Indian Legal and Constitutional History I.pptx

This PPT, meant for classroom teaching, gives a short description of the development of law and legal institutions in India...

1. I NDIAN L EGAL A ND C ONSTITUTIONAL H ISTORY Nimesh Das Guru Assistant Professor (Law) Lloyd Law College.edu.in [email protected]

2. S YLLABUS This course is intended to introduce students to the Legal and Constitutional History of India (1600-1950). Emphasis will be laid on the following: I. Legal History: The Early Charters and the Administration of Justice by the East India Company, the Mayor's Courts; Judicial Reforms of Warren Hastings and the Advent of Adalat System; the Regulating Act, Pits India Act, and the Act of Settlement; Judicial Reforms of Cornwallis and Lord William Bentick; the High Court’s; Privy Council; the Supreme Court of India; the Law Commissions and Codification, Development of Criminal Law, Law of Contract and Law of Evidence in India; Personal Laws of Hindu and Mohammedans II. Constitutional History: Position of Native States and the development of the Doctrine of Paramountcy, Development of Legislative Institutions, Indian Council Act 1861, Government of India Act 1909, Government of India Act 1919, Government of India Act 1935, Independence Act, 1947, The story of Framing of Indian Constitution.

3. INTRODUCTION The aim of this course is to introduce students to the history of the development of legal and constitutional system of India. Modern Indian legal system and its institutions were established by British colonial government. The study of the history of establishment and working of these institutions would enable learners to understand the practices of these institutions, their shortcomings, and challenges that they threw to the framers of the modern constitution of India.

4. W ORLD AT 1500

5. 1

6. V ASCO D E G AMA

7. Beginning at Surat Charter of 1600, 31 st December Queen Elizabeth “The Governor and Company of Merchants of London Trading into East Indies” Honourable East India Company Also John Company Exclusive trading rights into and from Countries lying beyond the Cape of Good Hope eastwards to strait of Magellan

8. E-C OMPANY

9. E NGLAND TO I NDIA

10. W HY S URAT ??

11. Governing Structures of East India Company “Court of Directors” Consisting of a Governor and 24 directors for managing Company’s affairs Company Headquarters in Leadenhall Street, London

12. S IR T HOMAS R OE IN J AHANGIR ' S C OURT

13. Early Legal Instruments Charter of 1600 King’s Commission 14th December 1615 for for specific voyage “King’s [or currently Queen’s] Commission” means you are a commissioned officer in one of the UK’s military forces Charter of 1661 Power to Governors and Council of “each factory” to administer justice in Company’s settlement according to English Laws

14. T HREE P RESIDENCIES Madras (now Chennai) Bombay (now Mumbai) and Calcutta (now Kolkata) Madraspattanam, a fishing village from Vijaynagar Emperor Peda Venkata Raya in 1639- Fort St. George, India Calcutta ,1690 acquired zamindari three villages, Kalikata, Gobindapur, and Sutanuti from Moughal Subadar And what about Bombay ???

15. F ORT S T . G EORGE , C HENNAI White Town and Black Town of Early Madras, Vestiges of Old Madras (1640- 1800), Henry Devison Love (https://archive.org /details/in.ernet.dli .2015.530013)

16. F ORT W ILLIAM , K OLKATA The real center

17. B OMBAY Portuguese acquired under Treaty of Bassein (Vasai) entered between Sultan Bahadur of Gujrat and Kingdom of Portugal) Came under British Control when in 1661 Charles II of England married Catherine of Braganza and as part of her dowry Charles received the ports of Tangier and Seven Islands of Bombay

18. E NGLISH FORTS IN B OMBAY

19. G ERALD A UNGIER , F OUNDER OF M ODERN ‘ B OMBA Y ’ Within ten years population rose from 10,000 to 80,000 within 8 years Established first police force with local militia of Bhandari youth Establishment of Admiralty Court to try ‘Interlopers’, judge to be someone trained in Civil Laws

20. E ARLY A DMINISTRATION IN M ADRAS First Period 1639-1665 1639- It was acquired with full power of governance Madras was Agency and not Presidency No regular Proceeding Choultry Court for Natives Second Period 1665-1686 Mrs. Dawes Case of killing a slave girl Power of Governor and Council was extended to Agent Third Period 1686-1725 Establishment of Admiralty Court to be presided by a person trained in Civil Law- Why ?? The First Court to be run by a person trained in Law Sir John Bigs arrives a Judge advocate

21. E STABLISHMENT OF C ORPORATION AT M ADRAS 1686- First Corporation was established A mayor (to be elected) and 12 alderman and 60-120 Burgesses Members included Indians Among the first 60 burgesses 30 were Indians representing different castes Establishment of Mayor’s Court As was the tradition a Court known as Mayor’s Court also came in existence After Sir Bigs Company didn’t send any other lawyer so ‘layman’ presided the Court Appeal to lie before Governor and Council Punishments were still harsher in comparison to local sensitivity like Theft and Forgery was a capital offence

22. E ARLY A DMINISTRATIVE S ET U P AT B OMBAY (1686-1726) First Period 1668-1683 Controlled from Surat Court of Governor General and Council Charter of Bombay Transfer has given all administrative power to Governor General and Council Transfer Second Period 1683-1690 Charter 1683 – Admiralty Court established with Dr. St. John coming as a Judge First Trained lawyer to arrive (learned in civil laws) Decide cases according to the rules of equity and good conscience and laws and customs of merchants Conflict with governor gives it a bad start Dark Period 1690 –1718 ?? Third Period 1718-1726 A new Court with Chief Justice and nine other judges Four judges were Indian representing four principal communities of Bombay, Hindus, Muslims, Portuguese, and Parsis

23. http://www.columbia.edu/itc/mealac/pritchett/00g enerallinks/gilchrist/index.html http://www.columbia.edu/itc/mealac/pritchett/00g enerallinks/gilchrist/49part.html

24. M AYOR ’ S C OURT Established under Charter of 1726 Why?? Lack of proper testamentary courts , Company lost £ 300 in one such suite Otherwise need for a proper Royal Court to maintain discipline and orders among English merchants Important features A uniform structure for a Corporation for each Presidency Town A Mayor and 9 Alderman (two could be subject of local prince, rest has to naturally born subject of Crown– Note the deviation from earlier (Company) Madras Corporation where only members required to be Company’s Covenanted servant A Mayor’s court in each Corporation consisting of Mayor and Alderman (Quorum -3) Still No need to be a lawyer to be judge Appointment of Sheriff and Justices of Peace Final appeal to go to Privy Council

25. W ORKING OF C HARTER OF 1726 C HARTER It was meant for governing Englishmen Discord between Council and Mayor’s Court on power over natives Conflict of interest on superiority Applied English laws, common laws as well as statutory laws Administered English laws and totally ignored the local laws or laws of natives Conflict because of fundamental difference between English sensibility vis-à- vis Indian sensibility Resentment among Indians when applied to local population oath controversy Conflict because of fundamental difference between English sensibility vis-à- vis Indian sensibility Amendment in 1753 Provision for election for Mayor was scrapped Now Alderman were to be selected by Council and among them one was to be selected as Mayor Establishment of Court of Request for petty matter

26. C ALCUTTA

27. E ARLY A DMINISTRATION OF C ALCUTTA Grants of Zemindari of three villages gave administrative power with respect to those villages Not much is on record on working of Corporation of Calcutta established under 1725 Charter Battle of Plassey (1757) and Battle of Buxar (1764 ) changed the course of History Acquisition of Deewani Rights Establishment of Local offices for collection of revenues Subsequent Chaos Hastings Adalat System

28. R EGULATING A CT 1773 Concerns on growing corruptions in India and its impact on the politics and society of England Arrival of Clive from India to Home, the richest ‘self made’ man of Europe, ‘ Rotten Borough ’ ‘Bailout’ of East India Company by British Parliament Beginning of the Parliamentary Control over affairs of the Company: ‘Board of Control’ in England to direct and guide Board of Directors of Company Governor General and 4 member Council in Bengal (Madras and Bombay became subordinate) – Supreme Council Authorized Supreme Council to make Regulations for the governance of the British settlement in Presidencies and other fort areas Institution of Supreme Court at Calcutta, All regulations made by Supreme Council was to be registered with Supreme Court

29. B EGINNING OF THE A DALAT S YSTEM FOR M UFASSIL A REA Mufassil -- Areas beyond Presidency Town Company becomes Diwan of Moughal Emperor Significance of Diwani Diwani– Revenue head of Moughal Empire Firman that granted diwani rights didn’t clarify how and what revenue would be collected Birth of Dual System of Governance Diwani (Revenue and Civil Justice) and Crimnial Justice -1772

30. W ARREN H ASTINGS P LAN OF 1772 Establishment of the office of the Collector Primary task was to collect revenue and decide dispute arising in collection of revenue Mufassil Diwani Adalat Precursor of District Civil Court Collector to act as the Judge Sadar Diwani Adalat Governor General and Council – As a highest Court of appeal for civil disputes- Small Cause Courts for disputes up Rs 10 presided by local headman usually zamindar Criminal Justice System Responsibility of the Nawab Muffassil Fouzdari Adalat – each district headed by a Kazi and Mufti assisted by two moulavi –Collector to Supervise Sadar Nizamat Adalat- headed by Mohd. Reza Khan Naib Nazim

31. H ASTINGS P LAN OF 1774 (T EMPORARY M EASURES ) English Collectors were called of from districts and natives were entrusted with collection of revenue – Naibs Six Provincial Divisions Calcutta, Murshidabaad, Burdwan, Dacca, Dinajapur and Patna Company covenanted servants were appointed as head and members of provincial division –the idea was to entrust revenue functions to seniors of Company’s servants Heard appeal from Muffassil Diwani Adalat and also had original jurisdiction for civil and revenue disputes

32. H ASTINGS P LAN OF 1780 Separation of Revenue from Judiciary, Separate officers for Judicial and revenue works Jurisdiction of Provincial Mufassil Adalat was extended to cover all kind of Civil Disputes Refer matters up to Rs 100 to Zamindar or other respectable persons of the area– Giving birth to office of Munsif Native law officers only to expound law and not to decide facts and make final decision – Patna Case Appeal to go to Sadar Diwani Adalat Appointment of Impey as Judge of Sadar Diwani Adalat Impey drafted first civil code for functioning of Mufassil and Provincial adalats Recall of Impey No Change in the Criminal Justice System Raza Khan continued as naib nazim head of Sadar Nizamat Adalat Court of Remembrance was instituted in Calcutta, call for report

33. C ORNWALLIS 1786-1793 Champion of “Oriental Despotism” Model Builder No man in the ordinary service of the company to ever reach at the highest post To deal with the problems of land revenue: Permanent Settlement Improvement in the administrative machinery To introduce reforms in Judicial System Enhance British Reputation Cornwallis Code – implemented in Madras in Bombay

34. J UDICIAL R EFORMS -1787 Unification of all powers in the office of Collector (26 Districts) Collector was to be Chief Administrator for revenue collection, decide revenue disputes, Judge of Mufassil Adalat, also act as Magistrate Advised to keep his various functions separate from each others –e.g. to hear Revenue disputes in Mal Adalat only As a Judge of Mufassil Adalat to decide all civil disputes , appeal in matters involving Rs. 1000 to Sadar Diwani Adalat –From Sadar Adalat (for Rs. 5000 and above to King in Council Privy Council ) Court of Registrar for petty matters upto Rs. 200

35. R EFORMS IN C RIMINAL J USTICE S YSTEM Abolished office of Nawab Sadar Nizamat Adalat as the highest Court of Appeal for Criminal Justice – Governor General and Council Establishment of 4 Circuit Courts –to hold regular trial sessions in the district falling in their divisions Muffassil Fouzdari Adalat abolished- collector to act as a Magistrate and judge for petty offences Modified Mohammedan criminal Law

36. J UDICIAL P LAN OF 1793 Cornwallis Codes covering all facets of Revenue, civil, commercial, criminal, Police Separation of Judicial and Executive branch Mal Adalats abolished and matters assigned to Divani Adalat A judge (Company’s servant) in all revenue district (28) were appointed as Judge in Mufassil Diwani Adalat, to act as Magistrate –Appeal to 4 provincial Courts of Appeal Courts of Registrar and Munsif to try petty civil cases Recognition of Legal Professionals – learned in personal laws Abolition of Court fees Collectors were made accountable before Judges of Diwani Adalat

37. F INAL H IERARCHY POST C ORNWALLIS 1793 Sadar Diwani Adalat, Calcutta (Governor General and Council) 4 Provincial Court of Appeal (Divisional Level) (English Covenanted Servants) Mufassil Diwani Adalat (District Level) (English officers) Munsiffs (Rs. 50) and Registrar (Rs. 200) Sadar Nizamat Adalat, Calcutta, (Governor General and Council) Circuit Court (Touring) (English Covenanted Servants) Magistrates (Collector)/ District Muffassil Adalat  Cognizance Civil Criminal

38. F URTHER D EVELOPMENT L ORD W ELLESLEY (1798 TO 1805) Sadar Diwani Adalat (Three judges to be appointed by Governor General, Chief Judge must be a member of Council- Cornwallis (in his 2 nd tenure removed this condition) Provincial Court of Appeal (Divisional Level) (English Covenanted Servants) Mufassil Diwani Adalat (District Level) (English officers) Sadar Amin – A Native Judge- Lord Amherst in 1824 made it salaried post) Munsiffs (50) and Registrar (200) - Lord Wellesley Sadar Nizamat Adalat (Same as Sadar Adalat) Circuit Court (Touring) (English Covenanted Servants) Mufassil Diwani Adalat (District Level) (English officers) Magistrates (Collector) Civil Criminal

39. D UAL J UDICIAL S YSTEM  British Subjects between natives. Only Barrister were allowed to appear before Supreme Court No Jurisdiction over Revenue matter Appeal to Privy Council No Supervisory Power over Sadar Adalat Sup r e m e C o u r t u n d e r R e g u lating  Act1773, “ Charter Courts ” One Chief Justice and Two Puisne  Judges, appointed by Crown Jurisdiction over Calcutta town and over Company’s servant, English Laws, Hindu and Muslim  laws in civil and personal matters Adalat System established under Company regulation Mufassil Diwani Adalat at District to Appellate Court- Sadar Diwani & Nizamat Adalat at Calcutta No Jurisdiction over Englishmen Hindu and Muslim laws, Company's regulation Vakils recognized by Sadar Adalats Appeal to privy Council Independent of Supreme Court No Power to issue writ At Pr e s i d e nc y M ufa s s i l

40. L ORD B ENTINCK ’ S R EFORM (1828, 1833) Abolition of (Provincial) Circuit Court Appointed Commissioners of Revenue and Circuit 20 Divisions for whole of Bihar Bengal and Odessa hold session for ‘gaol delivery’ in districts and cities at least twice an year – later on this power was transferred to district courts giving birth to the modern office of District and Session Judge Power of Sadar Amin, district and city judges increased Munsif up to Rs. 300 and Sadar Amin up to Rs. 1000 Sadar Amin Principal Sadar Amin up to Rs. 5000 Establishment of Sadar Diwani Adalat and Nizamat Adalat in Allahabad (up to Banaras)

41. U NIFICATION UNDER I NDIAN H IGH C OURT A CT 1861 Abolition of Supreme Court and Sadar Adalats and in its place instituted a High Court to exercise all powers exercisable by abolished courts Calcutta, Bombay and Madars Writ jurisdiction Supervisory powers over other courts falling within their territory Jurisdiction Extraordinary –power to remove and try any suit pending in any court Appellate jurisdiction Original civil and criminal jurisdiction jurisdiction

42. A PPLICABLE LAWS AND J UDGES Ordinary civil jurisdiction Same law and Equity (and rule of good conscience) as applied by Supreme Court Appellate jurisdiction Same laws and equity (and rule of good conscience) as the court of original jurisdiction would have applied) Criminal jurisdiction IPC 1860 Judges Barrister with five years of standing Members of civil service of not less than 10 years of experience, 3 years as district judge Principal Sadar Amin for not less than 5 years Pleaders before Sadar Adalat for not less than 10 years * Not less than 1/3 rd have to be barristers and not less than 1/3 rd were to be from Civil Services

43. P OST 1861 More High Courts established e.g. Allahabad High Court (1866), Lahore High Court (1884), Patna High Court in 1918 (under a Letters Patent issued by British Crown), MP High Court (1936) and Gauhati High Court (1948) under Govt. of India Act 1935…. Federal Court under Government of India Act, 1935 Post independence, Constitution of India provided for a linear three level hierarchical judicial system (starting usually at the District (or sub-divisional level) with a Civil Court headed by District and Session Judge (now called Principal District Judge) under administrative supervision of High Court of the state established under article 226, 227 of the Constitution of India, Supreme Court at the top of it.

44. P RIVY C OUNCIL ‘T HE WORLD C OURT ’ Curia Regis (King’s Council): an assembly of all “tenants in chief”, All- important royal officials were selected by king from “ Curis-Regis. Out of this Curia Regis grew three different courts. They were 1) Court of Common Pleas, which basically resolved disputes between two subjects, 2) Court of Exchequers resolved revenue related disputes and finally 3) King’s Bench, The essential concern of the King’s Bench was with matters affecting the King other than purely revenue matters which were concern of the Exchequers. Gradually King’s Bench developed jurisdiction over the supervision of officials. Privy Council emerged from the same curia regis to advice king on the appeal from the ‘colonies’. Increase of number of cases because of expansion of British empire led to Judicial Committee Act, 1833 replacing the presiding ‘layman’ councilor judges with legal experts to hear cases. Privy Council was not a ‘court of law’ but an advisory Board whose duty was to report to His Majesty their opinion, His Majesty invariably accepted their opinion.

45. A PPEALS FROM I NDIA TO P RIVY C OUNCIL Started with Charter Acts of 1726 and 1753 Regulating Act provided for Appeal against decision of Supreme Court at Calcutta (later also against the decision of Recorder’s Court Bombay and Madras) Act of Settlement 1781 provided for appeal against the decision of Sadar Muffassil Adalats Indian High Court Act 1861 allowed appeal against the decision of High Courts It was the highest court of appeal against the decision of Indian courts till Federal Court (Enlargement of Jurisdiction) Act 1948 made Federal Court at Delhi replaced it. Appeal in Criminal cases was not a matter of right, In Civil cases the jurisdiction was based on value of the suits, post 1937 appeals in civil cases exceeding Rs 10,000

46. I NFLUENCE OF P RIVY C OUNCIL A great unifying force in the judicial administration of this country Laid down the foundation of the principles of modern Hindu and Muslims (personal) laws. Decisions of the Privy Council on Indian laws are still binding if not overruled by Supreme Court In 1934 British Government issued a White Paper to establish a ‘Supreme Court’ to hear appeal from Indian High Courts but it was not taken further. “Symbol of Slavery”

47. F EDERAL C OURT 1935 It was established under Government of India Act 1935 to hear appeal on the dispute arising from the Act Privy Council had appellate jurisdiction against the decision of Federal Court. Original Jurisdiction (Section 204): Disputes between Dominion and its Units Appellate Jurisdiction (Sec.205): On issues related to constitutional matters (i.e. involving 1935 Act) only if certificate is granted by High Court, in Civil and Criminal cases from 1948 (??) Advisory Jurisdiction (Sec 209): on the request of Governor-General, non binding View publication stats