Historical Evolution Of

The Indian Legal System

UNIT 03: CHAPTER 2

Administration of Justice in British India

Read the following passage and debate on the impact of British laws in India.

During the Great War of 1914-18, the British had instituted censorship of the press and permitted
detention without trial. On the recommendation of a committee chaired by Sir Sidney Rowlatt,
these tough measures were continued. In response, Gandhiji called for a countrywide campaign
against the 'Rowlatt Act'. In towns across North and West India, life came to a standstill, as shops
shut down and schools closed in response to the bandh call. The protests were particularly intense
in the Punjab, where many men had served on the British side in the War – expecting to be
rewarded for their service. Instead they were given the Rowlatt Act. Gandhiji was detained while
proceeding to the Punjab, even as prominent local Congressmen were arrested. The situation in
the province grew progressively more tense, reaching a bloody climax in Amritsar in April 1919,
when a British Brigadier ordered his troops to open fire on a nationalist meeting. More than four
hundred people were killed in what is known as the Jallianwala Bagh massacre.

NCERT Textbook in History for Class XII

-Themes in Indian History -Part III

The British rule in India is responsible for the development of the Common Law based legal system in
India. In this lesson we will learn more about the administration of justice and law reforms during the
British period in India.

The development of the British Common Law based system can be traced to the arrival and expansion
of the British East India Company in India in the 17 Century. The East India Company gained a
th

foothold in India in 1612 after Mughal emperor Jahangir granted it the rights to establish a factory in
the port of Surat. In 1640, the East India Company established a second factory in Madras (now
Chennai) on the southeastern coast. Bombay Island, a former Portuguese outpost was gifted to
England as dowry in the marriage of Catherine of Braganza to Charles II and was later leased to the
East India Company in 1668.

In the early seventeenth century, the Crown, through a series of Charters, established a judicial
system in the Indian towns of Bombay, Madras and Calcutta, basically for the purposes of
administering justice within the establishments of the British East India Company. The Governor and
the Council of these towns formulated these judicial systems independently. The Courts in Bombay
and Madras were called Admiralty Courts, whereas the court in Calcutta was called Collector's Court.
These courts had the authority to decide both civil and criminal matters. Interestingly, the courts did
not derive their authority from the Crown, but from the East India Company.

The Charter issued by King George I on 24 September 1726 marks an important development in Indian

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legal history. This Charter forms the basis for the establishment of Crown's courts in India. The British
East India Company requested King George to issue a Charter by which special power could be granted
to the Company. Accepting the Letters Patent of 1726 and the subsequent Charters, had, in effect,
applied English law to British India as will be discussed here after.

1. Establishment of Mayor's Courts

The expansion of its establishments brought new challenges to the East India Company. The
Company requested the King to issue a Charter by which special powers could be granted to it.
The Company was granted Charter by King George I in 1726 to establish “Mayor's Courts” in
Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Mayor's
Courts were not courts of the Company, but courts of the King of England. Mayor's courts
superseded all existing courts established in the above places. The Mayor's Courts were
authorized 'to try, hear and determine all civil suits, actions and pleas' that may arise within
the three towns or within the factories of the Company. The Court consisted of a Mayor and
nine Aldermen, seven of whom, including the Mayor, were required to be naturally born
British subjects. Aldermen were elected from among the leading inhabitants of the
settlement to hold the position for life. The Mayor was elected from the Aldermen.

The Mayor's Courts contributed significantly to the formulation of a uniform pattern of

judicial functioning in India. The Mayor's Courts administered English law, which was assumed
to be the lex loci ('law of the place') of the settlement. The inhabitants of the settlement
were governed by the English law, irrespective of their nationality. English law did not extend
outside the settlements, and there the Indians were subject to their own laws.

The Charter of 1726 did not specify the law to be applied by the Mayor's Courts. The Charter
merely stated that the Court was required to 'give judgment and sentence according to
justice and right'. However, based on the past practice and in the light of the 1661 Charter, the
then existing English law, or principles of English Common Law and Equity were applied. It is
generally understood that the Charter of 1726 indirectly brought into application the laws of
England- both Common Law and statute law, into the three British Settlements in India. This
is one of the distinctive outcomes of the 1726 Charter.

Appeals from the Mayor's Court were made to the Court of Governor and the Council. The
Governor and five members of the Council were appointed Justices of Peace and constituted a
criminal court of Oyer and Terminer (a partial translation of the Anglo-French oyeretterminer
which literally means 'to hear and determine'). The Court of Governor and Council were
required to meet four times a year for the trial of all offences, except that of high treason.
However, a second appeal in cases valued at 1,000 pagodas (see picture below) or more, was
available to the King-in-council in England.

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 Source: http://www.chennaimuseum.org/draft/gallery/04/01/coin8.htm
Figure – 1: Pagodas in Circulation during the Rule of the British East India Company

The Mayor's Courts established under the Charter of 1726 had severe limitations. There was no
clarity regarding the applicable law, although the Company made considerable efforts to
apply the English Law. The jurisdiction of the Mayor's Court over natives was relatively
uncertain. In several instances, the Mayor's Court annoyed the natives by applying the
principles of English Law, completely disregarding their personal laws and customs.

In 1746, the French occupied Madras, after which the functioning of the Mayor's Court was
suspended in that City. However, the French surrendered Madras to the British in 1749 after
the conclusion of the peace treaty of Aix-La Chappelle. Using this opportunity, the Company
requested the King to remove some difficulties related to the 1726 Charter. King George II
issued another Charter on 8 January 1753, which by and large left the 1726 Charter intact.

By virtue of the 1753 Charter, the Mayor Courts were re-established in the three settlements
with the same jurisdictions and powers as in the Charter of 1726. To avoid disputes between
the Governor and Council, the Charter brought the Mayor's Court under the control of the
Governor and the Council. The Mayor, instead of being selected by the Aldermen was to be
selected by the Governor and Council. Furthermore, suits and other actions by natives were
expressly excluded from the jurisdiction of the Mayor's Court unless both parties had
submitted them to their determination. The jurisdiction of the Mayor's Court was restricted
to suits of the value of over five (5) pagodas.

It is notable that Courts such as the Mayor's Courts were established for deciding mainly the
disputes of the British natives or other foreigners. Therefore, in all the three settlements,
different types of courts existed to decide the cases of the natives. In Madras, the Choultry
courts existed to decide cases up to the value of 20 pagodas. In other words, Choultry courts
heard, by and large, petty cases and continued up to the year 1800. In Calcutta, the natives
were subject to the Zamindars' courts. The East India Company as the Zamindar, administered
these courts. Zamindars' courts decided civil matters, viz, issues involving land, property and
personal wrongs. It is also reported that the Zamindar's Courts and the Mayor's Court had
disputes relating to jurisdiction on certain civil matters. Justices of Peace were appointed

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 in Calcutta to decide criminal matters. However, in Bombay no separate courts were
established to decide disputes among the natives. The reason was that the Company claimed
complete sovereignty over the island and did not want to treat the natives differently.

2. Regulating Act of 1773

Judicial functions of the East India Company expanded substantially after its victory in the
Battle of Plassey (1757). The battle established the Company rule in Bengal, which expanded
over much of India for the next hundred years. After this battle, the real authority of the
Nawabs of Bengal passed on to the British. In the year 1765, Robert Clive secured in
perpetuity for the East India Company, the Diwani of Bengal, Bihar and Orissa from the Mughal
Emperor Shah Alam, who was still considered to be the Ruler of the Country, against a
payment of Rs. 26 lakhs. By this grant, the Company claimed to have become the virtual
sovereign and master of this territory. At that time, the Nawab, who was the Subedar of
Bengal, represented the Mughal Emperor. While exercising his authority, the Nawab
performed two main functions: (i) Diwani, i.e. collection of revenue and civil justice, and
(ii) the Nizamat, i.e. the military power and criminal justice. The East India Company
obtained Diwanirights from the Mughal Emperor and the Nawab gave it Nizamat work.
However, the administration of criminal justice was left with the Nawab, who was responsible
for maintaining law and order.

Despite its success in Bengal, the East India Company was debt-ridden at that time and had to
pay significant sums of money to the British Government to maintain monopoly rights in India.
The affairs of the company were poorly managed and the natives were unhappy. Even the Tea
Act of 1773, which triggered the American War of Independence, was designed to rescue the
near bankrupt company and to generate money from the colonies. In 1773, Lord North, the
then Prime Minister of England, decided to introduce some form of legal government to
manage the Indian possessions of the East India Company.

As the East India Company acquired formal political power over substantial areas in eastern
India, the British Parliament grew more concerned about the need to regulate its activities. In
1773, the British Parliament passed the Regulating Act (13 Geo, III Ch.63). The Regulating Act
of 1773 made some important changes in the structure of the Company, and appointed a
Governor General and four councilors at Fort William in Calcutta. The Regulating Act of 1773
is widely considered as the first attempt by the British Parliament to construct a regular
government for India and to intervene in the control of the Company's administration. The
Regulating Act of 1773 also superseded the provisions of the 1753 Charter.

The Regulating Act of 1773 was the first attempt at creating a separate and somewhat
independent judicial organ in India, under the direct control of the King. The Chief Justice
and other puisne (junior) judges were appointed by the King. Section 13 of the Regulating Act
empowered the Crown to establish by Charter, a Supreme Court of Judicature at fort William

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 in Calcutta. On 26 March 1774, Letters Patent was issued to establish the Supreme Court of
Judicature. The Supreme Court was to consist of a Chief Justice and three puisnejudges being
barristers of not less than five (5) years of standing to be appointed by His Majesty. Sir Elijah
Impey, a distinguished English Barrister, was appointed as the first Chief Justice of the
Supreme Court of Calcutta,a post he held until 1787. The Supreme Court was set by 'Letters
Patent'. Clause XVIII of the first Charter ordained that 'the Supreme Court should be a court of
equity, and shall and may have the full power and authority to administer justice, in a
summary manner, as nearly as may be, according to the rules and proceedings of our High
Court of Chancery in Great Britain'. In other words, the power to administer justice and
equity,(which was an important feature of the Crown Courts in Britain) was also passed onto
the Supreme Court and to subsequent Charter High Courts. The legacy of this practice
continues to have influence in India at least in areas of Hindu law.

The Supreme Court, under the Regulating Act of 1773, was a court of record and had the
power and authority similar to that of the King's Bench in England. The Supreme Court of
Calcutta had jurisdiction over civil, criminal, admiralty and ecclesiastical (laws governing the
affairs of the Christian Church) matters. It had the power to issue writs such as mandamus and
certiorari, similar to the jurisdiction of the present day High Courts and Supreme Court. It
also had the power of 'Oyer and Terminer' i.e. the power to try offences and imprisonment.
The Court also had to frame separate rules of practice and procedure for governing its
functioning. The Supreme Court had jurisdiction over all British subjects and those residing in
Bengal, Bihar and Orissa and had the power to decide all complaints regarding crime,
misdemeanors or oppressions. Appeals from this court were made to the King-in-Council in
England.

The Charter of 1774, in pursuance of the Regulating Act, establishing the Supreme Court in
Bengal, did not delineate the bounds of its jurisdiction. This omission led to a sharp conflict of
opinion about the jurisdiction of the Supreme Court. Not infrequently, the Supreme Court,
without drawing any light from the Regulating Act, overstepped the limits of its jurisdiction,
and thus commenced in Bengal, an era of confusion, described by Macaulay in his essay as a
'reign of terror'. Edmund Burke notes, “… [no] rule was laid down either in the Act or the
Charter by which the Court was to judge. No description of offenders or species of
delinquency was properly ascertained according to the nature of the place or the prevalent
mode of abuse.” The power and jurisdiction of the Supreme Court in matters relating to
natives was particularly controversial. The Act of Settlement of 1781 partly resolved these
issues. Its effect was to take away the application of the English law to Hindus and
Mohammedans in the matter of contracts and other matters enumerated in the statutes, and
to provide that they were to be governed in these matters by their own laws and usages.

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 Defects of the Regulating Act of 1773

The Regulating Act of 1773 was one of the significant steps initiated to overhaul the
functioning of the East India Company. However, one of its glaring defects was that it did not
lay down any provision dealing with the relationship between the Company's Courts and the
Supreme Court. The Regulating Act made the jurisdiction of the Supreme Court partially
concurrent with that of the Adalats. In several instances, the Governor General and the
Council supported the Adalats, which led to severe friction and conflicts between the Council
and the Supreme Court. Furthermore, the system of checks and balances established by the
Act, made the Governor General powerless before his own Council and the executive
powerless before the Supreme Court.

The circumstances that prevailed at Bombay and Madras were not similar to those of
Calcutta. For this reason, it was not considered necessary to establish a Supreme Court in
these towns. An Act of the British Parliament made in 1797 also abolished the Mayor's Courts
established at Bombay and Madras. The 1797 Act authorized the Crown to issue a Charter to
establish Recorder's Courts at Madras. The Recorder's Court which was declared as a court of
record, consisted of a Mayor, three Aldermen and a Recorder. The Recorder, who was the
President of the Court, was appointed by His Majesty from among the lawyers with at least
five (5) years of experience at the Bar.

Supreme Courts were soon established in Madras and Bombay during the reign of King George
III. In 1800, the British Parliament passed an Act empowering the Crown to establish a
Supreme Court at Madras in the place of the Recorder's Court. The powers of the Recorder's
Court were transferred to the newly established Supreme Court, and it was directed to apply
the same jurisdiction and be subject to the same restrictions as those applied to the Supreme
Court of Judicature at Calcutta.

In the case of Bombay, the Recorder's Court continued to function until 1823. In 1823, an Act of
the British Parliament abolished the Recorder's Court and established a Supreme Court in its
place. The Supreme Court in the Presidency Town of Bombay was established by a Crown
Charter and consisted of Chief Justice Sir E. West and two other puisne judges. The
jurisdiction of the Supreme Court was strictly limited to the town and the Island of Bombay at
that time.

3. Law Reforms in British India

During the late 18th and early 19th centuries, the Indian cities, much like British cities of the
time, were poorly administered and policed. Crimes were widespread and corruption was
rampant especially in the police. Lord Cornwallis realized that implementation of judicial
reforms would not be complete without police reforms. Much of the criminal justice system in
Bengal remained in the hands of the Nawab, the nominal local ruler of the company's

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 territory. Warren Hastings had attempted several times to make changes in policing and the
administration of justice, but with limited success. William Jones, an expert on languages
and legal system in Ancient India, translated the existing Hindu and Muslim penal codes into
English. The limited objective was that the principles of the ancient texts could be evaluated
and applied by English-speaking judges. In 1787, Lord Cornwallis gave limited criminal
judicial powers to the company's revenue collectors, who had already served as civil
magistrates. Most importantly, the collector was divested of judicial and magisterial powers
and entrusted with the duty of administration of revenue. In 1790 the company took over the
administration of justice from the Nawab, and Cornwallis introduced a system of circuit
courts with a superior court that met in Calcutta and had the power of review over circuit
court decisions. However, most of the judges were non-native. Lord Cornwallis had initiated
efforts to harmonize different codes existing at that time. By the time of his departure in
1793, the harmonized code, known in India as the Cornwallis Code, was substantially
complete.

Law against Child Marriage in India

Laws can be the catalyst for social change. There were a number of Indian legislators in
the Central Legislative Assembly under British rule, who fought to make a law preventing
child marriage. In 1929 the Child Marriage Restraint Act was passed without the kind of
bitter debates and struggles that earlier laws had seen. According to the Act, no man
below the age of 18 and woman below the age of 16 could marry. (Ref: NCERT class VIII text
book – Our Past –III)

Activity:

Find out other examples of statutes enacted during the British rule for initiating social
reforms in India. Make a presentation in the class on any one of the statutes.

Despite the best intentions, the Cornwallis reforms resulted in institutionalizing

discrimination through judicial reforms. One consequence of the Cornwallis Code was that it,
in effect, institutionalized a discrimination against natives in the legal system. In 1791 Lord
Cornwallis issued an order that '[no] person, the son of a Native Indian, shall henceforward be
appointed by this Court to Employment in the Civil, Military, or Marine Service of the
Company.' These policies led to the development of an elite class of English judges in India.
English judges were appointed to various courts in India, including the High Courts and the
Federal Court, until India became a Republic in 1950.

The Crown courts in India operated on the basis of 'law or equity and rule of good conscience'.
According to Lord Hob house, the expression 'justice, equity and good conscience' could be
interpreted to mean the rules of English law if found suitable to Indian society and
circumstances. But the exact scope and meaning of this phrase was not and is not easily

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 ascertainable, particularly because it also carried a historical background. Within the
Presidency towns, the English law was the lex loci(law of the place), the only exception being
for Hindus and Mohammedans, who were allowed the benefit of their personal laws in certain
spheres. Outside the Presidency towns, Regulation IV of 1793 had provided that in suits
regarding succession, inheritance, marriage, caste and all religious usages, the Hindu and
Mohammedan Laws were to be applied by the courts; but this provision was confined in its
application to Hindus and Mohammedans only. For other categories of persons and other types
of suits no specific rules of guidance was in force except that the judges were to act in
accordance with “justice, equity and good conscience”.

However, the application of the laws, as aforesaid, created difficulties. The population of
India, even outside the Presidency towns, could no longer be regarded as consisting of Hindus
and Mohammedans alone. Besides British subjects, aliens had settled down in India. A new
class of Anglo-Indians had come up. The number of Indian Christians was also on the increase.
On account of their mixed ancestry and the abandonment of their old moorings, the Anglo-
Indians and the Christians could not rely upon their personal laws, and even if they could, in
some cases, the difficulty of ascertaining their personal laws deterred the judges from
applying them. The Courts had, out of necessity, to fall back upon “justice or equity and rule
of good conscience”. This flexibility gave the judges the opportunity to legislate and fill up
the gaps while deciding cases. In short, the rules of English law, by default, became the
governing law of British India.

4. Charter of 1861
Following the First War of Independence in 1857, the control of East India Company territories
in India passed to the British Crown. The Government of India Act 1858 authorized the British
Crown to take over the administration of all territories from the East India Company. The Act
also vested the power to appoint the Governor-General in the British Crown.In 1861 the Indian
High Courts Act and the Indian Councils Act were passed by the British Parliament, which
empowered Her Majesty to issue Letters Patent establishing High Courts in three Presidency
towns. The former provided for the abolition of the Supreme Courts of Judicature and the
Sadar Diwani Adalats and the constitution of the High Courts of Judicature in their place in the
three Presidency towns. The Chartered High Courts remained as the highest courts in India till
the establishment of the Federal Court of India under the Government of India Act of 1935. By
virtue of section 16 (a), power was reserved to Her Majesty to constitute similar High Courts in
other territories, which were not within the local jurisdiction of any of the three proposed
High Courts of Calcutta, Bombay and Madras. The Indian Councils Act empowered the
Governor-General to create local legislatures in various provinces though the exercise of this
power.

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 Figure – 2: Charter High Courts in India

Calcutta High Court (Sourced from http:\\www.calcuttahighcourt.nic.in

Bombay High Court (Sourced from http://bombayhighcourt.nic.in)

Madras High Court (Sourced from http://www.hcmadras.tn.nic.in)

The Charter High Courts initially administered their jurisdiction only within the Presidency
towns. Subsequently, their jurisdiction got extended to the entire Presidency. The Charter
High Courts, being established by the Act of the British Parliament, had the power to issue
prerogative writs. The 'writs' were the normal method of commencing a local action in King's
Courts such as the High Courts. The power to issue writ in the nature of habeas corpus was
curtailed by Section 491 of the Criminal Procedure Code, 1898. After the enactment of the

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 Government of India Act, 1935, the power to issue habeas corpus writ was restored.
Subsequent to the enactment of the Constitution (1950), the High Courts were recognized by
the Constitution and the power to issue writs, orders or directions was conferred on them
under Article 226 of the Constitution.

During the British Period, the Privy Council acted as the highest court of appeal. Appeals came
from the colonies and certain other locations over which Britain exercised jurisdiction. In
1833 a distinct Judicial Committee of the Privy Council was appointed with jurisdiction over
colonial, ecclesiastical and sundry other matters. The Law Lords of the House of Lords
adjudicated cases before the Council. The State sued and was sued in the name of the British
sovereign in her capacity as Empress of India. The Privy Council served as a bridge between
the Indian and the English legal systems. After India attained independence, the jurisdiction
of the Privy Council was abolished by the Abolition of the Privy Council Jurisdiction Act,
1949.The Privy Council served as the highest court of appeals from India for a period of
nearly 200 years and has rendered several landmark decisions, which have influenced
the evolution of law in India.

Figure – 3: Sitting of Judicial Committee of Privy Council

5. Establishment of Federal Court

The Government of India Act, 1935 changed the structure of the Indian Government from
“unitary” to that of “federal” type. The distribution of powers between the Centre and the
Provinces required the balance to avoid disputes, which would have arisen between the
constituent units and the Federation. The system of federation clearly demanded the
creation of a Federal Court which would have jurisdiction over the States as well as the
Provinces. The Original Jurisdiction was confined to disputes between Units of the Dominion
or between the Dominion and any of the units. The private individuals had no right to sue any

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 Dominion before the Federal Court. The Federal Court also had appellate and advisory
jurisdiction. Its appellate jurisdiction was extended to civil and criminal cases. The Supreme
Court of India was also established (on the same principles and jurisdiction).

Section 200 of the Government of India Act, 1935 created the Federal Court at New Delhi.An
appeal from any judgment, decree or final order of a High Court was entertained by the
Federal Court, if the High Court certified that the case involved a substantial question of law
in accordance with the interpretation of the Act of 1935 or any other Act and law. The
certificate was a condition precedent to every appeal.

Advisory Jurisdiction

The Federal Court was empowered to give advisory opinion to the Governor-General,
whenever a question of law arose or was likely to arise which was of such a nature and of such
public importance that it was expedient to obtain the opinion of the Federal Court upon it.
The Court, after such hearing, reported the matter to the Governor- General thereon.

Appeals on the decisions of the Federal Court had to be taken up with the Privy Council in
London, which remained the final arbiter of all matters of the Indian Legal System. The
Federal Court functioned only for 12 years and gave way to the Supreme Court of India in
January 1950. However, it left a considerable impact on the Indian legal system. During its
existence, the Federal Court decided 151 cases. Some of these cases involved issues of
critical importance to federalism, its own advisory jurisdiction and, in some cases, issues such
as preventive detention.

6. Establishment of Other High Courts and Supreme Court

After India attained independence in 1947, the Constitution of India came into being on 26
January 1950. The transition from the Federal Court to the Supreme Court of India(SCI) was
seamless. Justice Kania became the first Chief Justice of India.

It is often said that the Supreme Court of India exercises jurisdiction far greater than that of
any comparable court in the world. The original Indian Constitution envisaged a Supreme
Court with a Chief Justice and seven puisne judges, while empowering the Parliament to
increase the number of judges. Subsequently, the Parliament increased the number of judges
to 12 in 1956, 14 in 1960, 18 in 1978, and 26 in 1986. The number of judges in the Supreme
Court was increased to 30 by virtue of the Supreme Court (Number of Judges) Amendment
Act, 2008. Judges generally sit in smaller benches of twos or threes and form larger benches
of five or more only when required to do so, or to settle a difference of opinion or controversy.

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