UNIT 1 Administration of Justice in the Presidency Towns at Madras, Bombay, Calcutta.pptx

The history of the legal system in British India opens with the establishment of the East India Company. The East India Company was incorporated in England by the Crown’s Charter of 1600. The Company was given executive trading rights in Asia (including India), Africa and America.

1. ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWNS OF MADRAS, BOMBAY, CALCUTTA (1639 to1726) UNIT 1

2. INTRODUCTION The history of the legal system in British India opens with the establishment of the East India Company. The East India Company was incorporated in England by the Crown’s Charter of 1600. The Company was given executive trading rights in Asia (including India), Africa and America. All the members of the Company constituted themselves as General Court. The General Court was to elect annually the Court of Directors. The Court of Directors consisted of a Governor and 24 Directors. The, Court of Directors was to manage the entire business of the Company. The Governor and the Directors constituting the Courts of Directors were to be elected by the General Court for one year but any of them could be removed from his office even ‘before the expiry of his term of office by the General Court. The administration of justice and the development of Courts and judicial institutions during this period may be discussed under the following headings— I. Administration of Justice and Development of Courts and Judicial Institutions in the settlements of the East India Company (mainly in the Presidency Towns) during the period of 1600 to 1726. II. Administration of Justice and Development of Courts and Judicial Institutions in the Presidency Towns of the East India Company during the period of 1726 to 1773.

3. OBJECTIVE OF THE COMPANY It appears that the East India Company was incorporated to promote British trade and commerce in Asia (including India,) Africa and America and on account of it under the Charter of 1600, the Company was conferred with only those powers which were necessary to regulate its business and maintain discipline amongst its servants and they were not at all adequate for governance of any territory. But when the Company came into India and found the Indian kings disunited and unaware of the modern politics, the Company gradually inclined to acquire territory in India. Portuguese Occupation of Indian territories also inspired the Company to acquire territory in India. The acquisition of territories was also beneficial from the commercial point of view. The Company, thereby, could capture market for its goods. All these inspired the Company to acquire territories in India. At the time of incorporation, the object of the Company was commercial, but gradually its objects became political also. Since at its inception its object was commercial, it was conferred on by the Charter of 1600, only those powers which were necessary to regulate its business and maintain discipline amongst its servants, but when its object became political as well and it acquired territories in India, it needed the powers necessary for the maintenance of the territory and the British Crown cooperated with it and conferred on it more and more powers for this purpose.

4. ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWN OF MADRAS (1639 to 1726) In 1639, Francis Day acquired a piece of land from a Hindu Raja for the East India Company and constructed a fortified factory thereon. The Raja granted to the Company a village known as, ‘ Madraspatnam ’ and empowered the Company to govern and dispose of the government of the village. The people residing within the area of the fortified factory were Englishmen and other Europeans and therefore, the area of the factory (i.e., Fort) came to be known as ‘White Town’ and the people residing in the village Madraspatnam 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’. The judicial administration in both the towns was distinct. The judicial administration and development of Courts and judicial institutions in Madras before 1726 may be studied in three stages.

5. FIRST STAGE(1639-1665) ADMINISTRATION IN WHITE TOWN Before 1665, Madras was not a 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 a Council. The Agent and the members of his Council were to administer civil and criminal justice to the inhabitants of the White Town. The serious criminal cases were often referred by them to the Company’s authorities in England for advice.

6. DEFECTS IN ADMINISTRATION OF AGENT IN WHITE TOWN The judicial power of the agent and Council was vague and indefinite. The serious criminal cases were referred by them to the Company’s authorities in England for advice which involved much delay. The Agent and the members of his Council, who were to administer justice, were merchants and not lawyers. They were supposed to decide cases according to the English law, but actually they did not have even elementary knowledge of the English law. Consequently, they used to decide cases according to their wisdom and common sense. There was no separation between the executive and judiciary. The Agent and Council constituted both the executive and judicial authority for the White Town.

7. ADMINISTRATION IN BLACK TOWN The old judicial system was allowed to function. There was a village headman known as Adigar (i.e., Adhikari) who was responsible for the maintenance of law and order. Adigar administered justice to the natives at the Choultry Court according to the long established usages. The Choultry Court with the Adigar as the judge was to decide small civil and criminal cases. Thus, the Choultry Court was a Court of petty cases. It was not to hear the cases of grave offences committed by the natives. Even Agent in Council had no express authority from the Raja to decide them but they used to try such cases in their own way and then sought direction from the Raja who invariably ordered such cases to be decided according to the English law. Its reason appears to be this that the Company had no power to inflict death sentence under the Charter of 1600 and therefore the Agent in Council could inflict such a sentence only under the authority of the local sovereign. The appeals from the Choultry Court were to be heard by the Agent-in-Council. An Indian native, Kannappa , was appointed Adigar but he misused his power and consequently he was dismissed from the office and the English servants of the Company were appointed to sit at the Choultry Court.

8. DEFECTS IN ADMINISTRATION AT BLACK TOWN There was no fixed procedure for the trial of serious criminal cases and the procedure varied from case to case. The judge of the Choultry Court was a layman and not a lawyer. Choultry Court could decide only small civil and criminal cases. It was not empowered to decide the serious criminal cases like murder, etc. There was no separation between the executive and the judiciary. The Agent and Council constituted both the executive and judicial authority. They were to hear appeals from the Choultry Court and also to decide the cases of grave offence according to the English law on the express command of the Raja.

9. SECOND STAGE-(1665-1683) In 1665, one Mrs. Ascertia Dawes was charged with the commission of murder of her slave girl and the Agent-in-Council referred the case to the Company’s authority in England for advice. The Company raised the status of the agency of Madras to that of Presidency and the status of Agent to that of the Governor. This step was necessary because the powers conferred on the Company by the Charter of 1661 could only be exercised by the Governor and Council and not by the Agent and Council. Under the Charter of 1661, the Governor and the Council were authorised to hear all types of civil and criminal cases including the cases of capital offences like murder. After raising the status of agent to the status of Governor, the Company directed the Governor and Council of the factory at Madras to conduct trial of Mrs. Dawes with the help of a jury. The case of Mrs. Dawes was tried by the Governor and Council with the help of the jury and an unexpected verdict of not guilty was given and consequently Mrs. Dawes was acquitted. Later on in 1678, the whole judicial administration was reorganised . The judicial administration in both the towns (White Town and Black Town) was improved to some extent.

10. ADMINISTRATION IN WHITE AND BLACK TOWN (SECOND STAGE) White Town.—The Court of Governor and Council was declared to be the High Court of Judicature. It was to hear and decide all civil and criminal cases of the inhabitants of the White Town with the help of a jury. Besides, it was to hear and decide serious criminal cases of the Indians inhabiting in Black Town. It was also to hear appeals from the Choultry Court with the help of a jury. It was to decide cases according to English law. The Court was to meet twice a week. Black Town.—The Choultry Court was also reorganised . The number of the judges were increased from two to three. All the judges were Englishmen. At least two of them were to sit in the Court for two days in each week. The Choultry Court was empowered to hear petty criminal cases. It was also empowered to hear civil cases up to 50 Pagodas and the cases of a higher value with the consent of the parties. The Court of Governor and Council (High Court of Judicature) was authorised to hear appeals from the Choultry Court.

11. MERITS AND DEMERITS OF ADMINISTRATION (SECOND STAGE) During this period, arrangements were made for regular meetings of the Courts. The Court of Governor and Council ( i.e , the High Court of Judicature) and the Choultry Court both were to meet twice a week. This lessened the delay in the disposal of the cases. The jurisdiction of the High Court of Judicature ( ie ., the Court of Governor and Council) and the Choultry Court was well defined. Thus, a hierarchy of Courts with well defined and demarcated jurisdiction was established in Madras. There was a great need of a regular Superior Court. The High Court of Judicature consisting of the Governor and Council was established to meet the need.

12. DEMERITS OF ADMINISTRATION (SECOND STAGE) The judges of the High Court of Judicature (i.e., the Court of Governor and Council) and the Choultry Court were not lawyers but laymen. They did not have even elementary knowledge of the English law. Consequently, they used to decide cases according to their wisdom, common sense and the sense of justice. The Governor and Council, like their predecessors, the Agent and Council, used to refer the serious criminal cases to the Company’s authorities in England for advice which involved considerable delay. In a case, dated January 31, 1678, an Englishman who was charged with the commission of murder, was confined to the prison for 31 months without trial as his case had been referred to the Company’s authorities in England for advice. The reason for such reference does not appear to be the lack of judicial power because under the Charter of 1661, the Governor and Council were authorised to hear all types of civil and criminal cases including the cases of capital offences and they could award any kind of punishment including death sentence. The reason for such reference appears to be the lack of legal knowledge on the part of the Governor and Council. The Governor and Council were merchants and not lawyers and they were conscious of their lack of legal knowledge. As a result, they could not dare to decide serious criminal cases like murder, etc. without consulting the Company’s authorities in England. The separation between the executive and the judiciary could not be maintained. The Governor and Council constituted both the executive government of the place as well as the High Court of Judicature. The Choultry Court was empowered to take cognizance of small matters only. Thus, it was not conferred on any significant judicial power.

13. THIRD STAGE-1683-1726 During this period two important Courts, the Courts of Admiralty and the Mayor’s Court were established. In 1683, the British Crown granted a Charter to the East India Company authorizing it to establish Courts of Admiralty. In 1688, a Corporation and a Mayor’s Court were established at Madras under the Charter of 1687 issued by the East India Company and not by the British Crown. The Mayor’s Court was a part of the Corporation.

14. COURT OF ADMIRALTY-NEED, COMPOSITION AND FUNCTIONS NEED: (a) Under the Charter of 1600 the East India Company was conferred on exclusive trading right in East Indies including India, Asia and Africa and no British subject was permitted to carry on trade in these areas without a license from the Company. The right of the Company was being infringed by other British traders. On account of it the need of a Court having jurisdiction to punish such traders was felt. (b) The crime of piracy ( eg , sea dacoity) on the high seas was on the increase. To deal with it, the need of a Court having jurisdiction to hear and decide the cases of piracy was felt. COMPOSTION: Under the Charter of 1683, the Court of Admiralty was to consist of a person learned in civil law and two merchants, all to be appointed by the Company. FUNCTIONS: (a) It was to hear and decide all mercantile and maritime cases concerning persons within the Charter limits of the Company. (b) It was also to hear and decide all cases of forfeiture of ships, piracy, trespass, injuries and justice according to the English law. (c) In certain cases, the appeals from Mayors court were also heard by the admiralty court.

15. ADMIRALTY COURT This court applied the rules of equity, good conscience and the laws and customs of merchants. John grey was appointed as Judge of the court. In 1687, Sir Joh Biggs, a professional lawyer was appointed as judge advocate (chief justice). This court became the general court of the city for all practical purposes in settling all civil and criminal cases. After the death of Sir John Biggs in 1689, the Admiralty Court ceased to operate. There was no Court having jurisdiction to hear appeals from the Mayor’s Court. In this critical situation, the Governor-in-Council temporarily established a Court of Judicature consisting of the Governor as Judge-Advocate (i.e., Chief Justice) and two members of his Council as Judges. Two merchants were associated with them to assist them in regard to native language, etc. This Court remained in existence till 1692 when a new Judge-Advocate, John Dolben was sent by the Company from England. John Dolben was well-versed in law and used to decide cases impartially without any pressure. He could dare to give judgment even against the Company. The Company was not happy with him and ultimately in 1694, he was dismissed on the charge of taking bribes. He was replaced by William Frazer. 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.

16. MAYOR’S COURT In 1688, a Corporation and a Mayor’s Court were established at Madras under the Charter of 1687 issued by the East India Company and not by the British Crown. The Mayor’s Court was a part of the Corporation. It was to consist of a Mayor, 12 Aldermen and 60 or more Burgesses. The Mayor and three senior Aldermen were always to be covenanted British servants of the Company and the remaining nine Aldermen could belong to any nationality. Thirty of the sixty Burgesses were to be heads of several castes. The first Mayor, Aldermen and 29 Burgesses were nominated by the Company. The Mayor and three of the Aldermen so nominated belonged to the Governor’s Council. The Mayor was to continue in office for one year and the Aldermen were to continue during their lives or residence in Madras. The Mayor was to be elected every year by the Aldermen and the Burgesses from amongst the Aldermen. However, the outgoing Mayor could be re-elected by the electorate. A vacancy amongst Aldermen was to be filled by the Mayor, the remaining Aldermen and the Burgesses from amongst the Burgesses. The Burgesses were to be elected by the Mayor and Aldermen. The Mayor could be removed by Aldermen and Burgesses and any Alderman could be removed by the Mayor, Aldermen and Burgesses. The Governor and Council were empowered to remove any Mayor, Aldermen and Burgesses and to appoint anyone in the place so falling vacant.

17. The Mayor and the three of the Aldermen were to be Justices of peace. The Judges of the Mayor’s Court were laymen and not experts in law and therefore a provision was made in the Charter for the appointment of an expert in law as Recorder to assist the Judges of the Mayor’s Court in deciding cases. Sir John Biggs, the Judge-Advocate of the Admiralty Court, was appointed the first Recorder of the Mayor’s Court. The Mayor and two Aldermen constituted its quorum. The Mayor’s Court was empowered to hear and decide civil and criminal cases. It was also authorized to punish offences by corporal punishment, imprisonment and fine. It was to decide cases according to justice and good conscience and laws enacted by the Company. In civil cases where the value of the case was more than 3 Pagodas, and the criminal cases where the offender was sentenced to lose life or limb, the appeals from the Mayor’s Court lay to the Court of Admiralty. When after 1704 the Court of Admiralty ceased to sit regularly, appeals from the Mayor’s Court lay to the Governor and Council. After 1712, it was made clear that the Mayor’s Court could award death sentence in cases of natives but it could not award death sentence in cases of Englishmen.

18. REASONS FOR THE ESTABLISHMENT OF CORPORATION AND MAYOR’S COURT The Madras Government had levied a house-tax which was opposed by the Hindus in the Black Town by resorting to strike methods, such as, abandoning their duties, shutting up their shops, etc. The Company thought to set up a Corporation of the natives mixed with some Englishmen because in the view of the Company such Corporation could make taxation of that kind more acceptable to the native population. The Company thought that by setting up of such corporation of the caste-leaders appointed as Aldermen and Burgesses, they would be ready to tax themselves and the inhabitants generally for various municipal purposes

19. DEFECTS IN THE MAYOR’S COURT There was no separation between the executive government of the settlement and the judiciary. The Mayor and some of the Aldermen were members of the Governor’s Council, which was the executive government of Madras. The Governor and Council could remove any Mayor, Alderman or Burgess and appoint anyone in the place so falling vacant. The Judges of the Mayor’s Court were laymen and not lawyers. Since they had no knowledge of the English laws, they used to decide cases according to their common sense and sense of justice. Consequently, there was no uniformity and consistency in their decisions. Although an expert in law was appointed as Recorder to assist the judges, but the condition could not be improved. Less importance was given by the judges to the advice and opinion of the Recorder. The Judges of the Mayor’s Court were not honest and impartial. They could easily be tempted.

20. ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWN OF BOMBAY (1668 to 1726) The Island of Bombay was acquired by the Portuguese from the King of Gujarat in 1534. In 1661, this Island was transferred by the Portuguese King to the British Crown as a dowry on the marriage of his sister. In 1668, the British Crown transferred this Island to the East India Company for annual rent of £ 10. The British Crown transferred the Island of Bombay to the East India Company by granting a new Charter, known as the Charter of 1668. The Charter empowered the Company to make Laws and Ordinances for the good governance of the Island of Bombay and the inhabitants thereof and also to impose punishments (including death sentence), penalties, etc. However, these laws, and punishments were required to be consonant with reason and as near as may be agreeable, to the laws of England. The power to enact these laws was vested in the Company’s General Court or their Court of Committees and they had to be engrossed under the Company’s common seal before publication. Besides, the Charter of 1668 also empowered the Company to establish Courts to judge and determine all actions, suits and causes. The proceedings of such Courts were to be like those established and used in England. The Company exercised the powers granted to it under the Charter of 1668 and enacted the laws for the Government of Bombay. The laws so framed by the Company were brought to Bombay in 1670. The administration of justice and development of Courts and judicial institutions in Bombay before 1726 may be studied in three stages.

21. FIRST STAGE-1670-1683 At an early stage, Bombay was under the control of the Surat Presidency. The Governor of the Surat Factory was ex officio Governor of Bombay. Deputy Governor and Council were appointed to administer Bombay under the control and Supervision of the Governor of the Surat Presidency. Gerald Aungier was the Governor of the Surat Presidency and he was ex officio Governor of Bombay also. He was much more interested in introducing a sound judicial system in Bombay. Aungier is said to be the true founder of Bombay. Due to his efforts, the judicial Plans of 1670 and 1672 could be made to improve the judicial system in Bombay.

22. JUDICIAL PLAN OF 1670 According to the Judicial Plan 1670, the whole Island of Bombay was divided into two divisions —one division consisted of Bombay, Mazagaon and Girgaon , while the other division consisted of Mahim, Parel, Sion and Worly . A separate Court was established for each division. Each Court consisted of 5 Judges. The custom officer of each division who was an Englishman was authorised to preside over the respective Court. Three judges were to constitute a quorum, some Indians were also appointed Judges. The judges were not paid any emoluments. The Court was empowered to decide cases of small thefts and civil action up to 200 Xeraphins . An appeal from the Court of each division could be heard by the Court of Deputy Governor and Council. Thus, the Deputy Governor and Council constituted a Superior Court. It was to hear appeals from the Court of each division. Besides, it was to hear and decide all cases beyond the jurisdiction of divisional Court. Thus, it was to hear and decide civil cases over 200 Xeraphins and all serious criminal cases like felony, murder, mutiny, etc. The Court of Deputy Governor and Council was to try cases with the help of a jury. An appeal from the Court of Deputy Governor and Council was allowed to the Governor and Council at Surat only in cases of absolute necessity.

23. DEFECTS IN THE JUDICIAL PLAN OF 1670 The administration of justice was in the hands of traders who did not have even the elementary knowledge of the English law. Consequently, they used to decide cases according to their common sense and sense of justice and not according to the English law. There was no separation between the executive and the judiciary. The judicial and executive, both the powers were vested in the same persons. Aungier was aware of these defects. He requested the Company to send a lawyer from England. The Company advised him to select experts in law from amongst the Company’s servants in India. Aungier selected Mr. George Wilcox and with his advice and co-operation, he prepared a new judicial plan known as Judicial Plan of 1672, for improving the existing judicial system in Bombay.

24. JUDICIAL PLAN OF 1672 By a government proclamation, August 1, 1672, the Portuguese laws which hitherto were the laws applied in the Island of Bombay were abolished and replaced by the English law. Consequently, a new judicial plan, known a the Judicial Plan of 1672 was prepared taking into account this impartial and fair justice. The administration of justice was inexpensive. The court-fee was very moderate. The poor plaintiffs could sue as a pauper. The laws and procedures to be followed by the Courts were settled. It was made clear that these Courts would follow the English substantive and procedural laws as far as possible, In the administration of civil justice; the Courts were to follow the procedure in force in England with less technicality. Thus, the procedures to be followed by the Courts were very simple. The establishment of the Court of Conscience to decide petty civil cases lessened the burden of the Court of Judicature as well as the unnecessary hardships to rm litigants. After the establishment of such a Court, it was possible to dispense justice to poor litigants without any expenditure. Besides, the establishment of Panchayats to decide cases amongst persons of their own castes who agreed to submit the controvecsies to their arbitration was also to make the administration of justice less expensive and speedy. Thus, every attempt was made to lessen problem of law’s delay. The judge of the Court of Judicature was not allowed carry on private trade or business, but he was granted a salary Rs. 2,000 per year. This provision was made to encourage him to take interest in the judicial administration and also to put him above the temptation of bribery.

25. The above plan was implemented by Aungier with great pomp and ceremony. Aungier was an able administrator and he ‘d special emphasis on the establishment of independent judiciary. It has been stated that he laid down the foundation of British Justice in Bombay. However, even during this period the separation between the executive and the judiciary could not be maintained. So long as Aungier was Governor, the Judiciary was paid much respect, but after him the later Governors could not follow the same tradition and the judiciary was considered subservient to the executive. As has been stated above, George Wilcox was the first Judge of the Court of Judicature. He died in 1674. After his death James Adams was appointed the Judge of the Court of Judicature. He continued in office for few months only. In 1675, Niccolls was appointed Judge in the place of James Adams. Niccolls raised a Jaudable voice for judicial independence in India, unfortunately, it was taken as insubordinate and insolent behaviour and he was dismissed from the office. The Court of Judicature attached the lands of Roberts Fisher. The Bombay Council directed Niccolls , the judge of the Court of Judicature to remove the attachment but he refused to follow the direction on the ground that it was against the oath taken by him. It caused much irritation to the Bombay Council. After sometime Niccolls criticised the verdict of the jury in a case and the Bombay Council found an opportunity to suspend him.! Actually he was suspended for his quarrel with the Bombay Council and the quarrel was the result of his bold step to make the judiciary independent of the executive control. After his dismissal, Gray was appointed judge in his place. Gray continued in the office till 1683 when Keignwin’s rebellion held the Island of Bombay and thus the judicial plan of 1672 came to an end. The rebellion was suppressed and Bombay was surrendered by it to the Company in 1684.

26. SECOND STAGE-1684-1690 When Keignwin’s rebellion surrendered the Island of Bombay to the Company in 1684, the Company set up regular judicial system at Bombay. In 1684, a Court of Admiralty was established in Bombay under the Charter of 1683. It was established on the same lines as in Madras. The Court was established to decide admiralty and maritime cases but later on it began to decide civil and criminal cases also. The Court of Admiralty was to consist of a Judge learned in the civil law and two other persons choosen by the Company. The Judge was to be assisted by these two persons in the administration of justice. Dr. St. John was appointed as Judge-Advocate of the Admiralty Court. He was considered to be an expert in civil law. The authority of the Admiralty was not sufficient to cover all civil cases. A Court of Judicature was established. Dr. St. John was authorized to act as the Chief Justice of the Court of Judicature also. Dr. St. John was inspired by the spirit of judicial independence which caused much annoyance to the Bombay Council and the Governor, Child. Child, the Governor, had no respect for the judiciary and considered the judiciary subservient to the executive.

27. Dr John took some evidence on some charges brought to his notice against the Governor, Child. Child directed Dr. John not to take evidence but Dr. John refused to follow his direction on the ground that he was bound by oath not to conceal information brought to his notice against any person. The Governor, Child, had no faith in equality before law and therefore he was annoyed and an open conflict between St. John and Child began. The power of Dr. John to act as Chief Justice of the Court of Judicature was withdrawn, The Admiralty Court was forfeited of its civil and criminal] jurisdiction. Anew Court with Vaux as the Judge was established to decide civil and criminal cases. Dr. John criticised the appointment of Vaux as Judge of the new Court on the ground that Vaux was not an expert in law and member of the Bombay Council. Again a conflict between Dr. John and Bombay Council arose over the issue whether or not the Bombay Council was mpowered to hear the appeals from the Court of Admiralty. Dr. ohn expressed the view that the Bombay Council had no such er under the Charter of 1683. Ultimately in 1687 he was ‘ smissed from his office. After his dismissal, the Deputy Governor of Bombay became the Judge of the Admiralty Court. In 1685 Vaux was appointed Judge of the Admiralty Court also, and he remained in the office till 1690. In 1691, Siddi Yakub, Admiral of the Moghul Emperor, attacked Bombay and due to it, the judicial system of Bombay came to an end. From 1690 to 1718 there was no Court in Bombay and the Governor-in-Council used to decide cases in summary and rough manner.

28. THIRD STAGE:1718-1726 On 25th March, 1718, the Court of Judicature was restarted. The Court of Judicature consisted of an English Chief Justice, five English Judges and four Indian Judges. The four Indian Judges represented the four principal communities, namely, Hindus, Mohamedans , Portuguese, Christians and Parsis . The Chief Justice and English Judges were members of the Governor’s Council. The three English Judges constituted the quorum of the Court. The Court was to sit once a week. The Court of Judicature was empowered to decide all civil, criminal and testamentary cases. It was conferred Probate and Administrative jurisdictions also. The cases were to be decided by it according to law, equity and good conscience and Company’s rules and ordinances. It was required to give due consideration to the customs and usages of the Indians. It is notable that no provision was made for jury trial. An appeal from the Court of Judicature could be heard and decided by the Court of Governor and Council in cases where the amount involved was hundred rupees or more. However, a notice to file an appeal was required to be given to the Chief Justice within 48 hours of the judgment. The power to pass capital sentence was reserved to the Court of Governor and Council. The Court, instead of itself passing judgment and sentence, referred all such cases to the Governor and Council with full account of their proceedings. The Court-fee was moderate.

29. MERITS During 1690 to 1718, there was no Court in Bombay and therefore the establishment of a Court in 1718 was itself an important event. It has been rightly stated that the "Court though its administration of justice was rough and ready and though it fell short of the ideals that attended its establishment in Aungier’s time, clearly served a useful purpose during the ten years of its renewed existence up to the 10th Feb., 1728, when the Mayor’s Court was established in its place. The appointment of Indian Judges' was also a good feature of the judicial system established during this period. They could enlighten the English Judges with regard to the customs and traditions of the natives with which the Englishmen were not familiar. The appointment of Indian judges enhanced the efficiency of the Court in dealing with the native civil and criminal cases. The court was to give due consideration, to the customs and usages of the Indians and thus provision was made to protect the customs and traditions of the natives. The administration of justice was made cheap and speedy. The Court-fee was moderate.

30. DEMERITS The whole judicial administration was executive oriented. The judiciary was kept under the thumb of the executive (i.e., the Governor and Council). The Chief Justice Parker was dismissed in 1720 and the Chief Justice, John Braddyll was dismissed in 1721 on account of their quarrel with the Bombay Council and the quarrel was the result of their refusal to subordinate their judgments to the wishes of the executive. The laws and procedures to be followed by the Court were not settled. The uncertainty resulted in grave injustice and lack of uniformity in punishing the criminals. No provision was made for a jury trial. The status of the Indian Judges was not equal to that of the English Judges. The role was that of assessors or assistants Nee Dente eee to the English Judges. For the purposes of a quorum, the Indian Judges were not taken into account. The aforesaid judicial system continued till 1728, when it was replaced by the Mayor’s Court established at Bombay under the Charter of 1726.

31. ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWN OF CALCUTTA (1690 to 1726) In 1690, some Englishmen landed at Sutanati on the bank of the river Hooghly and constructed a fortified factory, named as Fort William. In 1698, the Subedar of Bengal granted Zamindari rights of three villages, Calcutta, Sutanati and Govindpur to the East India Company. After this grant the status the Company was raised to that of Zamindars and the Company was entitled to exercise all those powers which were ercised by the Zamindars under the Moghul administration and judicial system. Zamindars had authoritv to collect revenue and dminister justice to the people of his Zamindari. Consequently, r being Zamindar the Company acquired even judicial powers er the native inhabitants of its Zamindari. In 1699, the status of Calcutta was raised to that of a Presidency and Governor and Council were appointed to administer the settlement. In 1700, an English Officer, known as Collector was appointed to act as Zamindar on behalf of the Company. He used to be a member of the Governor and Council. The Collector was empowered to collect revenue and decide civil, criminal and revenue cases pertaining to the Indian inhabitants of the settlement. The Collector used to decide civil cases in a summary manner according to the customs and usages of the country and in their absence, he. was to decide cases according to the principles of natural justice and- equity. The appeals from the Collector’s Court could be heard by the Governor and Council. The petty civil cases pertaining to the English people could be decided by the Collector, but the important civil cases were to be decided by the Governor and Council.

32. The Collector was also responsible for the collection of revenue from the native inhabitants of Zamindari. They were to decide revenue cases also. The appeals could be heard by the Governor and Council. The Collector was to decide criminal cases of the native inhabitants of the Zamindari. He used to decide such cases summarily without jury. Whipping, fines, imprisonment and work on road were the important punishments awarded by the Collector in such cases. The death sentence was not inflicted unless it was confirmed by the Governor and Council. The appeals from the Collector’s Court were to be heard and decided by the Governor and Council. The Collector used to take - cognizance of petty crimes committed by the Englishmen, but the serious criminal offences committed by them were to be tried by the Governor and Council. The practice of the Company was different from that of other Zamindars in some respects. The death sentence awarded by the Collector was to be confirmed by the Governor and Council, while the death sentence awarded by the other Zamindars was to be confirmed by the Nawab at Murshidabad. Besides, the appeals from the Collector’s Court of other Zamindars lay to the Nawab’s Courts.

33. DEFECTS The administration of justice was not of a high order. The Collector was over empowered. He was to collect revenue and also to decide civil, revenue and criminal cases. On account of the over burden he could not discharge his duties properly. He paid more attention to the collection of revenue than to the administration of justice. The whole judicial administration was executive oriented. The Collector, an executive officer, was vested with the judicial power also. The Governor and Council, the executive authority, were conferred on ‘the power to hear appeal from the Collector’s Court. The serious’ criminal cases pertaining to the Englishmen were to be tried by the Governor and Council. Thus, the Collector and Governor-in-Council were to exercise all judicial and executive powers. This judicial system continued till 1727, when Mayor’s Court was established under the Charter of 1726 and this judicial system was replaced by a new judicial system.

34. FEATURES OF ADMINISTRATION OF JUSTICE IN THE SETTLEMENTS OF EAST INDIA COMPANY BEFORE 1726 1. Administration of Justice was executive ridden-Before 1726, the administration of justice in the settlements of the East India Company was executive oriented. There was no separation between the executive and judiciary. The executive had power to appoint and remove Judges. In short, the judiciary was under the control of the executive. The Agent or Governor-in-Council of a factory of the East India Company had both executive and judicial powers. The Company established its first factory at Surat in 1612 and in 1615 Englishmen were allowed by the Moghul Emperor - to live according to their own customs, traditions and laws and the disputes among the Englishmen inter se were to be decided by the President of the Factory. Thus, the President and Council of the Factory, the executive, were conferred the judicial power also. 2. There were non-professional judges in the judicial administration. The judges of the Company’s Courts were not lawyers but laymen. They were supposed to apply the English law but they did not have even the elementary knowledge of the English law. Consequently, they used to decide cases according to their own sense of justice. As a result, uncertainty prevailed in the judicial administration. An attempt was made to introduce lawyer-judges under the Charter of 1683 by providing that the Judge-Advocate (i.e., the Chief Judge) of the Admiralty Court must be an expert in civil law.

35. 3. The judgments delivered by the Company’s Court not recognized by the Englishmen and the Court in England. The whole judicial administration was rough. Most of the judges were corrupt and they did not have any high moral values. They could easily be tempted. They had no knowledge of the law. Consequently, their judgments delivered by them were not recognized by the Englishmen and Courts in England. Their decisions were not regarded as authoritative asa those of the Courts in England. 4. The judicial system in the Company’ settlements was Rot uniform. . Till 1726no uniform judicial system could be introduced in the Company's settlements. Each settlement had its own judicial system distinct from that of the other settlements. It was the Charter of 1726 which introduced for the first time a uniform judicial system in the three Preside ncy Towns Calcutta and Madras