Y. SRINIVASA RAO,
M.A (English Lit.)., B.Ed., LL.M., (Ph.D) Research Scholar in Torts. Prl. Senior Civil Judge cum Assistant Sessions Judge, Tirupati.
‘ We are trying to give a good government to people of India
to whom we cannot give a free government.” — Macauly
The British ruled India for a period of almost about 190 years. Yet, the English set up a poor copy of the British judicial system as Indian judicial system.
The judges , in pre-independence India, were the symbol of imperial power. Hardly after 20 years of Ranjit Singh’s death, the whole continent of India had passed into the hands of East India Company. The motto of the English was not to provide justice to the local people but the only motive behind these efforts was to replace the existing judicial system to mould the local people according to their own desire of ruling them in the long run. The concept of jury was anathema since it would have involved the local people in decision making process. All nations,which came to India, tried to establish their monopoly on trade and started to take part in local affairs. The Portuguese was the first country which came to India for trade. Yet, the English only succeeded. Owing to luxuries and weak military position of the Mughal government, the British won in the wars with fulcrum of local rulers. A perusal of world history, it evinces that if any nation conquered the other nation, they enforced their own system of administration. Similarly, the British rulers changed the whole administration of our country especially the law and justice. However, Even after Indians were appointed as judges, any contact between judges and the common people was discouraged.The Europeans came to India through Sea route as a trading nation, and ultimately gave a new turn to the Indian history. Their commercial instinct led them to discover the sea route to India. They had no intention to conquer the country; their objective was to establish commercial relations with India.
Legal History, Traditions and System
Common law system:- This is a system of law founded on ”Judicial Precedents”. It was come to India with the British East India Company. This British East India Company was granted Charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta. Judicial functions of the company expanded substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts. Later, codification of laws in earnest with the forming of the first Law Commission. Thomas Babington Macaulay drafted the Indian Penal Code, 1860. The Code of Criminal Procedure was also drafted by the same Law Commission. Similarly, the Indian Evidence Act,1872 and the Indian Contracts Act,1872 were codified.
-Dravidian- the local inhabitants of India had established their own system of Judiciary.
-Then Arians adopted that system with slight modifications. According to the traditions and customs of Hindu caste system under the panchayat system, the cases were decided The Raja was the highest court of appeal. There were civil and criminal courts at local level . The judges were advised by the learned Brahamins as to the interpretation of Hindu law.
The punishments were based on caste system.
-The Arabs entered into India in 712. A.D: They introduced Qazi system for criminal cases in the areas of their influence while retained the old panchayat system as to civil cases.
- Delhi Sultanate: They introduced the several changes in the existing Judicial system and made it more human. The Qazis were appointed to deliver of justice.
- Islamic Judicial System : The Mughals introduced Islamic judicial system. Yet , they did not introduce purely Hindu Panchayat system, despite it was the mixture of Islamic, Persion, and local Hindu system. At local level, the Panchayat system was limited up to the religious matters of Hindu community.
- Having the Turkish occupied and took control of the Mediterranean Sea, the European trade was totally at the mercy of the Muslims. Ultimately, a new trade route was discovered to reach Asia . The English started changing the prevailing judicial system in India in order to strengthen their power.
- Sea route: In 1498, Vasco de Gama discovered sea route to India and reached the port of Calicut. Thus, the Portuguese, the first Christian nation, came to our country. Their policy is ”Divide and Rule”.
- The British, the Danes, the Dutch, and the French reached India: After arrival of Portuguese, the British, the Danes, the Dutch, and the French also reached India. All of these nations came to India for trade. But, out of them, the English people succeeded to establish their power in India. The Governor and company were authorized to make laws. However, owing to limited legislative right, it led to establish a new Judicial system in India.
-Arrival of the East India Company in Sub-continent: Queen Elizabeth granted a charter as to monopoly of Eastern trade for period of 15 years in the month of December, 1600.
- Elizabeth I`s charter during the year 1600: Because of this charter, the British East India Company empowered it to make laws, constitutions, orders and ordinances as necessary for the governance of its servants. Thus, the British East India Company empowered to impose punishments subject to English laws and customs.
In 1609, after reaching the court of Emperor Jehangir, the English expressed their desire intention for permission to them for settlement at Surat.
In 1612, nevertheless the Portuguese force attacked the English at Surat, the English defeated the Portuguese.
In 1613, a farman was sent by Emperor Jahangir permitting the English to establish a factory at Surat.
In 1615, the England entered into a commercial treaty with Mughal Emperor.
In 1621, the British East India Company produced the Laws, a compilation of rules: These laws and rules were quite new to India. Thus, the Judicial condition, in those days, was seriously strict and stringent for Indians. In 1624, the first judicial power that was granted to the company by the King of Britain: On the request of the East India Company, King James 1 granted the judicial powers to punish civil and military personnel of company in India by martial as well as municipal laws.
In 1634, A Golden Farman was granted to the British by the Sultan of Golconda. It allowed the British to trade in the kingdom of Golconda. The British had to pay 500 Pagodas per year.
In 1639, Inasmuch as Francis Day obtained the lease of a land from the ruler of Chandragiri, It became a foundation of new city “Madaras”. Thus, the Fort St. George was become the first fort in India by the East India Company.
In 1651, having grant of concession for trade by Nawab Shuja of Bengal, the English strongly established in Bengal.
-In 1652 ,the Chaultry Court started operation in Madras: In this Court, civil cases like cases of debt upto 50 pagodas were settled. Besides that cases , as to breaches of peace, were settled. This Court presided by one Indian and two Englishmen.
-In 1661, the Charter Act which was granted by Charles II (1630-1685), made provision for the use of English criminal law in India.
- In 1666, in Madras, an early styled court consisted of the Governor-in- Council.
-In 1668, in response to the issuance of a new Charter, Thomas Papillon and Mr. Moses prepared a draft code of laws. Following their revision and approval, they took effect in January 1670 in Bombay. Thomas Papillon (1623-1703) was member of the Company`s Court of Committees. Mr. Moses was Solicitor of the East India Company.
-On 2nd February 1670, Gerald Aungier, who was the Governor of Bombay, initiated a scheme for the first provision of justice in Bombay. He established two precincts of justice, each with five Englishmen. Appeals from these bodies were sent up to the Deputy-Governor and Council for hearing. At this appellate level all trials were held with juries.
-On 8th August 1672, Aungier established a Court of Judicature for Bombay . George Wilcox was its first judge. During this time the use of Portuguese laws were abolished to support British law.
-On 16th August, 1672, Wilcox, who was Judge of the Bombay Court of Judicature, started a Court of Conscious. Because of this, even the poor could receive free justice. It worked every Saturday.
-On 18th March 1678, under the instructions of Streynsham Master (1640-1724), the Madras Court operated the judicial activities. The new court tried civil and criminal cases according to English law.
-The Charter granted in the year of 1683: It authorised the establishment of Courts of Admiralty in the three Presidency cities. Additionally The Court held the power to apply martial law in whole India.
-In 1685, in Bombay, the President of the Court of Judicature suggested that civil appeals from the Admirality Court appeals should pass to the Deputy Governor and Council. -In 1686, the Madras Court ceased operation in favour of the Court of Admiralty. Cases could also be accepted by the latter Court from the Madras Mayor`s Court.
-In 1690, For a time the Deputy Governor and Council handled some judicial matters inasmuch as no Judge remained to ensure the continuance of the Court of Judicature due to Sidi’s attac in Bombay.
-In 1692, the Government of Bombay established the office of the Coroner.
-In 1694, in Calcutta, the Council possessed a zamindar status. therefore, a Zamindari Court was convened to administer both civil and criminal cases among the Indians.
-In 1698, the Company also acquired zamindari rights at Sutanati and Govindpur.
- In 1698, the new Charter, as granted by King William III (1650-1702), determined that the East India Company would carry out its business in accordance with such by-laws, constitutions, orders, rules and directions provided by its General Court as were not repugnant to the laws of England.
- In 1700, Bengal was established as a Presidency with a Governor-in- Council and therefore the Company granted full judicial authority.
- In 1704: The development and staffing of judicial institutions in Bombay had been delayed until the arrival of Sir Nicholas Waite as Governor of Bombay in November 1704.
-In 1712, the practice of one-person judicial operations practiced during the preceding decade was ended inasmuch as the Council of Bombay passed a resolution declaring that it would sit two days a week to hear judicial matters..
- In 1716, the East India Company instructed to form a sub-committee of the Governor
s Council to deal judicial matters. -In 1717, the Governor-in- Council of Bombay announced as to establishment of a new Court of administration . The court started working since 25th March, 1718. Laurence Parker was the Chief Justice. The court possessed wide civil and criminal jurisdiction. Appeal of its decisions could be made to the Governor-in-Council. Justice was delivered from the bench. -In 1726, the Crown granted Letters Patent which provided for the re- establishment of a Mayors Courts, which practiced English common and statue law, in Madras, Calcutta, and Bombay. They were composed of the Mayor and nine Aldermen, seven of whom were required to be British subjects. They possessed jurisdiction in civil cases with appeal to the Governor-in-Council and later to the Privy Council in case of the value exceeded 4000 rupees.
-In 1753, Because of the measures of the 1726 Charter Act, the new Charter Act modified the jurisdiction of the Mayor
s Court in Bombay, Madras and Bengal. This Act vividly explained that with the consent of both parties , the cases between two Indians could only appear before the Mayors Court. This Act provided for a Court of Record, consisting of the President and Council to hear appeals from the Mayor`s Court. -In 1754, As the Royal troops arrived to India, the terms of the Mutiny Act and the Articles of War made applicable to Company`s military forces.
-The result of Plassy,in 1757, paved the way for the British conquest of Bengal and eventually of the whole of India.
-In 1765, in Bengal, Nawab granted dewany to the East India Company that led the responsibility for working Dewany Courts not only in Bengal but also in Orissa and Bihar.
- In 1769, in recognition of some oppression and judicial chaos in the interior, or
Mofussil(places and areas that did not fall under city categories, remote districts), the Company appointed some Covenanted Servants to act as Supervisors of the Country Courts.
-On 28th April 1772, as ordered by the Company’s Court of Directors, Warren Hastings (1732-1818), who was Governor of Bengal, directed the Patna and Murshidabad councils to introduce not only judicial administration but also revenue administration during this period, the Mohamed Reza Khan and Shitab Roy were arrested as ordered by Warren Hasttings. Mohamed Reza Khan and Shitab Roy were former administrators of Judicial and revenue functions in India. Warren Hastings became the first governor-general of Bengal.
- On 15th August 1772: Role of Warren Hastings: 1) The first British Indian law code, in Bengal, Bihar and Orissa, was introduced during Hastings period. 2) Two courts viz the Fajudari adalat and the Dewani adalat were introduced. The Fajudari adalat dealt with criminal cases and the Dewani adalat dealt with Civil cases. 3) Besides that the Sadar Dewani adalat, as court of appeal in civil cases, and the Sadar Nizamat adalat as criminal cases appeallate court , were established in Calcutta. 4) This system was in force upto 1793.
-”Vivadarnava Setu” (Code of Law): Hindu scholars, of Hindu Commission, prepared a code of Law and it was called as ”Vivadarnava Setu”. This code of Law was prepared in Sanskrit during the period of 1773-1776.
- “Regulating Act” in 1773 : Based on the recommendations of a select and a secret committees, ”The Regulating Act” was passed by the parliament passed in 1773 which introduced parliamentary supervision over the Company in India and also modified its constitution both in England and in India.
-In 1780, the judicial powers of the six (6) provincial Councils were transferred to six (6) Dewany adalats. These Adalats were presided over by servants of the English Company.
-In 1781 the number of these courts was increased to 18 (eighteen) and they tried all kind of civil cases. The duties of Faujdars were transferred to the District Judges. The criminals were tried in the Faujdari adalat under Indian judges, yet, the ultimate control of vested with headquarter.
- In 1784, The British parliament passed an Act defining more clearly the jurisdiction of the Supreme Court, exempting from it the official acts, the Governor General and Council, the Zamindars or farmers, and all matters concerning revenue collection.
— (1790): The East India Company made it clear that taking control of Criminal justice system in all parts of India (except Bombay) under the Company control. Dewany (money) management of was offered to the Compnay by the the Mughal ruler. Zamindars, who coleected revenue, used judicial power and thus the Zamindars came under the control of the British.
Preparation of draft of the Indian penal code by Macauly: The charter of 1833 provided base for their consolidation of reforms and codification of laws, and accordingly a law commission was appointed in the year 1834. Macauly prepared a draft of the Indian penal code but little was done after his departure, and the commission was finally abolished. Before the return of Macaulay to India, two parties had been formed, called the orientalists and the Liberals. Macauly also took part in the controversy. He presided over the deliberations of two parties and the casting vote of Macauly as President defeated the contradictory.
- ” The beginning of modern Indian public law appeared in 1833 with the creation of the Indian law commission which in due time (1861) produced the Indian penal code and later the codes of criminal and civil procedure.”
- Under the Charter of 1853, a new commission was appointment for the planning to create High Courts in India on the lines of British judicial system and for the compilation of uniform code of law applicable to the whole judicial system irrespective of religion and creed.
- “The Indian ‘Mutiny’ of 1857 hardened the imperial resolve to take India at any cost.” The Act of 1858, which embodied these changes, made provision for a council of India and Secretary of State for India. The most powerful trading company of British died its natural death and India came under British parliamentary control.
− The government of India under the parliamentary control of British introduced the stamp duty on the judicial cases.
- The establishment of High Courts in Calcutta, Bombay and Madras: Under the recommendations of commission appointed in 1853, The Government introduced important reforms in the judicial system. Their recommendations were accepted and in 1861 the Indian High Courts act authorized the establishment of High Courts in each of the following towns; Calcutta, Bombay and Madras in place of old Supreme Court, Sadar Fojudari Adalat and the Sadar Dewani adalat were abolished after having a age of 90 years.
- Inasmuch as the penal code and first criminal procedure code came into force, the Islamic system of justice disappeared in 1862 .
- The Crown was empowered to appoint the Chief Justice and Judges for these High Courts. The appeal against the decisions of high courts was presented before the judicial committee of the Privy Council. The Privy Council was situated in London.
- “In 1866 a regulation, which was amended in later years, established a Chief Court for the Punjab much on the same lines as the High Courts, though the judges were to be appointed by the Governor General in Council and not as in the case of the High Courts by the Crown.”
- In 1872 a Court headed by Judicial Commissioner was established in Burma and various improvements were made in 1875. After the extension of British territory in Burma further amendments became necessary and Act VI of 1900 established a Chief Court in Burma.
- The Indian National Congress (1885): The congress drew the attention of the government for separation of judicial and executive functions in the administration of criminal justice.
- In 1911, under the Indian High Courts Act, three High Courts were established at Patana, Lahore and Rangoon. This act enabled the government to establish new High Courts and raise the strength of judges from fifteen to twenty. Due to certain reasons the British government had been reluctant to change the Indian legal system in the beginning as far as to respect the local laws and customs.
- The British government made no change in the composition of High Court judge’s till the independence in the provisions of the act 1861.
The Government of India Act, 1935:
i) Under the Government of India Act, 1935, the government abolished the old proportional arrangements of judges of high courts.
ii) Thus, the old rule of appointing the Chief Justices exclusively from among barristers or advocates was modified to the extent that they now might be appointed either from among the pleaders of High Courts or from among the officers of the Indian Civil Service. iii) An important change in the judicial system was proposed to stable the federation. Sections 200 and 203 of the Government of India Act, 1935 provided for the creation of Federal Court, which was normally to be located at Dehli and was to consist of a Chief Justice and not more than six puisne judges.
iv) The qualification of judges: it would be at least five years experience as judge of high court or at least ten years experience for barrister and advocates of Scotland or at least ten years of experience for pleader of high court of a province.
v) The eligibility of the chief justice would be at least fifteen years experience as pleader, barrister or advocate.
- The Federal Court:
i) On 1st October, 1937, the Federal Court was constituted. The chief justice and Judges of Federal Court were to be appointed by the Crown and were to hold office till the age of 65 (sixty-five).
ii) Sir Maurice Gwyer played important role in drafting of 1935 Act for India., and hence he became the first chief justice of the federal court of India.
iii) The Privy Council interprets of the constitution.
iv) The final appellate authority of Privy Council was kept intact while it should vest in the Federal Court, as it is required in the federation.
v) Macauly’s words reflect the thinking of the British Government for future of India. ”We are trying to give a good government to people of India to whom we cannot give a free government”.
vi) The federal court declared the ‘defence of India rules’ as ultra vires, proving its independent and impartial authority, indeed was a turning point for the judicial development in India.