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 Catheline with Charles II. As the King Charles II found it inconvenient to exercise control over this small territory from England, therefore, he transferred it to the East India Company in India for apetty annual rent of £ 10 by the Charter of 1668. 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 way 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. The Company was also empowered to exercise judicial authority. The judicial proceedings were to be like those established and used in England. The Governor of Surat Factory was also the ex-officio Governor of Bombay. A Deputy Governor and Council were appointed to administer Bombay subject to the control of the Governor.
Development of Administration of Justice in Bombay before1726 – The Administration of Justice in Bombay during the period from1668 to 1726 may be studied in the following three stages –
(i) First Stage from 1668 to 1683 – Gerald Aungier, the Governor of Surat 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 following types of courts –
(i) 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 custom officer who was the presiding judge. These Courts consisted of Indian judges also. This Court had both civil and criminal jurisdiction. In civil matters, the Court could decide minor disputes up to 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 jurisdiction. 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 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.
The Judicial Plan of 1672 – Aungier introduced second judicial system in Bombay in 1672. 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 had the jurisdiction in matters 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. Bombay 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.
2. 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 up to 20 Xeraphenes were taken by this court. There was no provision for any court-lee. Nor this court took the help of jury. It may be said that the judge decided the matter to the best of his judgment.
3. 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.
The judicial system which was so established under the plan of 1672worked 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 1683when 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 1684. After the recapture the Company established new judicial system.
(ii) Second Stage from 1684 to 1690 — Under the new judicial system a Court of Admiralty was established in Bombay on the lines of the court of Admiralty established in Madras under the Charter of Nov. 1683. The court basically 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 this court. However, after some time dispute arose between the 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 1685.
In order to decide the civil and criminal matters, a court was established on the line of the court which existed under the plan of 1672.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 cases 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 between 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 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, attacked the Island of Bombay and captured it. It remained under his hands till 1718. Nothing is known about the judicial system which existed on this Island during that period. In 1718 a new judicial system was established when the Administration of the Island again came into the hands of Company.
(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, and 4 Indian judges. The Indian judges were to represent the principal communities in Bombay – the Hindus, the Mohammedans, Christians, 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 of assessors. Their main function was to acquaint the English judges with the local manners and customs and the caste systems of the local people.
Jurisdiction – This. Court had jurisdiction to decide civil, criminal and testamentary matters. It administered justice according to law, equity and good conscience and the rules and ordinances of the Company. It was also a place where several transactions could be registered. An appeal 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.
Civil Jurisdiction– The Court decided several matters of unimportant nature. The matters that came before the Court did not involve any intricate question of law and procedure as they were generally questions of debt and partition. The local personal laws and customs were applied to the local inhabitants.
Criminal Jurisdiction – This Court had exercised jurisdiction overall 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 was preventive and deterrent. Branding, whipping, imprisonment during pleasure were common.
Conclusion – The judicial system of 1718 was essentially an improvement over the earlier systems in the sense that the participation of Indian judges was allowed in the administration of justice. Consequently, the court won the confidence and respect of the local people. To some extent separation of executive from the judiciary had been created by establishing the court of 1718, yet the executive i.e., Governor and Council always disturbed the independence of judiciary. Besides, many of the English judges in the court used to be the members of the Governor’s Council. Being members of the council as well as of the courts the judges were also the prosecutors and hence sometimes they being judges in their own cause violated the fundamental principles of natural justice, the observance of which is essential to impart impartial justice. However, this system of Administration was continued till 1726 when a universal system was introduced in all the three presidencies by the Charter of 1726.