In this article, will discuss the administration of justice in British India. The process of development of legal institutions in India started in the year 1600 with the formation of East India Company in Britain, to trade with India.
Charter of 1661
The Charter of 1661 which conferred broad powers on the Company to administer justice in its settlements has an important bearing on the evolution of the judicial system of India.
Two features of the Charter of 1661 may be underlined. First, the judicial power was granted to the Governor and Council of a factory, which meant the executive government of the place. The Charter thus drew no line of distinction between the judiciary and the executive. Secondly, justice was required to be administered according to the English law. Thus, Indians placed under the English law and did not reserve to them their own peculiar and distinctive laws and customs.
In the early phases of the Company’s administration, there was no uniform system of judiciary, for every settlement, factory, agency or corporation at different places had their own judicial system.
Judicial System at Madras
The judicial system that existed in Madras upto 1726 may be divided into three stages –
First Stage (1639-1665)- The only system that existed was-
(a) The Agent and his Council for the White Town.
(b) The Choultry Court for the Black Town.
The Choultry Court was a native court which could decide only petty civil and criminal matters. The court was not free from corruption and delays, and was presided over by the village headman (Adigar). Later, the Company appointed two servants to decide the cases.
The Agent-in-Council was meant for whites only and its jurisdiction was limited to civil and criminal offences except the capital offences.
Second Stage (1665-1686) – After the raising of the Agent’s status to that of the Governor, the Governor-in-Council proclaimed themselves to be Court of Judicature for all civil and criminal cases. A jury of 12 men constituted to help in the criminal matters.
Use of common-sense, delays and corruption outlined the functioning of the court of judicature.
Third Stage (1686-1726) The Court of Admiralty which contained a regular judge, was a definite improvement on the Court of Judicature. The court decided all types of cases- civil, criminal, maritime or mercantile.
The Mayor’s Court consisted of the Mayor (Englishman) and two Aldermen (representative of natives). A lawyer member, called Recorder was appointed for help. The jurisdiction of court extended to all civil and criminal matters (for both Indians and Englishman) subject to the condition that no English could be punished to death. Appeals against the judgment of this court went to the Court of Admiralty.
The court although provided a good forum for deciding the disputes, could not enjoy the independence needed by the judiciary. Governor-in- Council could remove the Mayor and any Alderman. The Choultry Courts lost their importance after the establishment of Mayor’s Courts.
Conclusions: The system of administration of justice in Madras suffered from many drawbacks-
(i) Absence of proper judicial system.
(ii) Uncertainty of law- the courts and the people do not know what the law was.
(iii) Severe, inhuman and barbarous punishments.
(iv) Principles of natural justice and benefit of doubt to the accused were not observed.
Judicial System at Bombay
First Stage (1668-1683) – Divisional Courts established presided over by the Custom Officer of the Division. The courts decided petty civil and criminal cases.
The Deputy-Governor and Council worked as a Superior Court having both original and appellate jurisdiction. A Court of Judicature was established to hear all civil and criminal cases. The Deputy-Governor and Council worked as Court of Appeal.
The judicial system was efficient and inexpensive, but the judges did not enjoy the freedom required for good administration of justice.
Second Stage (1684-1693) A Court of Admiralty was established in Bombay on the lines of Court of Admiralty in Madras.
Third Stage (1718-1726) – A court was established in 1718 with a Chief Justice and 9 judges (5 English and 4 Indians). The jurisdiction of the court extended to all civil and criminal matters. The laws, which the court applied were the principles of equity, justice and good conscience and the rules of Company.
However, the executive i.e. Governor and Council always disturbed the independence of the judiciary. Also, many of the English judges in the court used to be the members of the Governor’s Council.
Judicial System at Calcutta
Zamindar’s Court – The zamindars,,who were responsible for the revenue collection, decided civil as well as criminal disputes.
Collector’s Court – The Collector was given the civil, criminal and revenue powers to decide the disputes arising within his jurisdiction.
Appeals against the judgment of the Collector, went to the Governor and Council. Serious criminal and civil cases relating to Englishmen went directly to Governor and Council.
Thus, the judicial system which was established by the Company in Calcutta was very elementary.
The Mayor’s Court: Charter Of 1726
The Charter of 1726, which established Crown’s Mayor’s Courts in India, is an important landmark in the history of legal system in India as it introduced the English laws into the country. It is on the English legal system that the modern Indian legal system has been reared. On account of its great significance in the sphere of law and justice, the Charter is usually called as “Judicial Charter”.
The factors which led to the establishment of new Mayor’s Courts were as follows:
(i) Till 1726, there were different judicial system functioning in the British settlements. Thus, a uniform system of justice was needed.
(ii) The courts in England did not recognize the decrees, letters of administration or the probates of wills granted by the Company’s Mayor’s Courts (as they were based on common sense and court’s own procedures of convenience). In fact, the British citizens became subject to double litigation-once in India and thereafter in England.
Mayor’s Courts – A Mayor’s Court superseding all the existing courts was established in three Presidencies i.e. Bombay, Calcutta and Madras. It consisted of a Mayor and 9 Aldermans, seven of whom including the Mayor were required to be natural born subjects of the Crown. Aldermen were elected from among the leading inhabitants of the settlement to hold office for life and the Mayor was selected 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 as a Court of Record and was empowered to hear and determine all civil suits and to grant probate of wills and letters of administration. Appeals from decisions of Mayor’s Court were filed in the Court of Governor and Council. A second appeal in cases involving 1,000 pagodas or more could be made to King-in-Council in England. The Court of Governor and Council also decided criminal cases.
Charter of 1687 v Charter of 1726
(Company’s Mayor Court v Crown’s Mayor Court)
(i) 1687 Charter applied to Madras only, while 1726 Charter to Calcutta and Bombay also.
(ii) Company’s Mayor Court (1687 Charter) had the jurisdiction in respect of civil as well as criminal matters, while Crown’s Mayor Court (1726 Charter) only for civil matters (criminal jurisdiction left to Governor and Council).
(iii) Appeal from Company’s Court decisions went to the Admiralty Court, while appeal from Crown’s Court decision went to the Governor and Council and also King-in-Council.
(iv) The Crown’s Court had a superior status as they were courts of the Crown.
(v) However, in strict judicial or legal manner, Company’s Courts were better as they had a lawyer-member Called Recorder. While Crown’s Court had civil servants lacking legal experience.
(vi) In procedural matters, the Crown’s Court had to observe the technicalities of courts in England, while Company’s Court was guided by its own procedure of convenience.
(vii) In Company’s Court there was good representation of Indians while in Crown’s Court in spite of the provision of two Indian members none was ever appointed in practice.
Difficulties in the working of 1726 Charter
(i) Hostility arose between Executive (Governor-in-Council) and Judiciary (Mayor)- former asserting its authority as an appellate body, while latter asserting its independence. The Governor-in-Council always reversed the decisions of Mayor’s Court in appeal, whenever their wishes were not observed.
(ii) With respect to natives, the jurisdiction of the Mayor’s Court was not clearly specified. Mayor’s Court, however, insisted on application of British laws to natives and did not recognize personal laws of natives. The Governor-in-Council favoured natives because of political considerations and administrative convenience.
In a case, the Mayor’s Court ordered the release of a Hindu son from the custody of his father on the application of his mother who had converted to Christianity. Governor-in-Council reversed court’s order on the ground that it had no jurisdiction to interfere in the religious matters of natives (Shimpi Woman’s case, 1730).
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 court insisted upon the taking of pagoda (temple) oath. The Council issued orders to the court to respect the sentiments of the natives (Pagoda Oath case).
In two respects, the 1726 Charter continued the previous traditions. First, justice continued to be administered by non-professional judges; and, secondly, intimate and integral relationship between the executive and the judiciary was maintained. It is only after 1773 that the situation in regard to these two elements under-went a change.
Charter of 1753
The Charter of 1753 made certain changes in 1726 Charter-
(i) The Mayor’s Court was made subservient to the Governor-in-Council in the sense that the Council could choose the Mayor or the Aldermen.
(ii) Suits and actions between the natives were expressly excluded from the jurisdiction of the Mayor’s Court unless both parties submitted them to the determination of the court.
(iii) A Court of Requests was created to hear small civil cases upto the value of 5 pagodas.
The judicial plan of 1753, like 1726 Charter, was very defective:-
(i) The executive i.e. the Governor-in-Council determined the functioning of the courts.
(ii) In a dispute between a Company’s servant and an Indian, an impartial justice could not be given because the members of the court were servants of the Company.
(iii) In criminal matters, the executive i.e. the Governor-in-Council and not the judiciary, determined the disputes.
(iy) The judiciary very much suffered from the lack of legal knowledge. It neither knew the English law nor it understood the laws and customs of the natives. Natives were subjected to
English law which was contrary to their laws and customs.
(v) The jurisdiction of the court was limited to Presidencies and even Englishmen living outside the limits of the Presidency escaped from the jurisdiction of these courts.
Even though this system was defective in many respects, it formed the foundations of later improvements in judicial administration. Subsequently there came the Supreme Court, the High Courts, the codification of Indian Laws, etc. Thus Mayor’s Courts were an important link in the evolutionary chain of judicial institutions in India. Present day High Courts ultimately grew out of such imperfect judicial arrangements.
The Adalat System : Warren Hastings
In 1765, the Company obtained the Diwani of Bengal, Bihar and Orissa from the Mughal Emperor. In 1772, the Governor Warren Hastings chalked out a plan of judicial administration, which could facilitate collection of land revenue also, which was affected by the growing lawlessness in mofussil areas.
Judicial Plan of 1772
The three provinces were sub-divided into districts which were placed under Collectors. In the presidency towns, Mayor’s Court established under the 1726 Charter continued to function as usual. The judicial plan of 1772 covered the natives living in the Mofussil areas (the area under the Company, outside the Presidency limits of Calcutta, Madras and Bombay, come to be known as Mofussil).
The following provincial courts or adalats were established for judicial administration:-
(a) Courts of original jurisdiction
(i) Mofussil Diwani Adalat- It was a court of civil jurisdiction headed by Collector, who was helped by pandits and kazis in matters of Hindus and Muslims.
(ii) Mofussil Faujdari Adalat- It was a court of criminal jurisdiction presided over by kazi and a Mufti and assisted by two maulvis (thus Muslim law applied by this court). The Collector had a general supervision over the court. The court had full power to decide and punish all criminal cases. However, in capital cases the proceedings of the court had to be submitted to the Sadar Nizamat Adalat for confirmation of death sentence, and finally to the Nawab for his sentence.
(iii) Adalats of Small Causes- It was the civil court of the Head Farmer of the purganah to decide finally the disputes upto Rs. 10.
(b) Courts of Appeal
(i) Sadar Diwani Adalat – The court was composed of the Governor and Council and heard appeals from Diwani Adalat where the suit value exceeded Rs. 500.
(ii) Sadar Nizamat Adalat – It was the criminal court of appeal presided over by a Daroga, assisted by Chief kazi and Mufti and three maulvis. The Governor and Council exercised a general supervision over the court.
Critical Analysis of the Plan
The judicial plan of 1772 does honour to Warren Hastings and is indeed a creditable achievement. Warren Hastings amply exhibited his desire to promote ‘impartial and inexpensive justice’. The position before 1772 in the area of law and justice was chaotic. The judicial power was being abused by the zamindars and others. The new plan was thus designed to provide, for the first time after long years, a semblance of justice to the people and save them from exploitation in the name of justice. The reforms of Hastings were a first serious effort on the part of the British to organize judicial administration in the mofussil areas on a firm footing. The foundations of the Anglo-Indian judicial system were thus laid by Warren Hastings on which the later administrators were to build a better super-structure.
(i) Recognition of Personal laws of natives and attempt to codify Hindu/Muslim laws– Previously, Mayor’s Court did not touch upon the matters concerned with natives living in areas beyond the presidencies. 1772 Plan covered Mofussil areas under Company. Natives saved from the hardships they would have been subjected if subjected to English law.
(ii) Judicial process streamlined– Every adalat required to keep record of its proceedings. Time-duration fixed for deciding every case The adalats were required to give judgments in open. The old commission basis was replaced by court-fees which went to the government and not to the judge so that he ceased to have any personal interest in the result of litigation. The judges were now put on a regular salary basis so that they could discharge their functions objectively.
(i) Paucity of adalats – There was paucity of adalats in the interior of a district to decide small cases. Though Small Causes Courts were there, but Rs. 10 was too small an amount. For all other cases, there was only one adalat at the district headquarters.
(ii) Concentration of powers in the Collector – He was at once the administrator, tax-collector, civil judge and supervisor of criminal judicature. As collector of revenue he had an interest in revenue cases, but he decided these cases himself and this amounted to his acting as a judge in his own cause.
(iii) Poor natives denied justice- As the main objective of the company was realization of revenue, zamindars and court officials harassed poor natives and those paying revenues in
time were protected from law even if they committed atrocities.
(iv) Misuse – At the courts there was no procedure followed e.g. regarding evidence. Exposition of Personal laws was in hands of Kazis and Pandits, thus capable of misuse (as seen in the Patna case).
(v) Existence of irrational and anomalous features in Muslim Criminal law – Warren Hastings did not effect any changes therein except for prescribing drastic penalty for dacoits.
(vi) There was no provision whereby guilty Company officials could be brought to book, because Company’s servants were outside the purview of Adalats.
Judicial Plan of 1774
Warren Hastings effected some reforms via the judicial plan of 1774. The Collectors were recalled from the districts and in their place an Indian officer, called Diwan or Amil, was appointed. He was to act as a judge of the Mofussil Diwani Adalat and collect the land revenue also.
The Provincial Council consisting of British servants were established, which supervised revenue collection, heard appeals against the decisions of Mofussil Diwani Adalat and administered original civil jurisdiction. However, the Council took the place of the Collector in creating the difficulties, monopolised the trade and did not care for the judicial work.
Judicial Plan of 1780
To remove the defects of 1774 Plan, this plan was promulgated. The basic feature of this plan was the separation of revenue matters from judicial matters. The provincial councils were left only with the function of collecting the land revenue and deciding revenue disputes. A Diwani Adalat was established for the purposes of other judicial functions. This court was presided over by an English judge, a servant of the Company. The judge called Superintendent was assisted by native law officers when a dispute related to a Hindu or a Muslim. Cases involving sum upto Rs. 100 were referred to the local zamindar/public officer so as to avoid inconvenience to the parties of coming to the court.
The 1780 Plan made the working of courts more independent, but the system suffered from some defects:
(i) Diwani Adalats were too few to cover the entire judicial work.
(ii) Local zamindars or public officers were bribed by the parties.
(iii) Superintendent of the court was not a legally qualified person.
(iv) Provincial Council collected revenues and also decided revenue disputes, thus it worked as a court in its own cause.
Appointment of Impey
Sadar Diwani Adalat (a court of appeal) was a court of Governor and Council who had little time to sit as judges. Warren Hastings therefore appointed Impey as its sole judge in 1780. Sir Impey made very important reforms in the judicial administration-
(i) The Diwani Adalats were directed to hear all the cases in the open court after administering proper oath to the witnesses. The law officers should be used only for the purpose of expounding the law, and had no power to decide the facts or hear the witnesses. The procedure which was found to have been followed in Patna case of reporting the matter to the court by law officers was stopped.
(ii) The number of Diwani Adalats were increased from 6 to 18.
(iii) The most distinguished work which Impey did was the compilation of a Civil Procedure Code, which was promulgated in 1781. It helped the people know as to what the procedure of courts was. The Code contained provisions like- separation of judicial and revenue functions; authorizing the courts to summon the zamindars and talukedars like any other person before it; observance of Hindu and Muslim law in disputes arising between them; a further provision of “justice, equity and good conscience”, in those matters which were not covered by the then existing law (this provision created much judicial law in India).
However, after the recall of Impey the Sadar Diwani Adalat again came into its previous form.
The Adalat System: Lord Cornwallis
The Governor-Generalship of Lord Cornwallis (1786-1793) constitutes a very remarkable and a highly creative period in Indian legal history. He thoroughly reorganised the judicial system. He introduced for the first time the principle of administration according to law. He made very important
and far-reaching reforms in the judicial administration, some of the basic principles of which exist even upto now. The reforms were made by Cornwallis in three stages in 1787, 1790 and 1793.
Judicial Plan of 1787
By this Plan, the Collector was given authority in all the revenue and judicial matters and the two offices were united in him alone. Thus, the Collector collected the revenue as well as decided the revenue disputes. This was done to avoid the conflict of jurisdiction and to save expenses. The revenue court was called as mal adalat. The appeal against the decisions of the Collector went to the Board of Revenue at Calcutta and a second appeal to the Governor-General and Council.
For deciding civil disputes, Diwani Adalat with Collector as the sole judge were established. The Collector was also given some magisterial powers. As Magistrate he had the powers to arrest the criminals, hear evidence against them and commit the case to the criminal court to the tried by it. In petty matters, he was given power to inflict 15 days imprisonment.
The plan was a retrograde step in the administration of justice. Whatever goods had been done by Warren Hastings by separating revenue and judicial functions was undone by this plan.
Judicial Plan of 1790
The administration of criminal justice was suffering from various defects before the reforms of 1790:-
(i) The criminal administration of justice was completely left in the hands of Muslim officers. With no proper control over them, they misused their powers e.g. accepted bribes;
(ii) The Moffusil Faujdari Adalats had unlimited powers, and with absence of proper control these courts became autocratic;
(iii) There was no relation between the severity of the crime and the punishment provided for that. Full freedom was given to the courts to given punishment as they liked. Thus, even in the crime of murder, the criminal went unpunished;
(iv) In many cases the protection was afforded to the criminal by Zamindars and by their influence over the Muslim judges, they could get the criminals escape from the clutches of the judiciary. In this way, crimes were encouraged;
(v) The Nawab who had the power to control the criminal justice administration, as very careless.
Lord Cornwallis circulated a questionnaire to all the magistrates to ascertain their views and the existing facts about the criminal justice system. The replies given by the magistrates painted a very bad picture of the then existing system. The 1790 reforms eliminated the name of Nawab from the criminal justice administration. The administration was entrusted to Company’s servants who were to be assisted by Muslim law officers.
Three types of Courts were created in the Mofussil area:
(i) Court of District Magistrate continued as before i.e. 1787 Plan.
(ii) Circuit Courts – It was a moving court which visited every district twice a year to try the persons charge-sheeted by the Magistrate. It consisted of two Company’s servants assisted by kazi and mufti. The salaries of the court officers were increased so as to reduce their lure for bribes.
(iii) Sadar Nizamat Adalat – It was transferred to Calcutta where the Governor-General and Council sat as its judges, assisted by Muslim law officers.
The system created in 1790 worked very well, the only defect revealed in the system was that the Courts of Circuit were called upon to handle huge amount of work. Therefore, in 1792 Cornwallis empowered Magistrates to give punishment in cases punishable upto one month’s imprisonment. This reduced the pressure on Circuit Courts. Lord Cornwallis also made some humanitarian reforms viz. provisions for allowance to the prosecutors and witnesses who came to the law courts, abolition of the provision for attachment of property, provisions for the rehabilitation of criminals after their release from the jail.
Judicial Plan of 1793
The scheme of 1787 had many defects. The Collector functioned practically without any control from the above. He very soon became an autocrat and neglected his judicial functions. Actually, his main function was the collection of the land revenue on which his future promotions and his renumerations depended. The disputes in the mal adalat generally related to the collection of land revenue which meant that the Collector was a judge in his own cause. From a purely administrative point of view, the scheme was convenient, simple and economic, but it was hardly conducive to secure people’s liberty, protect property and promote their general welfare.
The 1793 scheme forms the high water mark in the Indian legal history, as it was based on certain postulates which are regarded as essential and fundamental for the organisation of the judicature in any civilised country. The scheme provided for a system of administration of justice which may secure and protect people’s liberty and promote their general welfare.
The basic or general features of the scheme are as follows :-
(1) Separation of executive and judiciary – Henceforth, the Collector was to be responsible only for collection of revenue. The power of administering civil justice was given to the diwani adalats.
(2) Control of judiciary over executive The Collectors and all executive officials were made amenable to the diwani Adalats for their official acts. They were to be personally liable, and could be required to pay damages to the injured party, for violations of the Regulations. Thus, for the first time a privilege was given to the people to get remedy against the Company’s officers who committed any wrong against them.
(3) Governmental liability – Any person could file a suit for damages in the diwani adalat against the Government in the same way as he could file suit against a private person.
(4) British subjects and diwani adalats – The position upto now was that native could obtain redress against the British subjects only in the Supreme Court at Calcutta. It was very difficult for natives to reach the Supreme Court because of their poverty and long distance. To avoid this, the diwani adalat was given a power not to allow any British subject to live beyond 10 miles from Calcutta unless he executed a bond that he shall be liable to the jurisdiction of the court in cases upto value of Rs. 500.
Reorganisation of courts
The courts were fully reorganised by the 1793 scheme.
(1) Civil Judiciary A complete “hierarchy of courts” was established to deat with civil matters.
(a) Sadar diwani adalats – The highest court in the judicial hierarchy consisted of Governor-General and Council. It heard appeals against the decisions of Provincial Courts of Appeal on matters exceeding Rs. 1000. These courts now had the supervision and control over the lower judiciary. The court could receive any original suit to be referred to it if the Provincial Court or the Diwani Adalat had neglected to entertain the matter. It also heard and decided charges of corruption and incompetency against the judges of lower courts.
(b) Provincial courts of appeals – Till now the only appellate court was the Sadar Diwani Adalat functioning in Calcutta. The provincial courts of appeals were established in four divisions which had the jurisdiction to try civil suits referred to it by the Government or the Sadar Diwani Adalat, to hear appeals against the decisions of diwani adalat, etc. The courts consisted of three Company’s servants as judges.
(c) Diwani Adalat – A civil servant of the Company was appointed as the judge of diwani adalat (previously the Collector was the judge) who had no work except deciding the civil and revenue disputes.
(d) Registrar’s Courts – The Diwani Adalat could refer the suits upto Rs. 200 to the court of registrar which was held by a servant of Company.
(e) Munsif’s Courts – Zamindars, Tehsildars, etc. appointed as Munsifs to try suits upto the value of Rs. 50.
(f) Ameen’s Courts – It had the same composition and powers as the court of munsif, however, it could not entertain a case directly unless referred to it by the diwani adalat.
(2) Criminal Judiciary – Most of the reforms had been introduced under the Scheme of 1790. Under 1793 plan, only two important changes were made- in the place of Collector, the judge of Diwani Adalat was appointed as the Magistrate; and the work of the Circuit Court was transferred to the provincial court of appeal.
Other Reforms –
(1) Abolition of court-fee – The court fee was abolished so that the people could easily reach to the court for securing justice.
(2) Legal profession – The Sadar Diwani Adalat was authorised to appoint pleaders the persons having some legal knowledge.
(3) Cornwallis Code – The Regulations made by Governor-General and Council had to have a preamble and title by which the nature and purpose of the Regulation could easily be ascertained. The Regulations were to be produced in the form of sections and clauses to be numbered serially. The Regulations introduced by the Cornwallis were collected together and later on come to be called as Cornwallis Code. A step was thus taken towards making law certain, definite, easily traceable and accessible to all.
(4) Native law officers – The position of native law officers improved by requiring that they shall be appointed by the Governor-General and Council from amongst the people of good character and having the knowledge of law. They could not be dismissed except for incapacity or misconduct in their public duty.
Critical appraisal of 1793 Plan
Lord Cornwallis perfected the process started by Warren Hastings. The 1793 Plan was very logical, comprehensive, and well-planned. The new system was based on the principle of checks and balances. The executive officers were amenable to courts and were personally liable for their official acts, on the judicial side an elaborate system of supervision and appeals was introduced. The courts worked with more efficiency, independence and judicial outlook. For the first time the ‘rule of law’ was established in the Mofussil area.
However, the new system was not completely free from defects :-
(i)The provision for two-three appeals made the judicial machinery complicated and slow moving. Thus, large number of cases remained pending in the courts for long.
(ii) The Indians were totally excluded from the judiciary except at very low level of munsif. Cornwallis started with a wrong premise that the Indians from their character and bearing were unworthy of holding any position of responsibility. This distrust shown towards the Indians generated the dissatisfaction among the native people as well as made the system less efficient and to some extent superficial as the English servants did not know and understand the customs, usages, etc. of the people.
(iii) Cornwallis did everything on procedural side but he could not reform the substantive part of law mainly the criminal law which was based on Muslim law and had many defects.