Even Englishman living outside the limits of the Presidency towns escaped from the jurisdiction of these courts. They committed offences inside the country and yet could not be brought before the Company's Court as their jurisdiction did not extend to countryside. On the contrary, many natives living within the jurisdiction of the courts were subjected to English law of which they had no knowledge and which was different from their laws, customs and habits. The natives were, therefore, put under a law which they could not even contemplate. 7) There were no lawyers to defend the parties. Some Attorneys had been allowed by the court to appear for the parties but these Attorneys also were not well conversant with the laws of England and India. Apart from that, they could not defend the parties independently. Action could be taken against them if they prosecuted any case against the Company or its government. 8) The representation of Indian judges which 'had been provided earlier in some courts in Bombay and Madras was practically denied in these courts. The non-representation of the Indians caused much resentment among the natives. This was the state of affairs under the Charter of In such position the House of Commons appointed a Committee of Secrecy in 1m to scrutinize the affairs of the Company and to report on the administration of justice and on the relations between the judiciary and the executive. On an adverse report on the functioning of the Company the judicial system was overhauled and a Supreme Court was established in Calcutta in COURTS FOR NATIVES The courts discussed above were created for deciding mainly the disputes of the Britishers and other foreigners. The natives were generally