JANHIT COLLEGE OF LAW. Legal history

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1 Legal history A very short answer type questions. Q.1. How and when "The East India Company" was formed? Ans. Formation of the East India Company The earliest British establishment for India was created by a Charter of 'Queen Elisabeth' issued on By this Charter the East India Company was incorporated in England. Its full name was "The Governor and Company of Merchants of London Trading into the East Indies." In the beginning it was created for fifteen years but the Company could be wound up even earlier. However, on by a new Charter James I gave a perpetual life to the Company subject to the Crown's power to revoke it on 3 years' notice on proof of injury to the nation. The total members of the Company constituted a General Court. The General Court elected a Governor and twenty four directors for managing the Company's business. Governor and directors together were called as 'Court of Directors". The Court of Directors was elected annually, but its members were eligible for reelection. However, they could be removed from their office by the General Court even before the expiry of their term. Q. 2. What were the powers and functions of East India Company originally? Ans. Powers and Functions of East India Company The Company was originally created to carry on and enjoy an exclusive trading right in the Countries lying beyond the Cape of Good Hope eastward viz., Asia, Africa etc. No British citizen could carry trade activities in this area without a licence from the Company. At the same time some more powers were given to the 1

2 Company which were in the nature of Legislative powers. The Company in its General Court could pass laws, orders and ordinances for its good government, for its servants and for the furtherance and continuance of its trade and traffic. It could also punish the persons disobeying its laws. However, no punishment could be given which was unreasonable or contrary to the laws, statutes or customs of England. Q.3 What were the main features of the Charter of 1726? Ans. Main Features of Charter of 1726 The main features of the Charter of 1726 are as under 1. The Charter for the first time established the Crown's Court in India. 2. The Charter brought about a uniform system in all the three Presidencies of Bombay, Madras and Calcutta and the different types of systems exiting till then were abolished. 3. The judicial system established. Q.4 What do you mean by the Court of request? Ans. Court of Request Under the Charter of 1753 a Court of Request 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 was between 8 to 24. Three of these Commissioners used to sit in the Court at a lime by rotation. The Court used to give very quick judgments in the cases coming, before it. It also had the jurisdiction to decide the, matters of native people. Q.5 What do you mean by Choultry Court? 2

3 Ans. Coultry Court The Choultry Court existed in Madras to decide the cases upto the value of 20 pagodas. This Court continued to decide cases upto 1774, when some temporary arrangements were made by the Company's Directors and the Choultry Court was temporarily abolished, but it began to work again in 1775 and continued till 1800 when it was finally abolished. After it a Court under a servant of the Company was created to decide the disputes between the natives upto the value of 5 pagodas. Q.6 What do you mean by Mofussil Faujdari Adalat? Ans. Mofussil Faujdari Adalat- It was a court of criminal jurisdiction established in each district. The court was presided over by Kazi, helped by Mutti and Maulvies. The collector had a general supervision over the court. I he court had the full power to decide and punish all criminal cases. However, in causes of forfeiture of property or of death sentence the proceedings of court had to be submitted to the Sadar Nizamat Adalat for final orders. Q.7 What do you mean by Mofussil Diwani Adalat? Mofussil Diwani Adalat It was a court of civil jurisdiction established in each district. The Collector was the judge of this court. In the suits regarding inheritance, marriage, caste and other religious usages and institutions, 'the laws of the Koran with regard to Mohammedans, and those of the Shaster with respect to the Hindus," were to be applied. The Collector, in matters of Hindus and Muslims was helped by Pundits and the Kazis respectively who expounded the law. Q. 8. Why British Parliament passed the Regulating Act, 1773? 3

4 Ans. Object of Passing the Regulating Act, 1773 British Parliament enacted the Regulating Act, 1773 in order to achieve the following purposes (a) to impose greater control and supervision of Parliament over the affairs of the East India Company, (b) to democratise the structure of the East India Company itself, (c) to streamline the administration of India by East India Company, (d) to establish a Supreme Court at Calcutta, (e) to give greater Q.9 What is Cornwallis Code? Ans. Cornwallis Code On May 1,1791, a code which came to be known as Cornwallis Code, containing 48 enactments, was framed. This laid down the general principles for administration of criminal justice. It was this year, i.e., in 1793, that the Regulations framed by the Government were codified according to the prescribed form. Q.10 What reforms were introduced by Sir John Shore? Ans. Reforms Introduced by Sir John Shore Sir John Shore succeeded Cornwall's as Governor-General, although he appreciated the reforms introduced by Cornwallis yet soon he found some defects in them so he made the following changes in the existing judicial system 1. Changes of 1794 The first change was made as under through Regulation VIII of 1796 Power of Registrar Increased A final power of decision was given to the Registrar in suits not exceeding Rs. 25 in value. Beyond that limit an appeal lay to the Provincial Courts of Appeal. This provision was made to relieve the Judges of Diwani Adalats from the obligation of revising the decrees of the 4

5 Registrars and countersigning them before they were considered to be valid. Limited Judicial Powers to Collectors A further relief was given to the Judges by conferring the Collectors with some of the powers they had lost earlier. The judges of Diwani Adalats could refer to the Collectors, for their report on any accounts, of rents or revenue, necessary for deciding the cases before the Adalat. 2. Changes of 1795 In order to further improve the situation some more changes ware introduced by regulations of 1795 which are as under (i) The Zamindars were given certain powers over the tenants and cultivators to enforce payments. This lessened the burden of Adalats to some extent, (ii) At the same time appeal against the decision of Registrar were to be preferred to the District Diwani Adalats and not the Provincial Courts of Appeal and the decision of District Diwani Adalat was made final, (iii) Under the earlierregulations there would be two appeals against the decision of Munshifs; first and second appeal to the District Diwani Adalat. Regulations of 1795 introduced only one appeal to the District Diwani Adalat and the second appeal was abolished, (iv) To discourage frivolous and vexatious litigation Court-fee was re-introduced. 3. Changes of 1797 (a) Court-Fee Increased The Court- fee was considerably increased and it was further required that all the proceedings should be written on stamped paper specially provided for. To expedite the cause of justice, jurisdiction of the Provincial Court of Appeal was extended to their taking to the real property of the value of Rs. 5,000. Beyond that amount their decision was appealable to Sadar Diwani Adalat. (b) Limited Judicial Powers to Assistance of Magistrate With a view to expedite the trial of criminals, the assistants to the Magistrates were granted limited judicial powers. Q. 11. What reforms were introduced by Wellesly? 5

6 Ans. Reforms Introduced by Wellesly Wellesly succeeded Sir John Shore as the Governor -General. The reforms introduced by him are as under I. Reforms in the Constitution of Sadar Adalats Wellesly thought that the Governor Gerieral-in-Council constituting the Sadar Adalts had several disadvantages. Therefore, a Court of three members was constituted. The Chief Judge of the Court was to be a junior member of the Council having some experience of judicial work. The other two were to be covenanted civil servants of the Company who had some experience of judicial work in the Provincial Court. It was, therefore, provided in 1801, that the Sadar Diwani Adalat, the Provincial Court or the Zila or the City Court were to exercise an appellate jurisdiction over the Court below them, on the basis of the value of the subject-matter to be determined; 2. Reforms to Reduce Delay and to Promote Quick Disposals Notwithstanding, several attempts, discussed above, made to eliminate delay and congestion of cases in the Courts, the position had not improved. Huge number of cases were pending in most of the Courts, exercising civil jurisdiction, (a) Head Native Commissioners also ioiown as Sadar Ameens were appointed in Zilias and Cities to enable early decisions, (b) In addition to the above-mentioned post, Assistant Judges in Zilias and Cities were appointed, (c) The pecuniary jurisdiction of the Courts of Registrars was raised to Rs (d) The decisions of the Zilla and City Courts in all appeals from the Native Commissioners were made final. There could be no further appeals. Q.12 What reforms were introduced by Lord Minto? Ans. Reforms Introduced by Lord Minto In 1807, Lord Minto became the Governor-General. He was a quiet, humane and experienced man. He introduced following reforms in the judicial system of the country!. Reforms in Civil Judicature (i) Change in the Constitution of the Sadar Diwani Adalat. In 1801 the Sadar Diwani Adalat was handed over to 6

7 three Judges, thus ending the judicial activity of the Governor-General in Council. In 1807 by Regulation XV the number was increased to four. In 1811 provision was made under Regulation XII to augment the number of puisne Judges as need arose. Thus, in future the Sadar Diwani Adaiat was to consist of a Chief Judge and of as many puisne Judges as were deemed necessary from time to time. Again the Regulation XV of 1807 laid down that the Chief Judge of the Sadar Diwani Adalat was to be a member of the Council of the Governor-General. Thus, Minto reverted to the system of Lord Wellesley. (ii) Provincial Courts of Appeal to Exercise Original Civil Jurisdiction in Certain Cases Hitherto, in all cases appeal from the decisions of Diwani Adalats lay to the Provincial courts of Appeal and a further appeal was provided to Sadar Diwani Adalat in of five thousand rupees or above. This delayed the disposal of such cases. In order to secure speedy decisions and to dispose off the arrears, Regulation XIII of 1808 laid down that the Provincial Courts of Appeal were to exercise original civil jurisdiction in all cases above five thousand rupees. Thus, the Courts of Diwani Adalat were exempted from taking cognizance of all cases over five thousand rupees and such cases were to be directly instituted in the Provincial Courts of Appeal. 2. Reforms in Criminal Judicature-) The defects of the prevailing System Cornwallis's Scheme of CrirninaJ Judicature, though ensured a more regular and satisfactory trial, suffered from many defects. The exclusion of Indians from the administration of criminal justice was one of the major defects. The second great defect of the Cornwallis's scheme was conferring the magisterial powers on the Civil Judges of the Districts. This arrangement did not prove to be useful. The 7

8 combination of two offices in one person gave rise to many evils. To remove the defects in the prevailing system Lord Hastings introduced many reforms in the administration of criminal justice, while Lord Minto did a little in that direction. (ii) Powers of the Magistrates Enlarged To meet the situation, Lord Minto, by Regulation IX of 1807 enlarged the powers of the Magistrates. The Regulation authorised the Magistrates who could not try the accused persons previously, to do the same. They were empowered to award sentences up to six months' imprisonment with thirty rattans or a fine of two hundred rupees. In case the fine was not paid, an extra sentence of imprisonment for six months could be given by the Magistrates. 3. Collector's Powers to Try Rent Cases In 1812, Regulation V provided certain rules under which the land owners could seize the property of their tenants in order to recover the unpaid rents. However, a summary remedy was given to the aggrieved ryot against his landlord in cases in which he was put to trouble. The cognizance of such cases was vested in the Collector to whom they were referred. Q. 13. What reforms introduced by Lord Hastings? Ans. Reforms Introduced by Lord Hastings Lord Hastings succeeded Lord Minto in 1813 as the Governor General. He made the following reforms 1, Reforms in Civil Courts Reforms made in Civil Courts are as under- (i) To minimise delay in disposal of civil cases the pecuniary jurisdiction of Munshifs was increased. An appeal would lie to the Zila and City Courts from the decision of the Munshifs. This appellate decision was final, (ii) Similarly, the pecuniary jurisdiction of the Sadar Ameens was increased. In this case, also, an appeal 10 the Zila and City Court was final, 8

9 (iii) Thirdly, the jurisdiction of the Courts of Registrar was also raised. As a result the Registrars could decide original suits upto a value of Rs. 500, if referred to them by Zila and City Judges, (iv) The office of Assistant Judge was abolished. The Zila and City Court were formally empowered to decide Civil suits of value not exceeding Rs. 5,000. (v) The strength of Provincial Court was increased. Thus, Lord Hastings, in His reform of 1814, increased the jurisdiction of the Lower Courts and the number of judges in the Higher Courts and thereby minimised the causes of delay in the Civil Courts and thus helped speedy disposal. 2. Reforms in Criminal Courts He made following reforms in Criminal Courts (i) The Magistrates were empowered to refer to Native Law Officers and Sadar Ameens cases of minor offences for trial. In such cases, very minor punishment could be awarded, (ii) As desired by the Court of Directors of the Company, the Collectors were given Magisterial powers though there were some objections against such arrangement, (iii) To remedy congestion in the Courts; the jurisdiction of Assistant Magistrates was enlarged. Similarly, the jurisdiction of the Magistrates and Joint Magistrates was enlarged. Q. 14. What were the effects of the passing of the Regulating Act on judicial system in Bengal? Ans. Effects of the Regulating Act on Judicial System in Bengal These are as under 1. A Governor-General and a Council of four members was set up at Calcutta. All civil and military affairs of the Calcutta Presidency were vested in this authority. Warren Hastings was appointed the Governor- General. 2. The Presidencies of Madras and Bombay were put under the lupcriutendenoc of the Calcutta Presidency or the Governor General and the 9

10 Council in matters of war and peace, 3. The decisions of the Council were to be abided by the Governor-General who had only one vote and one casting vote in case of a tie. Thus, the Council had a superior authority over the Governor-General. 4. The Governor-Genera! and the Council was vested with the power of ordering management, and government of all territories, acquisitions and revenues in the kingdoms of Bengal, Bihar and Orissa, 5. Creation of Supreme Court S, 13 of the Regulating Act provided for the creation of the Supreme Court of judicature at Calcutta. Q. 15. What do you mean by First Round Table Conference? Ans. First Round Table Conference When the Simon commission Report was condemned by the Indian people, the British Government called a First round Table Conference in London. The Conference met in London in Nov The Government appointed safe men belonging to the other parties, communities and interest to present India, because the Congress Leaders were in jails. Representatives from the Indian States were also invited to participate in the deliberations which included the personalities like Sir Mirza Ismail and the Maharaja of Bikaner. There were lengthily discussions on the question of the future form of the Government of India. Ultimately three basic principles were settled and accepted by the British Government. The form of the new Government of India was to be an All India Federation in which the British Indian Provinces and the Indian states were to join. Subject to such reservations and sale-guards as might be considered necessary for the transitional period, the Federal Legislature Provinces were to be given authonomy in their own affairs. Q.16 What are the provisions of the Government of India Act, 1915? Ans. Provisions of Government of India Act, 1915 It contained the following provisions (a) The Act deprived the High Courts of its original jurisdiction in any matter concerning revenue. The effect of this provision 10

11 was that in its appellate side it could exercise its jurisdiction over matter concerning revenue but in its original side it could not. (b) Another important change was that the Act exempted the Governor General, the Governors, the Lieutenant Governor General, Chief Commissioners and the members of the Executive Council of the above and also the Minister from the original jurisdiction of the High Court for anything counr-elled, ordered or done by-any of them in their official capacity, (c) The Act also provided that a written order of the Governor- General in Council could protect any person for the act he has done according to the order in any civil or criminal proceedings in any High Court on its original side. However, this exemption was not extended to any European British subjects, (d) Under this Act, the High Courts were to apply in the exercise of their civil jurisdiction the personal laws or customs if both the parties were subject to the same personal laws or customs, otherwise, the law of the defendant. Q.17 What was the basis of the jurisdiction of the Privy Council to hear appeals from the Courts in India? Ans. Privy Council and Its Brief History The British administration of justice is based on the fundamental principle that the King is the fountain of justice. He is a fountain of justice in the sense that justice is conducted through him. He is not the spring from which the justice originates but he is the fountain through whom and through several channels of the Courts justice is conducted. Generally, justice is conducted through the Courts but yet there is a residuary prerogative power with the King. The authority of the Privy Council is based on this prerogative of the King, From the time of the Normans, the King-in-council has entertained jurisdiction to set aside injustice and to establish justice. The King-?in-Council was supposed to advise the Crown in this matter it did in other affairs of the State. In course 11

12 of time, the House of Lords emerged as the final Court of appeal from the Courts in England But yet the Jurisdiction of the King-in-Council continued over the possessions of the King outside Great Britain. To begin with this was a discretionary jurisdiction which the King in Council could exercise whenever it thought it fit. The petition to the King in Council was entertained only as matter of grace but with the development of the oversea colonies and the empire of India, the appeals to the king-in- Council became a privilege of the subject. Q. 18 What do you mean by "The Simla Conference"? Ans. The Simla Conference To create a proper atmosphere for the discussion of the Wavell plan, all the political leaders in prison were released. The Conference was to be held at Simla on June 29, 1945, to which political leaders representing various shades of opinion were invited to attend. On 1st August, 1945, Lord Wavell convened the Conference of the Provincial Governors to take stock of the political situation in the country. Soon after, general elections to the Central and the Provincial Legislatures were announced. In the meanwhile, in the United Kingdom, the Labour party had become victorious in the general elections. Consequently, there was further vassurance from Lord Wavell that the British Government was determined to do its utmost to promote the early realisation of self- Govemment in India. After much discussion; the Congress Party decided to contest the elections. The Congress secured almost all general and a few Muslim seats. Mr. Attlee, the Labour Prime Minister, issued a statement, after the study of election results in India. In that statement he clearly admitted India's right to self-determination. Consequently, a Mission of the Cabinet comprising of high-ranking Cabinet Miniters was sent to India. Q. 19. Write short note on "The Mountbatten Plan."? 12

13 Ans. The Mountbatten Plan The Mountbatten Plan was published on June 3, After emphasising the matter of agreement amongst the Indian Parties and the intention of the British Government of not attempting to frame any ultimate Constitution of India, the plan laid down the following procedure 1. The Provincial Legislative Assemblies of Bengal and Punjab were to meet in two parts, one representing the Muslim majority districts, and the other, the rest of the provinces; 2. The members of the two parts were empowered to vote on the question whether or not the provinces were to be partitioned. If a simple majority of either part decided in favour of partition, partition would take place; 3. The Legislative Assembly of Sind was to take its own decision at a special meeting; 4. In the case of the North Western Frontier province a referendum was to be held; 5. The Muslim majority district of Sylhet vns to decide by a referendum whether it would join East Bengal or remain in Assam. That the policy provided for the creation of a Boundary Commission to settle the details of the boundary in case partition was decided upon. The plan was accepted by the Muslim League on June 9,1947, and by the AH India Congress Committee on June 15,1947. It was decided that Bengal and Punjab were to be partitioned. West Bengal and East Bengal were to join as a new Constituent Assembly: Sind and North Western Frontier Province as well as Sylhet decided to join Pakistan. Q.20 Write short note on "Gandhi-Irwin Pact (Delhi Pact)"? Ans. Gandhi-Irwin Pact (Delhi Pact} On February 14,1931, Mahatma, Gandhi wrote to Lord Irwin seeking an interview in order to discuss the political situation. The Viceroy readily agreed and negotiation began forthwith on 17 th February They met six times at Viceregal House until at last on the morning of 5th March 1931, th.. agreement was reached. According to theagreement (a) The Government agreed to (i) release 13

14 political prisoners but not those convicted of violent acts or the soldiers who retused to fire in Peshawar (ii) withdraw its special ordinances; (iil) remit certain fines imposed on recalcitrant villages: (iv) allow certain villages to manufacture salt for their own use. (b) Picketing was to be allowed but only within the limits permitted by the ordinary law, and discrimination against British goods was to cease, (c) In return for these concessions, the Congress agreed to stop civil disobedience and participate in the next Round Table Conference. Legal History Discuss the merits and demerits of judicial system established under the Charter of Or Describe in short the provisions of Charter of What were the main aims of issuing this charter? How far it could succeed in achieving its aims? Or Charter of makes a turning point in the legal history of India? Discuss the importance of Charter of 1726 in the light of the above observation. Or The year of 1726 marked the beginning of a new era in the evolution of judicial institution in India. Discuss. Write a note on the Composition, Jurisdicition and working of Mayor s courts under the Charter of Whether these are an improvement to the Mayor s Court of Or Write a note on the Composition, Jurisdiction and working of the Mayor s Courts under the Charter of 1687 and Or 14

15 The charter of 1726 was inferior to that of the Charter of Do you agree with this statement? Or Compare and contrast between the Mayhor s court of 1726 with the Mayor s court at Madras established in How and when The East India Company was formed? What were its powers and functions originally? Discuss the composition jurisdiction and working of the supreme Court established in 1774 under the Regulating Act How far the objectives behind its establishment were achieved? Explain the main Provisions of the East India Company Act. Or Pitt s India Act Write a note on the Warren Hastings Judicial Plan of 1772 and 1774 and indicate its influence on the system of administration of justice of India. Write a critical note on the Judicial Reforms of Lord Cornwallis. Or Discuss the reforms introduced by Lord Cornwallis through his judicial plans of 1790 and Or Discuss the reforms introduced by Lord Cornwallis for the enforcement of Criminal Law in India. Or Explain the Adalat system under Lord Corwallis. What were the two rival sets of judicial institutions before the passing of the Indian High Court Act of 1861? State briefly the changes affected by the High Court Act Why was the Federal Court established in India? Explain its Constitution, Jurisdiction and significance in the Indian Legal History. 15

16 How Supreme Court of India incorporated the jurisdiction of the Privy Council and the Federal Court? Illustrate. Or Trace briefly the history of appeals to the Privy Council in civil and Criminal matters. Or What do you understand by the prerogative writs? Describe the history of their starting and issuing in India. Trace the development and codification of Hindu and Mohammedan laws during British period in India. (a) Discuss the recomimendations made by the First Law commission in India and assess its work. Or Describe the contribution of First Law Commission with specific mention of Lex Loci Report and its influence on the development of Law in India. Explain the provisions of Indian Council Act, Also discuss its merits and demerits. Under what circumstance the Indian Council Act. Of 1861 was passed? What changes were introduced in Central or Provincial Legislature by this Act? What are the main features of the Minto-Morley reforms? Did these reforms satisfy the Indian aspirations? Explain in brief the circumstances in which the Indian Council Act, 1909 was passed? What are its main provisions? State the provisions of the Government of Indian Act, Or Discuss the Constitutional administration in India under Montague- Chelmsfor reform. Or What are its main provisions? 16

17 (a) What are the main provisions of Indian Independence Act, 1947? Explain its effect also. (b) Trace briefly the history of law reporting in India. 17

18 History of Courts & Legislature (India) JANHIT COLLEGE OF LAW Q.1 Give in short the history of British Settlement of Bombay and development of its administration of justice before 1726.? Ans. History of British Settlement of Bombay In 1534, the Island of Bombay was acquired by the Portuguese King Aljonsus from the King of Gujrat Sultan Bahadur. In 1661, he transferred this Island to British King Charles II as dowry on the eve of the marriage of his sister Princess Catgheline with Charles H. As the King Charles II found it inconvenient to exercise control over this small territory from England, therefore, he transferred it to East India Company for a petty annual rent of $ 10 by the Charter of In the same year King Charles II issued a Charter which empowered the East India Company to make laws and ordinances for the good Government of the island and its inhabitants. Charter of 1668 also empowered the Company to impose pains, penalties and punishments by was of fines, imprisonment or even death. However,'such Laws were to be consonant with reason and were not to be repugnant to the laws of England. A deputy Governor and Council were appointed to administer Bombay subject control of the Governor. Development of Administration of Justice in Bombay Before -The Administration of Justice in Bombay during the period from 1668 to may be studied in-the following three stages (i) First Stage from 1668 to Gerald Aungier, the Governor of and Bombay, took keen interest in establishing a judicial system in Bombay During this period two judicial systems were established. The first Judicial system in Bombay was-established in 1670 which created the wing types of courts 18

19 (a) Court of Custom Officer In 1670 the Island of Bombay was divided into two parts, (i) Mazagaon and (ii) Girgaon. Each of these parts had a court. Each Court consisted of 5 judges, one of*them being the English ii n dl fleer who was the presiding judge. These Courts consisted of Indian Judges also. This Court had both civil and criminal jurisdiction. In civil (he Court could decide minor disputes upto the value of 200 xeraphins. The Court exercised criminal jurisdiction over minor thefts of property, 5 Xeraphins in value. It appears that the law administered was generally the. Portuguese law as the judges were not conversant with the English Law. (ii) The Court of Deputy Governor- in-council The Court of Deputy Governor in Council was a Court of Appeal and also a superior Court. It heard appeals from the lower Courts and also tried cases which were beyond the jurisdiction of the lower Court. Thus, it was both an appellate Court and the Court of original jurisdition. The trial in all cases was by jury. If in the dispute both the English and the Portuguese were involved, such matters were to be tried by a jury consisting of English and Portuguese in equal numbers. In limited cases, an appeal would lie to the Governor-in-Council. It appears that, there could not be any lawyers acting as judge in any of these Courts as the East India Company showed its disinclination to send any lawyer to India. It was thought that a lawyer could only stir trouble and strife in that settlement. The punishments awarded by the Courts were similar to those prevalent in the country, rather crude and cruel. It may be noted that in this early attempt to establish a judicial system, a clear-cut distinction could not be made between the executive and the judiciary. Thus, the judicial system of 1670 was very elementary and primitive. 19

20 The Judicial Plan of 1672 Aungier introduced second judicial system in Bombay in Under this system, a court having jurisdiction in all civil, criminal, probate and testamentary matters was established. On August 1, 1672, a governmental proclamation was made. By this proclamation the existing Purtuguese law in the Island of Bombay was abolished and it was replaced by English Law. Henceforth the English Law was to be the law of the Island in all matters. Under this proclamation a new Judicial system was also established under which following three types of courts were created- 1. Court of Judicature A court with George Wilcox as its judge was established to hear all civil and criminal cases. The court also has the jurisdiction in matter 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 of 5% was also imposed in civil cases for deciding the criminal cases, the court used to sit once in a month. For the purpose of criminal administration of justice, Bommbay was divided into four sections. For each section there was appointed one Justice of Peace who worked as a committing magistrate. These 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, but it was called as court of Conscience in the sense that the justice was very quick and summary. It entertained only petty cases. Civil cases upto 20 Xeraphenes were taken by this court. There was no provision for any court-fee. Nor the court took the help of jury. It may be said that the judge decided the matter to the best of his judgment. Court of Appeals Deputy Governor and Council worked as Court of Appeal. They heard appeals against the judgments of the court of Judicature in all matters. 20

21 The judicial system which was so established under the plan of 1672 worked well: It was very quick, inexpensive and efficient. But the main defect was that the judges could not enjoy that much freedom as is required for good administration of justice. The judges were not paid properly, they were always under the subjection of the executive and they could be harassed by the officers of the Company. Revolt of Captain Keigwin The above system worked till 1683 when the Keigwin's rebellion put it to an end by capturing the island. The Island remained under the rebellions for about a year and it was again recaptured by the Company in After the recapture the Company established new judicial system. (ii) Second Stage from 1684 to 1690 under the new judicial system a f Admiralty was established in Bombay on the lines of the court of iv established in Madras under the Charter of Nov The court fcasfcalry had jurisdiction in admiralty and maritime cases. But due to the absence of any other court at that time, in the Presidency, even civil and criminal matters went to the court. However, after some time dispute arose between Governor and Council and the Judge Advocate of the Court of Admiralty and the result was that the Civil and Criminal jurisdiction was taken away from the hands of. this court in In order to decide the civil and criminal matters, a court was established en the line of the court which existed under the plan of But no - demarcation was made as to the jurisdiction of this court and of the Court of Admiralty, therefore, disputes arose on the matters of jurisdiction. The case which were taken to this court were sometimes objected to by the court of Admiralty on the basis that they belonged to its jurisdiction. The bitterness the Judge-Advocate and the Governor increased to the extent that after the retirement of the first Judge-Advocate, no other lawyer member was ever 21

22 appointed to the Court of Admiralty. In the absence of the lawyer member the court could not function on the lines on which it has established. Attack of Admiral Siddi In 1690 Siddi, Admiral of the Mughal Emperor, attacked1 the Island of Bombay and captured it. It remained under hir' hands till Nothing is known about the judicial system which existed ot this Island during that period. In 1718 a new judicial system was establishe when the Administration of the Island again came into the hands of Compa" (iii) Third Stage from 1718 to 1726 Court of Judicature- After nearly 30 years Court of judicature was established in Bombay on 25th March, 1718, which ended the old judicial system. This Court consisted of an English chief justice, 5 English judges, am 4 Indian judges. The Indian Judges were to represent the principal communities in Bombay the Hindus, the Mohammedans, Christian. Portuguese and Parsis. The Indian judges did not enjoy equal status with the English Judges. They played more or less a subsidiary role similar to that assessors. Their main function was to acquaint the English judges with the local matters and customs and the caste systems of the local people. Jurisdiction of the Court of Judicature Court of Judicature jurisdiction to decide civil, criminal and testamentary matters. It administer justice according to law, 'equity and good conscience and the rules and ordinance of the Company. It was also a place where several transaction could annual could be preferred from the decision of this Court to the Governor and Council. The trial was not by jury. The Court sat once a week and decided various types of cases. Criminal Jurisdiction- This Court had exercised jurisdiction over all to criminal matters excepting those which were to result in capital punishment. The Court of Governor and Council alone could award capital punishment. Generally, a fair hearing was given to the parties but there were also cases where the Court acted on mere suspicion. The need of criminal justice preventive and deterrent. Branding, whipping, imprisonment during pleas were common. Q.2 Discuss the merits and demerits of judicial system established under the Charter of Or 22

23 Describe in short the provision of Charter of 1726 what were the main aims of issuing this charter? How far it could succeed in achieving its aims? Ans. Main Reasons or Aims of Issuing the Charter of 1726 The main reasons which necessitated the issuing of Charter of 1726 are as follows 1. The judicial administration and the working of the courts, in the three Presidency towns of India was unsatisfactory. 2. With the growth in Company's trade and commercial activities in India, the population of British Settlements had increased considerably, and Lrefore, more cases were coming to the courts for adjudication. 3. The Company desired that the power of courts should be derived from a competent authority so that their decisions would have a binding force and uniformity in judicial administration could be achieved. 4. Encouraged by the successful working of the Corporation at Madras, the Company wanted to establish similar Corporations at Bombay and Calcutta also. 5. Many Englishmen who settled in India died leaving behind them considerable movable and immovable property. This created problems before the Company relating to distribution and disposal of their assets. Although, the Mayor's Court of Madras established in 1687 was empowered to decide testamentary cases but its decisions were not recognised by the Court in England because it was a Court of the Company and not of British Crown. Therefore, the Company was involved in unnecessary litigation in England at the instance of the relatives of the deceased who died intestate in India. To avoid this, there was a need of a court in each Presidency which could take cognizance of testamentary and intestate succession cases deriving their authority from the British Crown. Thus, in order to solve the above mentioned problems and to establish an effective administration of justice in the Company's settlements in the three presidencies, the Judicial Charter was granted by the British King George I on September 24, 1726 at the instance of East India Company. Provisions of the Charter of 1726 The main provisions of the Charter of 1726 were as follows 1. Establishment of Corporation at Bombay and Calcutta The Charter of 1726 provided for the establishment of a Corporation at Bombay and Calcutta like the one 23

24 which already existed in Madras. Thus, each of the Presidency towns was to have a Corporation consisting of a Mayor and nine Aldermen. The Mayor and seven of the Aldermen were to be natural born British subjects while the two Aldermen could be of any nationality. The first Mayor and Aldermen were to be appointed by the Charter itself; thereafter, the Mayor was to be elected annually by the Aldermen. The Aldermen were to hold office for life or till their residence in the Presidency town. They could, however, be removed by the Governor-in-Council on a reasonable cause. An appeal against such a removal could be made to the King-in-Council in England. The Mayor and all the Aldermen had to take an oath of allegiance to the office before the Governor and Council. 2. Civil Administration and Establishment of Mayor's Court in Presidency Towns The Mayor and nine Aldermen of each Corporation formed a Court of Record which was called the 'Mayor's Court'. It was empowered to decide all the civil cases within the Presidency town and the factories subordinate thereto. The Mayor together with two other English Aldermen formed the quorum. The Court also exercised testamentary jurisdiction. It could grant probates of will and Letters of Administration in case of intestacy. The Court was to hold its sitting not more than three times a week. An appeal from the decision of the Mayor's Court lay to the Governor and Council. But in cases involving the value of-subject-matter above 1,000 pagodas, a further appeal lay to the King-in-Council. Being a Court of Record, the Mayor's Court could punish persons for its contempt. The process of the Court was to be executed by the Sheriffs, the junior members of the court who were initially nominated but subsequently chosen annually by the Governor and Council. There was no specific mention in the Charter of 1726 as to the law which was to be applicable in the Mayor's Court but since the earlier Charter of 1661 provided that justice was to be administered in accordance with the English law, it was presumed that the same law was to be followed by the Mayor's Court in deciding the cases. 3. Criminal Administration and Establishment of Quarter Sessions The Governor and five senior members of the Council were appointed as Justice of Peace in each Presidency for the administration of criminal justice. They could arrest persons accused of crimes and punish them It M petty offences. They also constituted a Court 24

25 of Oyer Terminer and Gaol Delivery and were also required to hold Quarter Sessions for trial of all offences excepting high treason for at least four times a year The Charter of 1726 introduced the trial of criminal offences with the help of'grand' and 'Petty'juries. Thus, technical forms and procedures of criminal judicature of England were introduced through this Charter in India. 4. Jury Trial in Criminal Cases The Charter of 1726 provided that criminal cases in Presidencies be decided with the help of Grand Jury and Petty Jury. The Grand Jury which consisted of 23 persons, was entrusted with the task of presenting persons suspected of having committed a crime. Besides, before the commencement of trial, all the evidence of the prosecution, accusation or indictment was placed before the Grand Jury, who was to return a verdict whether there was a case for trial or not. In case the gand Jury returned a verdict of 'no prima facie case', the accused was acquitted without trial. 5. Conferment of Legislative Powers on Governor and Council The Charter of 1726 empowered the Governor and Council of each presidency-town to make bye-laws, rules and ordinances for the regulation of the Corporations and inhabitants of the Presidencies, They would also prescribe punishment for the breach of such laws and rules. The bye-laws rules and ordinances so framed and the punishments prescribed for breach thereof, were to be reasonable and not contrary to the laws of England and they could not be effective unless approved and confirmed by the Company's Court of Directors in England. Merits of Charter of 1726 Taking into consideration the above mentioned provisions of reforms, we can say that the following were the merits of the Charter of 1726 (i) Establishment of Crown's Court -This Charter has, for the first time established the courts of Crown. The courts established so far were the courts of company. (ii) Uniformity in Judicial System This Charter has, for the first time, established Mayor's Court in all the three presidencies i.e., Calcutta, Bombay and Madras. (iii) Provisions of Appeal to Privy Council for the First Time For the first time a provision was made to appeal to Privy Council from the decisions of Mayor's Court. (iv) Application of English Law in Indian Soil This Charter has for the first time introduced English law into Indian soil. Where there was no express provision of law, 25

26 the judges used to decide the dispute on the basis of "equity, justice and good conscience." (v) Establishment of Legislative Councils The Charter of 1726 for the first time, established local legislative councils in which the Governor with the aid of his council used to make bye-laws, rules and ordinances for the regulation of the corporations and inhabitants of the presidencies. Before 1726, the law making powers were vested in the company which could be exercised only by the "Court of Director" of the company in England. On account of the above mentioned merits, the Charter of 1726 constitutes a landmark i.e., a turning point in the legal history of India and proved to be an important event on account of the great significance in the sphere of law and justice, the charter is usually characterised as the 'judicial charter'. Demerits of Charter of 726 Inspite of the above noted merits of the Charter of 1726, there were two traditional defects of this charter (i) Appointment of.non-lawmen Judges Before 1726, the traders were to be appointed on the office of judges who were ignorant of law. As judges their main aim was to bring about the settlement between the contesting parties. Even after the establishment of Crown's Court, in justice continued to be administered by non-professional judges. Thus, the object of the Charter of 1726 could not be fulfilled. (ii) No Separation of Judicial and Executive Powers is Made Although many attempts were made to separate judicial and executive powers from one another yet the policy of the company was not firm in this respect. The Charter of 1726 also did not admit this division and an intimate relationship between executive and judiciary was maintained. Importance of Charter of 1726 The Charter of 1726 had made a long departure from the earlier charters and had made some fundamental changes in the judicial administration. The charter for the fust time established the Crown's Court in India. Hitherto whatever courts existed they had their origin from the company's but the courts established by this Charter were the Royal Courts having full recognition in British legal system. The Charter brought about a uniform judicial system in all the three presidencies and different types of systems existing till then were abolished. For 26

27 the first time the jurisdiction of the Privy Council was extended to this country. Here lies the beginning of the introduction of English iaw into India through judiciary. For the first time a legislature for each presidency with the power of making necessary laws was established by this charter. The Charter of 1726 is also very important in the sense that this charter introduced into presidency towns the law of England both Common and Statutory as it then stood. Thus, on the basis of the facts stated above, we can say that the Charter of makes a turning point in the legal history of India. 27

28 Q 3. Write a note on the Composition, Jurisdiction and Working of Mayor's Courts under the Charter of Whether these are an improvement to the Mayor's Courts of Or a note on the Composition, Jurisdiction and Working of the Mayor's Courts under the Charter of 1687 and 1726, Or "The Charter of 1726 was inferior to that of the Charter of 1687." Do yon agree with this statement? Or Compare and contrast between the Mayor's courts of 1726 with that of Mayor's court at Madras established in 1687? Ans. Mavor's Court under the Charter of 1687 A Corporation was set up by the Company at Madras on 29 Sep., 1688, under the Charter of It was created with the purpose of associating natives with the Englishmen Ir : - :tr to fulfill this purpose, the Company wanted to undertake certain public fare activities for which funds were needed. The Corporation cotters taxes and raised funds from the inhabitants of Madras. Composition The Madras Corporation consisted of an English Mayor, twelve Aldermen and sixty or more Burgesses. Out of the twelve Aldermen, three were to be the covenanted English servants of the Company while the rest could be of any nationality. The Mayor was to hold office for one year and he was elected by the Aldermen from amongst themselves. The aldermen held office for life or till the residence in Madras, The vacancy of an Alderman was to be filled up by election from amongst the Burgesses. The Burgesses were to be elected by the Mayor and Aldermen while few of them were nominated by the Company from the heads of the various castes. Civil and Criminal jurisdiction The Mayor and Aldermen constituted a civil court, while the Mayor and three senior Aldermen were Justices of Peace having criminal jurisdiction. The Mayor and two Aldermen formed the quorum. The Court held its sitting only once in a fortnight and decided criminal cases with the help of jury. The Court could award the sentence of imprisonment or fine. Appeals from the decisions of the Mayor's Court lay to the Admiralty Court in ease the value of the civil case exceeded three pagodas, and in criminal cases, where the offender was sentenced to death or loss of limb. 28

29 Court of Record The Mayor's court constituted a Court of Records since a Recorder was also attached to the Court. As all the members of the Mayor's Court were lay persons without expertise In law. it dispensed justice "in a summary manner according to equity, justice and good conscience" and lav enacted by the Company. Obviously, this was bound to result into uncertainty and lack of uniformity in laws. For the purpose of providing the services of a person having legal knowledge, the Company appointed Sir John Biggs, the Judge-Advocate of the Admiralty Court, as the Recorder of Mayor's Court in This appointment of Sir John Biggs as a Recorder of the Mayor's court created an anomaly because as a Judge-Advocate of the Admiralty Court, he also heard appeals from the Mayor's Court, with which he was associated as a Judge. However, this anomaly did not last long since Sir John Biggs died in 1689, and thereafter, the Company did not appoint any Recorder in the Mayor's Court. Mayor's Court under the Charter of 1726 PL See Q..2 Point 2 P. 6. Working of the Mayor's Court of The Charter of 1726, adopted the principle of independence of judiciary to a considerable extent which was a fortunate development in the legal history of India. But the constant assertion of judicial independence by the judges of the Mayor's court proved irksome to the Governor and Council which resulted into constant conflict and hostility between the two. As rightly observed by Kaye, this made the Corporations, and consequently the Courts, largely autonomous but the Council at times sought to interfere with the functioning of the Mayor?s Court and tried to dictate its terms which the Courts did not like. The strained relations between the Mayor's Court and the Governor and Council also led to the serious differences between the Government and the Corporation which are reflected in the following cases -, The Bombay Case of 1730 A Hindu' woman of shimpi caste converted herself to Christianity and became a Roman Catholic. On account of this, her son aged twelve years left her and went to live with his Hindu relatives at Bombay, The woman filed a suit against the Hindu relative in the Mayor's Court charging him for illegal detention of her son and some jewels. The Court ordered the relative to hand over the boy to his mother. Thereupon, the heads of the caste complained to the Governor's Council Cowan who brought the matter before the Council, The Governor and Council held 29