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CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA - 800001

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE


TITLED –

Legal History II
1772 and 1774 Plans of Warren Hastings

SUBMITTED TO: -
Dr. Priyadarshini
Assistant Professor Of History
SUBMITTED BY: -
NAME: KARAN SINGH RAUTELA
SEMESTER: II
ROLL NO.: 1736
COURSE: B.A., L.L.B(HONS)
SESSION: (2017-2022)
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Priyadarshini, Assistant
Professor of History who gave me the golden opportunity to do this wonderful project on the
topic and who also helped me in doing a lot of Research and I came to know about so many
new things I am really thankful to her. Secondly, I would also like to thank my parents and
friends who helped me a lot in finishing this project within the limited time. I am making this
project not only for marks but to also increase my knowledge.
1. INTRODUCTION

The judicial system of a country needs to be efficient in order to ensure effective overall
administration. However, when the British came to the country, the judicial setup in India was
in dire need of reform as it suffered from defects like lack of uniform laws and learned people
to adjudicate disputes and administer justice. They saw these defects and sought to establish a
system that could cater to these1. Warren Hastings and Lord Cornwallis introduced their
Judicial Plans, beginning in 1772. These plans established a hierarchy of courts and designated
officials who were to decide matters, taking help from advisors who were well-versed with the
parties’ personal laws. This system formed the basic framework for the system of courts that
we have today. The principles of justice, equity and good conscience, also made their way into
the legal system2. Though the British may have introduced these changes for their own
administrative convenience, yet these changes contributed significantly to the modern Indian
legal system.

Prior to the establishment of a proper system regarding the administration of justice in India,
there was an extremely degraded system in place. People could neither access judicial
institutions easily, nor could they depend on these to give them a fair and equitable judgement.
In addition to that, there was not much proportionality between the offence committed and
punishment awarded.3 Furthermore, corruption was prevalent, and the local law officers were
very prone to deciding cases in favour of people who could pay for the judgements to go in
their favour. The Mughal Empire, when it was at the height of its power, had employed two
officers in order to conduct administration in the provinces, namely the Nawab and the Diwan.

1
Shambhavi Ravishankar, Understanding the creation of the Indian Judicial System, Academike, (Apr. 14,
2018, 1:23 PM), https://www.lawctopus.com/academike/understanding-the-creation-of-the-indian-judicial-
system/
2
Ibid
3
George Bruce Malleson, LIFE OF WARREN HASTINGS (Chapman and Hall Id, 1894)
The Nawab handled matters of military and criminal justice and law order; whilst the Diwan.
But even they were extremely inefficient in carrying out their judicial responsibilities. One can
fairly deduce from their modus operandi that they were highly disinterested in the performance
of these functions. Each would delegate their responsibility to their assistants. But they were
again very corrupt due to acceptance of bribes and money in order to adjudicate matters.

Once the East India Company attained the right of Diwani for an annual sum of Rs. 26 Lakhs,
they brought in Lord Hastings to turn things around. They needed him to create a uniform
system, a system that would be people friendly and serve justice according to the natural
principles of justice. Furthermore, they needed a system, which was simple, and efficient in
order to serve the following two purposes:4

 Collection of revenue for the EEIC


 Creating a uniform and easily understandable system of justice that was people friendly
and that aided not just the British nationals, but also the natives living within their
territories.

This was the job entrusted to Warren Hastings, when he was the Governor of Calcutta. He was
asked by the Court of Directors to employ methods that would reduce the oppression of the
Zamindars and other officials who were over-using their power for all the wrong reasons,
thereby causing undue pain and harm to the local peasants. These were the conditions to which
Warren Hastings devised a new legal system, which ultimately came to be known as the Adalat
System.

Warren Hastings (1732-1818) was the first governor-general of British India. Initially he was
employed as a clerk by the East India Company, but he soon became manager of a trading post
in Bengal. When Calcutta was captured by Siraj-ud-Daula, Hastings was taken captive. But he
was soon released. After the British recaptured the city in 1757, he was made British resident
at Murshidabad.5

Warren Hastings came into a situation of turmoil and disarray with respect to judicial
institutions and their administering of justice. The institutions that existed were corrupt and

4
Supra note 1
5
Sir Alfred Lyall, A BIOGRAPHY OF WARREN HASTINGS, (Normanby Press, Aug.15, 2014)
inefficient. Moreover, they were inaccessible by the common masses who, were forced to incur
a great expense and travel great distances in order to attain justice. This was the situation that
Warren Hastings was given the mission of turning around.6 His attempts to reform the judicial
system were categorised in two plans which will be discussed by the researcher in this project:

 Judicial Plan of 1772


 Judicial Plan of 1774

6
Supra note 1
AIMS AND OBJECTIVES:

 To understand the plans of 1772 and 1774 under Warren Hastings.


 To find out pros and cons of the plans of 1772 and 1774.

HYPOTHESIS:

 The researcher presumes that the plans of Warren Hastings in 1772 and 1774 restricted
the freedom of the natives.
 The researcher also presumes that these plans were made to establish the Rule of British
in India and to dominate the Indians.

RESEARCH METHODOLOGY:

The researcher will be relying on Doctrinal method of research to complete the project. This
involve secondary sources of literature and insights.

SOURCS OF STUDY

Secondary Sources: Books, Journals, articles, internet and others

LIMITATIONS OF THE STUDY:

The researcher has territorial, monetary and time limitations in completing the project.
2. DIWANI SYSTEM IN INDIA

Diwani Rights were the rights granted to British East India Company to collect revenues and
decide the civil cases. Clive organised an expedition from Madras and captured Calcutta in
1757 and defeated Nawab Siraj-ud-daula in the battle of Plassey in 1757. The company
installed Mir Jafar as Nawab and later Mir kasim and again Mir Jafar in 1763. Nawab was only
a figurehead as the real power was in the hands of the company.7 The company could not
acquire sovereignty over any territory and it must vest in the crown as per the doctrine of
English Constitutional Law.

After defeating the combined forces of the Mughal Emperor Shah Alam, Mir kasim, deposed
Nawab of Bengal and Siraj-ud-daula at the battle of Buxar. Company got the Diwani of Bengal,
Bihar, and Orissa in 1765 The Company thus became the de facto ruler of large areas of
the lower Gangetic plain by 1773.8 It also proceeded by degrees to expand its dominions
around Bombay and Madras.

During Mughal rule there existed two departments Nizamat and Diwani. The Dual Government
of Bengal was a double system of administration, which was introduced by Robert Clive.9

7
Arnab Basu, Diwani Rights, ImportantIndia, (Apr.14, 2018, 1:45 PM),
https://www.importantindia.com/11126/diwani-rights/
8
Sir George Forrest, THE ADMINISTRATION OF WARREN HASTINGS, (Office of The Superintendent of
Government Print, 1892)
9
Vaijayanti Banerjee, The Judicial Plans of Warren Hastings 1772, 1774 and 1780, (Apr. 14, 2018, 2:16 PM),
file:///D:/Second%20Semester/Final%20Drafts/History/warren-hastings-judicial-plans.pdf
The British East India Company obtained the actual power; whereas the responsibility and
charge of administration was entrusted to the Nawab of Bengal. Under this dual system of
governance, the British administration acquired both the functions of the Diwani or revenue
and Nizamat or civil administration of Bengal from 2 distinct sources, Diwani from the Mughal
emperor and Nizamat from the Nawab of Bengal.10 The British East India Company was
authorized to accumulate revenues of the Bengal province as the Diwan. The Nawab, as
Viceroy of the Mughal Emperor, exercised two functions namely the Diwani and the Nizamat.
The Diwani was concerned with revenue and civil justice and the Nizamat with military power
and criminal justice.

The Mughal Emperor Shah Alam granted Diwani to the English Company in August 1765. By
a firman, Shah Alam, nominal Mugal ruler entrusted the company with the functions to
maintain the law and order and collect land revenue.11 Clive agreed to pay revenue of Rs.28
lakhs a year and Bengal tributes of Rs. 26 lakhs per annum. English supervisors were appointed
to control the native revenue officers, but they made confusion worse confounded and
corruption also increased. The Nawab was merely a puppet in the hands of the
British Government of India.

The Nawab of Bengal province was under their dominion and depended upon them for his very
existence. Lord Clive could have abolished his office and had assumed control of the
Government directly.12The great disadvantage of the scheme was that it separated power from
responsibility. The British were given control over the province but they did not feel any
responsibility for its administration and could not be held responsible for anything done badly.
The weakness of the system became clear in 1770 when a severe famine broke out in Bengal.
The servants of the Company did not feel any duty towards the people who were left to die in
thousands.13

However, the dual system of Government, set up in 1765, had certain immediate advantages.
It was suited to the exigencies of time. It secured that control over the Nawab which was
regarded as the most pressing need of the time.14 It also secured protection against the
complaints of the foreign powers and demands of the Home Government. Clive knew that the

10
Lionel James Trotter, WARREN HASTINGS AND THE FOUNDING OF THE BRITISH ADMINISRATION,
(Clarendon Press, 1905)
11
Ibid
12
Supra note 8
13
Sophia Weitzman, WARREN HASTINGS AND PHILIP FRANCIS, (Manchester University Press, 1929).
14
Supra note 7
ostensible assumption of power contributed to produce unyielding English opposition to the
schemes of Dupleix. The writs of the Emperors or Parwanas of the Nawab, though valueless
without the support of English power, could not fully be discounted at Paris or at The Hague
without a serious breach of diplomatic etiquette.15 It was thought that something less than the
assumption of full dominion would be less likely to excite legal difficulties in England to
provoke the interference of Parliament.

Formally, the abolition of the dual government did nothing more than that the Company was
to collect its revenues through the agency of its own servants. In reality it meant becoming
responsible for the whole of civil administration.16 The first step towards abolition was the
abolition of the offices of the Naib Diwans of Bengal and Bihar and the persecution of
Mohammad Razqa Khan and Raja Shitab Rai for peculation. After a long trial, both of them
were acquitted. Although Warren Hastings was opposed to it, it served its purpose.

The dual system of Government of Bengal, established by Robert Clive, was abolished by
Warren Hastings as it was not intended to last for ever. It was merely a stop-gap arrangement
with a view to tide over the difficulties confronting the English in 1765. He wanted to remove
corruption from the administration of justice and prepared judicial plans.

15
Supra note 1
16
Supra note 8
3. JUDICIAL PLAN OF 1772

Warren Hastings judicial plan of 1772 divided Bengal, Bihar and Orissa into several districts.
On each district an officer, an English servant of the company, was appointed as the Collector.
He was primarily responsible for the collection of land revenue in the district. He was to preside
as the Judge in the Mofussil Diwani Adalat, and to exercise a supervisory control over the
Mofussil Nizamat Adalat in his district.17

Various Adalats were established under this judicial plan of 1772.

(a) Establishment of Mofussil Diwani Adalat

17
Ibid
As per Warren Hastings’ plan a Mofussil Diwani Adalat was established in every district with
collector as the Judge. The court was authorized to decide all civil cases like disputes regarding
properties, inheritance, marriage, caste, debts, disputed accounts, contracts, partnerships and
demands of rent. Wherever possible religious laws of Muslim as well as Hindus were followed
and applied. E.g. Caste, marriage, inheritance etc.18 As the English servant who was appointed
as Collector did not understand the religious laws, Kazis and Pundits were appointed to help
him. The decisions of the Mofussil Diwani Adalat in cases up to Rs.500 were final.

(b) Establishment of Small Cause Adalat

This Adalat decided petty cases up to Rs.10. The Head farmer of the Pergunnah became the
judge. This system was designed to save the traveling expenses of poor farmers, as they did
not need to travel to the district place for justice.

(c) Establishment of Sadar Diwani Adalats

This was an appellate court in all criminal matters and was presided over by a Daroga who was
aided in his work by the Chief Kazi, the Chief Mufti and three Maulvis. This Court was in fact
the Governor General and his Council who all sat as judges in all diwani cases. The overall
supervisory control on this court was exercised by the Governor General and his Council. It
was to hear appeals from the mofussil diwani adalat in the cases over 500 Rs. On each appeal
fee of 5 percent was charged. The appeals were to be filed in the Adalat within 2 months from
the date of the judgment, decree given by the Mofussil Adalat.19

For the first time, these adalats were directed to apply personal laws of the natives. The law of
the Shastras in the case of the Hindus, and the Law of the Koran in respect of the Muslims were
to be applied to cases of marriage, caste, inheritance etc. The Pandits and Maulvis were to
expound the personal laws of the natives. Some improvements were however made from time
to time with a view to imparting impartial justice.20

18
The Adalat System, Reforms of Warren Hastings, Legal Bites, (Apr.14, 2018, 4:15 PM),
https://www.legalbites.in/adalat-system-reforms-warren-hastings/
19
The Adalat System, Legal Bites, (Apr.14,2018, 4:24 PM), https://www.legalbites.in/the-adalat-system/
20
Supra note 10
In some cases and disputes the parties were allowed to resort to arbitration, and after the award,
get a decree of the Mofussil Diwani Adalat.

The first sitting of the Sadar Diwani adalat was held on the 17th March, 1773.

(d) Establishment of Mofussil Fauzdari Adalat

Corresponding to the diwani adalat at each district, in every district a mofussil nizamat or
fauzdari adalat was established to try all criminal cases. Mofussil Faujdari Adalat was
established at the level of each district. The law applied by this court was the Muslim law. This
Court was presided over by a learned Kazi and a Mufti who were assisted by two maulvis all
well versed in the Muslim law.21 The maulvis interpreted the Muslim law of crimes. The Kazi
and Mufti gave fatwa and render judgment.

The supervisory control on this court vested with the Collector. This court had the power to
decide all criminal cases and punish the criminals except in the case of capital punishment. The
proceedings of such cases had to be submitted to the Sadar Nizamat Adalat for confirmation of
the sentence of death passed by this Court.22 There was a further provision for appeal to the
Nawab or the Subedar who finally confirmed, commuted or reduced the punishment.

In this adalat collector exercise general supervision over the Adalat, and saw that no corruption
was made in the case. The judgment was given impartially. This Fauzdari adalat was not
allowed to handle cases where punishment was death sentence or forfeiture of property of the
accused.23 Such cases went to Sadar Nizamat Adalat for final orders.

Mofussil Nizamat, i.e., Fauzdari Adalat was also established in each district for the trial of
criminal cases. Besides the lower courts established in every district, two superior courts of
justice were established at Calcutta-Sadar Diwani Adalat and the Sadar Fouzdari Nizamat
Adalat.

(e) Establishment of Sadar Nizamat Adalat

Sadar Nizamat Adalat consisted of an Indian judge known as Daroga-i-adalat who was to be
assisted by the chief Kazi, chief mufti and 3 moulvies. Nawab appointed all these persons as
per the advice of the Governor. In case of death sentence punishment, the death warrant was

21
Supra note 8
22
Ibid
23
Supra note 5
made by the Adalat and signed by the Nawab as the Head of Nizamat. The governor and council
supervised this adalat to control and reduce the corruption.24 All cases were heard in the open
court. All courts were ordered to maintain registers and records. Any case older than 12 years
was not accepted. District courts forwarded their records to the Sadar adalat.

In civil cases when Plaintiff filed a case, defendant accused person was given only limited time
to give answer and then examine the witness and give the decree, pass the final orders. The
plan tried to reduce the expenses of people.25 With this plan law officers like kazis, muftis were
given salaries. Before this plan Judge charged the commission but this new plan abolished this
law and introduced the Court fee system where fees went to Government.

After this plan and establishment of Courts for common Indians it became easy to approach
the Judiciary. Warren Hastings purposely did not take the full charge of Criminal justice system
and kept the puppet Nizam alive. He did not change the forms and when possible tried to show
that the company respected the Nizam.26 Thus Nizam got the power to sign the death sentence.
The other intelligent system that Warren Hastings kept alive was that following Hindu laws for
Hindus and Muslim laws for the Muslims.

In this plan the collector got many powers, collector was the administrator, tax collector, civil
judge and supervisor over the criminal courts. Because of this the collectors got unlimited
powers and Warren Hastings knew that the downside of this would be that the collectors would
become corrupt he already told the company directors about this defect of this plan. The
directors of the company understood the fear and reality of this plan.27

In the year 1773, Company directed the Calcutta council to withdraw the collectors as they had
become very corrupt.

After this the Calcutta Government introduced a new plan for the collection of revenue and
administration of Justice on November 23, 1773 and put it into force in the year 1774.

24
Pukhraj Agarwal, Development of Adalat System, Indian Legal And Constitutional History, (Apr.14, 2018,
4:34 PM), https://ilchslcu.wordpress.com/2015/08/24/development-of-adalat-system-during-the-time-of-warren-
hastings-1772-1774/
25
Ibid
26
Supra note 10
27
Supra note 5
3.1 MERITS OF JUDICIAL PLAN 1772

1. It safeguarded the personal law of Hindus and the Muslims (law of Quran and laws of
Sastras).
2. By making districts, unit of administration of justice it is no longer necessary for them
to cover long distance for reaching the courts.
3. Functions of Diwani and Fauzdari Adalat were clearly defined.
4. Though the judges of the Adalat were English men they were assisted by the native
law officers well versed in Indian law.
5. Instead of taking commission from the litigant a court fee was to be deposited in the
Government treasury. This put an end to judge taking personal interest in some cases.
So corruption ended.28

3.2 DEMERITS OF JUDICIAL PLAN 1772

1. The collector was over burdened with heavy work as an administrator, revenue
collector, civil judge and magistrate in the district.
2. Based on erroneous assumptions of Hastings that the Indian population consisted of
only the Hindus, Muslims, only Hindu and Muslim laws were followed. No provision
for other communities.
3. Though the functioning of Adalat was under Sadar Adalat at Calcutta, the absence of
adequate means of communication made it impossible for the Sadar Adalat to keep
constant watch on working of collectors.
4. As judges being Englishmen the native officers who assisted them misinterpreted the
provisions of the Quran and Sastras for their personal interest.29

28
Supra note 9
29
Ibid
4. JUDICIAL PLAN OF 1774

With this plan, collectors were recalled from every district. In place of Collector an Indian
officer was appointed called as Diwan or Amil. Diwan got the power to collect the revenue as
well as act as a judge in the Mofussil diwani adalat. Revenue was administered by a committee
of the covenanted servants of the company under inspection of the President and Council.

The territory of Bengal, Bihar and Orissa was divided into six divisions with their headquarters
at Calcutta, Burdwan, Murshidabad, Dinajpore, Dacca and Patna. In each division many
districts were created. The complete Bihar came under the Patna Division.30 Each division was
under a Provincial Council consisting of 4 or 5 covenanted servants of the company. They were
responsible for revenue and administration of justice within their jurisdiction. They had to
submit their periodical reports to a separate department called Council of Revenue. The
Provincial Council was a link between the Mofussil Diwani Adalat and the Sadar Diwani
Adalat. A Diwan was appointed to maintain accounts. Each division was divided into several
districts.31 Naibs were appointed to control the collection of the revenue and to decide civil
cases according to the rules under the plan of 1772 (final court of appeal-Sadar Diwani Adalat).
The decision of Naibs were appealed to Provincial Council up to the value of Rs.1000 . If
exceeded 1000 it was appealed to Sadar Diwani Adalat in Calcutta.

A provincial Council consisting of four or five English servants of the company were appointed
in each division to supervise the collection of revenue and to hear appeals from the cases
decided by the amil, the Indian diwan.32

While in the Plan of 1772, appeals from the mofussil diwani adalats lay to the Sadar Diwani
Adalat in all cases over Rs. 500, now all cases decided by the amils, irrespective of their value,
were appealable to the Provincial Council.

This time also Warren Hastings knew that the Provisional council will do more harm and more
corruption than the Collectors. Warren Hastings considered this plan as a temporary plan but
the Regulating Act was passed at this time and Warren Hasting could not change the plan until
year 1780.33

30
Supra note 3
31
Supra note 5
32
Ibid
33
Supra note 24
4.1 MERITS OF JUDICIAL PLAN 1774

1. English collectors were replaced by the Indian officers called Naibs. Thus the
district judicial administration was put in the hands of the Indians
2. On account of the establishment of the Provincial Council or Adalat, the burden on
the Sadar Diwani Adalat was lessened
3. The establishment of the provincial Adalat in each division reduced the hardships
of the litigants and made justice cheaper.34

4.2 DEMERITS OF JUDICIAL PLAN 1774

The Judicial Plan of 1774 continued in operation in Bengal, Bihar, and Orissa till 1780 when
it was modified again by the Warren Hastings due to the following reasons

1. He considered this plan only a temporary measure


2. A trial and error process
3. Corruption and bribery continued in the company
4. The separation between the civil justice and revenue could not be maintained
5. Provincial council were conferred with excessive powers so they became despots. They
could not be controlled by the governor and the council at Calcutta.35

34
Supra note 9
35
Ibid
5. CONCLUSION AND SUGGESTION

The judicial system as we know it today, did not unexpectedly appear post-independence from
the British regime. One of the primary concerns for the British rulers was that there were
semantic and cultural differences in this country that were far beyond their understanding. It
became clear, very early on, that because of India’s religious and cultural diversity, the British
had a very complicated task where deciding which law to apply and to whom. They had to
create a system that would ensure justice, while ensuring that there is no offence is caused to
the customs and religious sentiments of the party to the dispute, or his/her community. Lord
Hastings’ plans were very successful in this regard as they maintained the societal equilibrium
desired by the British; it became easier to administer Hindu law to Hindus, and Muslim law to
Muslims, and thus ensured that India could be ruled smoothly without any major upset.

During British rule, it can be said that India went through a great deal of experimentation and
empirical learning. Many courts were created and then abolished and replaced with new
mechanisms to resolve disputes. The British rule in India, had some very positive impacts on
our legal system, and the manner in which we administer justice:

 Rule of law along with the importance of an independent judiciary were introduced
through the British regime. The concept of separation of powers was enunciated and
enhanced in India through their laws and policies.
 The federal form of governance, vis – a – vis the Provinces, and the Provincial Courts
with the Federal Court as the final authority, was brought into India.
 The administration of justice even at district level, was a concept introduced by the
British. They increased the access to justice, permeating its reach to the smallest parts
of the country.
 Through the Law Commissions India finally had a definite set of laws that could be
applied uniformly.

There was no standard in the judgments passed and the concept of precedents was highly
diluted because each court gave its own decision based on the advices of the religious advisor,
in order to maintain peace. More often than not, the judgments were unfair and some were even
patently arbitrary, being made according to the wishes of the advisor. This is why the British
felt the need to create some standard. They did so by codifying existing practices and customs
into one document and then formally enacting it as a law.
The real effect was felt post-independence through our Constitution laws. However, this idea
of a fair and impartial system where the judiciary was independent from the other organs of
state, came to India only via the British. The legal system that existed when the British came
to India, was in great need of reform and thus the British gave our legal system the much needed
change. Through their experimentation, the Constituent Assembly was able to see what new
practices and what old Ancient practices could be could be coupled to form our new legal
system after independence.

It is therefore concluded that the contributions of the British are so important that the very
existence of our judiciary and legal system can be credited to them. The true impact of the
British efforts can thus be summarised by saying that they revamped our legal system to make
it fairer and more accessible to all citizens.
BIBLIOGRAPHY

PRIMARY SOURCES

a. George Bruce Malleson, LIFE OF WARREN HASTINGS (Chapman


and Hall Id, 1894).
b. Sophia Weitzman, WARREN HASTINGS AND PHILIP FRANCIS,
(Manchester University Press, 1929).
c. Sir George Forrest, THE ADMINISTRATION OF WARREN
HASTINGS, (Office of The Superintendent of Government Print, 1892)
d. Lionel James Trotter, WARREN HASTINGS AND THE FOUNDING
OF THE BRITISH ADMINISRATION, (Clarendon Press, 1905)
e. Sir Alfred Lyall, A BIOGRAPHY OF WARREN HASTINGS,
(Normanby Press, Aug.15, 2014)

SECONDARY SOURCES

a.) https://www.lawctopus.com/academike/understanding-the-creation-of-the-indian-judicial-
system/

b.) https://www.importantindia.com/11126/diwani-rights/

c.) file:///D:/Second%20Semester/Final%20Drafts/History/warren-hastings-judicial-plans.pdf

d.) https://www.legalbites.in/adalat-system-reforms-warren-hastings/

e.) https://www.legalbites.in/the-adalat-system/

f.) https://ilchslcu.wordpress.com/2015/08/24/development-of-adalat-system-during-the-time-of-
warren-hastings-1772-1774/