UNIT- I

ESTABLISHMENT OF EAST INDIA COMPANY –

The first East India Company was incorporated in England under a Charter granted by
Queen Elizabeth on 31st December 1600. The company was given executive trading right in
Asia including India, Africa and America. The trading area so defined covered almost every
part of the world except Europe. No other British subject could trade in this area without
obtaining a licence from the company. The charter was granted for 14 years and it could be
renewed for another 15 years only if it did not prejudicially effect the Crown and its people.
The company was managed by Court of Directors. The members of the company in a general
meeting, called “the court” elected annually a Governor and twenty-four directors to look
after and manage the affairs of the Company.
In early days the administration of justice in the settlement East India Company was
not a high order. There was no separation between the executive and the judiciary the
judiciary was under the control of the executive the judges were not a law experts. The
company gave lesser importance to the judicial independence fair justice and rule of law. The
administration of justice and developments of courts and judicial institution during this period
may discussed under the following headings –

CHARTER OF 1661 –
The charter issued on 3rd April, 1661 by Charles II has a special significance in the
Indian legal history. By this charter the Company was empowered to appoint a Governor and
council at its factories. In Addition to other powers the Governor and Council at its factories.
The charter authorized the Governor and Council of Englishman inhabiting the settlement of
the company. The Governor and Council of each factory to hear and decide all type of civil
and criminal cases including the cases of capital offences also and it could award any kind of
punishment including death sentences. Thus the Charter of 1661-

1. authorised the company to try and punish all persons living under it, including the
Indians,
2. opened the doors for the introduction and application of English law in India,
3. Conferred judicial powers on the executive, viz., the Governor and Council.

ADMINISTRATION OF JUSTICE IN SURAT –

The East India Company established its first factory in India at Surat in 1612 during the time
of Mughal Emperor Jahangir. In 1615 the Mughal Emperor on the pleading of Sir Thomas
Roe issued a Firman, the Mughal Emperor allowed the Englishman to live according to their
own religion and laws and to settle dispute among themselves by their president, however the
disputes between on Englishman and an Indian were to be decided by the local Indian courts.
Constitution and Functions of Factory- The factory was administered by a President and
Council who were appointed by the Company. The decisions of the majority of the members
of the council were the decisions of the Company. Apart from the exercising their powers for
trading purposes the President and his Council also had the power to administer law and
justice. English people were governed by a dual system of laws namely:-
 (a) In their own matters by the laws of England; and
(b) In matters with the Indians by the native laws of this country.

The Surat settlement of the Company remained in prominence until 1617. Due to the transfer
of the seat of the president and council to bombay in that year, Surat lost all its importance
for the country.

SETTLEMENT IN MADRAS BEFORE 1726-

In 1639 Francis Day acquire a piece of land from a Hindu Raja for the East India
Company and constructed a fortified factory were Englishman and other Europeans and
therefore the area of the factory came to be known as while town and the people residing in
the village Madras, Patnam were mostly Indians and therefore it came to be known as Black
Town. The Whole Settlement Consisting of white town and black town came to be known as
Madras. In judicial administration in Madras divided in 3 stages. First, Second and Third.

FIRST STAGE (1639 to 1665) –

White town before 1665 Madras was not presidency town and it was subordinate to
Surat. The administrative head was called ‘Agent’ and he was to administer the settlement
with the help of Council. The serious criminal cases referred by them to the Company’s
authorities in England for advice. But there was defects the judicial power of the agents and
council was vague and indefinite and much delay also, they did not have any elementary
knowledge about law. They were Merchant. There was no separation between executive and
judiciary.
The president of the Surat factory and members of His Council constituted a court to
decide dispute between the Englishman interest in accordance with their own laws and
customs. They were to decide both civil and criminal cases.
Capital offences dealt by a jury there was no separation between executive and
judiciary. The president and the members of his council who were to decide cases and
administer justice were merchant. They did not have even elementary knowledge of English
law.
The cases were decided by them according to their wisdom, commonsense. And the
native judges were corrupt bribery was rampant. They had no request for law and justice.
Surat was the chief trading center till 1687. But there after it lost its importance because in
1687 the headquarters of the president and council were transferred from Surat to Bombay.

BLACK TOWN –
The old judicial system was allowed to function there was a village head man known
as Adigar or Adhikari who was responsible for the maintenance of Law and Order. Adigar
administered justice to the native at the Choulby Court. According to the long established
usages, Choulby Court was court of a petty cases. The Company had no power to inflict death
sentences under the Charter of 160 and the agent in Council could inflict such a sentence only
under the authority of local sovereign. The appeals front the Choultry Court were to be heard
by the agent in Council. An Indian native named Kannappa was appointed Adigar but he
misused his power and consequently he was dismissed from the office and the English
servants of the office and the English servants of the company were appointed to suit at the
Choultry court.

SECOND STAGE – (1665 – 1683) –

Although the charter of 1661 provided that the governor and council could decide every
matter according to the laws of England, nothing was done until 1665, when the Dawes case
arose. In 1665 one Mrs Ascentia Dawes was charged with the commission of Murder her
slave girl and the Agent- in – Council referred the case to the Company’s authority in
England for advice. After raising the status of agent and Council of the factory at Madras to
try Mrs. Dawes with the help of Jury and an unexpected verdict of not guilty was given and
consequently Mrs. Dawes was acquitted. Later on 1678 the whole judicial administration was
re-organized. The judicial administration in both the towns was improved. In 1678, the
Governor and Council resolved that they would sit as Court for two days in a week to decide
cases in civil and criminal matters with the help of jury of twelve men. The court was called
as the High Court of Judicature. This Court decided important cases in civil and criminal
matters and also heard appeals against the decisions of the Choultry Court.

WHITE TOWN –
The court of Governor and Council was declared to be the High Court of Judicature. It
was to hear all case of the inhabitance of both towns with the help of jury and also hear the
appeals from the Choultry Court. It was decide cases according to English Law. The Court
was to meet twice a week.

BLACK TOWN –
The Choultry Court was also re-organized. The number of the judges was increased
from 2 to 3. All the judges were Englishmen. At least 2 of them were to sit in the Court for 2
days in each week. The Choultry Court was empowered to hear petty criminal cases. It was
also empowered to hear petty civil cases up to 50 pagoda and the cases of higher value with
the consent of the parties.

THIRD STAGE (1683 – 1726) ADMIRALITY COURT –

In 1683 King Charles II issued a Charter. It empowered the Company to establish
Courts of Admiralty in India. The Court of Admiralty was authorized to try all traders who
committed various crimes on the high seas. The court was empowered to hear and determine
all cases concerning maritime and mercantile transactions. The court was also authorized to
deal with all cases of forfeiture of Ships, Piracy, Trespass, Injuries and Wrongs. It was stated
that the court would be guided by the laws and customs of merchants as well as the rules of
equity and good conscience in the task of administration of justice.
The provision of the Charter of 1683 was repeated by James II in a charter issued in
1686. On 10th 1686 the court of admiralty was established at Madras John Grey was
appointed judge of the court and to assist him 2 other English man were appointed as his
assistants on 22nd July 1687. Sir John Biggs who was a Professional Lawyer learned in Civil
law was appointed as Judge Advocate in Chief Judge of the Court.
Thereafter the Governor and Council relinquished the judicial function and ceased to
sit as court. The Jurisdiction of the Admiralty court was not confined to Mercantile and
Maritime Cases. It also decided both civil and criminal cases. Further it heard appeals from
the Mayor’s Court. Thus it became a General Court of the Settlement. The Admiralty court
was functioning regularly till 1704, but thereafter it ceased to sit on regular basis and
gradually it disappeared, and its jurisdiction was transferred to the Governor and Council.

MAYORS COURT –
In the year 1687 Company established Madras Corporation and Mayor’s Court
was the part of this corporation. In the year 1686 Madras government levied a house tax on
the Madras City population to repair the City wall. But people of Madras, Local people did
not pay tax and Company faced problems and difficulties to collect tax, after this company
decided that to make the tax collection easy a body should be formed consisting of English
men as well as Local Indians population so it will become easy for the company officials to
collect the tax.
The corporation came in to existence on September 29 1968 which consists of a one
Mayor, 12 Alderman and 60 to 120 Burgesses. It was decided that every year new Mayor will
be elected from Alderman by Alderman and Burgesses and retiring Mayor can be re-elected
by them.
The Alderman and Burgesses got the power to remove the Mayor if he is unable to
perform his duties, only Englishman becomes the Mayor. The Alderman hold the office as
long as they stayed in Madras City indirectly they hold the office for life long. Mayor,
Burgesses holds the power to remove the Alderman from office also if he did not perform
well. The charter appointed 29 Burgesses and then remaining Burgesses were appointed by
the Mayor and Alderman. Among 1st 60 Burgesses the caste head were selected as the
Burgesses.
This was the nature of 1st corporation the Mayor and three Senior Alderman were to
be the justice of the peace. The Mayor and Alderman were to form a court of record which
was authorized to try civil as well as criminal case. This court was known as Mayors court.

THE CHOULTRY COURT –

The old Choultry Court was recognized and allowed to continue by the Governor. The
number of Judges was increased to Three – Two Judges were required to preside over the
trail of cases. The Court met 2 days in each week. The court was empowered to try civil cases
up to 50 Pagodas (Pagoda was a gold Coin, One Pagoda was equivalent to 3 Rupees) and
petty criminal cases. The High Court of Judicature was authorized to hear appeals from
Choultry Court.
Conclusion:-The overall picture of the administration of justice in Madras was not very good
in these early stages. The system suffered from many drawbacks. The most outstanding of
them are the following:-

1. Absence of proper judicial system.

2. Uncertainty of laws.-The Courts and the people did not know the law applicable to
them and their disputes.
3. Lack of facilities in the jails.-The inmates lived in inhuman conditions.
4. Unfair trial.-The English principles of fair trial such as the principles of natural justice
and benefit of doubt to the accused were not observed.
 5. Severe punishments- usually the punishments were barbarous and inhuman. They
were based on the mixed idea of deterrence and prevention.

SETTLEMENT IN BOMBAY –
Portuguese were the 1st European to acquire the island of Bombay in 1534 from the King of
Gujarat in 1661. Portuguese King Alfonsus VI transferred the island to Charles II as Dowry
on the marriage of his sister Catherine with the British King. Charles II transferred it to the
East India Company in 1668 for an insignificant annual rent of 10 pounds. Before 1726, the
Judicial system the Island of Bombay grew in Three Stages –
1) First Stage – (1668 – 1683)

2) Second Stage – (1683 – 1690)

3) Third Stage – (1781 – 1726)

First Stage 1668 to 1683 –

During this period two judicial systems were established. The first of them was established in
1670. According to this, Bombay was divided into two divisions. Each division had a court
consisting of five judges. The Custom Officer of the Division was the President of the Court.
Some of the judges in these courts were Indians.

The jurisdiction of this Court extended to petty criminal cases, e.g. thefts involving the stolen
property upto 5 xeraphins and similar other cases. The civil cases which came before this
court, were also of petty nature. It had no jurisdiction to decide cases involving more than
200 xeraphins. Appeals against the judgements of this court could be filed in the court of the
Deputy- Governor and Council.
The Deputy-Governor and Council worked as a superior court having both original and
appellate jurisdiction, in all civil and criminal cases. In the civil cases, it had the jurisdiction
to entertain matters of the value exceeding 200xeraphins. All the serious offences, which
could not be entertained by the Divisional Court, were tried by this court with the help of
jury.
The judicial system established in 1670, was quite elementary and primitive. No disctinction
was made between the executive and the judiciary. Nor was there any provision for a lawyer-
member in the courts. Many requests were made by the Deputy- Governor to the company for
providing a man learned in law, but it did not care
On 1st August, 1672, a governmental proclamation was made. By this proclamation was
made. By this proclamation the existing Portuguese law in the island was replaced by the
English law. From then onwards, the English law became the law of the island in all matters.
Under this proclamation a new judicial system was also established under which three types
of courts were created.

Court of Judicature- A Court with Wilcox as its judge, was established to hear all civil and
criminal cases. The Court also had 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 at the rate of 5% was also imposed in civil cases. For deciding criminal cases, the court
used to sit once in a month.

Court of Conscience- This court was also presided over by Wilcox, it was called as Court of
Conscience because it provided quick and summary justice. It entertained only petty cases
and decided civil matters of value upto 20 xeraphins.
Court of Appeals- The Deputy- Governor and council functioned as court of appeal. They
heard appeals against the judgements of the court of judicaturein all matters. The judicial
system which was established under the plan of 1672 worked well. It was quick, inexpensive
and efficient. Its main defect was that the judges did not enjoy independence required for
good administration of justice.
Second Stage(1684-1693)- under the new system of judicial administration, a court of
Admiralty was established in Bombay on the lines of the court of Admirality established in
Madras under the charter of 1683. The Company found its authority to establish courts under
the earlier Charter of 1683 granted by Charles II. The Charter provided for the establishment
of Courts at such places as the Company might direct for Maritime causes of all kinds,
including all cases of Trespasses, Injuries and Wrongs done or committed upon high seas or
in Bombay or its adjacent territory, and each Court was to be held by a learned judge in civil
law assisted by two persons chosen by the company. Such Courts were required to decide
cases according to the rules of equity and good conscience and the laws and customs of
merchants. Accordingly, an Admiralty Court was established at Bombay in 1684. Dr. St. John
was also authorized to act as Chief Justice of the Court of Judicature. The Court of Judicature
was again created, as the authority of the Admiralty Court was not sufficient to cover all
other civil business.
In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial
system of Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer
justice was almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period
in Bombay’s Legal History.
Third Stage(1718 to 1726)- A new period in the Judicial history of Bombay began with the
revival and inauguration of a court of judicature on 25th March,1718 by Governor Charles
Boone. It was established by the order of the Governor and Council which was later on
approved by the Company authorities. The court of Judicature of 1718 consisted of ten
Judges in all. It was specially provided that the Chief Justice and Five Judges will be
Englishman. The remaining Four were required to be Indian representing Four different
communities, namely, Hindus, Mohammedans, Portuguese – Christians and Parsi. All
English Judges were also members of the Governor’s Council and enjoyed status superior to
Indian Judges. Three English judges formed the quorum of the court. The Court met once a
week. Indian Judges, who were also known as “Black Justice” were included mainly to
increase the efficiency of the Court and their role was mostly that of assessors or assistants of
the English judges. They do not appear to have enjoyed equal status with English judges.
The Court of 1718 was given wide powers. It exercised jurisdiction over all civil and
criminal cases according to law, equity and good conscience. It was also guided by the rules
and ordinance issued by the Company from time to time. It was necessary for the Court to
give due consideration to the customs and usages of the Indians. Apart from its jurisdiction
over probate and administrative matters, it was further authorized to act as a Registration
House for the registry of all sales concerning houses, lands and tenements.
 An appeal from the decision of the Court of Judicature was allowed to the Court of
Governor and Council in cases where the amount involved was Rs. 100 or more. A notice to
file an appeal was to given within Forty-Eight hours after the judgment was delivers to the
Chief Justice of the Court of Judicature. Moderate fees were prescribed by the Court for
different purposes. For filing an appeal a fee of Rs. 5 was to be paid.
Conclusion- The system established in 1718 was an imporovement upon the earlier system
atleast to the extent of participation of Indian judges was allowed to the administration of
Indian judges. A little bit separation of executive from the judiciary had been introduced by
the court of 1718, yet the executive, i.e.the Governor and Council always interfered with the
independence of the judiciary. In this way the judicial system was wanting in so many
respects. The canons of natural justice and the priniciples of law were violated by the defects
which have been just mentioned.

SETTLEMENT IN CALCUTTA-
Job Charnock, a servant of the company, laid the foundation of the british settlement in
Calcutta, on 24th August, 1960. It began with the establishment of a factory at Sutanati on the
banks of river Hugli. In the year 1668 the grandson of Aurangzeb Azimushsher, Shan, and
the Subedar of Bengal gave Zamindari of villages, Calcutta, Sutanati and Govindapur for
annual revenue of 1195 rupees to the East India Company. In the December 1699 Calcutta
became Presidency town and Governor was appointed to administer the settlement. As a
Zamindar company got all powers just like other zamindar of that time. Bengal Zamindar In
Mughal Empire zamindars got judicial power but collected the revenue and maintained law
and order in the zamindari area or village for judicial purpose. That time Kaziz Court was
established in each District, Parganah and Villages.
They handled civil and criminal matters. Normally villages panchayats solved all
problems. The Judicial System was simple as everyone knew each other and transaction of
each other Moghul Kings never paid any attention to Judicial System that time nothing was
organized. The highest bidder became the Kazi. Justice was purchased, corruption was
rampant Kazi never got salary so Kazi court fined the criminal and earned money. After this
demand money from the complainant for giving him justice. The other zamindars when gave
death sentence the appeal went to the Nawab, but company never did this the appeal from
Zamindar’s. Collectors Court went to the Governor and Council.
In Calcutta that time Collector enjoyed all the powers up to the year 1727. With the
Charter of 1726 the new system was started in Calcutta presidency. Before this Charter the
authority was given by company and zamindar but the Charter of 1726 was a Royal Charter.
The important of this company but after this Charter Court got their permit authority from the
British Crown.
Establishment of Mayor’s Court (1726)
INTRODUCTION-

The Charter of 1726 undermined the powers of the Mayor's Courts and made the local
Governor in council all powerful. Originally Mayor's Court was a court of record with
criminal and civil jurisdiction. It was to deal with offences which imposed fine, imprisonment
or corporeal punishment. A right of appeal to the Court of Admiralty was guaranteed, in Civil
and Criminal cases. The Mayor and two Alderman formed the quorum of the Mayor's court
sitting once a fortnight. The jury system appears to have been followed in Mayor's court in
criminal proceedings. But, under the Charter of 1726, the Mayor and Alderman of each
corporation constituted a court. The Court met not more than thrice a week. The process of
the court was given testamentary jurisdiction.

FEATURES OF CHARTER OF 1726-

• The Charter of 1726 issued by King George I.

• The charter established civil and criminal courts in the presidency towns which derived
their authority not from the company but from the British crown.
• The advantage of having royal courts in India was that their decisions were as authoritative
as those of the courts in England.
• The charter initiated the system of appeals from the courts in India to the Privy Council in
England.
• Thus, the English law was brought in to India. Principles of English law was brought to
decide the disputes.
• Codification of Indian law was initiated in 1833.
• The charter also established a local legislature in each presidency town.
• The Charter of 1726 constitutes a landmark in the Indian Legal history.
• But justice continued to be administered by non professional judges, no separation of power
between the executive and the judiciary.
• Position of courts before 1726 and after. The decision of the Mayors court commanded
respect in England as it was created by the Crown. It was not so in case of earlier court which
was created by the company.

Provisions of the charter-

• All the three presidency was to to have a corporation comprising of one mayor and 9
alderman.
• Out of the 9 alderman, two could be a subject of any prince or state having good relation
with the Great Britain. Rest were to be British natural born subjects.
• Mayor was appointed for 1 year and after the expiry of term had to continue as an alderman.
• Alderman was appointed for life and in case of any vacancy the mayor and the remaining
alderman would elect new alderman from inhabitants of the town.
• New mayor was to be elected by outgoing mayor and the alderman.
• An alderman could be removed on some reasonable ground by the governor and council
subject to an appeal to King in council.
Thus, the attempt was to make the corporation autonomous, free from the control of the
executive.

Judicial structure and composition in each presidency(civil jurisdiction)

• The mayor and the aldermen were to constitute the mayors court.
• The quorum of the court was to be three-the mayor or senior alderman with two other
aldermen.
• The court was to hear and try all civil suits arising within the town and its subordinate
factories.
• The first appeal within 14 days would go to governor and council. From where, further
appeal lay with the King in council in all matters involving 1000 pagodas or more( then
currency of Madras)
• Thus, for the first time, a right of appeal to the king-in-council from the decisions of the
courts in India was granted.
• It was a court of record and had power to punish for contempt.
• Had testamentary jurisdiction, could grant probates of wills of the deceased persons.
• A sheriff was chosen annually by governor and council and functioned as police.
• The form of procedure in civil action was interesting. Court might issue warrant, bail might
be allowed, defendant could be detained in custody, he could be imprisoned till the
judgement was satisfied, property could be seized and sold.

Criminal Jurisdiction-

• Vested in the governor and five senior member of the council.

• They were known as justices of peace.
• Arrest persons, punish.
• Three justices of the peace were to collectively form a court of record.
• Session was held four times a year to try and punish each and everycriminal offence except
high treason.
• Trials were held with the help of grand jury and petty jury.
• All technical forms and procedures of the English criminal justice system was introduced.

Important points

-Seperation of power between the executive and judiciary was partially followed.
-Executive enjoyed a large share in the administration of justice as a criminal court and
appellate court from the mayor’s court.
-Aldermen were either company’s servants or other English traders.
-justice administered by non professional judges.
INTRODUCTION OF THE CHARTER OF 1753 –

In the year 1746 the French got the control of Madras presidency because of this
Madras corporation which was created after the Charter of 1726 was ceased to function in the
year 1749 again British got the control of Madras to establish again Madras corporation, King
George II again issue a new Charter on the 8th January 1753, to the Company official utilized
this chance and tried to remove all the disadvantages of the Charter of 1726. The new Charter
of 1753 was made applicable to the entire presidency town. New charter changed the method
of appointment of Mayor and Alderman. Governor and Council got the power to appoint the
aldermen. Regarding selection of the Mayor the corporation selected the names of 2 people
and Governor and Council selected one of them as the Mayor every year.
This way Mayor became the puppet of the Governor and Council. This way Mayor as
well as Aldermen becomes the nominee of Government and Government got the Full Control
of corporation.
This way government got the power to appoint the judges of the mayor’s court and
remove him also. If he disobeyed the government or Governor. Mayor’s Court lost all the
autonomy and Independence and became Secondary in nature. The Court was allowed to hear
the Indian cases only if both native Indian parties agreed and submitted the case to the
Mayor’s Court. Mayor’s Court got the right to take action against the Mayor. No person was
allowed to sit as a judge if he was interested in the matter in any way. Mayor’s Court got the
power to hear the cases against the government and government defended them.
Suitors deposited money with the government not to the Mayor’s Court. The new
Charter also created the new court called as “Court of Request” at each presidency town to
decide cheaply and quickly cases up to 5 Pagodas. This Court was established to help poor
Indian litigants who cannot afford the expenses of the Court. The Court weekly sat once, and
was, manned by Commissioners between 8 to 24 in numbers. The government appointed the
commissioners and every half of the commissioners got retired and those places were filled
by the ballot method by remaining commissioners. Commissioners sat in each court on
rotations for small claims, cognizable by requests Court. If people plaintiff went to the
Mayor’s Court the rule was that Defendant was awarded costs, this way it saved time and
money also requests court got the power to hear the Indian matters also.

There were 3 Courts, namely –

1) Court of request

2) Mayor’s Court

3) Jurisdiction Court of governor and Council.

The court where appeal from the mayor court went criminal cases. Justice of the
peace and Court of quarter sessions consisting of governor and Council. Regarding Civil
cases, Privy Council in the England was the final authority. This Charter introduced many
changes but this Charter took away the independence of Mayor’s Court, which way given to
this court by the Charter of 1726. The East India Company with this Charter also always
followed the policy not to break the customs of Hindu and Muslims. When both Indian
parties agreed that time only Mayor’s Court handeled those cases. An executive enjoyed
 more powers they appointed company servants as the judges. The executive handled the cases
in such a way it does not harm them or did not harm the company servants or friends. In 1772
House of Commons appointed a committee of secrecy to check the affairs of the East India
Company, the committee in its 7th report gave adverse report regarding Calcutta judicial
system. The report stated that Mayor’s Court behaved as the wish in all the cases without
following English law.

As a result of criticism Supreme Court was established at Calcutta in the year 1774.

Good feature of Charter 1753 –

The Charter of 1753 removes out the uncertainty and made it clear that the Mayor’s
Court could not hear the cases where both the parties were natives unless such cases were
submitted to its judgment with the consent of both parties. The Mayor’s Court could hear the
suits against the Mayor, Aldermen or the Company.
The establishment of the Court of Requests was of great help to poor inhabitants. The
Court provided quick and cheap justice to the poor litigants with small claims.

Defects of Charter 1753 –

1) Too much executive oriented

2) Non – professional judges
3) Judges independent on the company and governor – in – council.
 Regulating act 1773
Supreme Court at Calcutta
Act of settlement

REGULATING ACT:
The company servant made lot of money in India when they went to U.K started to live
lavishly and even they bought the seals of house of commas. The population of U.K started to
doubt the working of east India Company. The shareholders of the company voted and started
to get the big dividends from the year 1676 it was the rule that the company will pay to the
British exchequer, 4 lakh pounds every year to retain its territorial acquisition and revenues.
The company servants made money started to become rich and company was making losses,
so company approach to British government for loan. After this House of Commons
appointed a select committee and a secret committee to probe the affairs of company before
giving company the loan amount. The report suggested that company should be brought
under the British parliament and reports mentioned the evils of company affairs. After the
parliament enacted the regulating act 1773 to remove the prevailing evils. Parliament
amended the constitution of company brought company under the British parliament with this
era of parliamentary enactment started.
PROVISION OF REGULATING ACT:
The term of the directors of east India Company was increased from 1 year to 4 years and
provision was made that every year one fourth directors were elected in rotation. The voting
power of shareholders was restricted. The company directors were required to lay before the
treasury all correspondence from India relating to revenue and before a secretary of state
everything dealing with the civil and military affairs o the government of India. The act
appointed a governor general and council of 4 at Calcutta.
They got all the powers civil and military regarding all the company acquisition as
well as revenue in the kingdoms of Bihar Bengal and Orissa. Warren Hastings appointed the
1st governor general and pother 3 came from England. All were to hold office for 5 years but
king can remove them if courts of the directors recommended the removal. The Governor
general got only one vote and casting vote in case of the Governor general did not get the
power to overrule the majority vote because of this other 3 council members always opposed
the policies of warren hasting and the Ist 6 years warren hasting found it very difficult to
introduced new laws or policy. In the year 1776 one member from the council died and
warren became powerful because of casting vote only in the year 1786 Governor general got
the right of vote to override the decision of council because of experience they knew that
without vote Governor and council fails to show the results and implement policies. The
regulating act put the madras and Bombay presidency under the supervision of Calcutta
presidency in matters of war and peace. The subordinate presidencies were required send
regularly all details of revenue and other important matters to the governor general only in
emergency situations subordinate presidencies were allowed to take decisions if required
because of necessity. This madras and Bombay presidency always took the decisions without
fearing Governor General.
FEATURES OF REGULATING ACT –
1) Election for Directors
2) Control over correspondence
3) Appointment of Governor general and council
4) Extent of Governor General is power
5) Bombay and Madras under control of Governor General
6) Establishment of Supreme Court
7) Legislative power under the Act of 1773
8) Prohibition from engaging private trade
9) Power to punish English servants
10) Justice of peace

CREATION OF SUPREME COURT AT CALCUTTA –

King George III on 26 March 1774 issued a Charter establishing the Supreme Court at
Calcutta. The Charter appointed Impey as the Chief Justice and Robert Chambers, Stephen
Caeser and John Hyde as Puisne (Normal) Judges. In India Supreme Court at Calcutta
enjoyed jurisdiction in all type of matters whereas same time in England they got different
Courts for each only after the passage of 100 years after the passing of judicature Act of 1873
in England all the different Court came under one.
Supreme Court consist of Chief Justice and 3 other Judges who were appointed by the
King and they were to hold the office during its pleasure only the barrister with the 5 years of
minimum expenses was eligible to become the Judge. The court was to be a court of record.
The court got the jurisdiction in following Criminal, Civil, Admiralty and Ecclesiastical
Jurisdiction.

In criminal case the court was to act as a court of over and terminal and goal delivery
for the town of Calcutta and the factories. The jurisdiction of the court was not to extend to
all person of Bihar, Orissa and Bengal. It extended to the servants of Majesty company
servants etc.
Supreme Court was not allowed to hear the cases against the Governor General and
Council and exception was crime of Felon or Treason. The appeals from the Supreme Court
were made to the King in Council in England.
Governor General and Council got the power to make the laws and rule but with the
condition that all the rules and law must be registered in the Supreme Court did not become
effective until they were registered and published in Supreme Court. Any person in India got
the power to appeal against such rule within 60 days in the king in council which then set
aside such a rule or changes the law. The appeal was to be made in the Supreme Court was
Calcutta within stipulated period it was mandatory to send all rules made by Governor
General to a secretary of State in England. Any person in England got right to appeal against
the rules within 60 days after the rule were published in the England. King in council got the
Sue Motto power to change or disallow any rule without appeal within the period of 2 year.
This provision of law and rule registration in the Supreme Court made it easy to introduce the
new laws and rules which saved the time as now it was not required to take the permission
from the England head office of the company.
The best part of that was Supreme Court reviewed the law before it become the law,
the Governor General and council, Supreme Court judges and its officers were not allowed to
do any private trade in India as well as they were forbidden to accept any gifts and presents.
In the beginning of one of the problem with the regulating Act was that majority terms were
not defined properly by the regulating Act and it lead to the conflict between the Supreme
Court judges Governor General and Council.
 GOOD FEATURE OF REGULATING ACT 1773 AND CHARTER OF 1774 –
1) The constitution of the company was improved by the Regulating Act.
2) The Governor General and Council of Calcutta presidency constituted the central executing
authority.
3) The control of the British Government over the company was tightened and made more
effective.
4) The Regulating Act authorized by the British Crown to establish a Supreme Court at Calcutta.
5) Provisions were made for the maintenance of fair and impartial administration on the
company’s settlement in India.

DEFECT OF REGULATING ACT 1773

Trail of Raja Nand Kumar (1775) (The judicial Murder)
Case of Kamaluddin (1775)
The Patna Case (1777-79)
The Cossijurah Case (1779-80)

Though the aim and objects of the framers of the Regulation Act were very good,
many defects came to light subsequently. They were wither due to the inexperience of the
policy-makers in Indian affairs or due to defective drafting of the provisions of the Act. The
defective drafting of the provisions of the Act resulted in conflict between the Governor
General and the members of his council. It also resulted in conflict between the Supreme
Court and the Governor –General and council.

1) Conflict between Governor General and Councilors –

The regulating Act appointed a Governor General and four members of the Council. It
was expected that this new set-up would improve the old defective state of affairs. In the first
instance, persons, who were to occupy these posts, were also named in the Act. Only one
Councilor Richard Barwell and the Governor – General Warren Hasting were appointed from
amongst the Company’s servants working in India. They were well acquainted with the
Indian political development and the Company’s role in India. The British Parliament made
the mistake of sending out to India three Councilors, namely Clavering, Monson and Francis
who were altogether new and were ignorant an\bout Indian affairs. They came to India at the
instance of some politically influential leaders in England. They were prejudice against
Warren Hastings and the Company’s officials in India. Several times Governor – General and
Warren Hastings found himself out-voted by the factious majority of the Council. It led to
constant conflicts between the Governor – General and Members of his Council on various
issues. Such frictions were bound to react on the efficient working of the Governor-General
and Council, which was the highest authority in India for policy-making and decision-taking
regarding the company.

CASE LAWS –
TRIAL OF RAJA NANDKUMAR (THE JUDICIAL MURDER) –
Raja Nand Kumar, a Hindu Brahmin was a big Zamindar and a very influential person
of Bengal. He was loyal to the English company ever since the days of Clive and was
popularly known as “black colonel” by the company. Three out of four members of the
council were opponents of Hastings, the Governor-General and thus the council consisted of
two distinct rival groups, the majority group being opposed to Hastings. The majority group
comprising Francis, Clavering and Monson instigated Nand Kumar to bring certain charges
of bribery and corruption against warren Hastings before the council whereupon Nand Kumar
in march, 1775 gave a latter to Francis, one of the members of the council complaining that in
1772, Hastings accepted from him bribery of more than one Lakh for appointing his son
Gurudas, as Diwan. The letter also contained an allegation against Hastings that he accepted
rupees two and a half lakh from Munni begum as bribe for appointing her as the guardian of
the minor Nawab Mubarak-ud-Daulah. Francis placed his letter before the council in his
meeting and other supporter, monsoon moved a motion that Nand Kumar should be
summoned to appear before the Council. Warren Hastings who was presiding the meeting in
the capacity of Governor-General, opposed Monson’s motion on the ground that he shall not
sit in the meeting to hear accusation s against himself nor shall he acknowledge the members
of his council to be his judges. Mr. Barwell ,the alone supporter member of Hastings ,put
forth a suggestion that Nand Kumar should file his complaint in the supreme court because it
was the court and not the council ,which was competent to hear the case. But Monson’s
motion was supported by the majority hence Hastings dissolved the meeting. Thereupon
majority of the members objected to this action of Hastings and elected Clavering to preside
over the meeting in place of Hastings .Nand Kumar was called before the council to prove his
charges against Hastings. The majority members of the council examined Nand Kumar
briefly and declared that the charges leveled against Hastings were proved and directed
Hastings to deposit an amount of Rs.3, 54,105 in treasury of the company, which he had
accepted as a bribe from Nand Kumar and Munni Begum. Hastings genuinely believed that
the council had no authority to inquire into Nand Kumar’s charges against him. This event
made Hastings a bitter enemy of Nand Kumar and he looked for an opportunity to show him
down.

FACTS OF THE CASE:-

Soon after, Nand Kumar was along with Fawkes and Radha Charan were charged and
arrested for conspiracy at the instance of Hastings and barwell.

In order to bring further disgrace to Raja Nand Kumar, Hastings manipulated another
case of forgery against him at the instance of one Mohan Prasad in the conspiracy case. The
Supreme Court in its decision of July 1775 fined Fawkes but reserved its judgment against
Nand Kumar on the grounds of pending fraud case. The charge against Nand Kumar in the
forgery case was that he had forged a bond in 1770. The council protested against Nand
Kumar’s charge in the Supreme Court but the Supreme Court proceeded with the case
unheeded. Finally, Nand Kumar was tried by the jury of twelve Englishmen who returned a
verdict of ‘guilty’ and consequently, the supreme court sentenced him to death under an act
of the British parliament called the Forgery Act which was passed as early as 1728.

Serious efforts were made to save the life of Nand Kumar and an application for
granting leave to appeal to the king-in-council was moved in the Supreme Court but the same
was rejected. Another petition for recommending the case for mercy to the British council
was also turned down by the Supreme Court. The sentence passed by the Supreme Court was
duly executed by hanging Nand Kumar to death on August 5, 1775.In this way, Hastings
succeeded in getting rid of Nand Kumar.
 CRITICAL APPRAISAL:-

Chief Justice Impey in this case acted unjustly in refusing to respite to Nand Kumar.
No rational man can doubt that he took this course in order to gratify the Governor-General.
The trial of Nand Kumar disclosed that the institution of Supreme Court hardly commanded
any respect from the natives as it wholly unsuited to their social conditions and customs. The
trial has been characterized as “judicial murder” of Raja Nand Kumar which rudely
shocked the conscience of mankind. Raja Nand Kumar’s trial was certainly a case of
miscarriage of justice.

The decision of the Supreme Court in the trail of Raja Nand Kumar became a subject
of great controversy and criticism for the following reasons.

a) Charge against Raja Nand Kumar was preferred shortly after he had leveled charges against
Warren Hastings.
b) Chief justice Impey was a close friend of Hastings.
c) Every judges of the Supreme Court cross-examined the defense witness due to which the
whole defense of Raja Nand Kumar collapsed. It was also not legal according to the rules of
procedure prevailing at that time.
d) After the trail, when Nand Kumar was held guilty by the Court he filled an application before
the Supreme Court for granting leave to appeal to the King-in-Council but the court rejected
this application without giving due consideration.
e) Nand Kumar applied for mercy to His Majesty but his case was not forwarded by the
Supreme Court. The Supreme Court was empowered by the Charter of 1774 to reprieve and
suspend such capital punishment and forward the matter for mercy to His Majesty. Earlier in
1765, a native, named Radha Charan Mittre was tried in Calcutta for forgery and death
sentence was passed. A petition was sent to Governor Spencer from the native community of
Calcutta requesting “either a reversal of sentence or a respite pending an application to the
throne”. The prayer was granted and Radha Charan got a free pardon from the King.
f) Nand kumar commited the offence of forgery nearly Five year ago, i.e., much before the
establishment of the Supreme Court. Nand Kumar was sentenced to death under the English
Statute of 1729 on a charge of forgery but this Act was not applicable to India.
g) Under the Hindu Law or the Mohammedian Law, the offence of forgery was not made
punishable with death.

In view of the peculiar feature of the trail, as stated above, and the events which took place
before the trail, the Judgment of the Supreme Court in Raja Nand Kumar’s case became very
controversial. The trail and execution of Raja Nand Kumar shocked not only Indians but also
foreigners residing in India. It was considered most unfortunate and unjust. The role of chief
Justice Impey became a target of great criticism. On their return to England, Impey and
Warran Hastings were impeached by the House of Commons and the execution of Raja Nand
Kumar was an important charged leveled against them.

The Cossijurah Case (1779-80)

Raja surendernarain Zamindar of Cossijurah was under a heavy debt to
KashinathBabu. Though Kashinat Bab tried to recover the money from the Raja through the
Board of Revenue at Calcutta his efforts proved in vain. He therefore filed a civil suit against
the Raja of Cossijurah in the Supreme Court at Calcutta. He also file an affidavit on 13 th
August, 1777 stating that the Raja being a Zamindar, was employed in the collection of
 revenues and was thus within the jurisdiction of the Supreme Court. The Supreme Court
issued a writ of Capias for the Raja’s arrest. Being afraid of the arrest the Raja avoided
service of writ by hiding himself. The Collector of Midnapur, in whose district the Raja
resided, informed the Council about these developments. The Council, after seeking legal
advice from its Advocate-General, issued a notification informing all the Landholders that
they need not pay attention to the process of the Supreme Court unless they were either
servants of the Company or had accepted the Court’s jurisdiction by their own consent. The
Raja was also specially informed by the Council and, therefore, his people crave away the
Sheriff of the Supreme Court when that official came with a writ to arrest the Raja of
Cossijurah.

The Supreme Court issued another writ of sequestration on 12 th November, 1779 to

seize the property of the Raja in order to compel his appearance in the Supreme Court. This
time the Sherriff of Calcutta. With a force of sixty or seventy armed force men, marched to
Cossijurah in order to execute the writ, they imprisoned the Raja and it is said that the
Englishmen outraged the sanctity of the family idol. In the meantime, the Governor –General
and Council directed Colonel Ahmuty, commander of the armed forces near Midnapur to
intercept and arrest the Sheriff with his party and release the Raja from arrest. Colonel
Ahmuty sent Lieutenant Bamford with two companies of sepoysto arrest the Sheriff with his
party. On 3rd December, 1779 Bamford, with the help of Willaim Swanston, arrested the
Sheriff and his party while they were returning and kept them in confinement for three days.
Later on, they were sent to Calcutta as prisoners. Council released the Sheriff’s party and
directed Colonel Ahmutty to resist any further writ of the Supreme Court.

The case of Saroopchand –

Sapoorchand, malzamin for the payment of revenue, was held to have become liable
for payment of Rs. 10,000/- as balance of payment. He disputed his liability. Saroopchand
contended that he had advanced a loan of Rs. 10,000 to John Shakespeare, a member of the
Council. John Shakespeare denied the contention but admitted that there was some financial
transaction between them. Saroopchand being unable to discharge his liability the Decca
Provincial Council committed him to custody till such time as he shall have paid the amount.
On an application for a writ of Habeas Corpus being moved in the Supreme Court, after
hearing, the Court held that it was an arbitrary abuse of power. As regards the liability as
treasurer, the court held that the revenue council should sue him elsewhere and not decide the
claim itself. It stated that the Council had no right to be a judge in its own case and to attempt
to secure its claim by arbitrary imprisonment. The Supreme Court, therefore, released
Saroopchand on his giving security to appear and answer to any suit which the Company
might institute against him in any competent court and to pay all sums of money as were
adjudges to be due to the Company.

The case of Gora Chand Dutt –

In the Murshidabad Provincial Council, Gora Chand Dutt filed a suit against
MirzaJelles to recover sum due from him Mirza claimed larger sum was due from Dutt. The
judgment went against Dutt. Dutt brought a suit in the Supreme Court against Hosea, Chief of
the decree. Dutt contended that the proceedings of the adalat were irregular. Though the case
went in favor of the Company’s Courts. It did reveal how irregular their proceedings were.
 ACT OF SETTELMENT 1781
Act of Settlement came for removal of the defects of the Regulating Act. The conflict
between the Supreme Council and Supreme Court reached to a very serious stage. A petition
against the Supreme Court activities in Bengal was submitted to the British parliament by the
Supreme Council. Besides a petition signed by Zamindars, the Company’s Servants and other
British subjects inhabiting Bengal was also sent to the British Parliament against the Supreme
Court. British Parliament against the Supreme Court. The British parliament appointed a
parliamentary committee to make inquiries into the matter and prepare a report. The
committee prepares report on the conflict between the Supreme Council and Supreme Court
in 1781. On the basis of this report, the British parliament passed an Act in 1781. This Act is
known as settlement Act, 1781.
A survey of the history of 7 years from 1774 to 1780 shows that the provision of
regulating Act 1773, and the Charter of 1774 created many problems and conflict. The chain
of events and the trail of the Cossijurah case pointed a\out the serious growth of conflict
between the judiciary and executive. Not only the Governor- General and Council and the
inhabitants of Bengal, also submitted their petitions to the King in England.

SALIENT FEATURE OF ACT OF SETTELMENT 1781 –

The Act of 1781 was passed in order to explain and amend the provisions of
Regulating Act, 1773. Some important provisions of the Act of settlement may be briefly
summarized as follows:

i) The Act declared that the Governor-General and Council have immunity from the Jurisdiction
of the Supreme Court for all things done or order by them in their public capacity and acting
as Governor-General and Council.
ii) The Governor-General and Council and any Peron acting under their orders had no immunity
before English Courts.
iii) Revenue matters and matters arising out of its collection were excluded from the jurisdiction
of the Supreme Court.
iv) English law was not applicable to the natives. Hindu and Mohammedan personal laws were
preserved in matters relating to succession and inheritance to lands, rents, goods and in matter
of contract and dealings between parties.
v) Where parties were of different religion their cases should be decided according to the laws
and usages of the defendants.
vi) The Supreme Court was empowered to exercise its jurisdiction in actions for wrongs of
trespass and in civil cases where parties had agreed in writing to submit their case to the
Supreme Court.
vii) It was also provided that the Supreme Court would not entertain case against any person
holding judicial office in any country courts for any wrong inquiry done by his judicial
decision. Persons working under the authority of such judicial officers were also exempted.
viii) The Parliament recognized Civil and Criminal Provision Courts. These Company’s Courts
were existing independently of the Supreme Court. It was one of the most important
provisions of the Act of 1781 as it completely reversed the policy of the Regulating Act.
ix) The Act provided that the Sardar Diwani Adalat will be the Court of Appeal to hear appeals
from the country courts in civil cases. It was recognized as Court of Record. Its judgment was
 final and conclusive except upon appeal to the King-in-Council in civil cases involving Rs.
5000 or more. Sardar Diwani Adalat was presided over by the Governor-General and Council
was also empowered to hear and decided cases or revenue and undue force used in the
collection of revenue.
x) The Act of 1781 authorised the Governor-General and Council to frame Regulations for the
Provincial Council and Courts.
UNIT - II
ADALAT SYSTEM: WARREN HASTINGS

Warren Hasting was the Governor of Madras. He was transferred to Bengal in 1772. As
Governor of Bengal, Bihar and Orissa, he prepared the First Judicial Plan in 1772. It was the
first step to regulate the machinery of administration of justice. The plan being a land mark in
the judicial history became famous as “Warren Hastings Judicial Plan of 1772”
Warren Hasting was appointed as Governor of Bengal, he started his efforts for
eradicating the evils in the administration of the justice and revenue collection. He abolished
the system of “Double Government” and executed the Diwani functions through the
Company’s servants. He appointed a committee consisting of Governor and four members of
his Council to find out the causes of the evils in the existing judicial administration and
revenue collection. The committee was also to prepare a plan for the administration of Justice
and revenue collection. The committee under the Chairmanship of Warren Hastings prepared
the First Plan in 1772. This is known as Warren Hastings Plan of 1772.

JUDICIAL PLAN OF 1772

The first judicial plan was prepared by the Committee of Circuit under the Warren Hastings
chairmanship. Warren Hasting administrative plan divided territory of Bengal, Bihar and
Orissa into number of District. In each district an English servant of the Company was
appointed as collector who was to be responsible for the collection of revenue.
Under this plan the whole of Bengal, Bihar and Orissa were divided into districts. The
district was selected as the unit for the collection of revenue and for the administration of
civil and criminal justice.

Courts of Original Jurisdiction

Mofussil Faujdari Adalat –
In every district Mofussil Nizamat or Faujdari Adalat was established to try all criminal
cases. The Adalat consisted of Kaziz, Mufti and Moulvies. The Moulvies interpreted the
Muslim law of crimes. The Kazis and Mufti gave Fatwa and render Judgment. In this Adalat
Collector exercise general supervision over the adalat and saw that no corruption was made in
the cases. The judgment was given impartially.
This Faujdari Adalat was not allowed to handle cases where punishment was death
sentence of forfeiture of property of the accused. Such cases went to Sardar Nizamat Adalat
for final order.

Moffussil Diwani Adalat-

It was a court of civil jurisdiction established in each district. The collecter was the
judge of this court. In suits regarding inheritance, marriage, caste and other religious usages
and institutions the court was required to apply “the laws of the Koran with regard to
Mohammedans, and those of the shastras with the respect to Hindus.” In matters of Hindus
and Muslims the court was helped by pandits and kazis respectively, who expounded the law
to be applied by the judge.

Small Causes Adalat –

As Name Says this Adalat decided petty cases up to Rs. 10/- the head farmer of the
village became the judge. This system was designed to save the travelling expenses of poor
farmers as they did not need to travel to the district place for justice.

Establishment of Sardar Adalat –

Firstly, two courts were established namely Mofussil Diwani Adalat and Mofussil
Faujdari Adalat over them two superior Courts were established. Namely Sardar Diwani
Adalat and Sardar Nizamat Adalat. The Sardar Diwani Adalat was consisted of Governor and
member of the Council and was to hear appeals from Mofussil Diwani Adalat. In the case of
over Rs. 500/-. The First sitting of Sardar Diwani Adalat was held on 17 th March 1773. On
each appeal of 5 percent was charged. The appeal were to be filed in the Adalat within 2
months from the date of the judgment decree given by the Mofussil Diwani Adalat.

Appellate Courts-
The following two appellate courts were established-

Sardar Nizamat Adalat – Sardar Nizamat Adalat consisted of an Indian judge known as
Daroga- e- Adalat. Who was to be consisted by the chief Kazi, Chief Mufti and Three
Moulvies. Nawab appointed all these persons as per the advice of Governor. In case of death
sentences punishment deal warrant was made by the adalat and signed by the Nawab as the
head of Nizamat.

Sadar Diwani Adalat- This court was composed of the Governor and council and heard
appeals from the Mofussil Diwani Adalat where the suit value exceeded Rs.500
The governor and Council supervised this adalat to control and reduce the corruption
all cases were ordered to maintain registers and records. Any case older than 12 years was not
accepted. District Courts forwarded their records to Sardar Adalat.
In civil cases when Plaintiff field a case defendant accused person was given only
limited time to give answer then examine the witness and give the decree pass the final
orders. The plan tried to reduce the expenses of people with this plan officers like Kaziz,
Muftis were given salaries. Before this plan judge charged the commission but the new plan
abolished this law and introduced the court fee system where fee went to government. After
this plan and establishment of Courts for common Indians it became easy to approach the
judiciary. Warren Hasting was very intelligent person he purposefully did not take the full
charge of criminal justice system and kept the puppet Nizam alive. He did not change the
forms and when possible tried to show case that company respects the Nizam like case Nizam
got the power to sign the death sentences. In other clever intelligent system Warren Hasting
kept alive was that following Hindus Laws for Hindus and Muslim Laws for Muslims. In this
Plan Collector got the many powers Collectors was the administrator Tax Collector, Civil
Judge and Superior over the Criminal Courts with this Collectors for the unlimited powers
and Warren Hasting knew this the Collectors will become corrupt and he already told the
Company directors of the Company understood the fear and reality of this Plan. In the year
1773 Company directed the Calcutta Council to withdraw the Collectors as they became very
corrupt. After this Calcutta government introduced new plan for the collection of revenue and
administration of justice on November 23rd 1773 and put into force in the year 1774.

JUDICIAL PLAN OF 1774 –

With the plan collectors were recalled from every district in place of collectors an
Indian officer was appointed called Diwan or Amil Diwan got the power to collect the
revenue as well as act as a Judge in the Mofussil Diwani Adalat. The territory of Bengal,
Bihar and Orissa was divided into 6 divisions with their headquarters at Calcutta, Burdwan,
Murshidabad, Dinajdore, Dacca and Patna. In each division many districts were created, the
complete Bihar came under the Patna Division.
A provincial council consisting of 4 or 5 English servant of the Company were
appointed in each division to supervise the collection of revenue and to hear appeals from the
cases decided by the Amil and Indian Diwan. The appeals from this Provincial Council were
allowed if the case amount was more than Rs 1000/- the appeal went to Sardar Diwani
Adalat. This time also Warren Hasting new that the Provincial Council will do the more harm
and more corruption then the collectors. Warren Hasting thought this plan as temporary plan
but regulating act was passes in this time and Warren Hasting could not change the Plan until
year 1780.

JUDICIAL PLAN OF 1780 –

The Indian Civil procedure Code prepared 1780. Warren Hasting knew that the
Judicial Plan of 1774 was not perfect and when Warren Hastings again got the chance and he
made changes to the Judicial Plan of 1774 on April 1780. New plan was introduced as per the
Plan of 1780. Judicial and Executive functions were separated. .

Provincial Council –
No Judicial work only revenue related work, collection and revenue cases. But with
this plan the problem was that area was vast and Adalat were few to administer those large
areas, because of this cases were more time was limited with the judges and this arrears piled
up in every Adalat. 2nd problem was that witness have to travel lot to reach the Adalats. There
was only one Adalat in the whole Bihar, because of this people thought is better not to file the
cases in courts as filing cases in court meant delayed justice, physical harassment waste of
time and money.
As per the Judicial Plan cases up to Rs. 100/- were referred to the person who stayed
near the place of litigant but before this. It was compulsory to file the case in Adalat and 2nd
problem was that the person who works as a Honorary Judge and he did not get any salary.
The Zamindar or Public Officer acted as an Honorary Judge and they charged money for this
and also Zamindar got the chance to do corruption as he became the Honorary Judge. Warren
Hasting was not satisfied with the Plan of 1780 he always thought about the improving
Judicial System in India.
On 29th September 1780, Hasting proposed in the Council that Chief Justice, Sir
Elijah Impey be requested to accept the charge of the office of the Sardar Diwani Adalat.
Impey accepted this offer. He remained in sardar Diwani Adalat for a year but he
introduced lot of reforms in Sardar Diwani Adalat. Impey drafted many reulations to reform
the Adalat on November 3rd 1780. First reform regulation was passed to regulate the
 procedure of the Diwani Adalat. As per this rule he was allow to take the help of Hindu
Pundits or Muslims Mulla if it was necessary to understand the cause or case.

Impey compiled a civil procedure code for the guidance of the Sardar Adalat and
Mofussil Diwani Adalat, it was the First Code of CivilProcedure to be prepared in India. It
was promulgated by the Council on July 1751 in the forms of regulation it was the digest of
the Civil rules. The Code consolidated at one place a detailed Civil Procedure. The code
contained 95 clauses and with it all the previous regulations regulating to civil procedure
were repeated. The code of 1781 clearly defined the functions, power and jurisdiction of
Sardar Diwani Adalat.
This code was translated in person and Bengali language that time in India. Impey
was doing great job, but in England, people were not happy with the impey because of
following reasons Impey was appointed as the Supreme Court judge to monitor the Company
affairs in India. But in India Impey stated to work as the Judge of Sardar Diwani Adalat,
accepting this violated the Regulation Act. Because of other job they believed that the Impey
would not do the Justice with the job of Supreme Court, because of all above reasons on 3rd
May 1782 in England House of Commons adopted a resolution requesting the Crown King to
recall Impey to answer the charge of having accepted an officer and violating the Regulation
Act. After this Impey left India on 3rd December 1782. From the Impey appointment one
should learn that whatever post or job may be the concern person must be studied in the
profession.
Regarding Criminal Justice System Hasting took following Steps –
Machinery was created for the purpose of arresting Criminal and bringing them before
the Fouzdari Adalat for the trial. This system never existed in India before this a new
department office of the remembrance was created at Calcutta to keep watch on the
functioning of Criminal Adalats. The department was to work under the Governor General.
The head of the department was known as Remembrance of Criminal Courts. All Criminal
Courts were required to send periodical reports to this department. Everything was done as
per the Muslims Criminal Law and Hastings was not happy with he tried his best but
Company heads did not accept his views because of this Criminal Justice System, every one
made using corrupt ways.

Merits –
1) The personal laws of Hindus and Muslims were safe guarded.
2) District was selected as a unit of the administration of justice and collection of the revenue.
3) The jurisdiction of the Diwani and Faujdari Adalats were clearly defined.
4) The judges of these Courts were Englishmen and they did not have the knowledge of the
personal laws of Hindus and Muslims, but this defect removed out to the large extent of
appointing native law officers.
5) The commission basis was replaced by the court-fee which was to be deposited with the
Government and not with Judges. This changes was made so that Judges ceased to have any
personal interest in a particular case. Thus the change was made to promote impartial and fair
justice.
 Demerits –
1) Less number of courts –
The head farmers were given power to decide petty cases up to Rs. 10/- in fact it was
necessary to have more subordinate courts keeping in view the population and the population
and the area of each district.

2) Concentration of Powers –
Administrative, Tax collection and Judicial in the hands of the Collectors. The Collectors was
the Civil Judge as well as Supervisor of the Criminal Courts. It was impossible for the
collectors to devote time and energy to regulate all these affairs.
 Judicial Reforms of Lord Cornwallis
Lord Cornwallis succeeded Warren Hastings in 1786. The Governor Generalship of
Lord Cornwallis extended from 1786 to 1793. This period constitutes a very remarkable and
a highly creative period in Indian Legal History. He was Commander-in-Chief as well as
Governor General. Lord Cornwallis brought reforms in the revenue, military, civil and
criminal judicial system in India in his tenure. Lord Cornwallis introduced the concept[t of
administration according to law for the first time in India. After his arrival in India, he found
that the whole system was complicated, illogical and wasteful. He reorganized the judicial
system, both civil and criminal, in Bengal, Bihar and Orissa. He was successful to a great
extent in checking corruption in the courts which was rampant in those days. Lord Cornwallis
introduced the reforms in the judicial system in three instalments – first in 1787, secondly in
1790 and thirdly in 1793.

The Judicial Plan of 1787 of Lord Cornwallis

During the tenure of Warren Hasting’s, the judicial the revenue functions were
separated by vesting them in distinct functionaries. The Directors of the Company demanded
economy, simplification and purification and as an essential part of these ideas the merger of
revenue and judicial functions. The Court of Directors directed Cornvellis to vest in one
person the revenue, judicial and managerial functions. This scheme was introduced through
two regulations – one dealt with revenue administration and was passed on the 8 th June 1787,
the other dealt with the administration of justice and was enacted on June 27, 1787.

The Salient features of Regulations of June 8, & June 27, 1787

1. The number of districts were reduced from 36 to 23. In each district, a Company’s English
Covenanted Servant was appointed as Collector.
2. The Collector was made in charge of the revenue collection in the district. All revenue cases
were decided by the court known as Mal Adalat. It was presided over by the Collector.
3. The Collector was also to act as the Judge in the district Mofussil Diwani Adalat to decide
civil cases. The judge was also to decide cases and claims concerning succession and
boundaries to zamindaries, talukadaries or other rent free land.
4. The collector was also to act as the Magistrate in the district. In this capacity, he was to arrest
the criminals and send them to the nearest Mofussil Nizamt Adalat for their trial. As a
Magistrate he was given power to punish offenders who have committed pretty crimes by
inflicting punishment not exceeding 15 strokes or imprisonment not exceeding 15 days, in
serious cases, the offenders were committed to the Mofussil Nizamat Adalat for trial.
5. The functions of civil justice, powers of Magistrate and function of revenue collection and
adjudication of revenue disputes were united in the Collector. However he was to discharge
each part of his duties separately according to the department to which it belonged.
6. The salaries of the collectors were increased to seek purity of administration though it was not
in favor of economy.
7. Appeals from the decisions of the Collector in his Mal Adalat lay to the Board of Revenue at
Calcutta and then to the Governor-General-in-Council. Appeals from the Mofussil diwani
Adalat were allowed to be preferred to the Sadar Diwani Adalat if the amount involved was
more than Rs.1000/-. A further appeal was allowed to the Kind-in-council(Privy Council) in
cases where the subject matter involved was £5000 or more.
8. The Sadar Diwani Adalat, consisting of the governor-General and the members of his Council
was assisted by the Chief Quazi, Chief Mufti and two Moulvies who were to expound the
 Muslim Law. In cases involving the interpretation of Hindu law, the Sadar Dwani Adalat
was assisted by Hindu Pandits.
9. An Office of Registrar, a subordinate officer, was created to assist the Collector, in his
administration of civil justice. The Registrar could decide cases up to Rs.200. However the
decree passed by him were to be counter-signed by the judge of the Mofussil Diwani Adalat
to avoid is carriage of justice.
10. The Birtish nationals residing in the mofussil area beyond Calcutta were subject to the
criminal jurisdiction only of the Supreme Court and could not be tried by the Mofussil
Fauzdari Adalats. But, it was laid down in 1787 that the Magistrates would have authority on
information lodged on oath to apprehend the British subjects. After making an inquiry in the
circumstances, if the Magistrate was satisfied that there existed grounds of his trial, he would
send the accused to Calcutta for trial. The complainants and their witnesses had also to go
the Calcutta to prosecute the accused. If they were poor, their charges of journey were to be
met by the government. All other Europeans, who were not British subjects, were placed on
the same footing as Indians and their cases were within the jurisdiction of the Mofussil
Fauzdari Adalats.

Defects of the Scheme of 1787

The collector was over empowered and united the functions of judicially and
executive in one person. It was a retrograde step. The collector was more interested in
revenue collection than the administration of justice.

Judicial Plan of 1790 of Lord Cornwallis

The judicial plan of 1787 of Lord Cornwallis mainly introduced reforms in civil and
revenue courts. In those days criminal justice was administered as per the Mohammedan
Criminal law. It suffered from various defects. By the Judicial Plan of 1790 Cornwallis
concentrated his attention to reform criminal courts as he realized that the prevailing system
was defective and inefficient. Though under the judicial plan of 1787 the Magistrates
(Collectors) were empowered to try and punish petty offences, very limited powers were
given to try criminal cases. The result was the majority of the cases were to be decided by
the Muslim Law officers (Kazi & Mufti) of Moffussil fauzdari Adalats.The working of these
Adalats was wholly unsatisfactory and irregular. The following were the major defects in the
administration of criminal justice.
1. The entire criminal administration of justice was in the hands of Nawab,. He had no effective
administrative control over the Muslim law officers who were the judges of criminal courts.
2. The salaries given to the persons engaged in the work of rendering criminal justice was quite
insufficient to support the dignity of their office. Moreover, salaries were not paid in time.
3. There was no security of the tenure of Muslim law officers. They could be dismissed at any
time discretion of Naib Nawab. This face stimulated them to accept bribes to grow richer so
that they could live comfortably when dismissed. There was wide prevalent miscarriage of
justice..
4. The Moffussil Fausdari Adalats were vested with so much of powers that except death
sentence they could impose any punishment. The highest criminal court was Sadar Nizamat
Adalat and it functioned from Murshidabad. It proved quite ineffective to exercise control
over the lower criminal courts.
5. The Muslim Criminal Law which was applied by the courts was also defective in many ways.
Some of its provisions were contrary to the principles of natural justice and in some cases the
punishments were quite contrary to the basic tenets of civilization.
6. The numerous robberies, murders and other enormities showed that the administration of
criminal justice was in a very deplorable state. These evils resulted from the great delay
which occurred in bringing offenders to punishment and the law not being duly enforced. A
number of examples are traceable where the Mofussil fauzdari Adalts had either awarded
unduly harsh punishments upon persons guilty of less serious crime, or inadequate sentence
were passed upon hardened criminals.

Salient Features of Judicial Plan of 1790

According to the regulation passed by the Governor-General-in-Council on 3rd
December, 1790 some reforms were introduced in the administration of criminal justice.
Cornwallis took strong steps to remove the defects of the Mohammedan Criminal Law and
also the defects in the organisation of the Criminal Courts.
In 1790, the orgnisation of criminal court was modified. The arrangement of existing
courts was changed. The Mofussil Fauzdari Adalats were abolished. The new plan provided
for three types of criminal courts.

1. The Court of District Magistrate

In each district, the Collector was to act as the Magistrate. As a Magistrate, he was to
arrest the accused person and hold an inquiry into the circumstances of the crime alleged
against him. If the Magistrate found the complaint against the suspect wholly unfounded, he
would discharge him. If the offence committed was petty, the Magistrate could himself
award the sentence of corporal punishment not exceeding 15 strokes or 15 days
imprisonment. If the crime was serious, the accused was to be tried by the Court of Circuit.
In some offences he could even release the accused on bail to be tried at the next sitting of the
Court of Circuit. But in cases of murder, robbery etc., he could not grant any bail.

2. The Court of Circuit.

The entire Mofussil area was divided into four divisions – Patna, Calcutta,
Murshidabad and Dacca. A Court of Circuit consisting of two company’s covenanted
servants was established in each division to try all criminal cases. It was not a stationary but
a moving court it moved from district to district within the division of trying the accused
persons. The existing Mofussil Fauzdari Adalats with the Muslim Law Officers were
abolished and their place was taken over by the four Courts of Circuit.

The Court of Circuit was to visit each district within its jurisdiction twice a year to
dispose of criminal cases awaiting trial. The Indians and European, not being British
subjects, were put under the jurisdiction of the Courts of Circuits.

The courts of Circuit were assisted by Muslim law officers such as Quaazi and
Muftis. The Quazi and Muftis were to expound the law and propose the Fatwa (decision) on
the facts, If it was in conformity with the principles of natural justice and equity, the
sentence was passed by the judges of the court. The award of deth sentence was to be referred
to the Sadar Nizamat Adlat for confirmation. There could be an appeal from the decision of
the Court of Circuit to the Sadar Nizamat Adalat.
 3. The Sadar Nizamat Adalat.
The seat of the Sadar Nizamat was at Murshidabad. Under the judicial plan of 1790,
the Nawab of divested of all his judicial powers. The Sadar Nizamat Adalat was shifted to
Calcutta.
The Governor-General and members of his council presided over the Sadar Nizamat
Adalat. They were to be assisted by Muslim law officers i.e., Chief Quazi and to Muftis.
The Sadar Nizamat Adalat was required to conduct its business at least once in a week
and a regular record of its proceedings was to be kept. The Sadar Nizamat Adalat was to
apply the Mohammedan Criminal law as amended by the governor-General-in-Council.
In order to make the system full proof against corruption, bribery, the Muslim Law
Officers were nominated by the Governor-general-in-Council and they could not be removed
from their posts except by the governor-general-in-council on the ground of incapacity or
misconduct and thus Muslim Law Officers were given a security of tenure.
The new criminal judicial under the scheme of 1790, was inaugurated on January 1,
1791. The office of the Remembrance created during Warren Hasting’s regime was now
abolished. The first meeting of the Sadar Nizamat Adalat was held on January 10, 1791.
Under the new scheme, the governor-general-in-Council for the first time assumed a direct
responsibility for the administration of criminal justice in Bengal, Bihar and Orissa. Besides,
the salary of the persons working in the criminal courts was increased so that they might not
be easily tempted.

Reforms introduced in Mohammedan Criminal Law between 1790 and 1793.

Lord Cornwallis made the following reforms in the Mohammedan Criminal Law and
all the Adalats were directed to decide the cases according to the modified Mohammedan
Criminal Law.
1. In determining the punishment to be inflicted for the crime of murder, the intention of the
party rather than the manner of instrument employed should be taken into account.
2. The punishment of mutilation was abolished and imprisonment and hard labour for 14 years
and 7 ears were substituted for the loss of two limbs and that of one limb respectively.
3. The law of evidence was modified so as make provision that religion would not be a bar to be
a witness and thus the rule that a Hindu could not be a witness against Mohammedan was
abolished.
4. The relations of a murdered person could not grant pardon to the offenders so as to do away
with the trial.
5. The Sadar Nizamat Adalat could pass death sentence instead of granting blood money to the
heir as provided under Muslim Law.

Defects
In the systems of 1790, the Courts of Circuits were called upon to handle huge
amount of work. In 1792, to lighten the burden of the Courts of Circuit, the Magistrates were
empowered to hear and determine complaints of petty thefts and to inflict corporal
punishment for the offence up to 30 strokes or imprisonment not exceeding one month.
Judicial Scheme (or Plan) of 1793 of Lord Cornwallis
All the regulations framed between 1772 and 1793 were complied in a code which
was known s ‘Cornwallis Code’. In May, 1793 the Cornwallis code was passed a body of
forty eight regulations which held in the field for twenty years.
By the judicial plan of 1793 the following reforms were made.
1. Reorganisation of Mofussil Diwani Adalat

By the plan of 1793, in the place of the Collector, a civil servant of the company was
appointed as the judge of the Mofussil Diwani Adalat to decide civil and revenue cases. He
was empowered to try all suits in respect of succession or right to real or personal property,
land, rents and revenues, debts, accounts, partnership, marriage, caste and claims of damage
etc. Mal Adalats were abolished and the suits triable by the Mal Adalats were transferred to
the Mofussil diwani Adalat. The Collector was to be responsible only for collection of
revenue. The power of administering civil justice was taken away from the Collector and
given to the Diwani Adalat. The Collectors were deprived of their judicial powers to decide
civil cases and revenue cases. The collectors thus became merely administrative officers.
All persons, except the British subjects, were to be amenable to the jurisdiction of
Mofussil Diwani Adalat. No order, proceeding or decree was to be made by an adalat except
in open court. No judge was to correspond with parties in cases pending before him. A party
could make a representation to the adalat in writing either personally or through an authorized
vakeel. The rules of procedure to be observed by the Mofussil Diwani Adalat for receiving,
trying and deciding cases were made. The period of limitation was fixed at 12 years.
2. Executive Subjects to Judicial Control

All executive officers including Collectors were subject to the jurisdiction of the
Diwani Adalat personally for all acts done by them in official capacity. Any person who felt
aggrieved by the acting of the servants of the company could sue such officers I the ordinary
court.
3. British Subjects and the company’s Adalats
There was an inequitable distinction which existed between the British subjects and
the natives of India. The Diwani Adalat was empowered to take cognizance of all the cases
instituted by the British subject against the natives, but the native’s claim against British
subjects were not enforced by the Diwani Adalat. In order to remedy this defect it was
provided that the diwani Adalat would have jurisdiction over all British subject s in all
disputes of civil nature not exceeding in valur of Rs.500/-. In cases above Rs.500/- the
jurisdiction over British subjects continued to vest in the Supreme Court at Calcutta created
in 1774 and the company’s court were not given any jurisdiction over the British subjects.
4 Establishment of Provincial Court of Appeal.
The plan of 1793 provided for establishment of four Provincial Courts of Appeal at
Calcutta, Patna, Dacca and Murshidabad. Each Court was to be presided over by three
English Judges. At least two judges were required to make a quorum. The Provincial Court
of Appeal could entertain original suits or complaints which a Mofussil diwani Adalat
refused to receive or proceed. It had jurisdiction to cause such adalat to hear and determine
the same. It had jurisdiction to hear appeals filed from the decision of the Mofussil Diwani
Adalat without any pecuniary limit.

The Provincial Courts of Appeal were further authorized to receive the charges of
corruption against the subordinate Judges and to forward them to Sadar Diwani Adalat and
also to report the cases of negligence and misconduct by the subordinate judges. They were
also to enquire into cases referred to them by the Sadar Diwani Adalat or the government for
investigation.
The decisions of the Provincial Courts of Appeal were made final in cases in which
the subject matter did not exceed one thousand rupees. From these courts a further appeal lay
to the Sadar Diwani Adalat in all cases involving over one thousand rupees.
5. Reorganization of Sadar Diwani Adalat.
By the plan of 1793, the Sadar Diwani Adalat was re-established at Calcutta
consisting of the governor-General and the members of the Supreme Council. It received
appeals from Provincial Courts in cases where the subject matter involved exceeded
Rs.1000/-. Further appeals lay to the King-in-Council where the amount in dispute exceeded
£5000/-. Thus the decision of Sadar Diwani Adalat were final up to £5000/-. This court could
deal with complaints of corruption and incompetency against judges of the courts subordinate
to it. It was empowered to supervise and control the functions of the lower courts. It could
direct the court of Diwani Adalat and Provincial courts of appeal to receive and dispose of
any case. It was also empowered to receive appeal from decision of Mofussil Diwani Adalat
which might be cognizable in any Provincial court of Appeal in case of Provincial court had
omitted or refused to proceed in it.

6. Munsiff’s Courts or Native Commissioners.

The plan of 1793 provided for the appointment of the Native commissioners who
could decide civil suits for sums of money or personal property of a value no exceeding
Rs.50/-. These officers were called Munsifs. The number of these commissioners in each
district depended upon the bulk of the work to be disposed of. Their selection was made
from the landlords and farmers etc., and no other qualifications were prescribed for
appointment.
All decisions of Munsifs were appealable to Moffisil Diwani Adalat and then a
second appeal cold be taken to the Provincial Court of Appeal.
The Munsiffs were not allowed any salaries and allowances except a commission of
one ana (old coin) per rupee ( a rupee is equal to 16 anas) upon all the sums litigated before
them.
7. Creation of the Registrar’s courts.
Each Mofussil Diwani Adalat was provided with a Registrar, who was a covenanted
servant of the company. The judge of the Mofussil Diwani Adalat could refer to his Registrar
suits for money or personal property, subject matter of which did not exceed two hundred
rupees. This arrangement was made to relieve the accumulation of arrears of cases in Diwani
Adalats. All the case decided by the Registrar required the counter signature of the judge of
the Adalat and he was not accorded an independent status to deliver his own judgment.
 8. Abolition of Court Fee.
By the plan of 1793 the court fees was abolished. The abolition of court fees was a
great relief to the poor people. The gates of the Courts were thrown open to all, rich and poor
alike.
9. Security of Tenure of the Indian Law Officers.
The plan of 1793 provided that the law officers of both the Sadar Adalats and
Provincial courts of Appeal and Circuit, and the court of Mofussil diwani Adalat were to be
appointed and dismissed by the Governor-General-in-Council. They were to take oath on
appointment. They were guaranteed of security of tenure. They could be tried for corruption.
The governor-General-in-Council was the final authority to take any action.

10. Administration of Criminal Justice.

By the plan of 1793 the following modifications were made in the administration of
criminal justice.
1. The Collectors, who acted as Magistrates under the Scheme of 1790, were deprived of their
magisterial powers. The judges of the Mofussil Diwani Adalat were made Magistrates with
the same powers and functions as were assigned to the collectors.
2. The judicial powers of the Magistrates were redefined. They could punish petty offences by
imprisonment up to 15 days or by a fine up to Rs.100/-.
3. The courts of circuit established in 1790 and the Provincial courts of Appeal establishment in
1793 were merged to create four court of appeal and circuit. Each such court was to consist
of three English judges. The Court was to break itself into two divisions (the senior judge
forming one division and the other two judges forming the other division) which were to go
on circuit simultaneously. After completing the same, ll the three judges were to sit to hear
appeals from the Mofussil Diwani Adalats.
4. No Changes was made in the constitution of the Sadar Nizamat Adalats.

11. Organization of the Legal Profession –

By the Plan of 1793, the legal profession was regulated. The persons who joined the
profession of (vakeels) were required to obtain a certificate (Sanad) after fulfilling the
qualifications. Sardar Diwani Adalat was to issue licenses to the pleaders who applied to
practice in the law courts. They could be removed from the list of vakeels for proved
misbehavior. They were entitled to prescribed fees which were payable to the Court and not
directly to the

12. Reforms in the Legislative Methods and Forms –

The Regulation of 1793 provided that every regulation to be passed in future must in
preamble stating the reason for its enactment. It was further provided that all the regulation
passed in a year to be numbered. They had to be printed and bound up in volume. Provisions
were made to send them to law courts.

Comments on the Plan of 1793 of Lord Cornwallis –

The judicial reforms under the plan were the greatest contribution in the field of legal
system of India and it forms the high water mark in the legal system of India.
 Merits of the Plan of 1793 –
1) The separation between the judicial and revenue functions was maintained.
2) The separation between the judiciary and the executive was maintained to some experts.
3) The principle of the judicial control of the executive authority was applied.
4) Checks and balances were inserted in legal machinery to arrest the practices of corruption.
5) The organization of the Courts was improved.
6) Provincial Courts of Appeal were established for first appeal.
7) The native law officers were provided security of tenure.
8) Legal profession, for the first time, was organized in India.
9) Court – fee was abolished.
10) Subordinate Judicial Agencies were established to deal with petty cases through Munsif.
11) British subjects were equalized to natives in jurisdiction of the Civil Courts.
12) An elaborate procedure for the Diwani Adalats to follow was prescribed.
13) Provision to introduce uniformity in the form of regulations made by the Government for
good feature of this plan.

Demerits –
1) The judicial arrangements of 1793 were expected to cost an additional sum of four lacks
rupees to the Company.
2) A conspicuous defect in the scheme of 1793 was the exclusion of the Indians from any
effective share in public legal administration.
3) The abolition of the court fee resulted in a great increase in the litigation.
4) The appointment of English judges only led to the failure of administration of justice on
account of their ignorance of the customs, traditions and language of the country.
5) An anxiety to make the system perfect resulted in making it complicated and encumbered.
6) The scheme did not allow the Munsiffs any salary except a petty commission on the value of
the suits and this led naturally to bribery and corruption in Munsiffs courts.

Conclusion –
It is said that the organization of judicial administration initiated by Warren Hastings was
completed by Lord Cornwallis.

IMPORTANCE OF CHARTER ACT, 1793 –

The Charter Act 1793 was the first in the series of Charter Acts. The East India
Company was granted to monopoly trade license in 1773 for 20 years. The period of
monopoly expired on 1793. The Court of Directors applied to the Parliament for the renewal
of their Charter. A new bill was introduced in the House of Commons. The bill was passed
without any difficult and it is known as the Charter Act of 1793.
Main Provision of the Charter Act, 1793-
1) The Company’s commercial monopoly in the East was renewed for 20 years, with the
important provision that private individuals would be allowed to trade to the extent of 3,000
tons of shipping.
2) The members of the Board of Control and their staff were to be paid out of Indian revenues.
3) The Governor- General of Bengal and the Governor of Madras and Bombay Presidencies
were to have only three members of these Councils. These members were required to be the
persons who had resided in India for 12 years at the time of their appointment.
4) The Commander – in – Chief ceases to be a member of the Governor – General Council
unless he was specially appointed a member by the directors.
5) The Governor- General and the Governors were empowered to exercise their veto ion case
affecting in any way the safety, tranquility or interest of British possession in India.
6) The Governor-General – in Council was to have full power and authority to superintendent,
direct and control the presidencies.
7) The Governor-General, Governors, the Commander-in-Chief and a few other high officials
could not go out of India on leave so long as the held the office.
8) The Governor-General and Council were authorized to appoint Justice of peace in any
Presidency.
9) The Admiralty jurisdiction of the Calcutta Supreme Court was extended to the high seas.
10) The Act reiterated that the policy of non-intervention enunciated by the Pitt’s India Act was
to be followed in India, and schemes of conquest and extension were contrary to the wish,
honour and policy of the nation.
11) Receiving of gifts by servants of the company was to be considered a misdemeanor.
12) The civil servants of the company were to be graded in ranks according to seniority of
service and promotion to a higher post was to depend upon the length of one’s service. No
post with pay of over pond 500 a year was to be awarded to any person except covenanted
servants of the company.
13) The sale of liquor was made subject to the grant of a license and power was given to the
Governor-General to levy a sanitary tax in the presidency towns.

The Act was essentially a consolidating measure and its attention struck at points of details.
The Act merely re-enacted many of the provision of the previous Acts and extended their
application.
Lord William Bentinck

Lord William Bentinck became the Governor- General of India in July, 1828 and held
that office upto till March, 1835. During this period he made several reforms in the judicial
administration which in many respects were original and many of the institution created by
him forms the basis of our present judicial system.

Creation of a Sadar Adalat at Allahabad

So far there was only one Sadar Adalat at Calcutta. People had to travel long distance to seek
justice from that court. In those days of meagre means of communication it was very difficult
for the people to travel such a long distance from Agra or from Allahabad. Therefore, in
many cases people instead of going to the Adalat preferred to suffer injustice. It was
necessary that a Sadar Adalat should be created in those far situated place which had now
come under the jurisdiction of the Company.

Reforms in Criminal Judiciary

In the administration of criminal justice Bentinck made farreaching changes which may be
discussed as follow-

i. Abolition of Circuit Court

1. The Circuit Court which was the main court of criminal jurisdication was suffering
from many defects, the most outstanding of these defect were that court had heavy work load
and therefore , the arrears went on piling and the justice was delayed.
2. In many cases reference was to be made to the Sadar Nizamat Adalat which did not
entertain the matter for years and the accused had to wait sor long in the jail for their turn.
3. The number of Circuit Court was very limited with large territorial jurisdiction. They could
not easily travel the entire territory to hold the circuit at different districts and sometimes the
court could not arrive on time to hear the pending cases.
4. The territory being large and the turn of the Court being hardly twice a year, these Courts
did not understand the nature of the people and the local circumstance and therefore, many
times innocent people were punished while the real culprits were set free. It was necessary to
device a new system replacing these court by the Court of Commissioner.

ii. Creation of the Court of Commissioner

Regulation 1 of 1829 which replaced the Circuit Court by the Court of Commissioner also
provided for the appointment of Commissioner. The Circuit commissioner was called as the
Commissioner of Revenue and Circuit and had the power of superintendence and control
over the Magistrates, police,Collector and other revenue officers. The entire area was divided
into divisions and for each division a Commissioner was appointed. The Commissioner was
subject to the control of the Sadar Nizamat Adalat in his judicial functions and to the Board
of revenue in his revenue function Apart from exercising the powers of the Circuits Court
inthe like manner as those courts did, the Commissioners were also authorised to hear appeals
against the decision of the Magistrates and the Joint Magistrates. The decision of the
Commissioner in the appeal was final and there was no further appeals or revision in the
Sadar Nizamat Adalat.

iii. Creation of the Court of District and Sessions Judge- Regulation VII of 1831 authorised the
government to invest the judges of the District Diwani Adalat with the duties of the Sessions. As the
judges had to meet in session (generally 4 times in a year) they were called as Sessions Judges.
During the time in which they did not conduct the criminal work they did not conduct the criminal
work they were called as District Judges. The Sessions Judges tried those cases which were
committed to them by the Magistrates.

iv. Creation of Collector- Magistrates- Lord Hastings under his scheme of 1821 authorised the
government to confer upon the Collectors Magisterial powers but that authority was not actually
exercised during the time of Hastings. However, during the time of Bentinck that provision was fully
utilised and the Collectors were authorised to exercise magisterial function and thus the institution of
Collector- Magistrates was created.

v. Increased participation of Indians- The participation of Indians was increased in the criminal
administration of justice by Lord Bentinck through a Regulation of 1831, which authorised the
Magistrates to refer any criminal case to Sadar Ameen or Prinicipal Sadar Ameen for investigation.
The powers of these Indian Officers were declared in 1832 and they could award punishment upto a
period of one month along with hard labour and corporal punishment not exceeding, 30 Rattans.

Reforms in Civil Judicature

More important reforms were made by Bentick in administration of civil justice than those made in
the administration of criminal justice.

(i) Enhancement in the powers of the Munsifs and Sadar Ameens- The number of Munsifs
and Sadar Ameens employed in the civil judicature was increased by Bentinck to a great
extent by specifying the local jurisdiction of those officers. By Regulation V of 1813 the
jurisdiction of Munsifs was raised to Rs. 300 in all matters whether they related to money ,
personal property or real property. The jurisdiction of Sadar Ameen was extended upto the
value of Rs. 1000 in cases referred to him by the District Diwani Adalat. These cases could
relate to any matter whether of money or personal property.
(ii) Court of Principal Sadar Ameen- A court of Principal Sadar Ameen with a native officer
was created. Principal Sadar Ameen was to be appointed by the Governor- General-in –
Council and was given powers to decide cases of civil nature of the value of Rs. 1000 to Rs.
5000 if referred to him by the District Diwani Adalat. He was authorised to hear appeals
against the decisions of the Munsifs and Sadar Ameens if those appeals were referred to him
by the Diwani Adalat after obtaining the permission of the Sadar Diwani Adalat. Appeals
against the decisions of the Principal Sadar Ameen were heard by the Diwani Adalat and in
special cases by the Sadar Diwani Adalat.
(iii) Judicial powers of the Registrar abolished- The Registrar was deprived of all the judicial
powers which he was exercising so far. His powers were transferred to Sadar Ameen and
Principal Sadar Ameen.
(iv) Abolition of Provincial Court of Appeals and enhancement of powers of the Diwani
Adalat- The Diwani Adalat was given an unlimited jurisdiction to hear civil cases of any
amount. By Regulation II of 1833, the Governor-General-in-Council was specifically
authorised to abolish all the Provincial Court of Appeals which were so abolished in that
year. Regulation VIIof the same year authorised the Governor-General- in –Council to
appoint additional Judges to help District Judge in his civil work with the same powers of
deciding cases as the District Judge.
(v) Introduction of Jury System- The jury could be of three types, i.e., either a case could be
referred to certain prominent members of the locality who gave their report after an enquiry
 of the dispute or he could take the help of two persons as assessors who had to hear
evidence with the judge and give their separate reports on the facts or he could select certain
prominent oersons of the area to work as jurors.

Reforms in Revenue Matters-

Regulation VIII of 1831 changed the position and the Collector was authorised to entertain and try
summarily all claims connected with arrears of rent or their exactions. He was authorised to execute
all the orders and decrees passed by him. The Diwani Adalat was deprived of all the powers in these
subjects except that if could revise the judgement of the Collector if a fresh regular suit was filed
before it.The revising power was also given to the Principal Sadar Ameen, Sadar Ameen and Munsif
according to their pecuniary jurisdiction. Thus, a power was granted to these native officers to change
the decision of the Collector.

This Regulation he eased problem of arrears and delay in the Diwani Adalat, but was a retrograde
step as it abrogated the scheme of Lord Cornwallis which was based on separation of the executive
and the judiciary.

Introduction of Privy Council

If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal
System is more or less based on the English Legal System. In fact, the systematic
development of Indian judicial institutions, judicial principles, laws etc. has occurred during
British regime itself. Besides this, the British regime in India has also developed a
hierarchical judicial system in India. Accordingly, the highest judicial authority was
conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant
role in shaping the present legal system in India. The same is discussed as under.

Origin and establishment of Privy Council:

As it is an accepted fact that, every political system develops for itself a certain sort of
legislative, executive and the judicial machinery for its smooth working and administration.
Establishment of Privy Council was with the same objective. The Privy Council was nothing
but the judicial body, which heard appeals from various courts of the British colonies
including India.

The origin of Privy Council can be traced back to the Norman Period of English. At the
beginning of 11th century, the Normans introduced a Central Government in England for
controlling their executive, legislative as well as judicial Departments. There was a Supreme
Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans
to rule England. Through it the whole administration in England was controlled. However,
gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum
Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas
Curia Regis performs judicial functions.

The Curia Regis was a small body consisting of high officials of the State, members of the
Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the
King in matters of legislation and administration and to deliver a justice. In fact, the Curia
Regis acted as a final Appellate Court for England and English Empire. Gradually, the Curia
Regis came to be considered as the advisory body of the King performing most of the vital
functions in the field of judicial administration. Finally, during the regime of Henry II, there
was a tremendous increase in the Judicial Functions of Curia Regis and it lead to the
formation of two different Common Law Courts in England. They are:

1. King-in-Parliament i.e. Court of House of Lords

2. King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later
acted as the highest Court of Appeal for all British Possessions and Settlements beyond the
seas. In this way, the Privy Council was established during the middle of 16th century. It thus
acted as the advisory body of the King with regard to the affairs of the State. Headquarter of
the Privy Council was at Landon and its powers were implemented through the means of
royal proclamations, orders, instructions etc.

Composition of Privy Council:

As far as India is considered, the Privy Council acted as an appellate body since 1726 with
the establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by
means of a system of committees and sub-committees. However, the committees did not have
permanent existence and membership and mostly members were the persons with little
judicial experience. Naturally it affected the administration of justice. In 1828, Lord
Bourgham criticized such a constitution of Privy Council keeping in view the extent and
importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became
the Lord Chancellor and during his regime, the British Parliament enacted the Judicial
Committee Act, 1833 in order to reform the constitution of Privy Council. In this way,
officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The
Act empowered the Privy Council to hear appeals from the courts in British Colonies as per
the provisions of the Act. Accordingly under this Act, the quorum of judicial committee of
Privy Council was fixed to be four. It composed of Lord President, Lord Chancellor and other
Chancellors holding judicial offices. This quorum was reduced to three in 1843. The
recommendations to the Crown were given by the majority of quorum. Thereafter, by means
of the Appelate Jurisduction Act, 1908 this membership of the judicial committee was
extended. It also empowered His majesty to appoint certain members not exceeding two.
These were nothing but the judges of High Court in British India. Thus some of the members
of the Privy Council were the persons versed in Indian Laws.

Appeals from Courts in India to the Privy Council:

This can be discussed under following sub-headings.

a. Charters of 1726 and 1753:

In the Indian Legal History, the Charter of 1726 granted the right to appeal from the Courts in
India to Privy Council. The said Charter established three Mayor’s Courts at Calcutta,
Madras and Bombay. The provision was made as to first appeal from the decisions of
Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal
from to the Privy Council in England. Where as the Charter of 1757, which re-established the
Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s
Courts.

b. The Regulating Act, 1773:

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at
Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at
Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a
right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if
following two conditions were followed;

i) Where the amount involved exceed 1000 pagodas

ii) Where the appeal is filled within six month from the date of decision.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the
Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus
the right to appeal from King’s Court to Privy Council was well recognized. Besides this,
there were Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also
recognized the right to appeal to the Privy Council from their decisions. Accordingly the Act
of Settlements, 1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in
Civil matters.

c. Appeals to Privy Council from High Courts:

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces.
It was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the
right to appeal from High Courts to Privy Council from all of its judgments except in
Criminal matters. In addition to this, there was a provision of Special leave to Appeal in
certain cases to be so certified by the High Courts.

d. Appeals from Federal Court in India to Privy Council:

The Government of India Act, 1935 provided for the establishment of Federal Court in India.
The Federal Court was given exclusive original jurisdiction to decide disputes between the
Center and constituent Units. The provision was made for filing of appeals from High Courts
to the Federal Court and from Federal Court to the Privy Council. The Federal Court also had
jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High
Court was essential.

e. Abolition of jurisdiction of Privy Council:

In 1933, a white paper was issued by the British Government for establishment of the
Supreme Court in India so as to here appeal from Indian high Courts. It was the first step in
avoiding the jurisdiction of Privy Council. After Indian independence, the Federal Court
Enlargement of Jurisdiction Act, 1948 was passed. This Act enlarged the appellate
jurisdiction of Federal Court and also abolished the old system of filing direct appeals from
the High Court to the Privy Council with or without Special Leave. Finally in 1949, the
Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act
accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions
as well as to dispose of any pending appeals and petitions. It also provided for transfer of all
cases filed before Privy Council to the Federal Court in India. All powers of the Privy
Council regarding appeals from the High Court were conferred to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court
has been established and is serving as the Apex Court for all purposes in India. It hears
appeals from all the High Courts and Subordinate Courts. With this the appellate jurisdiction
of the Privy Council finally came to an end.

of Role Privy Council:

The Privy Council has contributed a lot in development of Indian Legal System. It served a
cause of justice for more than two hundred years for Indian Courts before independence. As
far as the judicial institution is concerned, the Privy Council was a unique and unparallel
among all the Courts round the world. It set the task of ascertaining the law, formulating legal
principles, molding and shaping the substantive laws in India. It also helped in introduction of
the concept of ‘Rule of Law’, on which we have setup the whole philosophy of our
‘Democratic Constitution’. Besides the Privy Council also lead to the introduction of
Common Law in India, which forms the basis almost all present Indian laws.
The contribution of Privy Council in personal laws like Hindu Law and Muslim Law is also
noteworthy. It acted as a channel, through which English legal concepts came to be
assimilated with the body and fabric of the Indian law. it always insisted on the maintenance
of the highest standards of just and judicial procedure, especially in the field if criminal
justice. In this way; the decisions of Privy Council have enriched the Indian jurisprudence in
many respects. Its contribution to the statute law, personal laws, and commercial laws is of
great importance. Thus during the period of 1726-1949 and specifically after 1833 and
onwards, the Privy Council has played a magnificent role in making a unique contribution to
Indian laws and the Indian Legal System. The fundamental principles of laws as laid down by
the Privy Council are considered as path finder for the Indian Courts still today.

At present also, the Privy Council command a great respect among Indian lawyers, judges as
well as Indian public as the highest judicial institution. Some of the principles laid down by
the Privy Council are still followed by the Supreme Court of India. The view taken by the
Privy Council is binding on the High Courts in India till the Supreme Court has decided
otherwise. One of such instance can be given in the form of ‘principle of absolute liability’ as
propounded by the Supreme Court in the historic olieum gas leak case. Thus as a whole, the
contribution of Privy Council is considered as remarkable for the development of Indian
Legal System and Indian Judicial Administration. It has played a great unifying role in
shaping divergent laws in India.

Drawbacks of Privy Council:

In spite this contribution of Privy Council, it suffered from following drawbacks:

1. For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2. The location of the Privy Council was in England far away for common man in India
making it disadvantageous.

3. The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was
considered as a symbol of slavery.

4. All this put the poor man in India in difficult situations for seeking justice.

Conclusion:

From the above discussion, it reveals that the Privy Council has rendered a meritorious
contribution in the development of Indian legal system and judicial institutions. It introduced
many fundamental legal principles in Indian legal system. It shaped the judicial institutions in
India. As a whole its role is very significant in developing the legal system in India as it
exists presently.