Introduction
The Charter of 1753 was a modified and reformed version of the Charter of 1726. The conflicts and clashes between Mayor’s Court and the Governor and Council created much confusion and chaos in the Presidencies in India. The Company, therefore, requested the British King George II to issue a fresh Charter so as to introduce suitable amendments in the earlier Charter of 1726. The Charter of 1753 was an attempt to improve upon the earlier Charter of 1726 which suffered from several lacunas and defects.
The Provisions of Charter of 1753
The main provisions of this charter were are follows –
1. Revival of Mayor’s Courts with modifications – The British King George II granted a new Royal Charter for the Presidencies of Madras, Bombay and Calcutta whereby the Corporation of Madras which ceased to function because of French occupation during the period for 1746 to 1749 was revived again and the jurisdiction of all the three Mayor’s Courts of Presidencies were modified to overcome the shortcomings of its earlier working.
2. Mayor’s Courts were subordinated to the Governor and Council – With a view to end the strained relations between the Mayor’s Court and Corporation on the one hand and the Governor and Council on the other, the Charter of 1753 brought the Corporation of each Presidency under the control of the Council by changing the mode of appointment of Mayor and Aldermen. Under the new Charter, the Governor and Council was empowered to select the Mayor out of a panel of two names elected by the Mayor and Aldermen. The Council also assumed full power to appoint Aldermen in the Corporation and dismiss them. Thus, the Mayor’s Court was completely subordinated to the Executive Council.
3. Natives were to be governed by their own laws – The Charter of 1753 provided that the Mayor’s Court were not to try civil cases between natives, such cases being left to be decided by the natives themselves. However, the Mayor’s Court could decide only those cases of the natives in which both the parties consented to accept the jurisdiction and decision of the Court. Some authorities have asserted that though the Charter clearly provided that cases of natives were to be decided by their own laws, customs and usages, but this was never followed in practice in Bombay.
4. Change in oath system – In order to end the controversy regarding taking of oath, the charter expressly provided that the native Indians and Christians could be allowed to take oath in such a manner as they deemed most binding on their conscience to speak out the truth.
5. Depositing of Court-fee by the litigants – This charter provided that the litigants would deposit money of court fee with the Government and not with the Courts. This was intended to ease the burden of courts.
6. Establishment of the Court of Requests – The Charter provided for the establishment of a new Court, called the Court of Requests in each Presidency town to decide civil cases up to five pagodas. The civil cases exceeding this value were to be decided by the Mayor’s Court. The object of establishing Courts of Requests was to provide cheap and quick justice. It consisted of Commissioner varying from eight to twenty four in number and three of them were to sit in rotation once a week. The first Commissioners were to be appointed by the Governor and Council but thereafter half of them were to retire every year and the vacancies so caused, were to be filled in by the remaining Commissioners, through the system of ballots. Thus, the Court of Requests was an inferior court subservient to the Council. Its jurisdiction was extended to all inhabitants, including the natives.
Judicial Arrangement under the Charter of 1753
The following courts were established under the Charter of 1753 for the administration of justice in the three Presidencies –
1. The Court of Requests – This court was to decide summarily the petty civil cases upto five pagodas. Now these cases could not be tried by the Mayor’s Court.
2. The Mayor’s Court – This court had jurisdiction to hear civil cases involving a sum exceeding five pagodas. It had jurisdiction over the cases of natives provided both the parties to the suit voluntarily submitted to the jurisdiction of the court.
3. The Court of Governor and Council – This court had exclusive jurisdiction over criminal cases, as the Governor and Council acted as Justices of Peace and held Quarter sessions to decide criminal cases. It was also empowered to hear appeals from the Mayor’s Court.
4. The Court of King in Council – The King in Council in England was empowered to hear appeals from the Court of Governor and Council in all civil cases involving a sum of 1,000 pagodas or more.
Working of Judicial system established under the Charter of 1753
The judicial system introduced by the Charter of 1753 created difficulties in settlement of civil cases of the natives residing in the presidency of Madras and involving a sum exceeding 5 pagodas. The court of Requests could decide cases only up to the value of five pagodas.
These cases could not be tried by the Mayor’s Court unless both the parties voluntarily submitted to the jurisdiction of the court and accepted its decision. The problem continued in the Presidency of Madras until the introduction of the Recorder’s Court in 1798. The Presidency of Calcutta did not have this problem because of the existence of the Zamindar’s Court which had jurisdiction to decide the cases of the natives. So far the Presidency of Bombay was concerned, it appears that the exemption granted to natives from the jurisdiction of Mayor’s Court by the Charter of 1726, was in fact never effectively followed in practice and the Mayor’s Court freely decided the cases of natives ignoring the exemption granted to them by the earlier Charter.
Defects of the Charter of 1753
The Charter of 1753 was mainly devised to do away with the jurisdictional conflicts between the Mayor’s Court and the Governor and Council. For this purpose the exact limits of the jurisdiction of the Mayor’s court were outlined in the Charter and this Court now ceased to have jurisdiction over the cases involving natives except where both the parties voluntarily submitted to its jurisdiction and judgment. It was also expressly provided that the Mayor’s Court could hear suits against the Mayor, Aldermen or the Company. Despite these positive achievements, the judicial system introduced by the Charter of 1753 suffered from the following defects –
1. The Mayor’s Court of each Presidency consisted of company’s servants who were appointed by the Governor and Council. Thus, the court lost all its independence and could no longer remain impartial in cases where the company was one of the parties to the suit.
2. The servants of the company were allowed to carry on their private trade. Consequently, there were often disputes between them and the natives. The Mayor’s court being a court of the company’s junior servants, usually took the partisan view and favoured their fellowmen. Beside, the Governor and Council also exerted undue pressure on the judges of the Mayor’s court. This frustrated the cause of justice.
3. The Governor and Council had jurisdiction over civil as well as criminal cases. They were also the executive Heads of their Presidency. Consequently, they exercised certain legislative powers as well. Thus, all independence the three functions were centralised in a single authority which was a derogate step so far independence of judiciary was concerned
4. The judges of the Mayor’s Courts were laymen and not well versed in law. They were supposed to follow the English law but had no knowledge of it. In the absence of law-reporting in India, the complicated cases had to be referred to England for opinion. This caused difficulties and delay in the disposal of cases.
5. The exclusion of Indians in sharing the administration of justice was the most disgusting feature of the history of early courts. Significantly, the Indian christians were allowed to participate as jurors in the court of Sessions under the Charters of 1726 and 1753.
6. The territorial jurisdiction of all the courts established under the Charter of 1753 was confined to the respective Presidency. Therefore, there was no forum to take cognizance of cases arising beyond those limits whereas the activities of the English Company and its servants had extended beyond these territories.
In spite of the above mentioned defects in the judicial scheme introduced by the Charter of 1753, it must be accepted that it made a good beginning for the establishment of a uniform judicial system in the company’s settlements on the basis of English law and procedure and thus laid the foundation for an improvised judiciary in times to come. In 1770 Bolt made a bold attempt to make the Mayor’s courts independent of the control of the Governor and Council who had the power of obstructing and interfering with the course of justice in presidencies. He suggested that appellate jurisdiction of the Governor and Council’s Court should also be abolished and instead, a Court of Appeals should be instituted to hear appeals from the Mayor’s Court. This Court of
Appeals should also be completely independent of the Governor and Council’s influence. However, these suggestions of Bolt could not be implemented. In 1774 the Mayor’s Court of Calcutta was replaced by the Supreme Court of Judicature. The Mayor’s Courts at Bombay and Madras were replaced by the Recorder’s Court in 1798 by the Charter issued by King George III on Feb. 1, 1798 for this purpose.
Comparison of the Charter of 1753 with the Charter of 1726
Taking into consideration the various provisions noted above it can be said that in effect the Mayor and Aldermen became the nominee of the Government. The Charter of 1753 reduced the powers and independence of the Mayor’s Court. Minimising the autonomy and independence of the Mayor’s Court was no doubt, a retrograde step and Charter of 1753 was inferior to that of 1726 in this respect.
Criticising the system, Bolt said that while “Mayor’s Court had the power of electing their own members to fill up vacancies,” that court was the bulwork of all security with regard to property in the settlement, and might be considered in a great degree as independent. “But the Charter of 1753 transferred the right of nominating Aldermen to the Governor and Council who thus got the “unconstitutional power of “making and unmaking the judges.” The Govt. had now the power to appoint and dismiss the Aldermen i.e., judges of the Mayor’s Court and, therefore, the judiciary both civil and criminal, became very closely connected with the executive. Judiciary in fact became a mere branch of executive whereas the separation of executive from judiciary is the cardinal principle for imparting an unbiased justice.
——————
Questions
The Charter of 1753 came into existence to overcome the defects of the Charter of 1726.
Or
Discuss the provisions of the Charter of 1753 and give its defects.
Or
Discuss the defects of the Charter of 1753 and compare it with the Charter of 1726.
—————————