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LEGAL HISTORY

PRESIDENCY TOWN OF CALCUTTA

Submitted to – Dr. Mohd Khalid Submitted by – Utkarsh Kandpal

(2nd year, 3rd semester)

Faculty of Law
Jamia Millia Islamia
New Delhi
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Acknowledgement

It gives me immense pleasure and gratitude to thank my Legal History

teacher, Dr, Mohd Khalid who gave me the golden opportunity to do this
wonderful project which helped me in doing a lot of research and I came to
know about so many new things. I am really thankful to him.

Secondly, I would also like to thank my parents and friends who helped me a
lot I finalizing this project within the limited time frame.

Yours sincerely,
Utkarsh Kandpal
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Contents

S.NO TOPIC PAGE NO.

1 Introduction 4

2 The history of legal sytem in British India 5

3 Administration of Calcutta 6

4 Provision of charter of 1726 8

5 Supreme Court of Calcutta 12

6 Leading Cases 14

7 Warren Hastings and his Reforms 17

8 Charter of Calcutta High Court 1865 21

9 Bibliography 24
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INTRODUCTION

History comprises of the growth evolution and development of the legal system in
the country and sets forth the historical process whereby a legal system has come to be
what it is overtime. The legal system of a country at given time is not creation of one man
or of one day but is the cumulative fruit of the endeavor experience thoughtful planning
and patient labor of a large number of people through generation.

With the coming of the British to India the legal system of India changed from
what it was in the Mughal period where mainly the Islamic law was followed. The legal
system currently in India bears a very close resemblance to what the British left with.

As per the need of the changing times the changes and amendments were made but
the procedure which is followed not has its root in the era of British India. Little did the
traders of the English East India Company (EIC) while establishing their trade in India
knows that they would end up establishing their rate for about 400 years here. But the
evolution of law as it today did not came about in one go altogether. It was the presidency
towns individually that were first affected by this change in hands of the governance of
India after which the steps towards amalgamation of the judicial system were taken by the
Charter 1726 and 1753. To improve upon this under the regulating Act 1773. Supreme
Court in the presidency town and then under the Act of 1798 the recorders Court at
Madras and Bombay were established. This were ultimately replaced by the establishment
of High Court Act 1861 which are still running in the country it was only after
Independence in 1950 that the Supreme Court was established reforms and codifications
were made in the pre-post-independence era and are still continuing.
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THE HISTORY OF THE LEGAL SYSTEM IN BRITISH

INDIA OPENS WITH THE ESTABLISHMENT OF EAST INDIA
COMPANY
The company incorporated in England by the crowns Charter of 1600. The
company was given executive trading right in Asia including India, Africa and America.
All the members of the company constituted themselves as general court it 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 the court of director were
to be elected by the general court for 1 year but any of them might be removed from his
office even before the expiry of his term of office by the general Court.

OBJECT OF THE COMPANY

Actually the company appears that to promote British trade and commerce in Asia.
The company was conferred on 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 the company came to India and they were found the Indian Kings disunited
and unaware of the Modern Politics. They realized they can dominate the territory in India
the company gradually and gradually inclined to acquire territories in India. The company
thereby could market for its goods. At the time of the incorporation the object of company
was commercial but gradually and gradually its object became political also.

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 –

• 1600 to 1726 is the first period.

• 1726 to 1773 is the second period.

• Administration of justice and development of East India Company – presidency

town.

ADMINISTRATION OF JUSTICE IN CALCUTTA 1690- 1726 –

1. Mughal Judicial system 2. Kaziz and Courts 3.Nawabs Courts

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Administration of Calcutta (presidency town in 1699)

Historical Perception in Calcutta Town (1690-1726)
(Zamidari Judicial, Kazi and Court, Nawab Court)

Origin: In the year 1668, the grandson of Aurangzed, Azimush-shan, and the Subahdar of
Bengal gave Zamindari of villages, Calcutta, Sutanati and Govindpur for annual revenue
of 1195 Rupees to the East India Company.
Collector post (Civil, Criminal and Revenue)

Appointed: In the December 1699, Calcutta became Presidency Town and Governor was
appointed to administer the settlement. As a zamindar company got all the powers just
like other zamindars of that time. Bengal zamindars. In Moghul Empire, zamindars got
judicial powers, but collected the revenue and maintained law and order in the zamindari
area or villages. For judicial purpose that time Kazis court were established in each
district,parganah and villages. They handled civil and criminal matters. Normally
village Panchayat solved all problems, In Hindus, elders or Brahmins solved the
problems. The judicial system was simple, as everyone knew each other and transactions
of each other.Moghul Kings never paid any attention to judicial system that time nothing
was organized.

Post: The post of Kazi was sold many times , 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 demanded 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 , 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.

Important points of this charter: The importance of this charter is that this charter
introduced Uniformity of justice system in all 3-presidency towns. The charter established
civil and criminal courts in each presidency towns. The 2nd important point is that before
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1726 the courts got authority from the company but after this charter the courts got their
authority from the royal British king , The courts enjoyed same status just like the courts
which were present that time in England.

1726: With the charter of 1726, the appeals from courts in India went to the Privy Council
in This way English law system became accepted to Indians, Indians did not find it
foreign and Indians did not have any other judicial system as such. With this charter in
each presidency town local legislature was established. Charter of 1726 is also known as
judicial charter as this is the beginning of development of Indian law system and
judiciary.

Important Fact in that Town

Zamindari rights: three villages Calcutta, Sutanati and Govindpur to the English company
and this town is different from the other two presidency town in 1699 it’s became presidency
town and its governor and council will look out the administration and judicial part in
Calcutta. The collector was a company officer appointed by them only.

Civil cases : collector will pass the civil court or court of cutchery and ordinarily civil cases
solved by arbitration decision based on customs and usages with help of natural justice and
equity if contradiction in customs or no customs he also collect the revenue arrears and their
cases appeal to the governor and council.

Criminal cases: Company adopt the existing Mughal pattern as a faujdari court presided by
an English collector was decided criminal cases and punished by whipping, fines, imposing,
and banishments. Capital punishments given only on the permission governor or president
and council of Calcutta. Death sentence is by whipping not by hanging. For serious crimes
the governor and council were authorised to try by the charter of 1661.

Collector power:

1. Civil cases

2. Revenue cases

3.Criminal cases

4.Judicial and executive power.

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5.Illiterate and ignorant person become qazi for solving judicial matters.

Provisions of charter of 1726

Main Reasons or Aims of Issuing the Charter of 1726—The main reasons which
necessitated the issuing of Charter of 1726 are as follows—

1.The judicial administration and the working of the courts, in the three Presidency towns
of India was unsatisfactory.
2. With the growth in Company's trade and commercial activities in India, the
population of British Settlements had increased considerably, and Leflore, more
cases were coming to the courts for adjudication.
3. The Company desired that the power of courts should be derived from a
competent authority so that their decisions would have a binding force and Uniformity in
judicial administration could be achieved.
4. Encouraged by the successful working of the Corporation at Madras, the Company
wanted to establish similar Corporations at Bombay and Calcutta also.

Many Englishmen who settled in India died leaving behind them considerable movable and
immovable property. This created problems before the Company relating to distribution
and disposal of their assets. Although, the Mayor's Court of Madras established in 1687
was empowered to decide testamentary cases but its decisions were not recognised by the
Court in England because it was a Court of the Company and not of British Crown.
Therefore, the Company was involved in unnecessary litigation in England at the instance
of the relatives of the deceased who died intestate in India. To avoid this, there was a need
of a court in each Presidency which could take cognizance of testamentary and intestate
succession cases deriving their authority from the British Crown. Thus, in order to solve
the above mentioned problems and to establish an effective administration of justice in the
Company's settlements in the three presidencies, the Judicial Charter was granted by the
British King George I on September 24, 1726 at the instance of East India Company.

Provisions of the Charter of 1726—The main provisions of the Charter of

1726 were as follows—

1. Establishment of Corporation at Bombay and Calcutta—The Charter of

1726provided for the establishment of a Corporation at Bombay and Calcutta like
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the one which already existed in Madras. Thus, each of the Presidency towns was to
have a corporation consisting of a Mayor and nine Aldermen. The Mayor and seven
of the Aldermen were to be natural born British subjects while the two Aldermen
could be of any nationality. The first Mayor and Aldermen were to be appointed by
the Charter itself ;thereafter, the Mayor was to be elected annually by the Aldermen.
The Aldermen were to hold office for life or till the irresidence in the Presidency
town. They could, however, bere moved by the Governor-in-council on a reasonable
cause. Anappeal against such are moval could be made to the King in Council in
England. The Mayor and all the Aldermen had to take an oath of allegiance to the
office before the Governor and Council.

2. Civil Administration and Establishment of Mayor's Court in Presidency Towns—

The Mayor and nine Aldermen of each Corporation formed a Court of Record which
was called the 'Mayor's Court'. It was empowered to decide all the civil cases within
the Presidency town and the factories subordinate thereto. The Mayor together with
two other English Aldermen formed the quorum. The Court also exercised
testamentary jurisdiction. It could grant probates of will and Letters of
Administration in case of intestacy. The Court was to hold its sitting not more than
three times a week. An appeal from the decision of the Mayor's Court lay to the
Governor and Council. But in cases involving the value of-subject-matter above
1,000 pagodas, a further appeal lay to the King-in-Council.

Being a Court of Record, the Mayor's Court could punish persons for its contempt. The
process of the Court was to be executed by the Sheriffs, the junior members of the
court who were initially nominated but subsequently chosen annually by the
Governor and Council. There was no specific mention in the Charter of 1726 as to
the law which was to be applicable in the Mayor's Court but since the earlier Charter
of 1661 provided that justice was to be administered in accordance with the English
law, it was presumed that the same law was to be followed by the Mayor's Court in
deciding the cases.

3. Civil Administration and Establishment of Mayor's Court in Presidency Towns—

The Mayor and nine Aldermen of each Corporation formed a Court of Record
which was called the 'Mayor's Court'. It was empowered to decide all the civil cases
within the Presidency town and the factories subordinate thereto. The Mayor
together with two other English Aldermen formed the quorum. The Court also
exercised testamentary jurisdiction. It could grant probates of will and Letters
of Administration in case of intestacy. The Court was to hold its sitting not more
than three times a week. An appeal from the decision of the Mayor's Court lay to the
Governor and Council. But in cases involving the value of-subject-matter above
1,000 pagodas, a further appeal lay to the King-in-Council.
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4. Justice of Peace—The Governor and five senior members of the Council were
appointed as Justice of Peace in each Presidency for the administration of criminal
justice. They could arrest persons accused of crimes and punish them It M petty
offences. They also constituted a Court
5. Jury Trial in Criminal Cases—The Charter of 1726 provided that criminal cases in
Presidencies be decided with the help of Grand Jury and Petty Jury. The Grand Jury
which consisted of 23 persons, was entrusted with the task of presenting persons
suspected of having committed a crime. Besides, before the commencement of trial,
all the evidence of the prosecution, accusation or indictment was placed before the
Grand Jury, who was to return a verdict whether there was a case for trial or not. In
case the gand Jury returned a verdict of 'no prima facie case', the accused was
acquitted without trial.

Merits of Charter of 1726—Taking into consideration the above mentioned

provisions of reforms, we can say that the following were the merits of the Charter of
1726—

(i) Establishment of Crown's Court—-This Charter has, for the first time established the
courts of Crown. The courts established so far were the courts of company.

(ii) Uniformity in Judicial System—This Charter has, for the first time, established
Mayor's Court in all the three presidencies i.e., Calcutta, Bombay and Madras.
(iii) Provisions of Appeal to Privy Council for the First Time—For the first time a
provision was made to appeal to Privy Council from the decisions of Mayor's Court.

(iv) Application of English Law in Indian Soil—This Charter has for the first time
introduced English law into Indian soil. Where there was no express provision of law,
the judges used to decide the dispute on the basis of "equity, justice and good
conscience."
(v) Establishment of Legislative Councils—The Charter of 1726 for the first time,
established local legislative councils in which the Governor with the aid of his council
used to make bye-laws, rules and ordinances for the regulation of the corporations and
inhabitants of the presidencies. Before 1726, the law making powers were vested in the
company which could be exercised only by the "Court of Director" of the company in
England. On account of the above mentioned merits, the Charter of 1726 constitutes a
landmark i.e., a turning point in the legal history of India and proved to be an important
event on account of the great significance in the sphere of law and justice, the charter is
usually characterised as the 'judicial charter'.

Demerits of Charter of 1726—Inspite of the above noted merits of the Charter of1726,
there were two traditional defects of this charter—
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1. Appointment of .Non-lawmen Judges—before 1726, the traders were to be appointed on the office of
judges who were ignorant of law. As judges their main aim was to bring about the settlement between the
contesting parties. Even after the establishment of Crown's Court, in 1726.Justice continued to be
administered by non-professional judges. Thus, the object of the Charter of 1726 could not be fulfilled.

2. No Separation of Judicial and Executive Powers is Made — Although many

attempts were made to separate judicial and executive powers from one
another yet the policy of the company was not firm in this respect. The
Charter of 1726 also did not admit this division and an intimate relationship
between executive and judiciary was maintained.
3. Conferment of Legislative Powers on Governor and Council —The Charter of 1726 empowered
the Governor and Council of each presidency-town to make bye-laws, rules and ordinances for the
regulation of the Corporations and inhabitants of the Presidencies, They would also prescribe punishment
for the breach of such laws and rules. The bye-laws rules and ordinances so framed and the punishments
prescribed for breach thereof, were to be reasonable and not contrary to the laws of England and they
could not be effective unless approved and confirmed by the Company's Court of Directors in England.
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Supreme Court at Calcutta

The East India Company became the Supreme Authority in Bengal. It kept the
Nawab on the throne of Bengal but he exercised limited powers. The Nawab
failed to give a good administration. The Famine of 1770, financial shortage
etc., added to the trouble. The British Government in order to remove the
evil introduced the Regulating Act 1773.

i) The Regulating Act was passed for the better management of the affairs of
the Company in India as well as at Home. The aim was to prevent
particularly various abuses of the Government and of the administration.

ii) The Act provided for the appointment of a Governor-General and four
councillors, for the Civil and Military Government of the Presidecy of
Calcutta.

iii) The Act empowered the Crown in England to establish, b y Charter of letter
patent a Supreme Court of Judicature at Calcutta consisting of Chief Justice
and 3 other judges. Judges were to be appointed by the Crown. Only
barristers with at least 5 years standing were appointed as Judges.

iv) The Supreme Court was to have power to exercise all civil, criminal,
admiralty and ecclesiastical jurisdiction. The jurisdiction of the court was to
extend to all British subjects residing in Bengal and Orissa. The Court was
not competent to hear and determine any indictment against the Governor-
General and the councillors except for treason and felony.

v) The Supreme Court was to be court of equity in the English legal sense of the
word. It was given full power to administer justice in a summary manner,
according to the rules & proceedings of the High Court of Chancery in
Great Britain,

vi) It was made an effective instrument by giving to its judges, the status of the
judges of the King's Bench of England, who could issue prerogative writs.
This was a distinct improvement upon the ‘former system. The Court was
invested with common law, equity, admiralty and ecclesiastical jurisdictions
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which were exercised in England by various courts. The Supreme Court was
established at Calcutta under the Charter 1774 issued by George III. Lord
Impey was appointed as the Chief Justice. Three other Judges were also
appointed. It was a Court of record.

The Supreme Court Vs. Supreme Council:

Supreme Court: Some defects.

i) Vagueness and serious omissions of the Law to be applied created serious

consequences. What law was the Supreme Court to administer? The Regulating
Act 1773 was silent. Apparently it was the English Law which was insular,
technical, formless, tempered in its application to English circumstances only.
To whom was that law to be applied? To British subject and to persons in the
employment of the Company? But the point was by no means clear. All these
gave rise to conflicts between the Supreme Court and the Supreme Council
(Govt.)

ii) It was also not made clear, whether the company in its Diwani (Revenue)
capacity was subject to the jurisdiction of the Supreme Court. The Company
considered itself immune from the jurisdiction but the Supreme Court held that
it had jurisdiction. This led to complicated cases.

iii) It was not clear whether the Zamindars who collected revenues were the
servants of the company. The Supreme Council (i.e., Govt.) had held that they
were immune from Supreme Court's jurisdiction. This also led to serious
litigation.

iv) Leading cases:

1) Kamaluddin's case.

2) The Patna Case.

3) Cossijurah's Case (1779).

4) Trial of Nandakumar.

5) Saroop Chand's Case.

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v) The Supreme Court followed its own procedure in administering criminal

law. Many offences were punishable with death. This was oppressive, as there
was no promulgation of the law.

vi) There was much disharmony between the Governor-General in Council and
the Supreme Court. The Supreme Court had no jurisdiction to hear indictment
of the Governor General.

Leading Cases

I) Kaml-uddin‘s Case (1775)

K a farmer was committed to prison by the Revenue Authority at Calcutta for

non-payment of revenue arrears. But, he was released by the Supreme Court,
The Govt., (Supreme Council) criticised this and declared that the court had no
powers to deal with revenue cases. Hence, the Govt,, was asserting its power. In
a letter to the Court of Directors, Chief Justice, Impey stated that' when arrests
were • made for non payment of revenues, bail "was usually granted and so the
Supreme Court had a right to give the 'directives to release on bail. The Court
was protecting the subject from oppression, It was compelling the officers to
follow- the established customs and usages in revenue collections.

2 The Patna Case (1777)

The importance of this is that it showed that the Supreme Court had jurisdiction
to try judicial officers of the company for the acts done in the course of their
appointment. Facts: One S.B.Khan came from Kabul, joined the army and
earned a huge wealth. He settled at Patna with his wife Nadirah (N). He had no
issues. His nephew B was brought from Kabul. Khan had a desire to adopt B.
But, before taking him in adoption he died. Tug arose between N and B. B filed
a petition in the Provincial Council at Patna claiming the property as adopted
son. The court appointed Law Officers-Kazi and Muftito make inventory. This
was an exparte proceeding as N had no notice, The law officers went to the
house of N, ill-treated N and made an inventory in an irregular manner. The will
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and gift executed by K were held as forgery. They recommended for the
division of property into four parts. One part would go to N. On the basis of
this, the provincial Court at Patna ordered for divsion, but the Supreme Court at
Calcutta issued a writ of capias. All the defendants, the Law Officers and B
were arrested and detained in custody. The court held: The Law,Officers had
acted in an irregular manner. Their report was false, vexatious and unjustife'd.
Held that the wil! and the gift-deed were valid and awarded 3 lakhs as damages.
The Officers were punished as they were found to be corrupt, The decision was
neutralised by Act of Settlement 1781. (see Act of Settlement).

3) Cossijurah's case.

This concerned the claim .of the Supreme Court to exercise its jurisdiction over
the .entire native population, if a. writ served on them. In particular this dealt
with its jurisdiction over the Zamindars of Bengal, .Bihar and Orissa. Facts;
Kasinath Babu (K), loaned a large of money to Raja Cossijurah (C). He failed to
recover through the Board of Revenue. He filed a suit against C in the Supreme
Court. He submitted that C was a Zamindar, employed in the Revenue
Collections so the Court had jurisdiction. The court issued a writ of capias to
arrest C or to provide a bail for 3 lakhs. C avoided by hiding. Hence, the writ
was returned unserved. The collector informed Governor in council that as C
was hiding ,there was loss of revenue-collection. This was referred to the
Advocate-General who opined that the Supreme Court had- no jurisdiction over
C. On the basis of this, the Governor-General 'in council notified that Zamindars
were not subject to jurisdiction of the Supreme Court. Hence, C took no further
process of the Supreme Court. Thereupon the Supreme Court issued a writ to
seize the property of C, The sheriff went with a small armed force to execute it.
To meet this, Warren Hastings the Governor General sent an army to arrest the
Sheriffs and others. They were duly arrested and brought to Calcutta. K filed a
case for trespass against Warren Hastings the Governor General. First the
Governor General appeared before the Court but later defiled, the process of the
court. The British Government intervened and passed the Act of Settlement
1781. This provided that:

i) Governor General and Council were immune from the jurisdiction of

Supreme Court,
ii): Supreme Court was not to have jurisdiction over revenue matters,
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iii) Natives were immune.

4) Trial of Nandakumar : -

This is a case concerning the conflict and jurisdiction of the Supreme Council
(Government) and the Supreme Court, Maharaja• Nandakumar, Governor of
Hubli, a Hindu, brought an action on counts of bribery and corruption against
Warren Hastings, the Governor General. The Supreme Council found him
guilty. Thus the Raja won the Case. As a revenge, Warren Hastings, with the
co-operation of the chief Justice Impey, got a criminal case lodged through a
person named Mohan Prasad. An acknowledgment of debt in the name of a
banker by name Balkidas, was alleged to have been forged by Nandakumar, &
Rs, 25,000/- appropriated by him 6 years ago. Nanda Kumar arrested on charges
of forgery. The majority of the Supreme Council pleaded for the-release of N,
but the Supreme Court refused. It was a jury trial consisting of 12 Europeans,

A Verdict of guilty was given and N was sentenced to death, under the British
Parliament Act of 1728. He was duly executed. Lord Macaulay, Mill and others
strongly criticised the decision. i) N was not a resident- of Calcutta and hence
the Supreme Court had no jurisdiction. ii) The Supreme Court Bench contained
two sitting Magistrates. This affected Justice, iii) The Supreme Court was
established in 1774. But, the alleged act of forgery was in 1770. Hence there
was expost facto law. iv) Chief Justice Impey, a 'great friend of Warren
Hastings, presided over the Court, Thus there was expost facto law, v) Forgery
was not a capital crime in Hindu Law and the English law of 1728 imposing
death penalty for forgery had not been promulgated in Calcutta, vi) . N had
moved an application for leave to the King-in-Council but this was unjustly
turned down. vii) His case was not referred to mercy. msrlawbooks Ind Legal
His .. Page13 Lord Macaulay observed that Impey acted unjustly in refusing to
respite Nanda Kumar. No rational man can doubt that he took this course in
order to gratify the Governor General.

5) Saroop Chand's Case :

S was a Surety for payment of revenue, from a Paragana. S disputed the

liability. S was due some amounts as treasurer, of a division. S claimed that he
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had paid Rs, 10,000/- to a member of the Council, but this was denied by that
member. S was committed to the prison for non-payment. A petition for Habeas
Corpus was filed before the Supreme Court. Held, the imprisonment was
arbitrary. Regarding the liability as a treasurer, it was held that this was a
contract, and the Council had acted like a judge in its own cause & had decided
its own demands of the revenue. S was released.

Warren Hastings and his Reforms

Warren Hastings (1732-1818) was the first governor-general of British India.
Initially he was employed (1750) as a clerk by the East India Company, but he
soon became manager of a trading post in Bengal. When Calcutta was captured
(1756) by Siraj-ud-Daula, Hastings was taken captive . But he was soon
released. After the British recaptured the city in 1757, he was made British
resident at Murshidabad. His good service and knowledge of the people’s
condition there brought appointment to the Calcutta council (1761), but he
returned to England (1764) disgusted with administrative corruption in Bengal.

Warren Hastings came into a situation of turmoil and disarray with respect to
judicial institutions and their administering of justice. The institutions that
existed were corrupt and inefficient. Moreover, they were inaccessible by the
common masses who, were forced to incur a great expense and travel great
distances in order to attain justice. This was the situation that Warren Hastings
was given the mission of turning around. His attempts to reform the judicial
system were categorised in two plans:

 Judicial Plan of 1772

 Judicial Plan of 1774

Judicial Plan of 1772

His administrative reforms included re-structuring the area, Districts being the
smallest unit. Now the areas of Bengal, Bihar and Orissa were all divided into
districts with an English Company servant in each district behaving as the
Collector of that district for the collection of revenues. The judicial scheme was
integrated with this revenue collection method.
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There was a basic Small Cause Adalat, set up in order deal with petty cases or
disputes that came up, and this was up to the value of Rs. 10. Within each
district or Pergunnah, the head farmer (the eldest farmer of the district) was
given the duty of adjudicating and delivering justice for these small disputes. It
must be noted here that, in such a system where the person administering justice
was chosen from within a small community, there was an in-built system of
checks-and-balances. That is, there was less likelihood of the head farmer to act
arbitrarily as he had to live amongst the people he is administering justice to.
Hence any act or omission on his part was closely observed and he could be
brought to task.

Above this Small causes Adalat a court known as the Mofussil Diwani Adalat
was established in each of the above districts. It was presided over by the
Collector. The decisions of the court up to the monetary value of Rs. 500 were
final. This court was given the responsibility of handling all civil cases. It
handled matters such as property, marriage disputes, inheritance related
disputes, debts, contracts, settling accounts. However, this court did not handle
case of succession to Zamindari and talukdari property. This specific function
was dealt with by the Governor General and Council, only; no one else was
allowed this function

With regards to what law would be followed, Hastings decided that Muslim law
would be followed for the Muslims, Hindu law for the Hindus. More
specifically he stated that the Koran would be followed for Muslims and the
Shastras would followed for the Hindus. Now in order to assist the Englishmen
who acted as the collectors in administering the respective laws (as they were
unaware of the local laws being Englishmen who were barely acquainted with
English law itself as they were traders by profession and not lawyers), there
were the local law officers instituted to aid them. These law officers were the
Kazis for the Muslims, and the Pundits for the Hindus.

At the same level the Mofussil Fozdari Adalat or Mofussil Nizamat Adalat was
set up. This court was to deal with the administration of Criminal Justice. The
Collector was expected to undertake a sort of general supervision of the Adalat,
seeing that equitable justice was administered, sessions of the court were held
regularly and that the judgements rendered were impartial and not unfair. But
over and above this, the Muslim law officers, the Kazis, Muftis, and Maulavis
were to interpret and apply Mohammedan Law to the cases at hand. They were
to pronounce the futwa and give the judgement.

An important point to note regarding this separation of courts handling criminal

and civil cases is that it certainly maximized the efficiency of the court and
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aided speedy rendering of justice. Furthermore it checked too much power

being vested in one judicial institution itself.

Above these three courts were Sadar Diwani Adalat and Sadar Nizamat Adalat.
The Sadar Diwani Adalat heard appeals from the Mofussil Diwani Adalat of
cases valuing over Rs. 500. It was presided over by the Governor and the
members of the council. The court fees charged was about 5% of the value of
the case for appeal, and the appeal had to be made within two months of the
decision being given by the MDA

The Sadar Nizamat Adalat’s main function was to:

 Approve the death sentences and property forfeiture,

 Re-look and if need be revise decisions of the MNA and,
 For a death sentence, the warrant for such a sentence was prepared here
and given to the Nizam, who was the head of the court, for his signature.

The East India Company had only the rights of Diwani and therefore their role
in criminal judicature was minimal. It was restricted to the extent of the
Governor and Council exercising supervisory control over the court’s
functioning. In truth, the British had no right to administer criminal justice as
that still came under the purview of the Nizam and his assistant.

There was no need for the company to even worry about it. But due to the
abhorrent nature of the crimes committed and the lack of interest in addressing
these grave injustices, the British took this responsibility as well. The Nawab at
the time was a minor, and he was more than happy to hand over this function to
the British. All the above courts were to be open courts to promote free and fair
justice. They were to maintain proper records and registers, which were to be
given to the Sadar Adalats. Also special consideration was given to tackling the
problem of dacoity. ‘Any dacoit found could be executed in their villages,
which shall be fined and their families made slaves to the state’ Though this was
harsh Hastings believed this would be the best way to tackle the problem.

The most striking feature of this plan was that of the allowance of separate laws
for the Hindus and Muslims. There was also an Office of the Remembrancer;
who had to compile data of all cases at all levels in the given area where he sat (
each district). He was under the direct supervision of the Governor-General, and
he possessed records of all cases at all levels, including the lowest of levels. If
the Remembrancer found any court not functioning properly or a case not being
decided fairly, he sent a report to the Governor-General who then scrutinized
the report and the case/court. If any discrepancy was found he could ask the
 21

Nawab Naib Nazim to ask the court to function properly, or tell the court to re-
judge the case correctly

But one of the pitfalls of the plan was that there was far too much power vested
in the hands of the Collector, and this was a bad thing as the collector could
misuse his powers, which would in turn defeat the purpose of justice. In order to
tackle the problem of corruption amongst the native law officers, Warren
Hastings ensured that officers were given a proper regular salary. This was to
ensure a good level of objectivity in delivering judgements that are fair and
unbiased. Which is what justice should be.

Furthermore there was a pre-set court fee amount, which was set by the
government and not the judge himself so as to ensure easily accessible justice
and to prevent corruption even amongst the judges. Also it was to ensure that
the judges charge reasonable amounts and not exorbitant rates. Another problem
regarding this plan was that of the scarcity of adalats, making justice difficult to
access for the people who needed it. Taking these issues in mind, Warren
Hastings sought to improve this plan further and did so with his next set of
judicial reform.
Judicial Plan of 1774

First, Warren Hastings sought to tackle the problem of paucity of the adalats to
which the people could approach. He did so by dividing the districts of Calcutta,
Orissa and Bihar into six divisions. The Division Headquarters of each division
included: Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna. Each
of these divisions thus consisted of several districts. From these districts the
collector was removed and a new post called the Diwan or Amil was created.
This Amil was given the functions of:

 Collecting revenue, and

 Presiding over the MDA

Now in each division, a Provincial Council was instituted to hear appeals from
the MDA and also to supervise collection of revenue. This provincial council
comprised of four or five EEIC servants. If there was a case valued above Rs
1000, the case could be appealed from the Provincial Council to the Sadar
Diwani Adalat. This provincial council also exercised the original jurisdiction to
hear cases that arise within the limits of the town where it was seated. So not
only was it a link between the MDA and SDA by exercising appellate
jurisdiction, but it also had the power to be a court of first instance.
 22

Another change made in this plan was that any case in the MDA presided over
by the Amil could be appealed to the Provincial Council; there was no more the
pecuniary limit of the case being above Rs. 500 to move from the MDA to the
SDA.

Another major reform of this plan was that of the signing of the death warrants.
Earlier the Nizam had to sign the warrant (according to the plan of 1772). Due
to the time taken to get this warrant signed and the fact that the Nizam rarely
attended his work, Warren Hastings managed to convince the Nizam to delegate
this function of signing the warrant to his Deputy, the Daroga-Adalat-Al-
Alia, and to further allow the governor, to supervise the functioning of the
Daroga.

This judicial plan however, was not without its flaws. Hastings himself foretold
the corruption and the internal destruction that would be created due to the
existence of the Provincial Council. He reasoned that the collector according to
the plan of 1772 was a petty officer, who if he committed any such fraudulent
practices could be checked by his seniors. But the provincial council was made
up of fairly senior officers of the EIC, and little could be said or done to stop
them from misusing their powers.

Charter of Calcutta High Court 1865

The Indian High Courts Act 1861 was a permissive legislation and gave power
to the crown to establish High Courts in India.The charter for Calcutta high
court was issued on May 14, 1862 and was published in Calcutta on the 1st
July, 1862 establishing the High Court from the next day.

No law is perfect, as per this common natural rule, later it was found that
charter of 1862 got the defects, problems thus the new charter was issued on
28th December 1865 with few modifications in the charter of 1862.

The provisions of charter of Calcutta High Court –

1. The High court of Calcutta was constituted into a court of record.

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2. The court was to have an ordinary original civil jurisdiction within the
local limits Calcutta or within such local limits as may from time to time
be declared and prescribed by any law by any competent legislative
authority in India.
3. High court took the place of Supreme Court which was abolished.

4. The High court even got the power to exercise try matrimonial causes of
the non Christians on the civil side.
5. The High court got power under extraordinary original civil jurisdiction
under which it was authorized to remove and try any suit pending in any
court subject to its superintendence whenever it thought proper to do so,
either on the agreement of the parties, or for the purpose of justice. This
way High court got power to try cases of other courts when if High court
felt that the lower court may not be able to do justice in that particular
case.
6. Where plaintiff had several causes of action against a defendant such
causes not being for immoveable property and if the High court had
original jurisdiction in respect of one of such causes, the court could call
on the defendant to show cause why the several causes of action be not
joined together in one suit and the court could make such order for trial of
such causes as it deemed fit.
7. The high court got power to hear appeals from civil courts subordinate to
it, which is appellate civil jurisdiction.
8. A new provision was added in this appellate power, it was that whenever
in a civil court judgment one of the judge or from division bench
whenever such judges were equally divided in opinion, these types of
appeals were known as letters patent appeals as they are based not on any
law but on the specific clause in the charter. Under this provision the
court could hear an appeal from its original civil jurisdiction.
9. Appeals in other civil cases lay from the High court to the Privy Council
10. The high court enjoyed extraordinary original criminal jurisdiction over
all persons residing in places within the jurisdiction of any court subject
to its superintendence.
11. The High court got power, authority to try at its discretion any person
brought before it on charges preferred by the advocate general or by any
magistrate or any other officer specially empowered by the government in
 24

that behalf. The main purpose behind this provision was to enable the
high court to hold trials for offences committed out of the presidency
town.
12. High court got power to hear appeals as well as be a court of reference
and revision from the subordinate criminal courts.
13. High court got power to transfer criminal cases or appeal from one court
to another.
14. The High court was required to apply the Indian Penal code 1860 while
acting as court of original criminal jurisdiction or a court of appeal,
reference or revision. Point to be noted today also we Indians use the
British India made laws.
15. High court was given jurisdiction as an insolvency court.
16. High court got power to try all civil , criminal and maritime jurisdiction
[ court of Admiralty ]
17. High court also enjoyed testamentary and intestate jurisdiction.
18. High court was supposed to follow civil procedure code 1859 and
criminal procedure code 1861.

With the establishment of High court in Presidency towns, it unified the

Supreme Court and sadar diwani adalat. Supreme Court got power from the
crown and sadar adalat got power from company, but establishment of High
court unified both systems of law.

His way first time all courts were brought under the one superior high court.
Before this Supreme Court and sadar adalat clashed with each other, but High
court solved this problem. All the other High courts established in other
Presidency towns enjoyed same powers with little difference.
 25

Bibliography

1. M P Jain: Outlines of Indian Legal and Constitutional History,

Lexisnexis India.

2. www.jstor.org

3. www.historydiscussion.net

4. www.legalservicesindia.com

5. www.realityviews.in