India before the Arrival of British

Background of the Establishment of British Power in Bengal:

British came to India as traders, seeking trade privileges from the then ruling power of India, Mughals. Indian
commodities were immensely popular in overseas markets such as, spices, gold, silk, pearls etc., and this made
the trade in Indian commodities very beneficial for the merchants. The sea route to India had already been
discovered by Vasco da Gama in the year 1498, which made India accessible to the European powers. Besides
British, French and Portuguese, Danes and Dutch also came to India for trading purpose. British got the
permission to establish their first factory in Surat by a royal Mughal firman in 1612. Later, they set up their
factories in Bombay, Madras and Calcutta also.

Battle of Plassey (1757) and Battle of Buxar (1764):

Battle of Plassey is considered as the turning point of Indian History. It was the battle between forces of Nawab
of Bengal Siraj-ud-daula and English East India company in Palashi (Plassey) near Calcutta. The reason behind
the war was that the Nawab stopped the Company from extending the fortification of their factory. Robert Clive,
the British commander, bribed Mir Jafar, the commander-in-chief of the Nawab and thus, in the battle field, the
Nawab did not get any supporting forces, resulting in his defeat.

Before the battle, Nawab was able to defeat the forces of British and as a punishment, stuffed the soldiers in a
dungeon at Fort William for a night. According to one survivor, John Holwell, 123 people died out of 146 due
to suffocation and heat exhaustion. It became famous as ‘Black Hole incident’. The soldiers who ran way got
help from British forces who were stationed in Madras. Robert Clive, the commander of British forces, used his
diplomacy and shrewdness to merge all the allies of Nawab Siraj-ud-Daula to his side.

The traitors of the battle were Mir Jafar (who became first titular Nawab under British), Jagat Seth, (a Marwari
Banker), Manik Chand (a financer), Omi Chand (officer in Calcutta), Rai Durlabh (treasurer) and Ghaseeti
Begum (maternal aunt of the Nawab). It was the treachery of these people that led to the defeat of Nawab Siraj-
ud-Daula. After the battle, Mir Jafar was declared as Nawab of Bengal on certain conditions.

When differences emerged between British and the new Nawab, Mir Jafar, he was removed and Mir Qasim was
made the Nawab of Bengal. With time, Mir Qasim realised the wicked intentions of British and thus, after
combining the forces of Bengal with the Nawab of Awadh, Shuja-ud-Daula and the Mughal emperor Shah Alam
II, fought Britishers.

The combined forces of three rulers could not defeat British, resulting in direct annexation of Bengal.With the
conquest of Bengal, the first phase of British conquest of India was completed. British became virtual rulers of
Bengal, Bihar and Orissa. Most of the remaining North Indian rulers were now dependent on them. After
conquering Bengal, British now desired to conquer the entire sub-continent

The three major powers in India who resisted British were- Haider Ali and son Tipu Sultan in Mysore, Marathas
and Nizam of Hyderabad. British, again through diplomacy and tactics (Divide and Rule Policy), were not only
able to eliminate these three forces but also ousted their only European competition, the French.
 THE ENGLISH EAST INDIA COMPANY: ORIGIN
The first East India Company was incorporated in England under a charter granted by Queen Elizabeth on 31st
December, 1600. Its official title was ‘the Governor and Company of Merchants of London trading into the East
Indies’. The company had the exclusive rights to trade in parts of Asia, Africa and America. No other British
subject or merchant could trade in this area without the permission of the company.

Salient Features of the Charter of 1600:

a.) The Charter issued by the Queen to the company was given for 14 years and could be extended for
another 15 years if the company was not threatening and causing any issues for the British Crown
and its subjects;

b.) The company was managed by ‘Court of Directors’. The members of the company annually elected
a Governor and 24 directors to manage the affairs of the company. The Court of the company could
make laws, orders and ordinances for the ‘good governance of the company and its employees’ and
‘for continuance of the trade’;

c.) The laws, penalties and punishments should not be contrary to the British Law. The punishments
could only be mild such as fines, forfeitures or imprisonment. No capital sentence could be given by
the company’s Court. The legislative power was primarily intended to permit only minor legislation
to the company so as to enable it to regulate its own business and maintain discipline among its
servants. In 1623, King James I granted more power to the company to issue commissions to its
Presidents or Chief Officers in its settlements authorizing them to punish offences committed on land
by the company’s servants. This commission, thus, granted the company the power to inflict
punishment to its servants, both on seas and on the Indian soil, to enforce discipline.

Merger of the Company:

Another company, the second East India Company, was given exclusive trading rights with India under the
Charter of 1698 by William III. In 1709, under an award, both these companies, the first and the second East
India Companies, were united and thus it became ‘The East India Company’.

The Charter of 1661:1

The need for this Charter was felt since the Company wanted to expand its legal jurisdiction as it was becoming
difficult for them to handle the subjects of the company with limited power. It, thus, requested the Council of
State in England for grant of powers to their Presidents and Councils in India in order to enforce discipline in all
Englishmen resident within their jurisdiction. Thus, in 1661 Charles II granted a new Charter to the company
authorizing the governor and council of each factory to judge all persons under them, in all civil and criminal
cases according to the laws of England.

Salient Features of the Charter of 1661:

The two main features of the Charter were:
a.) The company was empowered to appoint a Governor and the Council at its factories; and

1
M.P.Jain, Outlines of Indian Legal and Constitutional History (Nagpur :Lexis Nexis) 2012.
 b.) The Governor and Council were authorized to judge all persons belonging to or living under the
company in civil and criminal cases according to the laws of England and to execute judgements
accordingly. In places where there was no Governor, the chief Factor and the Council were to send
offenders either to the place having the Governor and Council or to England, to be punished.

In regard to the Indians, the Charter placed them under the English Law and did not reserve their own laws and
customs. The Charter indicated clearly that the company was no longer merely a trading concern but was on its
way to becoming a territorial power as well.

Establishment of Factories:
a.) Surat: Surat, since ancient times, has been an important trading centre owing to its proximity to the sea. It
was an important commercial centre, an international port as well as a populous town. These features attracted
British for whom the sea was the only means of communication. A factory was a place consisting of offices,
residences for company’s employees and spacious warehouses for storage of goods. In the year 1612
Englishmen succeeded in establishing their factory in Surat with the permission of the local Mughal Governor.
Later, Englishmen felt that they need more permanency for their factory in Surat and thus, King James I sent an
ambassador Sir Thomas Roe who succeeded in getting a firman from the Mughal emperor, Jahangir, in 1615. It
granted certain privileges to the British, one of them being, that British could live according to their own
religion and laws in India. Also, the President of the factory could settle the disputes, but in a dispute between
an Englishman and Indian, the matter would be settled by the local native authorities. Besides these, the Mughal
governors and Qazis and Muftis were also asked to provide speedy justice to the Englishmen and protect them
from all kinds of injuries and oppressions.

Judicial Arrangements in Surat Factory:2

a.) Administration was vested in the President and Council who were appointed by the Company. All decisions
in the Council meeting were taken by the majority of votes. No veto power was given to the president.
b.) In the area of law and justice, Englishmen in Surat were under Dual System of Law, i.e., English Law and
Indian Law. Main responsibility of the Englishmen at Surat was to govern themselves and not to care for the
Indians who had their own local courts. No regular tribunal was created.

The President and the Council were wielding the judicial power. The quality of justice was not very high as the
President and councillors were traders and not experts of law. Englishmen had no respect for the established
judicial system.

The Surat settlement of the Company remained in prominence until 1617. Later, the seat of the President and
Council was shifted to Bombay and thus, Surat lost its importance.

b) Madras: Madras was founded by Francis Day in 1639 on a land granted to him by a Hindu Raja. A fort
named St. George was established there by the British. The Raja had granted full power and authority to the
Company. There was a small village called Madraspatnam adjacent to the fort. Many Indians moved to this area

2
M.P.Singh, Outlines of Indian Legal and Constitutional History (New Delhi:Universal Law Publishing,2006).
due to thriving trade and commerce there. Gradually, this village grew in size and came to be known as ‘Black
Town’ as most of the inhabitants were Indians. Inside the fort lived British and thus, it came to be known as
the‘White Town’. Later, both the towns jointly came to be known as ‘Madras’

The Legal System of Madras:

The Legal system that existed in Madras until the year 1726 can be divided into three phases:

1. First Stage (1639-1665):

Madras earlier was an agency subordinate to Surat. The Chief Officer here was called Agent, who
administered the affairs of the company with the help of the Council. The Agent and Council were responsible
for the ‘White Town’ but they could not decide serious offences; only minor disputes could be resolved by
them.
The Choultry Court /Native court was for the ‘Black Town’. Its head was the village headman known as
‘Adigar’. This court could only decide small civil and criminal cases. No other court was created for trial of
those civil and criminal cases which fell beyond the competency of the Choultry Court. The flaw in this
arrangement was that no specific and regular procedure existed to deal with the matters.

2. Second Stage (1665 to 1686):

On the basis of the Charter of 1661, the company raised the status of Madras to a Presidency and appointed a
Governor and the Council who could also work as Court. In 1678, the Governor and the Council resolved that
they would sit as a court on two days in a week to administer justice in all cases, civil and criminal, according
to the Laws of England, with the help of a Jury of twelve members. This court was called the High Court of
Judicature. This court also heard the appeals against the decisions of the Choultry Court. Similarly, Choultry
Court was also reorganized and was empowered to take cognizance of small matters.

3. Third Stage- (1686 to 1726):

The reason for introducing the third stage was that the crimes were increasing and occurred more frequently
on the ships. Thus, it was decided to have a court having the jurisdiction to decide the maritime cases which
took place during the sea voyage. In 1683, Charles II granted a Charter to the company authorizing it to
establish one or more courts at such place or places as it might direct.

Admiralty Court was thus established with three members, out of which one had to be a person learned in
civil law and other two were merchants appointed by the company. The Court was to handle the cases of
trespassing, injuries committed at the sea and cases of forfeiture and seizures of ships and goods which traded
within the company’s monopoly area. It was to decide cases according to the rules of equity and good
conscience and the laws and customs of merchants.
In 1686, a Court of Admiralty was started in Madras. In consisted of three civil servants who were members
of the Governor’s Council. In 1687, a lawyer-member with the designation of Judge-Advocate was appointed
to this court. This court decided all cases- civil, criminal and maritime. Criminal cases were decided with the
help of a jury. For the first time, a professional lawyer was there to administer justice and the executive gave
up the judicial functions in favor of the Admiralty Court. By 1696, the court lost its importance as the
members were either corrupt or non-experts of law. Thus, by 1704 the court ceased to work regularly.
 Corporation and Mayor’s Court- In 1687, the East India Company decided to establish a Corporation in
Madras whose task was to provide a representative local government, impose local taxes and impart speedier
justice.

The first corporation in Madras was established in 1688. It had one Mayor, twelve Alderman and Burgesses
whose number ranged from 60 to 120. The tenure of office of the Mayor was to be of one year and he was to be
elected every year by the Aldermen and Burgesses, from amongst the Aldermen themselves. The Mayor could
be removed from the office if he has been incompetent. Only an Englishman could hold the Mayor’s office. A
reserve power was vested in the Governor and Council to remove any Mayor, Recorder, Alderman or Burgess
and to appoint anyone in the vacancy so caused.

Features of the Mayor’s Court:

The Mayor and the three Aldermen were to be known as Justices of Peace. The Mayor and Aldermen were to
form a Court of Record, known as Mayor’s Court which was authorized to try all civil and criminal cases. It
could inflict punishment in the form of fine, imprisonment and corporal punishment. The lawyer member was
called the ‘Recorder’ who was appointed by the Mayor and aldermen for helping them decide the important
cases. The court used the jury for deciding criminal cases, not civil cases. It also granted probates, wills and
letters of administration of property of the deceased persons. The appeals in some matters from the Mayor’s
court would go to the Admirality Court. Other peculiar feature was that no death penalty was given to any
Englishman. There was no specific law which was laid down that could be applied by this court.

Choultry Court- After the establishment of Mayor’s Court, the Choultry Court lost its importance. Its
jurisdiction was now limited to only petty criminal cases. In civil matters, it could hear the cases of the value of
2 pagodas (currency) only. The few defects that emerged in the arrangement of the legal system of Madras were:

a) that there was absence of a proper judicial system;

b) the laws were uncertain and there were very severe form of punishments which were given; and
c) the trials which were held were generally unfair and there was also a lack of basic facilities in the
prisons.

c.) Bombay: The Island of Bombay was under the Portuguese who acquired it from Sultan Bahadur, King of
Gujarat in 1534 by cession. In 1661, the Portuguese King gave it to Charles II as a dowry gift after Charles II
married his sister Princess Catherine. Since at that time Bombay was a small place with less population, Charles
II gave it to the English East India Company at the annual rent of ten pounds.

Bombay initially was placed under the Deputy Governor and Council and remained under the presidency at
Surat until 1726. The Charter of 1668 empowered the company to make laws for the good government of the
island, and to impose penalties, fines and even imprisonment and death. The company was also authorized to
create courts to judge all persons and all actions

1. First Stage (1668-1683):

The main architect of the judicial system in Bombay was Gerald Aungier, the Governor of Surat factory who
is considered as ‘true founder of Bombay’. Bombay was initially divided into two divisions. Each division
had a court with five judges. Some Indian judges were also appointed. The customs officer of each division
 was to be the president of the respective court. The court was authorized to decide cases of small thefts and all
civil actions involving a subject matter of nearly one hundred and fifty rupees. The Deputy-Governor and
Council were to constitute a superior court, which would hear appeals from the divisional courts and try all
civil and criminal cases lying beyond their scope such as felony, capital etc. Thus, the Deputy Governor’s
court enjoyed original as well as appellate jurisdiction. It conducted all trials with the help of Jury.

In 1672, English law became the law of the Island and three types of courts were established.

Court of Judicature- dealt with all civil and criminal cases as well as probate and testament matters. It was
composed of one judge and a jury. For criminal justice, Bombay was divided into four geographical sections.
Each section had one Justice of Peace.

Court of Conscience- which was set up for quick and summary justice decided only small civil and criminal
cases under one judge.

Court of Appeals-appeals against the Court of Judicature went to Deputy Governor and Council.

2. Second Stage 1684-1690:

Court of Admiralty was set up in 1684. It took cognizance of all civil and criminal cases, in addition to
admiralty and maritime cases falling within the ambit of the Charter of 1683.

For almost 30 years the island was occupied by Mughal Admiral Siddi Yakub who fought British East India
Company. In 1690, the company sent envoys to Aurangzeb’s camp to plead for a pardon. The cause was that
one Mughal ship which was carrying pilgrims to Mecca was captured by the British pirate. Later, the British
got the permission to continue their trade.

3. Third Stage 1718-1726:

After nearly thirty years, a court appeared again in Bombay in 1718. It consisted of a Chief Justice and nine
judges out of which five were British and four were Indians who represented the principal communities on
the island, i.e. Hindus, Muslims, Christians, Parsis and Portuguese. The Chief Justice and a few of the English
judges were members of the Governor’s Council. The court was authorized to decide all cases- civil, criminal
and testamentary. It administered justice according to law, equity and good conscience and the Company’s
rules and ordinances; it was required to pay due regard to caste customs, Company’s orders and known laws
of England. Appeals from the court went to the Governor and Council. No provision was made for jury trial.
The court was given wide powers for execution of its decrees.

The Indian judges did not enjoy an equal status with the British judges. They acted more like an assessor than
full-fledged judges. The court sat once a week and decided all sorts of cases. It was at once a civil, criminal,
military and a prerogative court. Its proceedings were quick and inexpensive and it administered justice in a
commonsensical, rough and ready manner. It was not bound by any technical rules, law or precedent. There
were no lawyers to argue the case, no codes, no reports and no law books.

The major work of the court lay in the area of criminal justice. Treason, rape, murder, manslaughter were
capital offences.

Rama Kamati’s Case on the then Prevailing Judicial System:

Rama Kamati was a wealthy and influential Hindu of Bombay who had stood by the company for over thirty
years. He was arrested on the charges of corresponding with a pirate chief, Angria, who was giving trouble to
the British. There was no conclusive evidence against him except a round-about story by a witness that a
dancing girl had told him that Angria himself has told her that Rama Kamati has written to him. aToday, this
kind of piece of hearsay evidence would not be accepted by any court. which no court would accept today.
Rama’s servant was tortured to extort a statement implicating his master. Some forged letters purported to have
been written by Rama to Angira were also produced. Rama was held guilty; he was sentenced to perpetual
imprisonment and the whole of his property was confiscated. The charge against Rama was drawn by the
Governor and Council and his trial was held before an ad hoc tribunal. The prosecutors were also the judges of
the case. After the trial, Rama’s property was auctioned. After Rama’s death, it was conclusively established
that he was innocent and that the whole trial was a plot based on lies, forgeries and fabrications to which the
Governor himself was a party. Thus, profound injustice was committed in this case.3

The judicial system in this form was continued to function till it was superseded by a new judicial system under
the Charter of 1726.

The Charter of 1726: 4

Before 1726, the system that was established by the Company was hardly satisfactory as there was no
uniformity. The company was finding it difficult to cope with the problems that arose due to extended
establishments. The area under the company was continuously expanding in terms of territory. The Charter of
1726 introduced uniformity of approach in this respect as in each Presidency town, similar judicial institutions
were established. In the petition to the King for a Charter, the Company stated the three Presidency towns of
Calcutta, Madras and Bombay had increased very much in respect of trade, commerce and population, and that
there was a great want of proper and competent power and authority for more speedy and effectual
administration of civil and criminal justice. The Charter established civil and criminal courts in the Presidency
towns which derived their authority not from the company but from the British Crown. These courts could,
therefore, be designated as the royal courts in the true sense of the term.

The advantage of having royal courts in India was that their decisions were as authoritative as those of the courts
in England because the source of authority for both the courts was the same, viz., the Crown, who was regarded
as the fountain of justice. Further, the Charter of 1726 initiated the system of appeals from the courts in India to
the Privy Council in England, and thus, was established a bridge between the English and the Indian Legal
Systems. A channel for the reception of the English law in India was thus created and this resulted in the English
law making a deep impact on, and profoundly influencing, the Indian law in the course of time.

The Charter of 1726 established a local legislature in each Presidency town, and, thus, the locus of legislature
was shifted from England to India. This was an important development as it now became possible to make laws
consistent with local needs.

Causes: The Company’s courts did not have the power to grant probates. In the cases where there was no
executor of the deceased in India and if he had died intestate (meaning if he had died without a will or deed)

3
M.P. Jain, Outlines of Indian Legal and Constitutional History (Nagpur: Lexis Nexis, 2012)
4
V.Ḍ.Kulshreshtha, Landmarks in Indian Legal and Constitutional History ( Lucknow: Eastern Book Company,2015)
then the council would directly auction the property and deposited the money to company’s treasury. Thus, the
heirs started taking legal actions against the company in the courts of England, because of which the company
had to shell out huge amount of money to fight the cases and also to pay the compensation in lost cases. Thus,
they demanded more power in such matters. Earlier, the company would seize the property of covenanted
servants. Such seizures could be disputed by the company officer’s against the company in the court of England.
Thus, to avoid such litigation and travelling all the way to England, it wanted the establishment of courts
recognized by the English courts.

Besides, there was an absence of proper authority to deal with the discipline and crimes by the military persons.
Thus, Mayor’s Court was established under the Charter of 1726:

Salient Features of Mayor’s Court:

a.) Supersede all the existing courts in Bombay, Madras and Calcutta;

b.) Each Presidency Town was to have a Corporation consisting of a Mayor and nine aldermen, out of which
seven including the Mayor had to be natural born British subjects and remaining two could be subjects of any
prince or state in amity with the Great Britain;

c.) Aldermen were elected from among the leading inhabitants of the settlement to hold office for life;

d.) Mayor was elected from among the Aldermen and their appointment was not in the hands of Governor and
Council;

e.) The Court was declared as the Court of Record and had the power to decide all the civil suits and to grant
probates of wills and letters of administration;

f.) The Charter did not mention the law applied by this court. It simply stated, “according to Justice and right”;

g.) Appeals against the Court went to Governor and Council. A second appeal of higher value cases were to be
made to the King-in-Council in England; and

h.) The whole tenor of these provisions was to make the Corporation an autonomous body, to a large extent, free
from the control of the executive.

Establishment of the Court of Governor and Council:

a.) Charter of 1726 constituted a Court of Record consisting of the Governor and Council to hear civil appeals
against the Mayor’s court and to decide criminal cases;

b.) The legislative power given to the Governor and Council- to make laws, rules and regulations for the good
governance of the company but the laws should not be contrary to the rules of England;

c.) A Sherrif having a jurisdiction within the Presidency Town and for ten miles around was to be chosen
annually by the Governor and Council. The Sherrif was to serve the processes of the Court, was to bring into
Court all persons complained of, to hold them to bail or confine them; and
d.) The criminal jurisdiction in each Presidency Town was vested in the Governor and five members of the
Council. Each of them individually was to be a Justice of the Peace and was to act in the same manner, and
to have the same powers, as the Justices of the Peace of England.

Merits of the Charter:

a.) First time Crown’s court was established in India and it created a uniform legal system in the presidencies.
New judicial system was regular and definite;

b.) For the first time the jurisdiction of the King-in-Council was extended to India; and

c.) It created a legislature in each presidency with the power of making necessary laws.

Thus, the provisions of Charter were implemented quickly and new courts (Mayor’s Court) started functioning
in all three presidencies (Bombay, Madras and Calcutta) However, soon problems started emerging as the
Mayor’s court was the Court that represented British Government, whereas Governor and Council represented
the East India Company. Thus, a lot of disputes started erupting between these two courts.

Reasons:
a.) Mayor wanted to exercise judicial independence but the Governor-in- Council wanted it to be subordinate to
them;

b.) It was not clear that the matters of natives were within the jurisdiction of this court or not.

c.) The disputes arose regarding the oath taking as well. Hindus wanted to use Gita but the court insisted in
taking the oath of the temple.

d.) Mayor’s Court annoyed the natives by applying the principles of English Law to them without any regard to
their personal laws and customs.

e.) The Governor and Council used to hear the appeals against the Mayor’s Court.

Torriano Case:
In a case where Torriano, secretary to the government filed a civil suit against Naish, the Mayor, the Mayor’s
Court held that the Mayor was immune from legal action in the court. Sometime later, it was also revealed that
the relations between Naish, the Mayor, and the Governor had become tense due to their personal rivalry,
jealousy and hatred against each other. In 1734, when Naish was re-elected as Mayor, the Governor of Madras
refused to allow him to take oath of office on the plea that the re-election of the Mayor was not permitted by the
provisions of the Charter. As a result of this a new Mayor was elected by the Corporation. Though a new
member occupied the office, the relations with the Governor did not improve. It shows that the causes of
conflict between the two were deep rooted.

Regulation Act of 1773: 5

5
M.P.Jain Outlines of Indian Legal and Constitutional History (Nagpur: Lexis Nexis, 2012).
After the Battle of Plassey and Buxar the riches of the company’s servants increased. The Company’s
employees exploited the people and amassed wealth and returned to England. A realization was dawning on the
politicians that the Company was not merely a trading company but has assumed the character of a political
power. From 1767, it was also required to pay a tribute of four lakh pounds every year to the British exchequer
in consideration of its retaining its territorial acquisitions and revenues. According to Illbert, “This was the
state’s share of the Indian spoil.” The servants had a right to carry private trade. Thus, they acquired great
fortunes and were called ‘Naboobs’ by Britishers.

In England, these people led a completely luxurious life and publically displayed their wealth. This new wealth
acquired by the company’s servants made them purchase seats in the House of Commons and thus, offended the
landed aristocracy. This made public opinion in England slowly crystalize in favor of parliamentary intervention
in Company’s affairs.

British Parliament wanted more control over a trading company which was more interested in its own wealth
than the welfare of the nation or its people. The immediate cause was the company’s financial breakdown. The
company asked the British government for a loan of one million pounds. The British Government decided to
appoint a Select Committee and a Secret Committee, appointed by the House of Commons.

On the basis of the suggestion of the committees, the Parliament enacted the Regulating Act, 1773 to remove the
evils of the prevailing system. The Act modified the constitution of the Company; subjected it, to some extent,
to the control of the British Government and Parliament; reorganized the Calcutta Government, and established
a Supreme Court at Calcutta. With the passing of this Act, the era of royal charters gave place to the era of
parliamentary enactments.

The Act had three primary objectives:

a.) To reform the constitution of East India Company. The term of the Directors was increased from one year to
four years and a provision was made for electing one-fourth of the Directors every year on rotation-basis. The
Directors were required to lay before the Treasury, all correspondence from India relating to revenues and
before a Secretary of State everything dealing with the civil and military affairs of the government in India.

b.) To reform the Company’s government in India, it reorganised the structure of the Calcutta Government. It
appointed a Governor-General and a Council for four of four members and vested in them “the whole civil
and military government” of the Calcutta presidency.

c.) To provide solutions against the oppression of the company’s servants.

Provisions of the Charter:

a.) Governor-General and Council: In place of Governor and Council, a Governor-General and Council
consisting of four Councillors was appointed at Calcutta. The decisions of the Council were taken by
majority.

b.) Powers and duties of the council: The entire civil and military government, including the management and
governance of all territorial acquisitions and revenues, of the presidency of Calcutta and the provinces of
Bengal, Bihar and Orissa was to be governed by the Governor-General and Council.
c.) Control of Madras and Bombay: The government of the presidencies of Madras and Bombay were put under
the control of the Governor-General and Council. However, the subordinate Presidencies could commence
war or negotiate peace without the consent of the Calcutta Presidency if there was such imminent necessity as
would render postponement of war dangerous, or if the Presidencies received orders directly from the Court
of Directors. The subordinate presidencies were required to transmit regularly to the Governor-General,
information regarding all transactions relating to the government, revenues, or interests of the Company.

d.) These presidencies could not commence peace or declare war with any Indian king without the permission of
Governor-General and council.

Legal Powers of the Council:

The Governor-General and Council could make rules and regulations for good governance but conditions were:

a.) The rules should not be contrary to the laws of England.

b.) Laws will not be valid and effective unless registered and published in the Supreme Court.

c.) The rules and regulations will be removed by the King-in-Council if someone has registered an application
against it within two months of its coming into existence.

d.) The Governor-General and Council were required to send the copies of the laws to the Secretary of England.

 The Supreme Court- Section 13 of this act made a detailed provision for the establishment of the
Supreme Court of Calcutta.

 Provisions on presents and private trade- The Governor-General, members of the Council, judges of
the Supreme Court and officers engaged in collection of revenue were prohibited from receiving
presents or engaging in private trade.

 Jurisdiction of King’s Bench was extended over to the Governor-General, Councilor, Judges,
Company servants etc., in India in case they committed any crime.

The Supreme Court in Calcutta (1774): 6

Establishment of the Supreme Court is also a landmark in the history. First, Supreme Court was established in
Fort William, i.e., in Calcutta. Later on, it was established in Madras and Bombay. The Supreme Court of
Judicature at Calcutta was created in lieu of the Mayor’s Court, functioning there under the Charter of 1753. The
Act empowered the Crown to establish the Supreme Court at Calcutta by a royal Charter. The Act specified the
lines on which this Charter was to be based. The Court was to consist of a Chief Justice and three puisne judges
to be appointed by the Crown and holding office during its pleasure. Only a Barrister of at least five years
standing could be appointed as a judge.

The Court was to be called a ‘Court of Record’. The Supreme Court was to enjoy a very wide jurisdiction. It
was authorized to administer justice in civil cases. It was authorized to administer justice in criminal cases in the
character of a ‘Court of Oyer and Terminer and Goal Delivery’ for Calcutta, the factory of Fort William and the

6
For Details see M.P. Jain, Outlines of Indian Legal and Constitutional History and V.Ḍ.Kulshreshtha, Landmarks in Indian
Legal and Constitutional History.
factories subordinate thereto. It was to use grand jury as well as petty jury. The Court was further empowered to
exercise Admiralty and Ecclesiastical jurisdiction (i.e. relating to property of deceased Britishers).

Jurisdiction of the Court extended to all civil matters relating to all persons, arising within the presidency of
Calcutta. Beyond the Presidency limits and within the provinces of Bengal, Bihar and Orissa, the Supreme Court
had only limited personal jurisdiction. The jurisdiction was restricted to a few defined categories of persons,
like:

Civil Jurisdiction:
1.) The East India Company;

2.) The Mayor and the Aldermen of Calcutta;

3.) Any British citizen who hold the property within the provinces of Bengal, Bihar and Orissa;

4.) The executors and administrators of the persons mentioned above;

5.) Any other person who during the time of filing a suit, or, who was present during the time when incident
occurred , was directly or indirectly in the services of the company or the Mayor, aldermen etc., of Calcutta;

6.) Any person who has already given in writing that any matter exceeding five hundred will be decided by the
Supreme Court.

Equity Jurisdiction- The Supreme Court had the same jurisdiction as that of High Chancery of Great Britain
(equity means balance, if there is no settled law then the court would give out a balanced justice).

Criminal Jurisdiction- The Supreme Court jurisdiction extended to all British subjects residing in Calcutta and
within the territory of Bengal, Bihar and Orissa. Only the British people and their servants and persons
employed with the company were covered under this jurisdiction. Other natives were not subjected to the
jurisdiction of the Supreme Court.

Ecclesiastical Jurisdiction – It could grant probates of wills to the British subjects within the territories of
Bengal, Bihar and Orissa and also letters of administration for the goods, chattels and other effects of the British
subjects dying intestate. It was also empowered to appoint guardians and keepers for infants and insane persons
and their estates in accordance with the rules prevalent in England.

Admiralty Jurisdiction- In its capacity as a Court of Admiralty for the territories of Bengal, Bihar and Orissa it
could try cases civil and maritime, and all crimes committed upon vessels, ships and ferries and highseas and
off-shores with the help of petty jury consisting of British Subjects residing in Calcutta

Other Powers of the Supreme Court:

a.) The Supreme Court was a court of record. It had the power to punish for its contempt. Its justices were
appointed Justices of Peace throughout the three provinces of Bengal, Bihar and Orissa and were given the same
jurisdiction and authority as the judges of the King’s Bench in England.

b.) The Court also had the power to issue writs to Courts and officers aubordinate to it, which included the Court
of Collector, Sheriffs etc.

c.) Appeals against the decisions of the Supreme Court could be filed before the King-in-Council in all civil
cases valued for 1000 pagodas or more. The Supreme Court was to consist of both the Common Law and the
Equity Jurisdictions. In this respect, the Supreme Court can be regarded as an improvement even on the judicial
system of England, where the Common Law and the Equity, constituted two separate, distinct and independent
jurisdiction. The Supreme Court may even be regarded as the precursor of the Judicature Act of 1873, by which
the Common law and Equity came to be administered by one and the same court in England.

Sir Elijah Impey was the first Chief Justice along with two other puisne judges of the Supreme Court. It was the
first British Court in India and was fully independent of the control of Company’s government. The subjection
of all British Subjects to its jurisdiction ensured the rule of law.

Problems that emerged:

a.) Relations between the Supreme Court, and the Governor-General and Council became strained due to some
ambiguities in the provisions of the regulating Charter. The Supreme Court wanted to entertain matters
against the Governor-General and his Council while the latter would defy the authority of the Supreme
Court.

b.) The Supreme Court was declared ineligible to hear and try any indictment or information against the
Governor-General or any member of the Council, except treason and felony.

c.) East India Company got the right to collect the revenue (Diwani functions) from Bengal, after they defeated
the Nawab in the Battle of Buxar. The position of the Governor-General and Council with the Supreme
Court in relation to the exercise of their Diwani functions was not clear. The government took the stand in
the management of Diwani functions. For the purpose of collection of land revenue, it was free from the
jurisdiction of the Supreme Court inr any of his acts. The Supreme Court, however, took the stand that
though it would not interfere in “ordering the management” of Diwani, it could interfere in all cases of
oppression or violence that took place in the course of collection of revenue.

d.) The relationship between the Company’s courts in the Moffussil area7 and the Supreme Court was not clear.
Whether the Company’s courts were subordinate to the Supreme Court or whether the Supreme Court can
issue writs or entertain appeals against the orders of Company’s court? The jurisdiction of the Supreme
Court was not clearly defined with respect to territory outside the presidency limits of Calcutta. The Supreme

7
Moffussil area- The region of India outside the three East India Company capitals of Bombay, Calcutta and Madras; parts
of a country outside an urban centre; the rural areas.
 Court would issue summons to witnesses irrespective of the fact that they lived outside the Presidency limits
and did not believe that they were not subject to the jurisdiction of the court.

e.) Several terms like “British subjects”, “Subjects of his Majesty” etc., were not clear.

f.) The judges of the Supreme Court had the same authority as the judges of the King’s Bench of England and
thus, they started issuing writs beyond the presidency of Calcutta which the people, particularly the British
who had previously escaped jurisdiction of all other courts, resented.

g.) The Act did not make any provisions about the law which the Supreme Court had to apply in the proceedings
before it. Although it applied, the English law, the extent of its application was not clear.

h.) The jurisdiction of the Supreme Court was not about the natives. Although the natives living outside the
Presidency limits of Calcutta were not within its jurisdiction, if any proceedings were started by any one
against a native, he had to appear before the court to plead the lack of jurisdiction. For this purpose, a person
had to travel long distances to come to Calcutta.

i.) Position of natives living within the presidency limits of Calcutta was also not clear.

j.) The Supreme Court applied the law of England in criminal matters which was very harsh and severe. For
example, capital punishment was awarded for crimes like, robbery.

Thus, the dispute over the jurisdiction matters became apparent in the cases and trials which occurred during
this time.

Trial of Nand Kumar: A Judicial Murder:8

Raja Nand Kumar, who held a high position under the Nawab and Company, made allegations of corruption and
bribery against the previous Governor-General Warren Hastings in 1775. Just a few days later Raja Nand Kumar
was tried by the Supreme Court, on a charge of forgery brought against him by an Indian, Mohan Prasad. The
court found him guilty of the offence of forgery and sentenced him to death under an act of 1728 of the British
Parliament. The sentence of death was duly executed. The forgery alleged was to have been committed in 1770.
The trial started on 8th June, 1775 and lasted until the morning of 16 th June, 1775 when the Court condemned
Nand Kumar to death.
Two major legal issues that arose in the case were:

i.) whether Nand Kumar was under the jurisdiction of the Supreme Court, and

ii.) whether the Act of British Parliament which made forgery a capital offence, and under which Nand Kumar
was indicted and tried, extended to India?

Many English historians expressed the view that Nand Kumar was tried and executed by Justice Impey at the
instance of Hastings.

“Men will never agree”, P.E. Roberts writes, “as to the meaning of this somewhat mysterious sequence of
events, for the key to them lies in the ambiguous and doubtful region of secret motives and desires. The incident

8
https://www.scribd.com/doc/19702765/Judicial-Murder-case-Raja-Nand-Kr, retrieved on 21st January, 2019.
created an extraordinary impression and it was naturally believed for a long time that Nand Kumar had the
penalty of death nominally for forgery, but really for having dared to accuse the governor general.”

Those who accuse Impey and Warren Hastings allege that Hastings first tried to ruin Nand Kumar on a
conspiracy charge but after realizing that it did not implicate Nand Kumar directly, he got him capitally indicted
on a charge of forgery preferred ostensibly by Mohan Prasad. Nand Kumar’s trial has always been looked upon
with suspicion. Macualay, Mill, and a host of other historians have accused Chief Justice Impey of committing a
judicial murder.

It has been suggested that Warren Hastings conspired with Impey to put Nand Kumar out of Hastings’ way and
thus served as a willing tool to gratify the governor general. Two of the strongest circumstances against Impey
were his friendship with Hastings and the commencement of Nand Kumar’s trial within a few days of his
accusing the governor general. The way the trial was conducted also raised strong doubts about the court’s
impartiality and bona fides. Nand Kumar had presented a petition to the Council of the following effect which
was translated into English after his execution and is cited by Stephen:

For the fault of representing at this time a just fact which for the interest of the king and the relief of the
people in a small degree made known, many English gentlemen have become my enemies and having
no other means to conceal their own action, deeming of destruction of the utmost expediency for
themselves, revived an old affair of Mohan Prasad’s which had formerly been repeatedly found to be
false; and the governor knowing Mohan Prasad to be a notorious liar, turned him out of his house, and
themselves becoming his aiders and abettors and Lord Impey and other Justices have tried me by the
English laws, which are contrary to the customs of this country, in which there was never any such
administration of justice before, and taking the evidence of my enemies in proof of my crime, have
condemned me to death. But by my death the King’s justice will let the actions of no person remain
concealed; and now that the hour of death approaches I shall not for the sake of this world be regardless
of the next, but represent the gentlemen of the council. The forgery of the bond of which I am accused
never proceeded from me. If I am unjustly out to death, I will with my family demand justice in the
next life. They put me to death out of enmity and from partiality to the gentlemen who have betrayed
their trust, and in this case the thread of life being cut. I in my last moment again request that you
gentlemen will write my case particularly to the just King of England.

But the prayer was unheard and respite was not granted by the council. According to Lord Macualay,

Impey acted unjustly in refusing respite to Nandkumar; Hastings, three or four years later, described
Impey as the man to whose support he was at one time indebted for the safety of his fortune, honour
and reputation.

These words may safely be taken to refer to Impey’s assistance in Nandkumar’s trial.

Beveridge points out that the judges, jury and the counsels were all foreigners, all unacquainted with the
language of the witnesses and Nand Kumar himself. The interpreter, through whom the trial was conducted, was
not very proficient in the Bengali language. Moreover he points out that the defence counsel was not a barrister
and so depended on the Chief Justice for his position and thus could not take an independent line lest Impey
should feel offended. Beveridge definitely asserts that there is a strong circumstantial evidence that Hastings
was the real prosecutor. The trial was unfairly conducted, the judges’ examination of the witnesses was
inquisitorial and minute, and the Chief Justice hanged Nand Kumar in order to serve a political purpose when
the forgery was not conclusively proved.

Beveridge expresses his resentment in the vigorous words,

What I and every honest man who knows the facts blame Impey for, is that he allowed himself to
be prejudiced by his partiality for Hastings, and his hatred of the majority and that he hanged
Nandkumar in order that peculators in general, and his friends and patron Warren Hastings in
particular might be safe.

However, contrary to all the above views, Stephen, who had made a detailed study of Nand Kumar’s trial,
justifies the conduct of both Impey and Warren Hastings. He states:

Mohan Prasad was the real substantial prosecutor of Nand Kumar and that Hastings had nothing to do
with the prosecution and that there was not any conspiracy or understanding between Hastings and
Impey in relation to Nand Kumar or in relation to his trial or execution.

He supports his views by saying that the trial was held by four judges and 12 jury men all of whom could not
have been in conspiracy against Nand Kumar.

Dr. B. N. Pandey has taken views similar to those of Stephens’ and has supported Impey’s decision by which
the English Act of 1728 was extended to India. Opinions are thus varied as to the nature of the trial. Macualay,
Mill, Beveridge, Roberts have condemned the trial as a mockery of law whereas Stephens and Dr. B. N. Pandey
have found the trial to not be obnoxious. Finally, P.E. Roberts is of the opinion that:

Even if we hold it established that there was no judicial murder, there was certainly something
equivalent to miscarriage of justice. For that, however, the Supreme Court, in the first instance,
Hastings ’opponents on the council subsequently, were mainly responsible. Thus it has been rightly
called as a “judicial murder.What is most significant to note here is the fact that forgery has never been
a capital offence in our country. Nand Kumar could not have been executed on the charge of forgery
had his trial been conducted under India’s own law. Not only the charges were not proved
satisfactorily, Raja Nand Kumar had been tried under an imported law by twelve members of the Jury
all of whom were foreigners and had absolutely no knowledge of Indian laws. Even enlightened
Englishmen called Nand Kumar’s execution a judicial murder. It is rightly said that the British came to
India not to help Indians but to help themselves.

Patna Case:9
The Patna Case is one of the most interesting cases in Indian Legal History. It occurred in 1777 and highlights
the drawbacks of the system of judicial administration. This case brought into the light the involving conflict
and dissatisfaction among the Supreme Court and the Governor and Council.

9
N.V.Paranjape, Indian Legal and Constitutional History, (Allahabad: Central Law Agency, 2006)
Shahbaz Beg Khan belonged to Kabul and came to India and joined a company Army and then he got retired.
After that he earned wealth and settled at Patna and married Nadirah Begum. Later, he called his nephew
Bahadur beg from Kabul to live with him. He also communicated his desire to adopt Bahadur Beg as his son and
make him the heir of his property. But before he could give fulfil his wish, he died in 1776.

Shahbaz Beg left impressive property behind him which led to dispute of property between his wife and the
nephew. Each one of them claimed the whole property of the deceased. Bahadur Beg filed a petition in the
Provincial Council at Patna and asserted the rightful ownership of property being the adopted son of the
deceased. He also requested the court to protect the property from being abused by the widow of the deceased.
Nadirah Begum, on the other hand, asserted her claim to the said property on the basis of three documents are:
Dower: Deed (Meharnama), Gift – Deed (Hibanama), Acknowledgment (Ikrarnama).

The Provincial Court of Patna directed that Kazi and Mufti set up a stock of the property and gather and seal it
till any official order was issued. These native law officers were also to report to the Court about the separate
claims of the parties after ascertaining the facts of the case. In accordance with the Provincial Council's orders,
the Kazi and Mufti went to the house of the deceased and gathered the property and took stock of it. During the
investigation they abused Nadirah Begum as a result of which, she left the house and took shelter in a "Durgah".

The methodology followed by the law officers in this case was most irregular. After conducting an inquiry in the
case they deferred their report to the Patna Council. On the basis of evidence, the Kazi reported that widow's
agent (counsel) had neglected to deliver the dower deed in this manner. Also, there was nothing invalidate to the
attestations of Bahadur Beg that the sum of Rs.1200/- as dower was already paid by the deceased to Nadirah
Begum during his life-time. As far as other documents are concerned, namely, the gift-deed and
acknowledgment-deed, the law-officers recommended that they were invalid being forged and, therefore, the
property of the deceased should be divided into four shares, out of which three should be given to Bahadur Beg
as adoptive son, and the fourth part should be given to Nadirah Begum in accordance with the Mohammedan
law of succession.

The Provincial Council of Patna acknowledged the report of the Kazi and Mufti and requested the division of
the property in the manner suggested by them. Aggrieved by the decision of the Provincial Council, Nadirah
Begum filed a case in the Supreme Court against Bahadur Beg, Kazi and Mufti for assault, false imprisonment
and coercively entering into her house and other injuries and alleged damages to the chorus of rupees six lakhs.

There were majorly two issues in this case. Firstly, whether Bahadur Beg, who lived outside Calcutta was under
the jurisdiction of Supreme Court or not? Secondly, whether the law officers could be indicted for their acts
done in their capacity as officers of the government? during their legal proficiency or not.

The court censured the way in which the Kazi and Mufti had represented the reality. No normal preliminary
hearing was held and witnesses had not been analysed on oath. Thus, the Supreme Court granted damages of
Rupees 3 Lakhs to Nadirah Begum.

An impartial examination of the case demonstrates that gross anomalies happened during the trial. The law
officers were there to just elucidate the law and should not have analysed the witnesses themselves as this was
supposed to be done by the judge. This case also uncovered the shortcomings of the legal hierarchy, especially
that of the Sadar Diwani Adalat at Calcutta in light of the fact that the Governor General and the Council who
constituted the court barely performed legal work.

This case dealt with a situation in which the officials were authorized by the court of law to investigate into the
matter of Nadirah Begum and Bahadur Beg to find out the documents and other related information. However,
during this procedure the officials i.e, Kazi and Mufti behaved badly with Nadirah Begum while entering her
house. Accordingly, the Supreme Court gave the judgement in favour of Nadirah Begum and these officials
were charged with the punishment of imprisonment along with a fine of Rs. 3 Lakhs to her.

Kamaluddin Case: 10
This case represents the first open difference of opinion between the court and the government over the question
of the Court’s control of Diwani functions. Kamaluddin was an ostensible holder of a salt farm at Hijili, on
behalf of Kantababu, who was the real farmer. In 1775, Kamaluddin was committed on the ground of arrears of
revenue due from him, the claim of which he disputed. It was customary to take bail in such cases but no bail
was taken in his case. He approached the Supreme Court for a writ of Habeas Corpus. The court held that in
cases of disputed accounts, the defendant should be held to bail till the inquiry into his obligation to pay has
been completed.

It, therefore, directed the chief of the council to accept bail for Kamaluddin’s appearance in the Diwani court
and not to take him into custody again. The Government regarded the Court order as an encroachment on the
Company’s Diwani rights. The Diwani rights, the council contended, were vested in the Governor-General and
Council solely and the Court’s order in releasing Kamaluddin amounted to exceeding its jurisdiction which was
against law. Three members of the Council suggested that the Court’s order should not be recognised and
obeyed. This suggestion could not be translated into practice because Governor-General Warren Hastings did
not support defiance of the Court’s order. It appears that sometime later, Kamaluddin was arrested again and he
again obtained writ of habeas corpus from the Court and he was finally discharged by the Court. Chief Justice
Impey in a letter to the Court of Directors justified Court’s action on two grounds: firstly, in a case of this
nature, it had been the usual practice for the Revenue Council to take bail and so the Court gave the direction for
taking bail; secondly, it had been the established practice to demand rent from the under-tenant before
demanding, much less imprisoning the farmer and the Court’s order was consistent with this practice.

Impey maintained that the Court had intervened to prevent the Company’s officers “Under colour of legal
proceedings and of being guilty of most aggravated injustice”. He asserted that every person was entitled to the
protection of English Law from the oppressions of the collectors or any other officers of the government, and in
the instant case the court had simply compelled the revenue officers to act in conformity with the established
customs and usages of revenue collection. The Court did not desire to interfere with the “ordering and
management” of the revenues, but the collection of revenue was a different matter. Impey asserted that the Court
would be guilty of breach of trust if it refused to take cognisance of violence and oppressions used in the
collection of revenue.

CONCLUSION:

10
M.P.Jain, Outlines of Indian Legal and Constitutional History (Nagpur: Lexis Nexis, 2012), 81.
The case of Kamaluddin was an eye opener disclosing defective provisions of the regulating act due to which
not only the Supreme Court and the Council came into conflict but it also created a gulf between the governor-
general Warren Hastings and three members of the council, who constituted the majority

Cossijurah Case:
The Cossijurah Case illustrates another aspect of administration of the Company in India. This case is known for
the fact that it brought out the defects in the Charter which created the Supreme Court at Calcutta. The Charter
did not demarcate either the jurisdiction of the Court or the position of the Governor-General-in-Council. As a
result of this confusion, there were occasions, when the Supreme Court issued writ of capias against the
directions of the Council. In the Cossijurah Case, the confrontation between Supreme Court and the Council
became evident. This case in brief is as follows:

One Zamindar, the Rajah of Cossijurah was heavily indebted to Cossinaut Baboo. When Cossinaut requested for
the return of his money, the Zamindar showed reluctance by making one excuse or the other. The Baboo
therefore approached the Revenue Board where also his efforts brought no result. Finally, he sued the Rajah in
the Supreme Court at Calcutta. In his affidavit he stated that the Rajah was in the service of the Company having
been employed in the collection of revenue. The affidavit also stated that the Rajah was subject to the
jurisdiction of the Supreme Court. The Supreme Court issued a notice to the Rajah directing him to appear
before the Court. In the meantime the matter was referred to the Council at Calcutta which referred the matter to
the Advocate-General for his advice on the point whether the Zamindar was amenable to the jurisdiction of the
Supreme Court. The Advocate-General advised that the Supreme Court had no jurisdiction over the Zamindar.
Thereupon the Governor-General-in-Council issued instructions to all the farmers and landholders that they
were not subject to the jurisdiction of the Supreme Court and that they could ignore the process of the Court.

The Rajah of Cossijurah had gone into hiding to avoid the process of the Supreme Court. The Supreme Court
issued another notice to the Rajah who did not pay any attention to it in view of the instructions from the
Governor-General-in-Council. In fact, the men of the Zamindar drove away the Sheriff and other officers who
had come to arrest the Zamindar on a writ of capias. Thereupon, the Supreme Court issued another writ for the
confiscation of the property of the Rajah. The Court sent the Sheriff along with some armed constables.

The Council also came into motion; it decided to protect the Zamindar. Accordingly it despatched a much larger
armed force to prevent the arrest of the Zamindar. In the meantime, the Sheriff and officers caught hold of the
Zamindar physically, assaulted him, insulted the ladies, and did many acts of sacrilege in respect of the idols of
the gods placed in a room. By that time the Commander of the army, which had been despatched already,
reached the spot under the orders of the Governor-General-in-Council. He arrested the Sheriff and his men and
took them to Calcutta, where they were released. Thereafter, the Supreme Court issued a writ for the arrest of
the Commander. This writ was also prevented by a similar show of armed force.

When all efforts to recover his money failed, Cossijurah decided to file a suit against the members of the
Council. Accordingly he brought an action against the Governor-General and the other members of the Council
in the Supreme Court. The Governor- General and his Councillors appeared in the Court in the first instance.
Soon they discovered that the plaintiff had brought an action against them in their official capacity. They then
decided not to appear before the Court.
The Council issued instructions to all the Zamindars, landholders and the persons residing outside Calcutta not
to pay any attention to the process of the Court and that in the case the Supreme Court persisted in issuing writs
against them, the Council would protect them.

The show down between the Supreme Court and the Council brought out the inherent weaknesses and defects in
the Regulating Act which did not specify the areas and the persons which were under the jurisdiction of the
Supreme Court. The language of the Act was vague enough for giving rise to conflicting interpretations. These
defects, however, were removed to a great extent by the passing of the Act of Settlement of 1781.

Act of Settlement, 1781:11

Owing to the conflicts between the Supreme Court and the Supreme Council (i.e., Governor-General and
Council), the conditions of civil and judicial administration in the country became intolerable. The court was
disliked by the natives also. The procedure, language, law and everything connected with the Court were a
mystery to them. No longer could things be allowed to continue like this. To set things right, Parliament had to
intervene. In 1781, it passed an Act, known as the ‘Act of Settlement’. The Act was passed after a thorough
inquiry by the Select Committee of the House of Commons for the administration of justice in Bengal, Bihar
and Orissa. The Preamble of the Act of 1781 showed that the contest between the Court and the Council had
been won by the later.

The Act laid down that Governor General and Council of Bengal, shall not be subjected, either jointly or
severally, to the jurisdiction of the Supreme Court of Fort William in Bengal for any act done by them in their
public capacity only and while acting as Governor General and Council. In this way, the Government was
rendered immune from the jurisdiction of the Supreme Court. This provision, no doubt, was the result of the
Cossijurah Case where contempt proceedings were sought to be taken against the Governor-General and
Council in writing.

The Act in its second section declared that no person would be held responsible by the Court, either civilly or
criminally, for acts done by him in pursuance of an order of the Governor-General and Council in writing.
Section 8 restricted the jurisdiction of the Court in a very vital respect. It was laid down that the Supreme Court
shall not have or exercise any jurisdiction in any matter concerning the revenue. Section 9 declared that no
person was to be subjected to the jurisdiction of the Supreme Court on account of his being a landowner,
landholder, farmer of land etc.

Section 10 laid down that no native person employed by the Company, or the Governor General and Council or
by any British subject, was to be subjected to the jurisdiction of the Supreme Court in the matters of inheritance
succession or contract, except in actions for crime, tort and in civil actions.

Section 17 declared in specific terms that the Supreme Court of Judicature ‘shall have full power and authority
to hear and determine all manner of actions and suits’ against the inhabitants of Calcutta. It was further provided
that all matters arising out of inheritance and succession to land and goods, and all matters of ‘contract and
dealing between parties, shall be determined, in the case of Mohammedans, by the laws and usages of
Mohammedans and in the case of Gentoos, by the laws and usages of Gentoos’. It was further provided that

11
S.S.Shilwant, Indian Legal and Constitutional History (Jaipur:Univeristy Book House, 2019).
where only one of the Parties shall be a Mohammedans or Gentoos, the Supreme Court would apply ‘laws and
usages of the defendant’. Thus, Supreme Court was to apply three systems of law viz., English Law, Hindu Law
and Muslim Law.

Section 21 was very important in so far as the Sadar Diwani Adalat now accorded recognition as a court to hear
and determine appeals and references from the country courts in civil cases. The status of the Sadar Diwani
Adalat became co-equal with that of the Supreme Court as both were backed by parliamentary legislation and
from both appeals went to the Privy Council.

Section 22 authorised the Sadar DiwaniAdalat to hear and determine all offences, abuses and extortions
committed in the collection of revenue. Section 24 was suggested directly by the Patna Case with a view to
make the judges and the law officers of the Company’s courts safe in the discharge of their duties in the office.
Section 25 prescribed the process according to which an action could be brought in the Supreme Court against a
judicial officer or the Magistrate of the Company, for any corrupt act.

The Act of 1781 did not stop here. As we know under the Regulating Act 1773, the Governor-General and
Council was to have legislative powers for the town of Calcutta, subject to the control of the Supreme Court.
The laws passed by the Governor General and Council under this provision had to be reasonable and consistent
with the laws of England and had to be registered with the Supreme Court.

Section 23, however, conferred for the first time legislative power on the Governor-General and Council for the
purpose of making laws for Bengal, Bihar and Orissa. The Section laid down that within six months of the
Regulations having been passed, their copies were to be transmitted to the Court of Directors and to one of his
majesty’s secretaries of state. His Majesty in Council might disallow or amend the Regulations so passed within
a period of two years. The Governor and General thus came to have two different legislative powers. One, under
the Regulating Act of 1773 for Calcutta and second from the Act of Settlement of 1781 for the provinces of
Bengal, Bihar and Orissa.

Thus, the Act of Settlement, 1781 was substantially in favour of Governor-General in Council and against the
Supreme Court on all counts.

Judicial Plan of Warren Hastings:

The Company expanded its political activities and brought new territories surrounding the Presidency towns
under its control. This territory came to be known as the “mofussil” in contradistinction to the “Presidency
Towns”. The first territorial acquisition by the Company consisted of Bengal, Bihar and Orissa. Here the first
Adalat system was started in 1772 which in course of time, was modified, improved and refined. Later,
encouraged by the success of the Adalat system, it was also introduced in the Provinces of Madras and Bombay.

In 1765, the affairs of the Company in Bengal took a significant turn. The nominal Mughal emperor, Shah Alam
granted to the company the Diwani rights of Bengal, Bihar and Orissa. The company agreed to pay annually 26
lakhs of rupees to the emperor and was to retain whatever surplus might be left out of the revenue collected.
Under the Mughal administrative system, the government in the province, then known as the Subah, was
conducted by two high dignitaries, i.e. the Nawab and the Diwan. The Nawab or Nazim was the head of the
government and military, and also supervised the administration of Criminal justice. Being head of the
government and military, he was also responsible for the maintenance of law and order. Thus, Nawab was the
head of ‘Nizamat’.

The Diwan who stood next to the Nawab in rank, headed the Diwani which comprised of the functions of
collecting revenue and deciding civil and revenue cases. Both the officers, Nazim and Diwan were appointed by
the Central Government i.e., the Mughal Governor. Thus, in 1765 the office of Diwani was granted to the
Company, and it comprised of two functions namely: the collection of land revenue and administration of civil
and revenue justice. A system of dual government commenced in Bengal. The Company assumed responsibility
for military, revenue collection and civil and revenue justice. Criminal justice was left to the supervision of the
Deputy Nawab and its expenses were to be borne out from the Nawab’s allowance.

Execution of the Diwani Functions:

The Company did not at once take over the execution of the Diwani functions after the grant. It did not employ
its own servants to discharge these functions. Instead, it appointed two Indian officers at Patna, and the actual
administration of the Diwani, was left in their hands. They supervised the collection of land revenue and the
dispensation of justice in civil as well as revenue matters. The Company’s directors suspected misappropriation
on the part of the Indian officers. To reap full advantage of the Diwani, the Company decided in 1772 to ‘stand
forth as Diwan’, and to take over the entire care and management of the Diwani functions and discharge them
directly through the agency of its own servants.

The Directors did not issue any directions by which their decision to stand forth as Diwan was to be
implemented. Thus, the Directors delegated the full responsibility to create an administrative set up with the
Company’s servants as the pivot, on Warren Hastings. It was out of this situation that the fabric of a new
judicial system in the Mofussil was to be woven i.e., Adalat System in the Mofussil of Bengal, Bihar and Orissa,
beyond the presidency town of Calutta.

The Judicial Plan of 1772:

Warren Hasting’s administrative plan of 1772 was devised with a district as a unit. Bengal, Bihar and Orissa
were divided into a number of districts. In each district, an English servant of the Company was appointed as the
Collector who was to be responsible for the collection of land revenue and had judicial affairs to attend as well.
The Judicial Plan of 1772 was based on the ancient and traditional division of authority between Nawab and
Diwan. It chief features were as follows:

Mofussil Diwani Adalat:

A Moffusil Diwani Adalat was established in each district with the Collector as the judge. The Adalat was
authorised to hear and decide all civil causes including real and personal property, inheritance, cast, marriage,
debts, disputed accounts, contracts, partnerships and demands of rent. In all suits, the laws of Koran with regard
to Mohammadans and those of the ‘Shaster’ with respect to the Hindus were to be applied.

Therefore, to make the system workable and to enable the collector judge (Englishman) to decide cases
according to the Indian laws, native law officers, Kazis and Pandits, were appointed to expound the laws.

Small Cause Adalat:

Provision was made for disputes upto rupees 10 to be decided finally by the Head farmer of the parganah.
Mofussil Fauzdari Adalat:
A Mofussil Fauzdari Adalat was established in each district to try all kinds of criminal cases. The Adalat
consisted of the Muslim law officers, Kazi, Mufti and Maulvies. The Maulvies were to expound the Muslim law
of crimes; the Kazi and Mufti were to give Fatwa (order of sentence) and render judgement accordingly.

The collector was required to exercise a general supervision over the Adalat. He could not finally determine
cases involving sentences of death, or forfeiture of property of the accused; proceedings of such cases had to be
submitted to the Sadar Nizamat Adalat for final orders.

Sadar Diwani Adalat:

Over and above the Moffusil Adalat, the Sadar Diwani Adalat was established at Calcutta. The Sadar Diwani
Adalat consisted of the Governor and members of the Council. It was to hear appeals from the Moffusil Diwani
Adalats in cases of over five hundred rupees. Appeals were to be filed in the Adalat within two months from the
date of the decree given by the Mofussil Adalat. The Governor and Council exercised a supervisory control on
the proceedings of the Sadar Nizamat Adalat.

Sadar Nizamat Adalat:

The Sadar Nizamat Adalat, consisting of an Indian Judge appointed by Nawab known as the Daroga-i-Adalat
who was assisted by the Chief Kazi, Chief Mufti and three Moulvies, was situated at Calcutta. The functions of
the Adalat were to revise the proceedings of the Mofussil Nizamat Adalat and approve the sentences of death
and forfeiture of property. In case of a death sentence, the death warrant was prepared by the Adalat and was
signed by the Nawab as head of Nizamat.
All Adalats were required to maintain proper registers and records, then district Adalats were to transmit
abstracts of their proceedings to the Sadar Adalats.

The Plan of 1774:

The collectors enjoyed the privilege of carrying out their private trade. Under these circumstances, there was
every possibility that the collectors uncontrolled from any check would monopolise the trade.

Civil Justice: In this plan, the collectors were recalled from the districts. An Indian officer, called Diwan or
Amil, was appointed in each district in place of the Collector. The provinces of Bengal, Bihar and Orissa were
divided into six divisions, with their headquarters being at Calcutta, Burdwan, Murshidabad, Dinajpore, Decca
and Patna. Each division thus comprised of several districts. In each of these divisions, a small council
consisting of four or five English covenanted servants of the Company was appointed, known as the “Provincial
Council” and its main function was collection of revenue in the Division and to provide justice in revenue cases.

Thus, the Council was to be known as “Provincial Court of Appeal”. It was authorised to hear appeals in all
cases decided by the Amils. In all cases, over Rs. 1000 in value, a further appeal was to lie from the Provincial
Court of Appeal to the Sadar Diwani Adalat.

Criminal Justice: Warren Hastings shifted the Sadar Nizamat Adalat from Calcutta to Murshidabad. The
supervision over the district criminal courts manned by the Muslim Law officers also came to an end.

The Plan of 1780:

Warren Hastings formulated a new plan, its basic feature was separation between the revenue and judicial
functions which was promulgated in 1780. The salient features of the new plan were:

In each of the six divisions i.e., Calcutta, Murshidabad, Burdwan, Dacca, Dinajpore and Patna, in which the
three provinces of Bengal, Bihar and Orissa had been divided in 1774, a Court of Diwani Adalat (i.e., a court of
civil jurisdiction) was established. Each of the six new Diwani Adalats were to be presided over by an
Englishman, a covenanted servant of the company. He was to be known as “Superintendent of the Mofussil
Diwani Adalat”. After 1780 Plan, the Provincial Councils were to confine themselves only to revenue functions.

The Diwani Adalat was empowered to decide all civil cases like inheritance, property, contract etc. The
Superintendent of the Diwani Adalat could refer small cases to some Zamindar or public officer residing near
the parties’ place of residence. The Adalat was authorised to decide even the cases of inheritance and succession
to Zamindars which till now had fallen within the purview of the Governor General and Council.

In 1780, the Governor-General and Council divested themselves of the charge of the Sadar Diwani Adalat and
appointed Sir Elijah Impey, the then Chief Justice of the Supreme Court, as its sole judge. This step was taken
mainly on the initiative of Warren Hastings. In 1781, the Patna case revealed that the Sadar Diwani Adalat
functioned very irregularity and ineffectively. To make the Sadar Adalat more lively and active institution,
Impey was appointed as its sole judge. Its functions, powers and jurisdiction were more clearly defined. The
Sadar Diwani Adalt was to perform the following functions:

Appellate Jurisdiction: The primary function of the Court (Sadar Diwani Adalat) was to hear appeals from the
lower courts in all cases where the subject matter involved was over one thousand rupees in value.

Original Jurisdiction: The court was authorised to try and determine any cause or matter of civil nature referred
to it by the Governor General and Council.

Control and Superintendence: The Sadar Court was to exercise control and supervision over the lower Diwani
Adalats. Impey compiled a comprehensive civil procedure code for the guidance of the Sadar Adalat and the
Mofussil Diwani Adalats. It was the first code of civil procedure to be prepared in India. The code contained
‘ninety five clauses’.

Since, Impey’s appointment in Sadar Diwani Adalat was viewed as disfavour in England, unfortunately he was
called from India to England and this Adalat lapsed again.

Reforms in Criminal Judicature:

In 1774, the Supreme Court of Judicature was established at Calcutta. It consisted of a Muslim Judge, with the
tilte of Daroga, who was assisted by the Mohammedan Law officers Kazi, Mufti and Maulvies. Its functioning
was supervised by the Governor-General, Warren Hastings. In 1774, the Supreme Court of Judicature was
established at Calcutta. Apprehending interference from the Supreme Court into the affairs of the Sadar Nizamat
Adalat, the Government of Calcutta decided to change its venue. In 1775, therefore, the Sadar Nizamat Adalat
was shifted from Calcutta to Murshidabad and was placed directly under the charge of the Nawab. The Naib
Nawab, Mohd. Reza Khan was to look after the working of the Sadar Nizamat Adalat. In 1775, therefore, the
whole of the Criminal Judicature in the country lapsed into the hands of Reza Khan.
His supervision over the working of the criminal courts was very weak and ineffective. Innocent persons were
punished whereas the guilty escaped with impunity. In 1781, Hastings directed his attention to this sorry state of
affairs and introduced the following reforms in the sphere of criminal law and justice:

The Plan of 1781:

Hastings devised the machinery to arrest and apprehend criminals and bring them to the criminal courts for
trials. For this purpose, the judges of the Mofussil Diwani Adalats were appointed as Magistrates also. They
were to arrest all those persons who were suspected of having committed crimes, and were to send them for
their trial at the nearest Moffusil Fauzdari Adalat. No Magistrate was to have any judicial powers i.e., he could
not try the accused himself. Thus, the Magistrates were given the police duty only. The step was expected to
promote law and order in the countryside.

The Moffusil Fauzdari courts were to transmit monthly reports showing the number of persons in actual
confinement, persons arrested, persons released, transmitted by the Sadar Nizamat Adalat, which continued to
sit at Murshidabad. The head of this new department at the capital was to be a covenanted servant of the
Company and was known as the ‘Remembrancer of Criminal Courts’. Warren Hastings left India in 1785.

Judicial Plan under Lord Cornwallis:

Lord Cornwallis reached India in 1786 and stayed here till 1793. He was the first to put into practice the
important principles of ‘Rule of Law’ and administration according to Law. He introduced reforms in three
phases in the years: 1787, 1790 and 1793.

The Judicial Scheme of 1780, introduced during the time of Governor-General Warren Hastings, had two
functions- revenue and judicial. Many high officials of the Company thought that the amalgamation of the two
functions would result in efficiency, simplicity and would also bring down the cost of administration. The Court
of Directors of the East India Company instructed Lord Cornwallis to unite the revenue and judicial
organisations. The key note of this plan was economy. Sir John Shore said:

“Natives had always lived under the arbitrary and despotic form of Government and therefore, the form
of British Courts should also be despotic.”

The Scheme of 1787:

a.) The number of districts was reduced from 36 to 23. In each district, an Englishman, a covenanted servant of
the Company, was appointed as the Collector.

b.) The Collector was to collect revenue. He also decided all civil cases on revenue.

c.) The Collector was to act as judge in the Moffusil Diwani Adalat and thus, administer justice in civil cases to
common man.

d.) The Collector was also to act as the Magistrate in the district. It was his duty to arrest and apprehend
criminals in the district and to send them to the nearest Mofussil Nizamat Adalat for trial, if the case was not
of petty nature. Cornwallis in 1787 authorised the Magistrates to hear and determine all complaints for petty
offences and to punish the same by Corporal punishment, not exceeding 15 strokes or imprisonment not
exceeding 15 days.
e.) The Regulation of 1787 laid down that the Collector should keep his revenue functions confined to the
Revenue Court, to be known as ‘Mal Adalat’. The Collector was to discharge his judicial functions in civil
cases in the Court of ‘Mofussil Diwani Adalat’. The Collector was also to act as a ‘Magistrate’.

f.) The Board of Revenue, located at Calcutta, was to hear and decide appeals from the decisions of the
Collector in his Mal Adalat. A further appeal from the Board of Revenue lay to the Governor-General in
Councils on the executive side.

g.) Appeals from the Mofussil Diwani Adalat, in all cases where the subject-matter exceeded Rs. 1000/- in
value, lay to the Sardar Diwani Adalat. Decisions of the Sadar Diwani Adalat were to be final, except in
cases where subject matter valuing 5000 pounds or over was involved. In all such cases, further appeal lay to
the King-In-Council, under the provision of the Act of Settlement, 1781.

h.) The Sadar Diwani Adalat was to consist of the Governor-General and members of his Council. They were to
be assisted by the Chief Kazi, Chief Mufti and two Maulvies and Pandits to expound the native laws i.e.,
Muslim and Hindu.

i.) A subordinate officer, known as the Registrar, was appointed to provide aid and assistance to the Collector in
the discharge of his judicial functions in the Moffusil Diwani Adalat.

With this arrangement, the Collector in the district became very powerful as he was the Judge, Magistrate as
well as the Collector. The scheme of 1787 was a retrograde step, a swinging back of the pendulum, as compared
to 1781, when a progressive step had been taken in relation to separation of powers between the judicial and the
executive functions.

The Scheme of 1790:

The most important step taken to infuse vitality in the criminal judicature of the country was to remove the
Sadar Nizamat Adalat from Murshidabad to Calcutta. The Nawab was divested of his control over this court.
Henceforth, this court, like the Sadar Diwani Adalat, was to consist of the Governor-General and Members of
the Council as Judges. In the discharge of their functions in the Sadar Nizamat Adalat, the Governor General
and Council were to be assisted by the Chief Kazi of the province and two Muftis, who were to expound law
applicable to the circumstances of the case. The decision in the Sadar Court were to be regulated by the Anglo-
Mohammadan law i.e., Muslim Law as modified by the Regulations of the Governor-General in Council.

The Sadar Nizamat Adalat was to meet at least once every week. A regular diary of its proceedings, were to be
maintained. Lord Cornwallis appreciated this fact fully and so he reformed the lower courts also. The former
Fauzdari Adalats presided over by the Muslim law officers were abolished and new courts, known as Courts of
Circuits, were established in their place. All distrcits in Bengal, Bihar and Orissa were arranged into four
divisions of Patna, Calutta, Murshidabad and Dacca. A Court of Circuit consisting of company’s two
covenanted servants was established in each division to try all criminal cases.

The Circuit Court was not stationary but a moving court. It was to proceed from district to district within the
division trying persons accused of criminal offences. It was to be assisted by Muslim Law officers, Kazi and
Mufti. A security of tenure was given to these law officers, unlike the one they had enjoyed before. They were
to be nominated by the Governor-General-in-Council. It was laid down that the Kazis and Muftis could not be
removed from their posts except by the orders of Governor-General-in-Council, on proof of his satisfaction of
their having been incapable or having been guilty of misconduct.

The proceedings and records of all those cases, where the sentences of death or perpetual imprisonment were to
be inflicted, or where the judges of the Court disapproved of the Fatwa proposed by the native law officers, were
to be reported to the Sadar Nizamat Adalat, which was to award the final sentence.

The lowest rung of the ladder of the criminal judicature were the Magistrates in the districts. The Collector in
each district was to act as Magistrates also. He was to examine the complainant, the accused (not on oath), and
other persons having knowledge of the crime. If the Magistrate found the suspicion against the suspect wholly
unfounded, he was to discharge him. If the offence committed turned out to be petty, the Magistrate could
himself award the sentence of corporal punishment not exceeding 15 rattans or 15 days imprisonment. If the
crime appeared to be serious, the accused was to be tried by the Court of Circuit when it visited the district next
time. The Magistrate was to give a public notice in his district, of the time of arrival of the Court of Circuit, and
require all complainants, witnesses and the accused released on bail, to attend when the Court arrived. The
Magistrate was to give public notice in his district, of the time of arrival of the Court of Circuit. He was also
suppose to make a report to the Sadar Nizamat Adalat specifying the names of the persons apprehended by him,
dates of their apprehension, and orders passed thereon. The office of the Remembrancer created during Hastings
regime was now abolished.

Reforms in Criminal Law:

All Nizamat Adalats were to decide cases according to Mohammedan law of crimes as modified by the plan of
Cornwallis to make the law more reasonable and humane. Following changes were introduced in criminal law:

a.) For determining punishment ‘intention’ must be seen instead of ‘manner or instruments’ by which the
offence was committed. This change bears much importance because the ‘intention’ is the first and foremost
aspect seen in the offences defined in the Indian Penal code.

b.) The relatives of the murdered persons could not pardon the accused.

c.) In case of murder, refusal by the relative to prosecute the accused or non appearance of the relative in the
court in proceedings resulting into acquittal as a rule existing previously was abrogated in 1792.

d.) In 1791, the punishment of mutilation of limbs was abolished and in place of it provision was made for
imprisonment and hard labour.

e.) Crimes of forgery and perjury were taken very seriously and hence recommended to be punished by branding
on forehead in addition to the ordinary punishment.

The Scheme of 1793 (Cornwallis Code of 48 Regulations):

Separation of Executive and Judiciary:
The policy of separating the two functions was put into practice by the scheme of 1793. Accordingly, the
regulation II of 1793 made inter-alia the following provisions:
a.) The Collector was to be responsible only for the collection of revenue payable to the Government. He thus,
became merely an administrative officer.

b.) The Courts of ‘Mal Adalat’ or revenue courts were to be abolished. The trial of suits which up to this time
had been cognizable in those courts as well as all judicial powers that heretofore vested in the Collectors of
the revenue were to be transferred to the Courts of Diwani Adalat. Revenue cases became triable like
ordinary civil cases in ordinary civil courts.

Executive subjected to Judicial Control:

The Collectors and all executive officials were made amenable to the Diwani Adalats for their acts; they were to
be personally liable for violations of the regulations and could be required to pay damages to the injured party.

British Subjects v. The Company’s Courts:

The British subjects most of whom were merchants and traders reside for commercial purposes in the interior of
Bengal, Bihar and Orissa, beyond Calcutta, could recover their claims against the native inhabitants easily and
inexpensively by filling their cases in the local Diwani Adalats. But on the other hand, the native inhabitants of
these areas had no such reciprocal means to obtain redress against the British subjects against whom cases could
be filed only in the Supreme Court at Calcutta.

To redeem this inequitable situation, the Diwani Adalat of Muffasil area were authorised to entertain suits by
natives against British subjects involving costs up to Rs.500 only in case where British subjects were residing at
a distance more than 10 miles from Calcutta.

Moffusil Diwani Adalats Reorganised:

The Mofussil Diwani Adalats under the collector had not been functioning properly. A Diwani Adalat was
instituted in each district and in each of the three cities of Patna, Murshidabad and Dacca. It was to be
superintended by a Company’s covenanted civil servant. The Moffusil Adalat was authorised to take cognisance
of all civil and revenue cases. But, it was not to interfere with criminal cases. The scheme of application of
various laws was to be same as had been finalised in 1781.

Four Courts of Appeal:

Keeping in view the above situation, four courts of appeal were instituted namely: Provincial Courts of Appeal
having seats at Patna, Dacca, Calcutta and Murshidabad. Each court was to consist of three of Company’s
English covenanted servants, out of which two were to make a quorum.

Functions of Sadar Diwani Adalat:

It was to hear appeals from the Provincial Courts of Appeal in all cases involving a subject matter exceeding one
thousand rupees. Its decisions were to be final, except that a further appeal could be taken to the King-in-
Council in cases of value of more than five thousand pounds. The Sadar Diwani Adalat was given the functions
of supervision and inspection over the lower Adalats. In this respect, the powers of the Sadar Adalat were to be:

i.) It might receive any original suit or complaint cognisable by a Mofussil Diwani Adalat if the particular
Mofussil Adalat had refused or omitted to proceed with the case.
ii.) It could direct the Provincial Court of Appeal to receive and proceed with an appeal cognisable by it, if it had
omitted or refused to do the needful.

iii.) It was authorised to receive charges of corruption against the judges of the Mofussil Diwani Adalats and the
Provincial Court of Appeal. It could either try the charges itself, or it might issue a special commission to
three or more judges of other Provincial Courts to try the charge, if it was against a judge of a Provinical
Court of Appeal; or order a Provincial Court of Appeal to try it if it happened to be against the judge of a
Mofussil Diwani Adalat.

Subordinate Civil Judicature:

No effort had been made to organise the subordinate judiciary in the districts, and the whole judicial business of
a district had been concentrated in one Moffusil Diwani Adalat. The parties had thus to undergo much expense
and inconvenience.

Court Fees Abolished:

Before 1793, court fees ranging between 2% to 5% in proportion to the cause of action had to be paid by a
person instituting a suit. Cornwallis took a radical step of abolishing the Court fees.

Criminal Judicature:
The scheme of criminal judicature introduced in 1790 was left intact subject only to a few changes made in
1793. These changes became necessary to achieve co-ordination between the schemes of criminal and civil
judicature. These were the following modifications:
a.) In 1790, collectors were to act as Magistrates. But the policy adopted in 1793 deprived the collectors of
judicial power, and keept them merely as an executive officer. Magisterial functions were now transferred to
the judges of the Mofussil Diwani Adalats.

b.) The judicial powers of the magistrates were re-defined. Petty offences could be punished by them by
awarding imprisonment of up to 15 days or by imposing a fine of up to Rs. 100.

c.) The practice hitherto had been for the suitors either to plead their own cause personally or appoint agents.
These agents could either be their servants or dependants, or those who followed the profession of a vakeel.

Legal Profession:
The Sadar Diwani Adalat was to admit as many pleaders as were necessary to plead the cause of the litigants in
various Adalats. The Sadar Adalat was to grant, sunnuds to the pleaders. The persons of good character, liberal
education and versed in the knowledge of Hindu Law and Mohammaden Law were admitted to the profession.
The Sadar Diwani Adalat could fine him, dismiss him or allow him to resume his practice in cases of
misbehaviour alleged to have been committed by pleaders. To protect the clients from being exploited by the
vakeels, it was laid down that they were not to realise their fees directly from their clients; the courts were to
collect their fees as a part of the decree passed by them and pay to vakeels later on.

Scheme of 1793 also provided the liberty of institution of suits against government in case of violation of
regulation and laws. Hence, a citizen could file the suit against the government.

Native Law Officers:

The scheme of 1793 provided that all native law officers i.e., Pandits, Kazis, Muftis etc. belonging to the various
courts were to be appointed by the Governor-General-in-Council. Persons well versed in law and of
unblemished moral character were to be appointed as law officers, who were to take an oath on appointment.

Legislative Methods and the “Form of Regulation”:

A regulation was to contain a preamble reciting the reasons for its enactment. Every regulation was to be
divided into sections and where necessary, a section could be divided into clauses. All regulations enacted in a
year, were to be recorded in the judicial department and then numbered, printed and published. The regulations
enacted during a year were to be bound in volumes; a sufficient number of these volumes were to be sent to the
courts and other functionaries.

Permanent Settlement of Bengal:

Since 1765, the major concern of East India Company was to collect as much revenue as possible. Agriculture
was the main basis of the economy and the source of income. Several land revenue experiments were introduced
in haste to maximise collection. Native officials were given supervisory authority over them. The corruption as
well as lack of understanding of the social situation led to complete disorganisation of the agrarian economy and
society in the Diwani provinces. Warren Hastings, adopted the policy of removal of Indians altogether from the
administration of revenue and make the British the sole collector of the resources of the provinces.

In 1784, Lord Cornwallis was sent to India with the specific instructions to streamline the revenue
administration. Cornwallis with the help of John Shore introduced it. He realised that the existing system in the
country needed improvement as agriculture was not producing enough regular surplus that the company had
hoped for. Company trade also suffered because silk and cotton industry were mainly agriculture based.

In order to improve the situation, the Company thought of fixing the revenue collection permanently. This idea
of fixing revenue went into the making of the Permanent Settlement of 1793 which introduced in Bengal, the
policy of “assessment forever”.

The main characteristics were:

a.) It reduced the amount of corruption on the part of officials who were collectors.

b.) Landlord could invest money in improving the land.

c.) It increased production and enhanced income.

d.) Company would get its taxes regularly.

By 1790, the Company’s administration retained some Zamindars and replaced others by new revenue farmers.
Zamindars were expected to invest for the improvement of agriculture if their property rights were secured. It
was easier to collect revenue from a small number of Zamindars than from innumerable peasants. Thus,
payment of revenue determined Zamindar’s rights over the land: Firstly, he was the owner of land, secondly, he
could sell, mortgage and transfer it and thirdly, it could be inherited by his heirs.

But failure to pay revenue would lead to the confiscation of the Zamindari by the government. Thus, this was
the creation of private property in land. Peasants’ customary occupancy rights were ignored and their status was
reduced to the position of tenants. The condition of the actual cultivators declined under the permanent
settlement.

Judicial Plan of Lord William Bentick:12

William Bentick became the Governor-General in 1828 and remained so until 1835. During this time he made
several reforms. He is considered next to Lord Cornwallis in the area of basic reforms.

Establishment of Sadar Diwani and Sadar Nizamat Adalats of Allahabad:

By Regulation VI of 1831 he established Sadar Diwani and Sadar Nizamat Adalats at Allahabad vesting the
same powers as to the ones in Calcutta. These Adalats started to work from January 1, 1832. The territorial
jurisdiction of the new Adalats extended to Benaras province and other areas including district of Meerut,
Saharanpur, Muzaffarnagar and Bulandshar. This reform gave relief to the people living far away from Calcutta.

Criminal Administration of Justice:

a.) Abolition of Circuit Courts- Circuit courts were abolished in 1829 and their jurisdiction was conferred upon
Commissioners.

b.) Establishment of the Court of Commissioner- By Regulation no. 1 of 1829, the jurisdiction exercised so far
by Circuit Court was transferred to the Commissioner who was called ‘Commissioner of Revenue of
Circuit’. He exercised the power of superintendence and control over the Magistrates, police, collectors and
other revenue officers. The entire area was divided into divisions and for each division a Commissioner was
under the control of the Sadar Nizamat Adalat regarding judicial functions and under the control of Board of
Revenue regarding revenue functions.

c.) Establishment of the Court of District and Sessions Judge. One Division consisted of many districts. In each
district, Diwani Adalat was working. By Regulation VII of 1831, the Government was authorised to invest
the additional duty of Sessions to District Diwani Adalat. When the Judge discharged duties in District
Diwani Adalat, he was called the District Judge dealing with civil matters. When the same judge would sit in
sessions (generally once in a month) he was called Sessions Judge dealing with criminal matters.

d.) Establishment of Court of ‘Collector-Magistrate’.

e.) More participation of Indians in Criminal Administration of Justice.

By regulation of 1831 the Magistrates were authorised to refer any criminal case to Sadar Ameen or Principal
Sadar Ameen for investigation. In 1832, these Indian officers (Sadar Ameen, Principal Sadar Ameen) were
given the powers to award punishment of one month imprisonment with hard labour and corporal punishment
up to 30 rattans. More provisions were framed to give participation to Indians as assessors and jurors in the
criminal trials.

Civil Administration of Justice:

12
M.P.Singh, Outlines of Indian Legal and Constitutional History (Delhi:Universal Law Publishing, 2012).
 a.) Status of Munsif and Sadar Ameens was increased. By regulation V of 1831 the jurisdiction of the
Munsifs were increased up to Rs. 300. Regular salary was provided in place of old system of
Commission.

b.) Creation of the Court of Principal Sadar Ameen. An Indian officer was appointed as the Principal Sadar
Ameen by the Governor-General in Council. His jurisdiction was raised from Rs. 1000 to Rs.5000 in
civil cases, referred by the District Diwani Adalat. The Principal Sadar Ameen could hear appeals also
against the decisions of the Munsifs and SadarAmeens. Appeals against the decision of Principal Sadar
Ameen could go to Diwani Adalat and further appeal could go to Sadar Diwani Adalat in some special
cases only.

c.) Registrar’s judicial powers abolished.

d.) Abolition of Provincial Court of Appeals. By Regulation 11 of 1833, the Governor General in Council
was empowered to abolish all the Provincial Court of Appeal excepting none, hence the same were
abolished in that year. Their jurisdiction was given to Diwani Adalats with the provision of appointing
Additional District Judge if deemed necessary to help the court in speedy disposal.

e.) Introduction of Jury system in judicial system. Regulation VI of 1832 empowered the Governor-
General in Council to authorise the judge of Diwani Adalat to receive the help of jury while dealing
civil cases. Undoubtedly, the Indians also got the opportunity to share the judicial functions by way of
jury.

Revenue Administration of Justice:

Drastic change was effected by empowering the Collector with vast judicial powers. By Regulation VIII of 1831
the Collectors were conferred the Judicial powers erstwhile exercised by the Diwani Adalat to entertain and try
summarily all claims relating to arrears of rent or their exactions (i.e., revenue matters). He also empowered to
execute all the decrees and orders passes by him. Now the Diwani Adalat, Principal Sadar Ameen, Sadar Munsif
had only revising powers according to their respective pecuniary jurisdiction against the decision of the
Collector.

Legal Cases: Government. v. Purtab:

In 1816, in the course of a robbery with violence, four villagers were murdered. The suspects absconded and a
proclamation was issued by Nizamat Adalat under Regulation IX of 1808 calling upon them to surrender within
a named period. After this period expired, in 1821, the defendants were apprehended, tried in the Circuit Court
for murder and sentenced to death.

Regulation IX provided a proclamation that a person who failed to give himself up within the prescribed period
could be tried only for contumacy and that it was only if he were acquitted on that charge that he could be
brought to trial for the offence for which he had proclaimed. When, therefore, the proceedings of the murder
trial came before the Nizamat Adalat for confirmation that the Chief Judge (Leycester) directed that the
defendants be put on trial for contumacy in not having complied with the terms of the proclamation. This was
done, they were found guilty and sentenced to transportation for life, subject to confirmation by Nizamat Adalat.

Out of the five judges, Smith J and the third judge agreed that the original offence was outside the ambit of
Regulation IX of 1908. The proclamation was illegal and the defendant should, therefore, be acquitted. The
chief Judge held the conviction legal while the fifth judge held the charge as proved but gave no opinion on
legality of the proclamation. The fourth judge held the proclamation legal and the conviction proper. It was
pointed out by Smith J. that the validity of proclamation was not considered by the Chief Judge and the fifth
judge, and unless they agreed with the fourth judge in holding the proclamation as legal, the conviction on the
contumacy charge could not be upheld.

Courtney Smith managed to show the recorded minutes to the Chief Judge before the charge was prepared for
signature. However, the Chief Judge declared the proclamation to be legal but the fifth judge thought it to be
illegal and to this the second judge re-joined. He could now point out that three out of five judges were of the
opinion that the proclamation was illegal and that the contumacy trial must be quashed. The chief and the fourth
judge, however, adhered to their opinion and Courtney Smith recorded yet a further minute remark that as all the
judges had now expressed their opinions on the legality of the proclamation “there can be no reason for further
delay in issuing a sentence which three judges out of five approve”.

It appears that the prisoners were accordingly acquitted in the contumacy charge because the court proceeded to
consider the conviction on the murder charge before it. Judge Smith opined that a trial de novo on that charge
was unnecessary and the other judges agreed with him. Conviction was therefore affirmed but in the
circumstances the death sentence was replaced by one of imprisonment for life.
Development of Personal laws in India

Personal laws have their sanctity since Mughal period which remained applied
during British period and even today they have existence on diverse footings
except to a little unification. Warren Hastings was supporter of the policy of
applying the personal laws to Hindus and Muslims respectively. In his opinion
it would be a great evil to impose on the Indian people a foreign legal system.
The aim of the British Government was to preserve the laws for Hindus and
Muslims according to the Shastras and Quran. However, English law officers
had ignorance towards Hindi and Arabic language. Also, the amount of
literature of Hindu Law is vast and often conflicting as it represented different
strata of civilization of social growth. The Hindu literature consisted of Smritis,
Shrutis, commentaries etc. In many respects, commentaries differed from the
Smritis because they were of much later age. The great difficulty faced by a
judge in the process at ascertaining Hindu law was to choose between the
conflicting texts which could answer all questions pertaining to different
matters.

Realising these issues Warren Hastings made available to them the assistance of
native law officers, i.e., Pandits and Qazis. This experiment initially remained
confined to Bengal, Bihar and Orissa, later expanded to areas which were under
the company’s rule. Gradually, British officers gained confidence and were no
more dependent on native law officers. Also, the judges had no confidence in
the integrity and loyalty of these native officers.

In course of time, Hasting’s policy of preserving the indigenous Indian laws

came to be increasingly appreciated. The personal law of the Hindus governs
such topics as marriage, adoption, joint family, property etc. Similarly, the
Muslim law governs the Muslims in the same matters.

According to U.C.Sarkar

“They began with the policy of non-interference and generally allowed the then
existent system of law to prevail; but gradually they began to assert themselves
being, of course backed by a strong fraction of the public opinion.

Because many courts were presided by English judges and they had to decide
the disputes involving Hindu and Muslim law. Therefore, there was necessity of
authoritative works, well compiled in English language. The Governor-General
Warren Hastings did this commendable job for the first time. At his instance, a
code of Hindu Law was prepared in 1775 with the active help of ten Brahmins
of Bengal. The original text of the Hindu code was prepared in Sanskrit
language under the title of ‘Vivadarnata Setu’, or the ‘Bridge across the ocean
of Litigation’. This code was translated in Persian language and later on it was
translated into English Language by Halheid which was known as Code of
Gentoo laws or the Gentoo code applicable on Hindus. This code “must be
considered as the only work of kind wherein the genuine principles of the
‘Gentoo’ jurisprudence are made public”. The code devoted topics like laws of
Contracts. For example, it had chapters on such topics as “debt, deposits, sale,
property”.

In the area of Mohammedan Law, he got translation of ‘Futwa-i-Alamgiri, a

work in Persian language prepared under the authority of Aurangzeb. He also
got translation of “Hedaya” into Persian. The Hedaya or guide was also held in
high esteem by the muslims. The work being in the Arabic language was
completed as late as twelfth century. It was translated first in the Persian
language by learned Maulvies. Then Charles Hamilton translated it into the
English version. The four volumes of this work appeared in London in 1791. It
is continuously cited by the Bench and the Bar.

Justice Jones of the Supreme Court of Calcutta also prepared the work on
Mohammedan Law of Succession. Al Sivajiyan, a work on inheritance was
selected for this purpose as it was regarded as an authoritative work in all
Mohammedan countries which that followed the system of Abu Hanifa. Justice
Jones also published his Institutes of the Hindu Law, the ordinances of Manu in
1794. He was desirous to prepare Digest of Hindu Law but it remained
incomplete due to his sudden death which was ultimately completed by Pandit
Jagannath. The same was translated in English by Colebrooke.

Later on, many works were produced. Sir Francis Macnaughtan prepared
‘Considerations upon Hindu Law’ in 1824. Sir William Hay Macnaughtan
prepared ‘Principles and Precedents of Mohammedan law’ in 1825. Other
works came as Myne’s ‘Treatise on Hindu Law and Usage’ in 1887 and Neil
Daille’s Treatise on the law of inheritance applicable on Muslims. In addition to
the above, other works were also came by native and foreign writers which had
conflicting versions due to non-acquaintance with native languages, local
customs and usages.
Thus, the development of personal laws continued throughout the English
period. The legislation, adjudication, and legal works undoubtedly contributed
much. Many orthodox or unreasonable laws were removed and silent areas were
filled up. After independence of the country, these laws were compiled and
rationalised.

Development of Criminal Laws1

The Muslim system of Criminal law and justice, had gained ground sufficiently
in India when the Britishers came to India. During the Moghul period it had
become systematic, and, was applicable in the Muslim ruled areas in India.
Sources: The Primary Source of Muslim Law was the Koran. Koran was the
word of the Allah. Ijma & Qiyas were the others Sources. The nature, purpose
& mode of punishment under Muslim Law may be grouped into four:

i) Retaliation (Kisa) (Life for life, limb for limb), ii) Blood money (Diya)
(Unintentional killing), money compensation, iii) Fixed penalties (Hadd)
(Limits of Punishment prescribed), iv)Discretionary (Tazeer) (Judge's
discretion).

The Principle of retaliation was applied to cases of wilful homicide and of

grave maiming and wounding. It gave to the injured person or next of kin the
right of making like injury to the culprit. Killing by way of retaliation was to be
done with a sword or with any other similar weapon. From the beginning this
was the general mode of execution in the territories under the control of the East
India Company. Where the person murdered was a descendent of the Killer,
there was no provision for retaliation. The second was the blood money. This
was payble for other unintentional killings. The fund was to be exacted from the
wrong-doer himself. In other cases, he and his family or associates were liable.
'Hadd' means limit. It was applied to the fixed penalties for certain offences.

The quantity and quality of punishment were fixed for certain offences and
could not be altered or modified. The judge had no discretion in the matter, e.g.
(a) The punishment for illicit intercourse was stoning or whipping; (b) For
falsely accusing a married woman of adultery or for winedrinking the
punishment was whipping; (c) For theft it was cutting of the hands, (d) For
various types of robbery, it was mutilation or death. iv) Under the Principles of
1 M.P.Jain 333
Tazeer, the kind and amount of punishments were entirely within the discretion
of the judge. The punishment was public exposure, corporeal punishment, exile,
boxing on the ear, imprisonment or humiliating treatment. Warren Hastings
commented – “law as barbarous in construction and contrary to the first
principle of civil society.”

Muslim criminal law was based -on 'Hedaya and Fatawa Alamgiri. Sometimes
these contained contrary Principles opposing Hanafi Schools. This resulted in
uncertainty of Hanafi Law. In addition, this Law of crimes in some aspects
suffered from other glaring defects like the absence of the Principles of natural
justice. ii) Crimes were divided into: 1) Crimes against God e.g. Adultery,
Drunkenness etc. 2) Crimes against man e.g. Murder, Robbery etc., Muslim
Law granted a privilege to the sons to pardon the murderer of their parents or
Kinsman. This encouraged many potential Killers, to commit homicide on all
slight provocations. Thus human life became cheap.

Among Hindus, Brahmin murderers escaped punishment because the relatives

of the deceased person did not like to incur any sin by demanding retaliation by
the offender Brahmin. The Whole Muslim law of homicide was very
complicated, technical & obscure. Punishments like, mutilation and stoning to
death were cruel and inhuman. The law of criminal procedure and law of
evidence were highly technical and primitive and irrational, e.g. evidence of one
Muslim was equal to two of non-muslims. Evidence of two women was equal to
that of one man.

As far as the judiciary is concerned, the King was the highest judicial authority
& formed the highest court, He decided cases in the Court Hall called Diwan-i-
khas (Hall of private audience). 2. Kazi was appointed by the King. He decided
cases falling under muslim personal law. He held his court proceedings in
public. 3. Governors & Diwans at provincial level Faujdars at district levels,
Amins at Pargana level & Kotwal at towns were deciding Secular Cases, i.e.
other than muslim cases. 4. Diwani (revenue) Adalats decided civil, cases and
Nizamat Adalats decided criminal cases.

The British Government employed the process of gradually reforming the

Muslim law so as to make it a fit instrument for administration of Criminal
Justice in India. The reforms were introduced in the form of regulations based
generally upon English Principles. Lord Cornwallis in 1790 divested the Kazi of
any authority over nizamat. In 1791, the government abolished punishment of
mutilation and substituted imprisonment and hard labour in its place. General
principles on which criminal justice should be administered were introduced in
Cornwallis Code 1793.

In 1833 Lord Macaulay moved the House of Commons to codify the whole of
Criminal law in India. The first law commission was appointed with Lord
Macaulay as its Chairman. It submitted its draft to the Governor-General in
1837. This was circulated to the Judges and Law advisers. It was revised by
another Commission. It was finally passed by the Legislative Council in 1860
which is the Indian Penal Code. In 1861, the Criminal Procedure Code was
passed. These two together repealed, the then prevailing Hindu & Muslim
Criminal Laws and Procedures.

English Law administered in Mufassils

The Hastings Judicial plan of 1772 expressly provided that the natives would be
excluded from the application of English Law unless they voluntarily consented
to be adjudged by it for settling their disputes. This principle was followed in
the administration of civil justice in Mufassils of Bengal, Bihar and Orissa. It
was the first attempt by the company’s administration to introduce a definite
system of law in the Mufassils. The plan provided that the suits relating to
inheritance, marriage, caste and other religious institutions were to be decided
according to the laws of Quran with respect to Muslins and laws of Shastras
with respect to Gentoos (Hindus). The Maulvies and Pandits were expounded
the law in such cases and assist the English Judge in passing decrees. However,
the Hastings plan of 1772 did not provide for the rules to be followed in civil
suits of persons other than those expressly mentioned. Therefore, in 1781, Sir
Elijah Impey, the judge of Sadar Diwani Adalat at Calcutta added the word
‘succession’ to the word ‘Inheritance’ and prescribed that “in all those cases for
which no specific directions are hereby given, the courts were to act according
to justice, equity and good conscience.” This provision was also extended to all
Diwani Adalats functioning in the Mofussils of Bengal, Bihar and Orissa.

Warren Hastings in his judicial plan, had deliberately rejected the idea of
complete application of English law in India on the plea that its rigid imposition
was contrary to the customs and traditions of the natives and repugnant to the
conditions of the country. The usages, customs, and institutions of indigenous
people could not be overlooked and the law to be followed was to be agreeable
as closely as possible to the personal laws of the inhabitants.

That apart, the development of the English law having been an altogether
different footings than the indigenous laws of natives, its rigid application in
Indian conditions were not desirable. The Indian traditions, usgaes, customs
were radically different from those of England, therefore, Hastings wisely
thought of the unsuitability of the application of unmodified English Law to
Indian cases and granted liberty to the natives to be governed by their own
personal laws in certain matters of civil justice.

Subsequently, when Lord Cornwallis assumed the reigns of the Company’s

Government, he realised that the existing scheme of judicial administration was
far from satisfactory and the existing laws needed to be reduced in the form of
digested code which would be acceptable to the tenets and beliefs of Muslims
and Hindus. Therefore, he brought out a set of regulations which was called the
Cornwallis code of 1793, Regulation XLI of the code provided that the matters
relating to succession, inheritance, marriage, caste, religion, were to be disposed
of according to Hindu or Mohammedan laws if the parties happened to be
Hindu or Mohammedan respectively. Similar provisions were extended to the
province of Benaras in 1793 and United Provinces in 1802. While both these
laws were based on religion, they greatly differed in usages and customs.
Within the Muslim community itself there were two different sects, namely, the
Shia and Sunni who followed different laws. Likewise Mitakshara and
Dyaybhaga schools of Hindus followed different family laws despite their
common origin from the shastras.

Regulation XI of 1793 annulled the custom of single heir succession called

impartibility on the ground that it was repugnant to both Hindu and
Mohammedan laws.

In 1827, a further modification was made regarding applicability of the personal

laws of natives. It was provided that in case the parties to a suit belonged to
different religious pursuits, then the law of the defendant would apply and in
absence of any specific law or usage, the principles of equity, justice and good
conscience would be applied for deciding the case. Thus, the most notable
feature of the Cornwallis Code was that it placed both Hindus and Muslims on
equal footings thereby bringing to an end the superiority of Mohammedan law
which dominated the Indian scene due to prolonged Mughal rule in India.
In cases where the parties were neither Muslims nor Hindus, the courts
generally applied the law of the country of the origin of the parties except where
they voluntarily agreed to place themselves under the English Law. The
disputed relating to inheritance, arising among the Indian Christians were
generally decided according to the usage of the parties as indicated by their
ancestors and predecessors. However, the European British subjects residing in
the Mufussils were governed by the English law in their civil matters.

Concept of Justice, Equity and Good Conscience2

The concept of justice, equity and good conscience has played an important role
in the introduction of English law in India especially in Mofussils. The maxim
was not defined properly but it was usually taken to mean discretion of the
judges. In 1772, Warren Hastings prepared a judicial plan, known as Warren
Hastings Plan of 1772. By this plan the system of Adalats was introduced in the
territory of Bengal, Bihar and Orissa. In each district a court, called Mofussil
Diwani Adalat was established. The appeals from this court were to be heard by
the superior court called Sadar Diwani Adalat, where the value of the suit was
more than rs. 500. Besides, in each district a Mofussil Faujdari Adalat was
established to decide criminal cases according to Muslim Criminal Law. The
appeals from the Mufassil Faujdari Adalat were to be heard by the Sadar
Nizamat Adalat. The cases of inheritance, marriage, caste and other religious
usages and institutions were to be decided by the Mufassil Diwani Adalat
according to the law of Shariat with regard to the Mohammedans and the laws
of the Shastras with respect to the Hindus.

The personal laws of Hindus and Muslims were safeguarded, but the personal
laws were to be applied only in respect of a few matters and it was not made
clear under this plan as to what law to be applied by these courts in respect of
other matters. Besides, the facility of using personal laws were allowed only to
Hindus and Muslims in the territory of Bengal, Bihar and Orissa. It was not
made clear under the plan as to what law was to be applied to the persons other
than Hindus and Muslims. In 1781 Sir Elijah Impey, for the guidance of the
Sadar Diwani Adalat and the Mufassil Diwani Adalats, compiled a Civil
Procedure Code which was promulgated by the council in the form of
regulation. The provision made that in all cases for which no specific direction
were given, the judges of the Sadar Diwani Adalt and Mofussil Adalats were to

2 Indian legal and constitutional history, Kailash Rai, Allahabad law agency, 1993.
act according to the justice, equity and good conscience. During the period
when lord Cornwallis was the Governor- General, by regulations it was made
clear that in cases coming within the jurisdiction of the Zilla and city courts or
the Provincial Courts of Appeal or the Sadar Diwani Adalat for which no
specific rule was in existence, the judges were to act according to justice, equity
and good conscience. For non-Hindus and non-muslims residing in the
territories of Bengal, Bihar and Orissa, no law was prescribed and, therefore the
cases pertaining to them were decided by the judges according to justice, equity
and good conscience.

In Madras, by Regulation II of 1802 it was made clear that in cases coming

within the jurisdiction of the Zilla Courts for which no specific rule was in
existence, the judged were to act according to justice, equity and good
conscience.

In Bombay Regulation IV of the Elphinstone Code, 1827 made provision that if

the Acts of British Parliament, Regulations made by the Government of
Bombay, the usages of the country and the law of defendant would not provide
guidance as to the law to be applied in the case before the Court, the Courts
would decide the case according to ‘Justice, equity and good conscience’.

In the beginning the maxim of ‘justice, equity and good conscience; was taken
to mean discretion of judges and it was expected that the discretion would be
exercised by the judges in a manner which seemed to them doing substantial
justice to the parties. The judges, in the exercise of their discretion, applied
Hindu Law where the parties were Hindu and Muslim law, where the parties
were Muslims in may cases in which they were not bound to apply such law.

Later on and specially after the establishment of the High Court in 1862 the
“maxim of justice, equity and good conscience” was taken to mean the rules of
the English Law so far as applicable to Indian situations. The judges of the High
Courts were barristers and trained under the English law. Consequently,
whenever they got the opportunity to decide a case according to ‘justice, equity
and good conscience’ they used to decide a case on the basis of English law. It
was natural for an Englishman to interpret the words “justice, equity and good
conscience” as meaning such rules and principles of English Law as he
happened to know and considered applicable to the case. The act of settlement,
1781, recognised the Sadar Diwani Adalt as a court to hear appeals from the
decisions of the Mufassil Courts in civil cases. It also made provision that the
appeals against the judgement of the Mufassil Courts in civil cases. It also made
provision that the appeals against the judgements of the Sadar Diwani Adlat
might be presented to the King-in-Council (i.e. the Privy Council) if the value
of the suit was 5000 pound or more.

The judges of the Privy Council interpreted this maxim as meaning the rules of
English Law so far as applicable to Indian conditions. In Waghela Rajsanji v.
Sheikh Masluddin, Lord Hobshouse expressed the view that this maxim had
been generally interpreted to mean “the rules of English Law if found applicable
to Indian Society and circumstances.” The Privy Council, thus introduced the
English law in Mufassil also. The Privy Council, as it appears from the above
discussion, has played important role in the introduction of English Law in
India.

The doctrine of justice, equity and good conscience allowed with discretion to
the judges in deciding the cases. The discretion of one judge was often found to
differ from the discretion of another judge. On account of it, diversity and
uncertainty developed in the field of law. The codification of the Indian Law
was the only remedy for removing these evils.

The Charter of 18333

The commercial and political privileges of the Company which were granted to
it by the Act of 1813 were to terminate in 1833. It was necessary for the
Company to approach the Parliament for the renewal of its charter for the next
term of twenty years. This was the period when the doctrine of laissez faire had
become the cardinal principle of economic policy in Britain and economists
were striving hard to free the trade from all restrictions and monopolies. On the
political plane, the wave of Benthamite liberalism influenced the minds of
politicians and law-reformers. At that time Macaulay was in Parliament and was
the Secretary to the Board of Control and James Mill was the examiner of the
Indian correspondence in India House. It was under these circumstances that
Parliament took up the question of renewal of the Company’s Charter.

Charter Act made many vital alterations in the legislative system of India. In the
first place, it created in the real sense an ‘All India Legislature’ having authority

3 Dr.NV.Paranjape, Indian legal and constitutional History, 301

to make laws and regulations for all territories in the possession or under the
government of the company at the time.

This wide legislative power was, however, subject to some exceptions. It could
not in any way alter the provisions of the Charter Act of 1833 itself. Neither
could it change the Mutiny Acts nor could it alter the provisions of any Act of
Parliament to be passed after 1833. Likewise, Council was not eligible to
legislate so as to affect the prerogative of the crown, or the authority of the
Parliament, or the constitution of the United Kingdom of Great Britain and
Ireland.

Directions were given to the Governor General in Council that the governor
General in Council shall forthwith repeal all laws and regulations so disallowed
by the new codified legislations. The copies of such codified legislations were
to be sent to ‘Court of Directors’.

The laws and regulations of the Legislative Council were to be of the same
force and effect as any Act of the Parliament. The Powers of legislation were
vested in the Governor-General in Council. The Council, besides the Governor-
General was to have four ordinary members out of whom one was to be a ‘Law
Member’. The three ordinary members were to be appointed by the Court of
Directors from amongst persons who had been the servants of the Company for
at least ten years. The Law members were to appointed by the Court of
Directors from amongst the persons who had not been the servants of the
Company. The Law member was not entitled to sit or vote in the Council except
at meetings for making laws and Regulations, in other words, law member had
no right to sit and vote in administrative meetings of the Governor-General in
Council.

All legislative power in the country had been thus centralised and concentrated
in one body that is the Governor General in Council at Calcutta. The Charter
Act took certain steps towards securing a uniform and simple system in India.
Section 53 provided that the Governor- General of India in Council should, as
soon as feel convenient issue a commission to such persons as the said
Governor General in Council shall think fit. These persons were to constitute
the Indian Law Commission. They are not to exceed five at one time. The
commissioners were required to inquire fully into the jurisdiction, powers and
rules of the existing courts of justice.
Besides the changes effected by the Act in the powers and working of the
Company’s Home Government and its Central Government in British India and
the Presidencies, certain other important reforms were also introduced. They
were as follows:

1) The act provided that the natives of India would be freely allowed to
participate in the administration of the country without any restrcitions as
to descent, color, caste, creed or religion.4
2) The act required the Governor-General-in-council to initiate necessary
steps to abolish slavery and ameliorate the condition of slaves. He was
expected to prepare a draft on this subject and submit it to the Court of
Directors.
3) The act of 1833 also increased the number of Bishopries to three and
made the Bishop of Calcutta the Metropolitan Bishop of India.
4) The act also contained provisions regarding the training of civil servants
for India at the Company’s College at Haileybury and regulated
admissions to that College.

First Law Commission (1834-43)

In pursuance of the provisions of the Charter Act of 1833, the First Law
Commission came to be appointed in 1834. The Commission consisted of the
following members: Lord Macaulay, J.M.Macleod, G.W.Anderson, F.Millet.
The last three members of the Commission were from amongst the civil
servants of the Company representing the three presidencies of Calcutta,
Madras and Bombay. The Commission met for the first time in 1834. Under
instructions from the Governor-General in Council, the first law Commission
under the guidance of Macaulay (Law Member) proceeded with the work of
drafting an Indian Penal Code. The draft of the Penal Code which was mainly
the work of Macaulay was submitted to the Government in 1837. It could not be
immediately enacted into a code. It had to wait for nearly a quarter of a century
before it became law.

Lex Loci Report- Great obscurity engulfed the question of the civil law which
could determine the rights of such communities as Christians, Anglo-Indian,
Armenians etc. residing in the Muffasil. The attention of the first Law
Commission was directed to this question in 1837. The remedy proposed by the
Commission was that an act should be passed making the substantive law of
England, the Law of the land (Lex Loci). On May 22, 1840 the commission by
following the above recommendation submitted a draft of the Lex Loci Act. Its
main provisions were:

1) Only so much of the law of England was proposed to apply as to suit the
people of India and was not consistent with any Regulation or Act of the
Indian legislature.
2) It was not to apply to any person professing any religion other than the
Christian religion in matters of marriage, divorce or adoption.
3) No act of Parliament passed since 1726 was to be applied unless the act
was specially extended to the Muffasil in India.
4) The Muffasil courts could adjudicate upon the legal rights and modify the
same whenever equity and good conscience, required, in the same way as
they had been doing heretofore in the case of British subjects.
5) The distinction maintained by the English Law between the real property
and personal property would not be applicable in the Mufassil; all
immovable properties in the Mufassil were to be regulated by the same
way as was applied to the personal property in England.
6) The distinction maintained by the English Law between the succession of
the immovable property of the deceased which followed the law of the
place, where the property was situated and succession to movable
property of the deceased which followed the law of the place of the
domicile of the deceased, was not to be affected.
7) The distinction maintained by the English law between the real property
and personal property would not be applicable in the Mufassil; all
immovable properties in the Mufassil were to be regulated by the same
way as was applied to the personal property in England.
8) Appeals from the courts in the Mufassil in all matters decided under the
Lex Loci Act were to lie to the Supreme Court concerned instead of the
Sadar Diwani Adalat.
9) Nothing in the act was to apply to a Hindu or a Mohammedan, or to his
property, unless he had renounced his religion and had adopted any other
religion.
10) No Hindu or Mohammedan, by renouncing his religion, was to lose
any rights or property or deprive any other person of any rights or
property.
 11) So much of the Hindu or Mohammedan Law which inflicted
forfeiture of rights and property of any person in case of renouncing his
religion or who had been excluded from the communion of any of those
religion, was to cease to be enforced in the Company’s Courts.
12) In any case of falling within the above clauses, it appeared to the
court of trial that the application of the princilples would outrage the
feelings of any party against whom the court was called upon to apply
them, the court was to submit the case to the court of appeal which was to
decide whether the provisions were to be applied or not and with that
modifications, and what if any compensation was to be given to a party
for loss sustained by him if the court of appeal decided not to apply those
provisions.

The Second Law Commission5

The Second law Commission which was appointed on 29th November, 1853 in
England, consisted of varied types of members having the knowledge of English
and Indian laws and also of social conditions. It consisted of leading lawyers of
England and a few persons who had intimate knowledge of the Indian Laws,
and those who were personally associated with the work of the First Law
Commission. It was to examine and consider the recommendations of the First
Law Commission for the reform of the judicial establishments, judicial
procedure, and laws of India. The Second Law Commission functioned till the
middle of 1856, as its life was fixed statutorily at three years. During the tenure,
the Commission submitted four reports. The very first task assigned to the
Commission by the Board of Commissioners for India was to take into
consideration the preliminary measures which would be necessary for
amalgamating the Sadar Adalats and the Supreme Courts at each presidency.
The majority of the Commission made the following recommendations for the
law reforms:-

1) That a substantive civil law for the whole of India is needed.

2) The English Law should be made the basis of such law.
3) The personal laws of Hindus and Mohammedans should not be codified.

5
For details read, M.P.Jain, 443.
 4) Some other exceptions for the codification of some aspects of Law with
respect to some people and some localities could be made according to
the needs and requirements.
The Commission submitted a plan for the amalgamation of the Supreme Court
at Fort William in Bengal with the Sadar Diwani and Nizamat Adalats, as well
as for the simple and uniform Codes of Civil and Criminal Procedure applicable
to the High Court to be so formed as well as to all inferior courts within the
limits of its jurisdiction. The basic recommendation of the commission was to
constitute a single tribunal, which for the sake of distinction was called the High
Court, in place of the Supreme Court and the Sadar courts. The commission also
recommended the adoption of the Codes of Civil and Criminal procedure
throughout the jurisdiction of the High Court.

In the third report, the Commission prepared the plan for the north-western
Provinces in order to install there a judicial system and procedure, uniform, as
far as the circumstances would permit, with the system recommended for
Bengal. The fourth report was devoted to the preparation of a similar plan for
the Presidencies of Bombay and Madras. In all three reports, a common pattern
was recommended for the High Courts and this part of the reports was
effectuated in 1861. The codes of Civil and Criminal Procedure were enacted by
the Indian Legislature in 1859 and 1861 respectively.
Indian Political Science Association

INTEGRATION OF PRINCELY STATES AND THE REORGANIZATION OF STATES IN INDIA

Author(s): Phool Kumar Sharma
Source: The Indian Journal of Political Science, Vol. 28, No. 4 (October-December 1967), pp.
236-241
Published by: Indian Political Science Association
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 INTEGRATION OF PRINCELY STATES AND
THE REORGANIZATION OF STATES IN INDIA

JPhool Kumar Sharma, m.a.

Lecturer in Political Sicence, Shivaji College , New Delhi.

An important event that occurred in the post-independence era m

be mentioned as it helped in the consolidation of the country. The m
princely states lost their identity after merger with the Indian Unio
memorandum in regard to States Treaties and Paramountcy issued on
May, 1946 stated, "...His Majesty's Government will cease to exerci
powers of paramountcy. This means that the rights of the States
flow from their relationship to the Crown will no longer exist and t
the rights surrendered by the States to the paramount power will retu
lhe States. Political arrangements between the States on the one si
the British Crown and British India on the other will thus be brought
end."1 The void was to be filled by the States entering into a fe
relationship with the successor Government and the gradual introduc
of a democratic political system.
It may be recalled that as early as 1938 at its Haripura Session
National Congress made it its objective to integrate the States in I
Union and to achieve political homogeneity throughout the country :
"The Congress stands for the same political, social and econom
freedom in the States as in the rest of India and considers the Stat
as integral parts of India which cannot be separated. The Pu
Swaraj or complete independence, which is the objective of
Congress, is for the whole of India, inclusive of the States, for
integrity and unity of India must be maintained in freedom as it
been maintained in subjection."2
The simultaneous maintenance of two different political system
the States and Provinces was not justified by any difference in the cult
the people. The difference was an artificial one. Essentially all people
intimately related common problems to face. The close relations
between the States and the Provinces and their common destiny was
expressed in the Montagu-Chelmsford Report of 1918 in the follo
observations :

1 White Paper on Indian States issued by the Government of India in July

1948, Appendix m, p. 45.
2 Indian National Congress February 1938 to January ¡939 ( Allahabad, Pub-
lished by General Secretary, All India Congress Committee) p. 10.

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 INTEGRATION & THE REORGANIZATION OF STATES IN INDIA 237

"India is in fact, as well as by legal definition, one geographical

whole. The integral connexion of the States with the British Empire
not only consists in their relations to the British Crown, but also in
their growing interest in many matters common to the land to which
they and the British provinces alike belong."3
Similarly, the Indian Statutory Commission characterised the differ-
ence between the provinces and princely States as purely arbitrary. To
quote a few words from the Report :
"Whatever may be the differences of climate and physical
feature, and whatever may be the diversities of race and religion in
India, it is not these differences that are reflected in the purely arbi-
trary division between British and State territory."4
The integration of princely States with the Indian Union was also
necessary to achieve harmonious administration. The existence of a
number of small States created a multiplicity of governing agencies. Each
State differed in its administrative rules from the neighbouring States. The
difference in rules necessarily created barriers between one unit and another.
In such a state of affairs it was not possible to launch any large economic
planning. The country, for its economic development, needed a broad-
based economic policy. Exploitation of the natural resources and co-ope-
ration in production of new materials required a competent administration.
Convenience in administration is a very important condition for implement-
ing economic planning. The White Paper on Indian States deprecated the
multiplicity of governing agencies in following words :
"Existence of a large number of small units led to unnecessary
multiplication of governing agencies which necessitated the mainte-
nance of numerous ornamental and dignified institutions. These
States could never provide efficient service or maintain anything like
modern standards of administration, continuance of separate govern-
mental institutions in such States led only to the dissipation of
national wealth."5
It was evident that in the existing set-up it was not possible to make
any uniform progress and to inter-relate the development made in various
regions of India. As the White Paper pointed out, "In such a set-up any
kind of co-ordinated development, opening up to economic potentialities or
any form of real progress was hardly possible."6
Apart from the need for good administration, the multiplicity of
princely States could prove dangerous to the political unity and security of
lhe country. The existence of two political systems created a wide disparity
between the states and neighbouring provinces. This fact could create mis-

3 Report ort Indian Constitutional Reforms 1918 ( Calcutta, Government of

India Central Publication Branch, Reprinted 1928) para 296.
4 The Report of the Indian Statutory Commission 1930 ( Calcutta, Government
of India, Central Publication Branch, 1930 Vol. 2, para 15.
5 White Paper on Indian States , n. 1, para 100.
6 Ibid., para 101,
8

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238 THE INDIAN JOURNAL OF POLITICAL SCIENCE

understanding at any time among the people residing in various parts of

country. The Provinces were ahead in the development of democra
institutions whereas the States were still continuing with autocracy. Th
fore, the integration of States was essential to achieve political uniform
in the country. This alone could answer the demand of time. The politic
disparity in the country could encourage disruptionist forces.7 In his va
able study V. P. Menon pointed out the danger of this glaring dispar
According to him "Normal development of political progress had be
arrested in most of the States."8

The existing circumstances end the need of the time eased the task
of integrating the States for Sardar Vallabhbhai Patel - the then Deputy
Prime Minister of India. Almost all the States were integrated by signing
the Instrument of Accession, leaving aside only the States of Junagadh, and
Hyderabad. Later on these two States were also integrated in the Union of
India.9 After the integration, the internal arrangement in the States and
their relationship with the centre were cast into a new mould so as to fit
into the new constitution of 1950, which provided three categories of
Slates.10
The territorial integration of princely States took three forms -
(a) merger with the adjacent provinces; (b) grouping of certain States into
separate units; (c) transformation of certain States into centrally adminis-
tered areas.11 The process through which the states were adjusted into the
new constitutional structure was two-fold. It involved, in the first place,
(he accession of the Indian States to the Dominion of India. Secondly, it
involved the changes whereby the consolidation of small States into viable
administrative units had taken place. With it also was set into operation
the development of democratic institutions and responsible governments
in the States.12

The policy of integration served a great purpose. It united the whole

country in one political framework, and removed many administrative draw-
backs and financial disparities. Thus was created an atmosphere favourable
to large scale economic planning. The financial integration of States helped
to implement a co-ordinated economic policy. It was a great change for
India, which affected its political, economic and social life. In the words
of Sardar Patel : "The great ideal of geographical, political and economic
unification of India, an ideal which for centuries remained a distant dream
and which appeared as remote and as difficult of attainment as ever even

7 Sardar Vallabhbhai Patel's speech, The Constituent-Assembly Debates, Vol.

10, 1959, p, 167.
8 V. P. Menon, The Story of the Integration of the Indian States (Bombay,
Orient Longmans Ltd., 1956) p. 486.
9 For further study see Ibid., pp. 144-45 and 376-77.
10 Constitution of India : As modified upto 1st September, 1951, Delhi, Govt,
of India Press, 1951, First Schedule, pp. 205-207.
11 V. P. Menon, n. 8, pp. 435 and 470.
12 White Paper on Indian States, n. 1, para 63.

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 INTEGRATION & THE REORGANIZATION OF STATES IN INDIA 2Ì9

after the advent of Indian independence" was consummated by the policy of

integration.13 The efforts of Indian leaders opened new vistas for the
country. Equally praiseworthy was the patriotic spirit of the princes, who
demonstrated that they could intelligently appreciate the spirit of the times.1?
The changing circumstances also strengthened the forces striving for
the democratization of the States. After independence the people became
more and more conscious of their political rights. Like their brethren in
the Provinces they claimed the right of self-government in the States.
It might be called an hour of independence for all people, and one that
exercised a tremendous influence on the unification of the States. Under
the impact of new forces developed on the occasion of the independence
of the country the people of the princely States demanded the establishment
of government based on popular sovereignty.15
The introduction of popular elements into administration was mainly
responsible for ending the autocracy in States.16 By the completion of this
process the difference, that helped maintain two political systems, ended.
Now under the common political heritage every part of India was to
endeavour to develop India into a progressive welfare State. Though a
uniform standard in all matters of administration was not achieved by
this time, it prepared the ground for further administrative and political
reforms. This had further facilitated the changes in the political map of
lhe country on the basis of some rational principles. As the SRC report
commented in 1955 :

"One of the main impediments in the way of reorganisation was

that a certain measure of territorial inviolability was enjoyed by the
former Indian States, 'both under the British rule and during the
period immediately following the transfer of power. The integra-
tion of these States has, however, removed this impediment and
has paved the way for a rational approach to the problem."17
The preoccupation with the problems arising immediately after the
partition would hardly permit the Indian leaders to ponder over the reorga-
nization of States at that critical juncture. The newly prepared constitu-
tion which recognized three categories of States and a separate identity for
the centrally administered units,18 was only a temporary framework
designed to meet the exigencies of administration, and unity of the nation.
N. V. Gadgil, member of Parliament, pointed out in the then House öf
the People on the 7th of July, 1952 that, "In 1947-48 we had to consolidate

13 Constituent Assembly Debates 1949, Vol. 10, pp. 166-67.

14 Governor-General Lord Mountbatteďs speech in New Delhi on the tve of
independence. Constituent Assembly Debates, 1947, Vol. 5, pp. 16-17.
15 The Hindu (Madras), 15 December 1946, p. 6.
16 White Paper on Indian States, n. 1, para 57.
17 Report of the States Reorganisation Commission 1955 (New Delhi, Govt,
of India, 1955) para 86.
18 The Constitution of India: As modified upto 1st September 1951. Delhi,
Manager, Government of India Press, 1951, Article 1.

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240 THE INDIAN JOURNAL OF POLITICAL SCIENCE

the power, we had to bring about a sense of unity in the country,

therefore, the great Sardar Patel started the unification by three stages
First, accession of the States, then merger, then démocratisation."10 The in
gration of States and constitution-making have been a simultaneous proc
in India. The constitution left scope for future changes in State bou
daries.20 For the first time after the formation of the constitution, th
change in the boundary of a State was made in 1953. It resulted in t
formation of a new State of Andhra Pradesh from territory which
previously formed part of the Madras State.
The Home Minister, Dr. K. N. Katju and other members of Parli
ment wished the new State speed in progress. Speaking at Kurnool to th
people of Andhra the Prime Minister asked them not to think in ter
of separateness from the rest of India, but only as part of the Union an
work for its progress. "If India progresses, Andhra too progresses, and
progress of Andhra consists in the progress of the country for which y
should all strive," he said.21 In the meantime, the Home Minister, Dr.
Katju indicated in his reply to the House of People on the 27th of August,
1953 that an All-India Boundaries Commission would be appointed before
the end of the year. He promised to solve the problem as a whole, "we
want to have done with this problem in one compact whole, not in com-
partments."22 The members of Parliament expressed their hope that the
creation of the new State of Andhra would provide a good example for
any future State to come.2' After the recognition of the linguistic factor in
the formation of Andhra, the need for change in State boundaries ,was
felt more acutely in the rest of the country.
The Congress Working Committee adopted a resolution in New
Delhi on the 20th of September 1953, in which it expressed its readiness
to reorganize the States and it appealed for a calm atmosphere :
"In view of the decision of the Government of India to appoint a
Commission at an early date to consider the problem of the reorganization
of States, the Working Committee are of the opinion that in order to ensure
a calm atmosphere for the full consideration of this vital problem, public
agitation for the formation of new States or any changes in the boundaries
of States is undesirable and uncalled for.""

In a speech delivered at Madras on the 2nd of October 1953, the

Prime Minister characterized the reorganization of States as a part of the
general development of the country and said, "That process has begun
and let us do it jvell and thoroughly." He further added, "Let us not be
afraid of it or be sorry about it. It is a historic development which is

19 Parliamentary Debates, 1952, Part II, vol. 3, col. 3340.

24 See The Constitution of India, n. 18, Articles 3-4.
11 The Hindu (Madras), 2 October 1953, p. 6.
22 Ibid., dated 28 August 1953, p. 5.
" Discussion on Andhra State Bill, Parliamentary Debates 1953, Part II, vol.
7, cols. 1721-32.
14 The Hindu (Madras), 21 September 1953, p. 1.

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 Integration à the reorganization of states in india 241

taking place or is going to take place all over India in various sh

forms."25 The Government had taken up the problem as a necessary
of the general progress of the country, and therefore, there could
hitch in going ahead with the new plan.
While speaking in Parliament on the 22nd of December 1953
Prime Minister announced the appointment of a Commission to e
the whole question of the reorganization of States. On behalf of
Government of India, he stated that the whole question of reorgani
was one that had to be examined carefully, objectively and dispassio
so that the welfare of the people of each constituent unit could be pr
The Prime Minister laid great emphasis on the need to bear in m
preservation and strengthening of the unity and security of India,
well as the "financial, economic and administrative considerations" while
attempting the reorganization.26 The Commission was asked to submit its
report before the 30th of June 1955.
The Government decision to appoint a Commission on State boun-
daries was welcomed by various group leaders in Parliament, although
there was difference of opinion on the time given to the Commission to
submit its report. Mr. Hiren Mukerjee, Deputy Leader of the Communist
Parliamentary Party, expressed satisfaction on the appointment of the
Commission. At the same time he was of the view that the Commission
could have been asked to report much earlier than the 30th June, 1955.27
The protagonists of linguistic States like Mr. S. Nijalingappa, President
of the Karnatak Pradesh Congress Committee, expected good result from
the appointment of the Commission.28 Leaders in Maharashtra also wel-
comed the appointment of the Commission. Mr. Y. B. Chavan, Minister for
Civil Supplies, said that it was a step further in the direction of forming
linguistic States.29 The Bombay Congress leader Mr. S. K. Patii said in
Bombay that the Government of India deserved congratulations for appoin-
ting a Commission to examine the reorganization problem.30 Thus the
i eaction of various leaders to the appointment of the Commission was quite
favourable, and the attitude of the Government was also encouraging. The
country had the advantage of having a stable government at the Centre.
Moreover, the Congress Party which provided a common political platform
was a great uniting force in the difficult situation.

25 Ibid., dated 3 October 1953, p. 7.

26 Parliamentary Debates 1953, Part II, vol. 10, cols. 2842-43.
27 The Times of India (Bombay), 23 December 1953.
*8 Ibid.
29 lbid.t p. 1, col. 1.
"/W.

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 UNIT IV: Concept of Justice and Gender

According to A.S. Altekar “One of the best ways to understand the spirit of
civilisation and to appreciate the excellence and to realise its limitation is to
study history and position of women. The ancient Indian society was seen
establishing the equality of man and woman. However, her status and position
deteriorated in Medieval times. Yet in modern times efforts were made for her
upliftment through fair justice.

ANCIENT TIMES

Rig Vedic times

Society left behind the state of food gathering and hunting, women held a
position of honour—Participation was necessary in production process.

Equality: Women took equal part in sacrificial rites. It was an egalitarian

society. Equal share in socio-religious side of husband’s life.

Polity: Women frequently associated themselves with VIDHATA. Participated

in deliberations- Role in food production.

Education: She was initiated into Vedic studies after her UPANAYANA
ceremony. Some women took the teaching carrier, known as
UPADHAYAYAS.

Marriage: Girls were married after puberty. Marriage done when boys and girls
were fully grown up. According to Buddhist literature, girls were married at the
age of 16.

Property: No concept of private property.

Marriage: NIYOGA was practiced. The Rig Veda permits a childless widow to
get a son by levirate.

Later Vedic Times- Introduction of Large-scale agriculture, State came

into existence

Inequality: Varna system brought class divided society. Sudras and Women
were the marginalised groups of society

1
Illiteracy: After 300 BC, situation changes, Right to study denied to them.
Discontinuation of Upananyana ceremony for Women. Education was replaced
by household work.

Child Marriage: Girls as young as eight were forced to marry. The examples
of child marriages increased.

Right to Property: Women were not granted property rights (Land became
property) rights over Stridhana only.

Widow: Concept of Niyoga was frowned upon. Several examples of women

committing Sati. Prostitution also developed as a profession. Concept of bride-
price also came into existence.

Concept of Justice

Dharma which emanated from Vedas- main source of law. Smritikars like
Manu, Brihaspati, Narada played an important role in governing social and
religious life. These were accepted as authoritative in administration of justice
and prescription of duties. Their opinions also varied. Examples- Yajnavalkya
favoured the right of women inheritance.

Medieval Period

Status and position of women further deteriorated. They were treated equal.
Polygamy among Muslims was prevalent.

Purdah system existed

Divorce could not be easily obtained. Very few grounds were given to women
to seek divorce

Education very few women were given access to education

Justice

Primarily two schools- Hanafi and Maliki

Quran was the main source of law followed by Hadis, Ijmas and Qiyas
(analogy)

Types of punishments- Hadd, Tazir, Tashir and Qisa

Punishments were unjust especially to women

2
Evidence of two women was equivalent to one man

In order to prove rape, a women was to bring four eye-witnesses

Testimony of women was not considered in a murder trial.

Grounds of divorce was limited

Polygamy was limited to men only

Modern period- can be divided into two phases

Pre Independence and Post-Independence phase

British did try to do away with the laws which were against the basic princilples
of humanity. In 1829, William Bentick abolished the Sati system on the
insistence of Raja Rammohun Roy.

In 1856- remarriage of widows were made legal due to efforts of Ishwar Chand
Vidyasagar. He opened 35 girls schools.

(Add some more legal reforms introduced by British in support of Women)

Post-Independence phase

1950 Constitution gave equal rights to women in several spheres- no

discrimination on the basis of caste, class, sex and religion

Right to vote was given

Reservation in Lok Sabha and Rajya Sabha

Several Education schemes

Property rights were given

Fundamental rights – gave equal position to women in society

(Add more laws in favour of women since 1947 till the present times)

3
4