The judicial plan of 1790 is concerned with the reform of Criminal Law. Cornwallis came to India in 1786 as Governor-General and stayed here till 1793. He introduced the reforms in the judicial systems in three stages, in 1787, 1790 and 1793.
Judicial Plan of 1790
Administration of criminal justice was in chaotic position by this time. Both the substantive law and the machinery for administration of criminal justice needed urgent reforms. Under the scheme of 1790 the following courts were established for the administration of Criminal Justice –
1. Establishment of Sadar Nizamat Adalat – The Sadar Nizamat Adalat consisted of Governor-General and the Council. They were to be helped by the Muslim law officers in ascertaining Muslim criminal law. The Sadar Nizamat Adalat was to meet once a week. The Sadar Nizamat Adalat was shifted to Calcutta. The nominal control of the Nawab was removed.
2. Establishment of Circuit Courts – The Mofussil Fozdari Adalats were abolished. In their place, four courts of circuits were established. Bengal, Bihat and Orissa were divided into four divisions, i.e., Patna, Calcutta, Murshidabad and Dacca. In each of these divisions, a court of circuit would administer criminal justice acting as a moving court. The court would visit each district twice a year, and try the prisoners in the jails. It was assisted by the Muslim law officers, Kazis and Muftis. The Muslim law officers were assured of security of tenure of their offices. They could only be removed by the Governor-General in Council for incapacity and misconduct. When the Court of circuit did not agree with the Futwa proposed by the Muslim law officers or when the punishment was death or perpetual imprisonment, the case was to be submitted to the Sadar Nizamat Adalat for its decision.
3. Establishment of the Courts of District Magistrates – The Collector in each district was to act as the magistrate also. The Collectors, acting as magistrates were to arrest persons accused of crimes. On receipt of a complaint on oath, the magistrate was to issue a warrant for the arrest of the accused. He was to hold an enquiry and if a prima facie case was made, accused was to be committed for trial to the Court of circuit. If the offences were petty, the magistrate himself would award the punishment. Except in the case of serious offences like murder, robbery, theft and house-breaking, the accused could be released on bail. He was to make reports every month to the Sadar Nizamat Adalat giving the details of the persons arrested and the orders passed.
It may be noted that sometimes the European British Subjects presented a serious problem. If they committed crimes the Fozdari Adalat had no jurisdiction over them. They could only be prosecuted before the Supreme Court at Calcutta. But under the scheme of 1790, the magistrates were also appointed as justice of the peace. In this capacity they could arrest the European British Subjects on a complaint on oath. If the magistrate was satisfied on an enquiry that there were grounds for trying the accused, the accused would be sent to Calcutta in custody. Under this scheme, Europeans who were not British Subjects were subject to the jurisdiction of the Courts of the Company.
The system created in 1790 worked fully well to a considerable extent but one great defect of the system was that the delay in visit of the Court of circuit would put the prisoners into unnecessary hardship. The Court of circuit visited each jail twice in a year. Very often, innocent people were unnecessarily in prison and others suffered imprisonment for a period longer than the one justified.
Judicial Plan of 1793
The judicial plan of 1793 introduced by Cornwallis had far-reaching effects on administration of justice in Bengal, Bihar and Orissa. This scheme earned a name for Cornwallis, as a greater reformer in administration of justice. The changes brought about by the scheme of 1793 are as follows –
(a) Reforms regarding the relation of Executive and Judiciary –
(i) Seperation of the Executive and Judiciary – Cornwallis wanted that the arbitrary powers of the Collector were to be curbed and the judiciary must act as the protector of the rights and properties of individuals against interference and encroachment by the officers of the Government. To attain this end, the scheme of 1793 abolished the Mal Adalats and the powers of these Courts were transferred to the Mofussil Diwani Adalats. The Collector was entrusted with the exclusive function of the collection of revenue while administration of justice was exclusively entrusted to the Diwani Adalats.
(ii) Control of Judiciary over Executive – The scheme of 1793 provided that the members of the executive would be subject to the jurisdiction of the Courts if they were guilty of infringment of regulation, personal aggrandisement and oppressive acts. The scheme ensured obedience to the regulations by the executive and this sought to prevent tyranny and oppression. This was a poineer step in establishing the principle of supremacy of law over the executive power.
(iii) Liability of the Government for the wrongs of its servants – This scheme enabled the aggrieved individuals to bring suits in the Diwani Adalats both against the Government and the executive officers in question. The aim of these measures was to ensure to the people the uninterrupted enjoyment of the inestimable benefit of good laws duly administered. As a result of this scheme throughout Bengal, Bihar and Orissa, rule of law was sought to be restored. What the Supreme Courts did in the Presidency Towns, the Mofussil Diwani Adalats were enabled to do outside the Presidency Towns.
(b) Reforms in the Administration of Civil Justice – The reforms in the administration of civil justice consisted of reforms both in the structure of the Courts and also in the procedure to be followed by them-
(i) Reforms in the structure of the Courts – The following reforms were made in the structure of the courts –
1. Diwani Adalats – The Mofussil Diwani Adalats were reconstituted; each district was to have Diwani Adalat and the cities of Patna, Murshidabad and Dacca were also to have Diwani Adalat. Each Diwani Adalat was presided over by a covenanted civil servant of the Company. This Court consisted of three English covenanted servants of the Company, at least two would constitute the quorum.
The Courts of appeal had the following functions –
(a) It was a Court of appeal against all the decisions of the Mofussil Diwani Adalats. Under the earlier system there could be no appeal against the decision of the Mofussil Diwani Adalat if the subject matter of the dispute was valued below Rs. 1,000. But this scheme provided for an appeal to the Court of appeal irrespective of the value of the subject matter of the dispute.
(b) The Court of appeal had jurisdiction to try civil suits which were referred to it for trial either by the Government or by the Sadar Diwani Adalat.
(c) The Court of appeal could also receive original suits or complaints over which a Mofussil Diwani Adalat refused to exercise jurisdiction and remand them to the Adalats, for trial and decision.
(d) The Court of appeal acted also as a Court of superintendence to some extent as it could receive charges of corruption against the judges of the Mofussil Diwani Adalats and report such cases as well as cases of neglect of duty.
2. Sadar Diwani Adalats – Under the Scheme of 1793, the Sadar Diwani Adalat which consisted of the Governor-General and Council continued to be the highest civil Court subject to appeals to the King-in-Council when the subject-matter of the dispute was of the value of £ 5,000 or more. But one important refórm introduced by the scheme was that Sadar Diwani Adalat was also constituted as a Court of supervision and inspection over the Mofussil Diwani Adalats so that administration of justice could be toned up. With this end in view the Sadar Diwani Adalat was given the following powers –
(a) It could receive and try charges of corruption against the judges of the lower Courts. It could also order the Provincial Court of appeal to try such charges if they were against the judges of Mofussil Diwani Adalat.
(b) It could receive any original suit or complaint which was refused to be received by a Mofussil Diwani Adalat and direct it to determine the case according to law.
(c) It could also direct the Court of appeals in the provinces to receive and proceed with appeals which such Courts had refused or omitted to entertain.
3. The. Courts of Munsiff— The Mofussil Diwani Adalats being mostly situated in district places, the persons who sought justice had to travel to the district headquarters from remote parts. Very often there was no justice in small cases as it was very inconvenient for the parties to travel such long distances to seek redress in small matters. Further, there was overcrowding
of work in the district Courts as that was the only civil Court in the district.
(ii) Reforms in the Procedure – The following reforms were made in the rules of court procedure –
(a) Reforms in Mufussil Diwani Adalats – Certain rules of procedure were enacted for the observance of Diwani Adalats. The
Court could not make a rule, order, proceeding or decree except on Court days and in open Court. A judge was prohibited from carrying on correspondence with the party regarding matters pending before him. A party to a dispute could make a representation to the Adalat in writing either personally or through an authorised representation. A period of limitation was also prescribed for civil litigation.
(b) Abolition of Court-Fees – Before this scheme, litigation was very costly not only because the litigants had to travel a long distance and pay heavy fees to the Vakils. But also because there was a heavy Court-fee to be paid by the litigants. Cornwallis desired to abolish the Court-fees so that justice may be available to all.
(c) The Fresh-Steps – The fresh steps presented a peculiar problem when they were residing beyond Calcutta. The peculiar position was that they could avail themselves of the jurisdiction of the Adalats against the local inhabitants in the provinces while they themselves were subject to the jurisdiction of Supreme Court at Calcutta only and not to the jurisdiction of the Adalats in the Moffusil. They could easily realise their claims against the local inhabitants by availing themselves of the jurisdiction of the Diwani Adalats.
(c) Reforms in the Administration of Criminal Justice – In accordance with the policy of separation of the executive from the judiciary the magisterial powers of the Collectors were taken over and transferred to the judges of the Mofussil Diwani Adalats. The newly constituted magistrate could try and punish offences. The maximum punishment they could give was imprisonment upto 15 days or fine upto Rs. 100. The courts of appeal of administration of civil justice and the Courts of circuit under the Scheme of 1790 were amalgamated and 4 Courts of appeal and circuit were established. Each Court of appeal and circuit consisted of 3 English judges. They were to act as Courts of circuits dividing themselves into 2 divisions and also as the Courts of appeal over the decisions of the Mofussil Diwani Adalats.
(d) Reforms in Legislative Methods – The regulations promulgated since the time of Warren Hastings were in a loose and amorphous form. They were scattered and could not be found in any particular source book. To remedy these defects, Cornwallis introduced certain procedural methods. The changes introduced are as follows –
1. Each regulation was to contain a preamble so that the purpose of the regulation could be clearly understood and stated. This also helped interpretation of the regulations by the Courts.
2. Every regulation was to be drawn in a particular form having a title and expressing its subject matter in a connected manner.
3. The regulation was to be divided into numbered sections and clauses.
4. Proper original notes were to be inserted.
5. The regulations enacted in each year were to be numbered, printed and published and were also to be recorded in the judicial department.
6. Arrangements were also made for the translation of the regulations into Persian and Bengali so that the public could easily know the provisions of the regulations.
(e) Reforms in the Regulation of legal profession – Now the Vakils subject to the following rules-
(a) The Sadar Adalat was empowered to grant sanads to the pleaders who could plead the causes of the parties in the suits.
(b) Vakils guilty of misconduct or incapacity could be dismissed and disqualified. The clients could sue the Vakils in the Courts for malpractices and fraud.
(c) The fees were to be collected by the Courts and such fees were to be paid to the Vakils. Thus, extortion of excessive fees was prevented.
(d) Arrangements were also made for appointment of Government pleaders to prosecute the suits, which were to be carried on at the public expense.
Native Law Officers – The native law officers belonging to the several Courts were to be appointed by the Governor-General in Council. Care was to be taken to see that they were persons of great integrity and well versed in law. They enjoyed a security of tenure. They could only be removed as a result of disciplinary proceedings against them and there could lie an appeal to the Sadar Diwani Adalat against such punishment.
A Critical Appreciation of the Scheme of 1793
The salient features of the reforms introduced by Cornwallis can be critically examined as follows –
1. He separated to a considerable extent the judiciary from the executive.
2. The administration including the Government was made subject to the jurisdiction of the civil Courts and thus the foundation of rule of law was laid down in the country.
3. The efficiency and the integrity of the judiciary was sought to be maintained by a graded system of supervision and appeals.
4. The Regulations prescribed clear-cut procedure for the observance of the various Courts.
5. A system of graded appeals was provided on the civil side.
6. A precise and concise form was given to the regulations which made knowledge of law available to the profession and the public.
To sum up it can be said that with fairness, impartiality and efficiency as aims, Cornwallis provided an elaborate and a complicated machinery for administration of justice.
Q. 9. Write a critical note on the Judicial Reforms of Lord Cornwallis. Discuss the reforms introduced by Lord Cornwallis through his judicial plan of 1790 and 1793.
Discuss the reforms introduced by Lord Cornwallis in the enforcement of Criminal Law in India.