A Modernization of Ancient Indian Law
The modernisation of ancient Indian law took place in the hand of the British people who came in India as a trading company under a series of Royal Charters. The pace of the development of the administration of justice in British India may be divided into following five periods:
a. Early Administration of Justice until the Charter of 1726;
b. Administration of Justice from the Charter of 1726 till the Regulating Act of 1773;
c. Administration of Justice from the Regulating Act of 1773 till the era of Unification in 1861; and
d. From 1861 till the Independence in 1947.
B First Period: Early Administration of Justice until the Charter of 1726
This period marks the beginning of the British involvement into the administration of justice in India. In another sense, this period deals with the intervention of the Company into the- administration of justice in India as opposed to intervention by the British Queen. The East India Company gradually took possession of three factories and settlements at Bombay, Madras and Calcutta. Starting as trading stations, these settlements became known as the Presidency Towns and the territories around these towns came to be known as Mufassil. Till’1726 the administration of justice in three Presidency Towns was haphazard. The Company participated in administration of justice in cooperation with the local Mughal authorities. Some changes were brought in the administration of justice in three Presidency Towns with the intervention of some Charters issued from time to time by the Company though these changes were fringe and different in three Presidency Towns. For example, the first Mayor’s court in India was established at Madras by the Company’s Charter of 1687. This was a Company’s court as opposed to the Crown’s court and no specific rules of law and procedure was laid down for this court by the Company. On the other hand, the Company first acquired the territorial acquisition of Bengal, Bihar and Orissa in 1765 as Mufassil area as opposed to Presidency Towns. Though the Company took the full control of Diwani and military power, the administration of both civil and criminal justice.were left to the indigenous machinery at the hand of natives until 1772. The development of adalat system in Mufassil area will be discussed in a different heading.
C Second Period: The Era of the Mayor’s Court: Administration of Justice from the Charter of 1726 till the Regulating Act of 1773
This period may be divided into two parts: from the Charter of 1726 till the Charter of 1753; and from the Charter of 1753 till the Regulating Act of 1773. The first part of this period marks the beginning of the intervention by the British Crown in the administration of justice in India. The Charter of 1726 issued by King George I by way of granting Letters Patent1 to the Company was the first gateway of the introduction of English law in India. The Charter of 1726 established a corporation for each Presidency towns. Following changes in the administration of justice were made by this Charter:
C(1) Criminal judiciary:
a. Justices of the Peace: Under the Charter the criminal justice was fully executive dominated. In each Presidency town the criminal justice was vested in the Governor and five senior members of the Council of the Company. Each of them was to act in the same manner, and to have the same powers, as the justices of the peace in England. A justice of the peace could arrest persons accused of committing crimes, punish those who were guilty of minor crimes, and commit the rest to be tried by the Quarter Sessions.
b. Court of Quarter Session: Three justices of the peace collectively were to form a court of record and they were to hold quarter sessions four times a year to try and punish each and every criminal offence, except high treason, committed in the Presidency Towns. Trial at these session courts were to be held with the help of grand jury and petty jury. All technical forms and procedures of the English criminal justice were introduced in the Presidency Towns as it was explicitly laid down in the Charter.
c. Governor-in-Council: Under the Charter criminal justice was vested in the Governor and five senior members of the Council of the Company. They had both original and appellate jurisdiction in some specified criminal matters, e.g. high treason and serious crimes like murder etc.
C(2) Defects of the Judicial System under the Charter of 1726
(i) The criminal justice was fully executive dominated as it was at the hand of the Governor-in-Council.
(ii) The Mayor’s courts were not free from the executive influence. The aldermen were either Company’s servants or other English traders who depended upon the Company’s permission to stay in India and were at the mercy of the local government. In other words, the Governor and Council were the maker and unmaker of the judges.
(iii) Judges were non-professionals. The Company had a policy of confining administration of justice to its servants and hence it avoided appointing lawyers.
(iv) The Mayor’s court was constituted to work independently. But its relationship with the executive was not stated clearly and there emerged an unhappy clash between the executive and the judiciary. This clash is evident from some important cases like Shrimpy’s case, Arab Merchant’s case, Pagoda Oath case etc.
(v) The Charter did not mention anything about the jurisdiction of the Mayor’s court. When the Mayor’s court decided that it was empowered to decide cases where both the parties were native Indians, it created great dissatisfaction and unrest among native
D Third Period: The Era of the Supreme Court: Administration of Justice from the Regulating Act of 1773 till the era of Unification in 1861
Though the Charter of 1753 was issued with a view to removing the defects of the Charter of 1726, the Mayor’s Court suffered from certain drawbacks having far-reaching consequences. In 1772 the House of Commons appointed a secret committee to prove into the affairs of the Company. The committee reported, inter alia, that the Mayor’s court had degenerated into an engine of oppression rather than acting as a court of justice. On the basis of report of the committee the House of Commons intervened and passed the Regulating Act 1773. The Act empowered the King to establish by Charter a Supreme Court at Calcutta. Accordingly the King issued the Charter of 1774 establishing the Supreme Court at Calcutta. Subsequently Supreme Courts were established in Madras in 1801 and in Bombay in 1824 abolishing the Mayor’s Court. After the establishment of the Supreme Court under the Regulating Act of 1773 the judicial reform took the following shape:
(i) A Supreme Court was established in place of Mayor’s Court in each Presidency Town of Calcutta, Bombay and Madras,
(ii) Three Courts of Requests in three cities were retained and they were made subordinate to the Supreme Court. However, in 1850 these Courts of Requests were abolished and in their place Small Causes Courts were established in three Presidency Towns.
(iii) The Supreme Court consisted of a Chief Justice and three other puisne judges. They were to be all professional barristers sent out to India from England. They held office during the pleasure of the King.
(iv) The Supreme Court was empowered to supervise the Court of Collector, Quarte^ession, Justice of Peace and the Court of Requests. Under this supervisory jurisdiction the Supreme Court could issue various prerogative writs.
(v) The general jurisdiction of this court was limited within the geographical limits of the PresidencyTown. Beyond the Presidency Towns, the court exercised a personal jurisdiction over three categories of persons- British subjects and persons employed directly or indirectly to the service of the Company.
(vi) The Supreme Court had both original, appellate, civil, criminal, ecclesiastical and admiralty jurisdiction. It heard appeal from the decisions of the Mufassil courts and Company’s courts.
(vii) A second appeal from the decision of the Supreme Court where the cause of action exceeded 1000 pagodas lay with the King-in-Council within six months from the decision of the Supreme Court. In criminal cases the Supreme Court had full and absolute discretion to allow or deny permission to make an appeal to the King-in-Council.
(viii) In 1850 the Courts of Requests were abolished and in their place Small Causes Courts were established in three Presidency towns.
D(1) Defects with the Working the Supreme Court
(i) In actual functioning both the judiciary and the executive came into serious conflicts and dissatisfaction arose between them under the following points:
(ii) There appeared huge debate over the point of jurisdiction. In Patna and Cossijurah’s cases the Supreme Court came into an open conflict with the Company on the issue whether the Indian Zaminder and farmers of revenue came under the jurisdiction of the Supreme Court or not.
(iii) There emerged conflict between the Supreme Court and the Company’s court. This was because neither the Regulating Act nor the Charter of 1774 clarified the question of relationship between the Supreme Court and the Company’s Courts.
(iv) There occurred conflicts on point of superiority between the Council and the Supreme Court. There was a great deal of vagueness in the crucial area of relationship between the Company and the Supreme Court.
(v) The two distinct and parallel judicial systems- the Supreme Court in the Presidency Towns and Adalat in the Mufassil area soon gave rise to conflict over the question of jurisdiction. For example, the Supreme Court cliamed jurisdiction over the whole native population which was opposed by the Council of the Company.
(vi) Raja Nandkumar’s, Radha Charan, Kamaluddin, Saropchand, Patna, Cossijurah etc cases provide glaring examples of lacunae and defective provisions of the Regulating Act and the Charter of 1774.
Thus though the Supreme Court was designed to be independent in discharging its functions, two fundamental things- shortcomings in the Regulating Act and the Charter and the violent interference of the executive- did not allow it to work independently.
E Fourth Period: Era of Unification: From 1861 till the Independence in 1947 (Judicial Reform under the Direct British Rule).
This period may be divided into two sub-heads: from 1861 till 1935 (the era of High Court); and from 1935 till 1947 (the era of High Court and the Federal Court).
As a result of severe clash between the executive and the Supreme Court, within only seven years time the Supreme Court came to be a body disliked by all. Petitions in the form of allegation were submitted to the King of England not only by the Governor-General but also by the inhabitants of Bengal which followed by the appointment of a Select Committee in 1780 to enquire into administration of justice in Bengal. The Committee’s report led to the passage of the Act of Settlement, 1781 which in fact curtailed the power of the Supreme Court to accommodate the Council’s opinion. The Supreme Court now was deprived of its jurisdiction in revenue matters and Company’s Court. Though the plan did away with the clash between the executive and judiciary, it virtually undermined the position and prestige of the Supreme Court as a highest court and also as a court of record, for no longer was it in a position to control the executive. Secondly, the Supreme Court continued its interpretation of ‘constructive inhabitancy’ whereby it exercised jurisdiction over many persons residing outside Presidency Towns. Again, Mufassil courts had jurisdiction over these persons. Third, problems continued to arise regarding concurrent jurisdiction of the two sets of courts. At times the Supreme Court and Mufassil Courts passed conflicting decrees. Fourth, serious conflicts arose in execution proceedings. The process of the Supreme Court ran through the Mufassil where it could execute it in Presidency Towns. On the other hand, the Mufassil courts could not execute its decree in Presidency Towns. To execute it in the Presidency Towns separate suit was to be filed in the Supreme Court for its recognition. Against the background of this unsatisfactory state of affair, gradually opinion began to crystallise in favour of merger and consolidation of the two rival systems.
The first important step to unite the two sets of courts was taken in 1853, where the first Law Commission was established in India and an all India Legislature was created whose laws were to be binding on all courts whether established by the Royal Charter or the Company’s authority.
The second step was the appointment of the second Law Commission which was assigned to formulate a scheme of amalgamation of the Sadar Adalats and the Supreme Court and also to prepare codes of procedure to be applied to all courts.
The third step was the dissolution of the company and the taking over the Government of India by the British Crown in 1858 following the event of mutiny in 1857. This ultimately paved the way of unification much easier.
The final step was taken with the enactment of three uniform codes (Civil Procedure Code, Criminal Procedure Code and Penal Code). With the achievement of these common legal fabric, the stage was set for the union of the two judicial systems and this was finally done by the British Parliament in 1861. By enacting the Indian High Courts Act which provided for the creation of the High Courts in three Presidency Towns by merging the Supreme Court and Sadar Adalats. The Charter for the Calcutta High Court was issued in 1862 and the High Court was established on 2nd July 1862.