Indian Legal and Constitutional History

Dr. Saurabh Chaturvedi

East India Company

The 1st East India Company was incorporated in England under a Charter granted by Queen Elizabeth on 31st Dec 1600 AD, in the name of The Governor and Company of Merchants of London trading into East Indies The members of the Company had to elect 24 members annually to form Court of Directors and a Governor, eligible to re-elect. Having exclusive rights to trade all parts of Asia, Africa and America except Europe. Initially the charter was granted for 15 years renewable to 15 more years.

East India Company

The Company was authorized to make legislations including civil and criminal laws, Orders and the Constitution applicable on its people( English) for good governance Advancement and continuance of its trade and traffic The Company was empowered to impose Punishments by way of Imprisonment ,Fine & forfeiture of goods/vessles. Kings Commission Issuance of Royal Commission by Queen Elizabeth (1601) and empowerment of Commander-in-Chief to award capital punishment to wrongdoers(Subject to the approval of a Jury constituted by 12 members of Company itself) Era of James I, Empowerment of Company to grant Royal Commission(1615) In 1623 granted the Companys Presidents/Chief Officers the same powers applicable in their Companys establishment/port or land

East India Company

Issues 1. The English law could germ out of which AngloIndian codes were ultimately developed. 2. The Company was armed with adequate authority to enforce discipline amongst its servants both on the high seas and on the Indian soil

Bombay 1684-1690
Bombay 2nd Statge Establishment of Admiralty Court(1684) having Jurisdiction on Civil, Criminal and Maritime matters Appointment of Dr. John St. John as Advocate General Conflict in between The Governor Child and Dr. John on various issues Reduction of Jurisdiction of Admiralty Court to maritime matters only Appointment of Vaux as a Judge in a new Court to look into Civil and Criminal matters Conflict in Jurisdictional issue between the Courts of Vaux and Dr. John Conflict between Executive and Judiciary

Bombay 1684-1690
Dismissal of Dr. John Issues Overlapping powers of Executive & Judiciary Attitude problem of Legal professionals Intolerance of Judicial independence Judge made laws exceeding English laws n interpreting differently End of Bombay Judicial System by attack of Moghul Admiral Siddi Yakub in 1690-1718 as dark period

Bombay 1718-1726
3rd Stage Establishment of a new Judicial system after 30 years in 1718 Appointment of a Chief Justice and 9 other Judges Five British n 4 India Judges from Hindu, Muslim, Portuguese Christian + Parsis, one each. Jurisdiction to judge all cases of Civil, Criminal, Military and Testamentary Work as Registrar of immovable Property The Court had wide powers to execute its decrees

Bombay 1718-1726
No equal status to Indian Judges Due regard to caste custom and local traditions along with English laws Appeal to Governor and Council Inexpensive and quick award based on common sense Stringent punishment to criminal and Debtors Rama Kamatis Case

Calcutta 1690-1726
The Company secured Zamindari of 3 adjacent villages ,Sutanti, Calcutta and Govindpur@ 1195 Rs. P.a. from Prince Azmaish shah( Grand Son of Aurangzeb, then Subedar of Bangal) In 1668 a fortified factory was constructed as Fort William On the bank of river Hugli(Sutanti)a few Englishmen landed on 24th Aug.1690,under the leadership of James Charnock. Acquisition of zamindari was a significant event for Company through it company secured a legal and constitutional status within Moghul administrative machinery. Company became entitled to exercise all those functions and powers within the zamindari territory.

Calcutta 1690-1726
Dec.1699 Calcutta became Presidency. A Governor(President) and a Council was appointed to administer the settlement. English Judicial System in Calcutta The zamindari functions of the Company, within the settlement of Calcutta, were entrusted to an English Officer called Collector, who used to be a member of Governors Council Collector had judicial powers in all Civil, Criminal and Revenue cases pertaining to the Indian inhabitants

Calcutta 1690-1726
Besides this a parallel Court of Zamindar was also in existence and dealing with civil cases of local Indian people according to customs and usage and discretion for which appeals lay to the Governor and Council. Evaluation Parallel justice administration system of Nawab & Company and approval before capital punishment Lack of impartial administration of justice Concentration of extensive Power in the hands of Collector

Charter of 1726
The Charter of 1726 was a big advancement of Companys establishment in India which was requested to fetch more powers from Crown. King George I issued a fresh charter to Company where all three Presidency were brought under a uniform Judicial system. Establishment of Civil and Criminal Courts in each Presidency deriving authority from the Crown Designated as Royal Courts these Courts were equivalent to English Courts having formal, regular and definite base An appeal from India could be made directly to Privy Council

Charter of 1726
The Charter established a bridge in British and Indian legal system It became a channel through which British Crown could directly apply their legal interpretations and applications Where ever Indian laws were absent British laws were guiding them to find the way

Charter of 1726
Provisions 1. Establishment of separate Corporation in each Presidency consisting a Mayor and 9 Aldermen. The First Mayor is appointed by the Crown for one year after retirement the Mayor remains an Alderman only. Two Alderman are appointed from the local jagirdar and rest are natural born subjects of the company. Aldermen is appointed for life but could be removed by the Governor and Council subject to appeal to King-in-Council in England

Charter of 1726
2. Judicial System In each Presidency a Mayors Court was established consisting a Mayor and two senior Aldermen The Court had jurisdiction only to the Civil Matters along with Testamentary and Court of Record for contempt. An appeal could be made to the King-in-Council Sheriff He was responsible for implementation of Mayors Courts directions including summons, seizure of property ,execution of warrant etc, having jurisdiction over the entire Presidency and 10 miles around. Appointed by Governor for one year duration

Charter of 1726
Criminal Jurisdiction Vested with the Governor and 5 senior members of the Council each was a Justice of the Peace. Powers to arrest like police and punish for petty offences Grand and Petty jury to sit 4 times in one year and to look into serious crimes All technical forms and procedures and manners of English law were introduced Three justices of the Peace were collectively forming Court of Record(To hear and Determine)

Charter of 1726
Effects The post charter period was not smooth arising conflicts between Governor and The Mayors Court Neither Law nor Justice was accorded Mayors Court became autonomous and the Governor sought to interfere with the functioning of the Court. No clarity on personal laws and religious matters Conflict in between Court and The Council

The Adalat System

Background Calcutta was captured by Nawab Siraz-ud-daula 1756 Clive recaptured Calcutta under guidance of Clive from Madras 1757 Battle of Plassy in between Nawab and company (1757) ,who wins and projects Mir Jaafer as Nawab . Mir Jaafar was succeeded by his minor son Nijam-ud-daula. With every change in Bengal Company increased in power and influence. The battle of Buxar(1764) gave path to Company to get Diwani of Bangal, Bihar and Orissa from Moghul Emperor Shah Alam The Company remained actual power keeping Nawab as a puppet.

The Adalat System

The Company kept Nawab for two reasons 1. If Company assumes direct administration the Crown would interfere due to English Constitutional Law provision that no British subject can acquire Sovereignty over any territory for himself. It must vest in the Crown so the Parliament becomes entitled to legislate for the territory. 2. The possibility of French and Portuguese interference which could create international problem

The Adalat System

The Company agreed to pay Rs 26 Lakh to the Emperor and to retain the rest for their own use. The power of Diwani gave a big status and legitimacy to the Company. It used to have to senior officers Nawab/Nizam and Diwan, appointed by the Emperor in India. The Nizam was the head of Military, Maintenance of Law & Order and Administration of Criminal Justice system. Diwan was responsible for collection of Civil & Revenue matters and also to manage funds for the Govt.

The Adalat System

The company wanted to have all control in its hand by merging both Nizam and Diwan powers in favor of Company. Through a contract Nawab(who was a minor) surrendered to company all powers of Diwani and Nizam both and accepted a sum of 53 lakh p.a. for maintenance of himself and criminal judicature. Thus Company acquired all legitimated powers in its hand and became responsible for administration of Civil Justice and revenue Collection. Company appointed two Naib nazim to control the working of machinery at Mushirdabad and Patna under the supervision of two English Officers.

The Adalat System

Effects 1. The system was very faulty due to lack of accountability among English officers and helplessness of Indian officers due to lack of power against English People. 2. Private trade by company officers including Governor and his council members

Warren Hastings and Judicial Plan of 1772

Warren Hastingss administrative plan of 1772 divided the whole Bengal into smaller districts. In each district an English servant was appointed as Collector responsible for collection of revenue. For Judicial plan, he established the following.. 1. Mofussil Diwani Adalat..was established in each district with Collector as a Judge, authorized to decide all civil cases like Real and personal Property, Inheritance, marriage, caste, bad debts, disputed accounts, contracts, partnerships and Renting arrangement. For Inheritance, marriage,or caste related issues KORAN or SHASTRAS were to be taken into consideration as per Kazi or Pandit expound based on religion and interpretation.

Warren Hastings and Judicial Plan of 1772

Mofussil Fozdari Adalat It was supervised by the Collector,who had to see the witnesses and to render judgments Crimes were heard by the Kazi and Moulvis who used to give Fatwas against Crimes and Criminals. Death sentence or forfeiture of property were to be submitted to Sadar Nizamat Adalat for approval. Sadar Adalats Over Mufussil Diwani and Fauzdari two superior courts, Sadar Diwani (Consisting Governor and Cuncil) and Sadar Nizamat Adalat (Consisting a Daroga-i-Adalat to assist Chief Kazi,Chief Mufti and Three Molvies)were established at Calcutta (1773) Small Cause Court

Warren Hastings and Judicial Plan of 1772

Appraisal of the Plan A credible achievement Impartial and inexpensive justice Establishment of Anglo-Indian Judicial System Replacement of Commission to Court Fees going to the Govt. not to judge Abolition of Judicial powers of Zamindars Division of power in between Nizam and Diwan Separate Courts of civil and Criminal courts Concentration of Excessive power in the hands of Governor

Warren Hastings and Judicial Plan of 1772

Plan of 1774 The collectors were recalled from the Districts and an Indian officer, called Diwan, was appointed at the place of Collector. Responsible for collection of revenue and also to act as Judge in the mofussil Diwani Adalat. Division of entire province into six divisions having headquarter at Calcutta. A provincial council consisting 4-5 English servents,was appointed to supervise the collection of revenue and to hear appeals

The Supreme Court

Supreme Court at Calcutta The Regulating Act created a Supreme Court at Calcutta in 1773. Besides managing internal management and administration of East India Company, it re-organised the structure of the Calcutta Government . Appointment of 1st Governor General and a Council of 4 English persons vested with whole power of Civil and Military Govt. For a duration of 5 years, he could be removed by the King on the recommendations of Companys Directors It includes Ordering, Management and Government of all territorial acquisition and revenues in the kingdom of Bangal, Bihar and Orissa.

The Supreme Court

Effects Each Presidency was independent of each other and had a direct relation with the Court of Directors in England Madras and Bombay Presidencies were brought under direct supervision of Calcutta Presidency in matters of Peace and War in necessity The subordinate Presidencies were required to transmit regularly to the Governor general regarding, Govt. revenue, or interests of the company

The Supreme Court

A Supreme Court was established at Calcutta by King George III on 26 March 1774 through a Royal Charter It was having 3 judges(having a qualification of a Barrister of minimum 5 yrs experience) appointed by the crown for a term extending up to the pleasure of the Crown. It had jurisdiction on Civil. Criminal & Admiralty cases The Court was empowered to hear civil cases against the Company & The Corporation of Calcutta also. It had jurisdiction only on the persons of Company or His Majestys subject An appeal could be made in King in Council

Trial of Raja Nand Kumar

Conflict between Governor General and the Council Charges against Warren Hastings by Raja Nand Kumar Charges by Mohan Prasad against Raja Nand Kumar Jury found him guilty under British Act of 1728 and sentenced death CJ Impay was tried for impeachment for committing Judicial murder Issues 1. Whether the trial was impartial 2. Whether committing forgery suited to death sentence in the prevailing conditions of calcutta? 3. Whether British Criminal Laws of 1728 were applicable in Calcutta having retrospective effect 4. Why Raja was not allowed to make an appeal to Privy Council

Patna Case
Succession by a Muslim widow Shahbaz beg Khan(died 1776),Bahadur Beg(Nephew) and Nadirah Begum(Widow) Issues A gift deed was executed in favor of Nadirah by Shahbaz Bahadur Beg claimed the property on the basis of adopted son so filed a case against Begum in Patna Provincial Council. The case was delegated for dealing to Mufti and Kazi for (A) Making an inventory of the entire property (B) Sealing it to maintain status quo

Patna Case
All proceeding in Patna Council were ex parte without notice to Begum. No witness was examined on oath and some could not present themselves in person Begums plea of gift alleged as forged Outcome 1. Begums house was sealed and only one room was left open 2. She was given only 1/4th part of her deceased husband and rest 3/4th was handed over to Bahadur Beg on behalf of his father(Shahbazs Brother)..as per Hanafi Muslim School She approached to Supreme Court and filed an action against Bahadur Beg, Mufti and the Kazi for assault, false imprisonment, breaking and entering her house etc and asked for damages of 6 lakh

Patna Case
Supreme Court issued a writ of Capias, for arrestment of Kazi, Mufti and Bahadur Beg. They were brought to Calcutta and asked to furnish a bail of Rs 4,00,000,on failing put in the prison. Issues 1. Whether the Law officers could be empowered by the Council, which was also a Court, by delegation of its powers to perform judicial actions by executives and to decide the questions of fact and law. 2. Whether the Supreme Court at Calcutta was having jurisdiction over native Indian people

Patna Case
The Supreme Court held that the procedure and practice adopted by law officers was illegal on the following grounds 1. The power to administer justice was vested in Patna Council. 2. The Council left the whole case to Law officers who exercised the reflecting powers of the Council 3. The Council was not authorized to delegate its powers The declared the gift deed genuine and said that Begum is entitled for the entire property left by her husband and also awarded Rs 3,00,000 for damages

Cossijurah Case
Background 1. Mr Kashinath landed a large sum to the Zamindar of Cosijurah n did not return the same even after repeated remainders. 2. Kashinath brought a case in Supreme Court in 1779 against the Zamindar. 3. Court issued a Writ of Capias warranting arrest of the Zamindar,who became underground and the WRIT remained unexecuted. 4. The Govt. sought an opinion from Advocate general,who suggested that the Zamindars etc. do not fall within the jurisdiction of Supreme Court.

Cossijurah Case
5. The Zamindar of Cossijurah was suggested to not to appear,plead or do any such act which shows the jurisdiction of Court on him. The Advocate General suggested the Govt to not to assist the Court and leave the entire execution on the Court itself. The Govt. did the same and gave a notice to all Zamindars and land lords informing that they do not fall within the jurisdiction of the Supreme Court. On the other hand the Supreme Court issued another Writ of Sequestration for forfeiture of the property of the Zamindar and to force him to appear before the Court and also sent Sheriffs force to execute the writ.

Cossijurah Case
The Govt. sent an another force to stop the Sheriffs force, which arrested the Courts force and brought them to Calcutta. Kashinath brought an action against the Governor General and members of the Council individually for traspass, who initially appeared in Court but later withdrew themselves as their action was in official capacity as they had done nothing in personal capacity and were also exempted from criminal proceedings in advancement of their official work

Development of Criminal Law 1772-1886

When the company assumed responsibility for administrating Bengal, Bihar and Orissa the Muslim criminal law was very well entrenched in that territory. The British administrators did not immediately disturbed the status quo and allowed this law to continue. The law however had a number of glaring defects. Many of its principles were not in accord with the British notion of justice, common sense and good government The Muslim criminal law formally remained in operation in the Mofussil of Bengal, Bihar and Orissa for over 100 years after the company had taken over the administration.

Development of Criminal Law 1772-1886

The traditional Muslim criminal law broadly classified crimes under three heads: Crimes against god(apostasy, drinking intoxicating liquors, adultery, etc.) Crimes against sovereign( theft, robbery & robbery with murder) Crimes against private individuals( murder, rape etc.) The Muslim criminal law arranged punishments for various offences into four categories, kisa or retaliation meant life for life, it was applied on willful killing and grave hurt. It was regarded as a right of a man and gave to the injured party or his heirs a right to inflict a like injury on the wrong doer as he had inflicted on his victim.

Development of Criminal Law 1772-1886

DIYA- Diya meant blood money. In certain cases, like unintentional injuries, diya was awarded to the victim on a fixed scale. In cases where kisa was available, it could be exchanged with diya, or blood money. The injured person or his heir could accept diya or kisa as he liked. In case of murder, the heir of the victim could accept diya and forgo his right to claim death on the murderer. In cases of intentional wounding or maiming, the victim could accept diya in lieu of kisa

Development of Criminal Law 1772-1886

HADD- meant boundary or limit. In criminal law, it meant specific penalties for specific offences. The underlying idea was to prescribe, define and fix the nature, quantity and quality of punishments for certain particular offences which the society regarded as antisocial or anti-religious The judge had no discretion in the matter, the punishments prescribed under crimes could not be varied, increased or decreased. The prescribed punishments for certain offences were: for zina or illicit intercourse, death by stoning,for theft, amputation of limbs like the right hand or the left foot; for falsely accusing married woman of adultery, eight stripes. Etc.

Development of Criminal Law 1772-1886 TAZEER- Tazeer meant discretionary punishments. These punishments were inflicted at the discretion of the judge as there were no fixed rules to prescribe such punishments. Status of Witness Willful murder or Unintentional death Pattern of punishments

Development of Criminal Law 1772-1886

Issues 1. Law was very uncertain 2. Differences of opinion among the Muslim jurists 3. Muslim law of crimes appears to be very severe in punishments 4. Muslim law and theory was based on such relations of State and Social relations which were obsolete from the west 5. Doctrine of Tazeer gave unwarranted power in the hands of Judges 6. Fatwa were appeared inconsistent with the view of enlightened Europeans

Development of Criminal Law 1772-1886

In 1773, Warren Hasting formulated certain proposals for its modification: He suggested that the intention and not the nature of the weapon used be made the test of willful murder. If the intention of murderer be clearly proved, no distinction should be made with respect to the weapon by which the crime was perpetrated. The murderer should suffer death and the fine be remitted. He suggested abolition of the privilege granted by the mohammedan law to the sons or the nearest of kin to pardon the murderers of their parents or kinsmen .According to him, it was a law of barbarous construction, and contrary to the first principle of civil society ,by which the state acquires an interest in every member which composes it , and right in his security.

Development of Criminal Law 1772-1886

He advocated abolition of the rule which required the children, or the nearest of kin of the deceased, to execute the sentence passed on the murderers of their parents or kinsmen. He suggested that the fine imposed for manslaughter should be proportionate not only to the nature of the crime, but both to the nature and the degree of the crime and to the substance and means of the of the criminal. Warren Hasting submitted his proposals to the council for consideration and approval. But the council took no decision thereon as it regarded it a very delicate matter to change the established law