THE PRIVY COUNCIL

The Privy Council, as a judicial institution, proved to be one of the unique courts of law in the
whole world. Its jurisdiction extended to various Dominions and. colonies. The jurisdiction of
the Privy Council was very wide in its scope. Almost all systems of jurisprudence and every type
of the judicial institutions were with in the umbrella of the Privy Council. Every kind of disputes
were to be adjudicated upon the Privy Council because its jurisdictional area covered almost one-
fifth of the human population in the world. The Privy Council later came to be known as the
judicial committee of the Privy Council, was the Supreme appellate authority for India from
1726 and up to October, 1949. The highest judicial authority occupied a unique place in the
Indian system of law.

Appeals as of right and special leave to appeal

In the beginning appeals from the courts of the Dominions to the King-in-council were
considered as a matter of grace. It was within the discretion of the King-in-council to grant or
refuse leave to appeal. But with the expansion of the British Empire, the right of appeal was
provided, "the right of His Majesty's subjects". However, these provisions did not exhaust the
whole of the royal prerogative. Appeals could still be brought before the King-in-council with its
special permission which came to be designated as "special leave to appeal". So, as a colonial
state India came under the sovereign authority of the king of England and the basis of the
jurisdiction of the Privy Council in the sub-continent was based on the royal prerogative of the
sovereign as the fountain of justice throughout his realm. The right to hear appeal by the Privy
Council was given a statutory récognition under the judicial committee Act, 1833.

Abolition of the Privy Councils Jurisdictions

During the period 1937 to 1947, several unsuccessful attempts · were made in the Indian
legislature to extend the jurisdiction of the Federal court, but these uncompromising tendency of
the colonial rulers which provided the principal obstacle to any extension.

Breaking the tie: Things changed after 1947 as a result of the changed constitutional status of the
country. With the achievement of the independence it would have been highly contradictory to
maintain the system of appeals to the Privy Council, otherwise it would have appeared to
diminish the full independence of the nation. It was therefore, inevitable that an Independent
India should abolish appeals to the Privy Council, and create, instead a national court of its own
as the ultimate appellate court from the High Courts. The same was applicable for independence
Pakistan.

In India, the highest Court was created on January 26, 1950 when the Supreme Court of India
comes into existence under the new constitution. But during the interim period from 1947 to
1950, certain preliminary steps had to be taken with a view to eventual abolition of appeals to the
Privy Council.
 The Federal Court (enlargement of Jurisdiction) Act, 1948

The British Parliament declared India as an independent dominion on the 15" August, 1947. The
central legislature of India passed the Federal Court Act, 1948. The Act enlarged the Appellate
jurisdiction of the Federal Court in all civil cases as was permissible under section-206 of the
Government of India Act, 1935. It abolished the old system of filing direct appeals from the High
Courts to the Privy Council either with or without special leave. But the provisions of this Act
was not applicable to the appeals which were already pending before the Privy Council or in
which special leave was already granted by the Privy Council.

Abolition of the Privy Council Jurisdiction Act, 1949

It was passed by the constituent Assembly on 24th September, 1949. According to the provisions
of section-2 and 3, the jurisdiction of the Privy Council to entertain (Mamlar Bichar Kora) any
new appeals and petitions and to dispose of any pending appeals anmd petitions except those set
down 1or hearing during the next sitting of the Council, ceased to exist from 10th October, 1949.
Thus six appeals which were then before the Privy Council were transferred to the Federal Court
of India. Under section-5, the Federal Court was given all the power and jurisdictions which
were given to the Privy Council in connection with the hearing of appeals from Indian High
Courts.

The case of N.S. Krishnaswami Ayyanger vs. Perumal Goundan AIR, 1950, from Madras was
the last appeal from an Indian High Court which was disposed of by the Privy Council on 15th
December, 1949

Thus, India's long relation with the highest tribunal of UK for overseas ended on 10th October,
1949.

As a judicial institution, the Privy Council was unique unparallel among the Courts of the world.
It always insisted maintaining the highest standards of justice and judicial procedur
administering on efficient and impartial justice, and recognizing the noble spirit of law.

The Privy Council formed a strong connecting link between India and England so far as the
common law was concerned. It gave to the country the English principles of law which are the
basis of many Indian enactments.

In the days when the confusion in the field of substantive law was great, and the legislative
activity practically negligible, the Privy Council ascertained the laws, settled them, moulded and
shaped them.

The judicial committee came to be looked upon by the Indians with great respect. The decision
of the Privy Council formed a masterly piece of legal literature and has enriched the Indian legal
literature in many respects. It has remarkably interpreted the Indian laws both Statute and
personal. It has rarely interfered in the criminal sphere but whenever it did so it had been to
uphold the principles of natural and impartial justice. Its contribution in the field commercial law
is also praiseworthy.

Some criticisms have been put forward against the ri Council, e.g.

(i) for long it was staffed by English judges only;

(ii) its location was England, its appellate jurisdiction was considered a symbol of
slavery;
(iii) absence of local knowledge of the court ale the Counsel engaged in England was a
great hindrance disadvantage to the litigants;
(iv) Consequently the Indian polieat view could not be appreciated;
(v) it put the poor at a great disadvantage;
(vi) and in certain cases view was not impartial

In addition, it may be said that the Privy Council acted as a catalystic agent for the
introduction of the principles of English law in British India by pronouncing judgement
according to the English common law on the ground of justice, equity and good conscience.

COURTS OF BANGLADESH: A COMPARATIVE STUDY

It is commonly known that the legal system of Bangladesh is the common law legal system
i.e. derives from English Law except some religion based personal law. The legal system of
Bangladesh is not only adversarial in some cases it is inquisitorial too.

The following discussion shows the name and jurisdiction of the verious civil and criminal
courts in general as well as the lists of the various Courts existing in the Metropolitan and
District and Sessions Judges premises, Dhaka.

This is equally important for all the students of law and other citizens of Bangladesh as the
discussion is followed by the existing Jaws with their year of enactment and is taken from
Bangladesh Code', DLR, Bangladesh Gazette' and some books written by renowned person
on that subject.

Jurisdictions

The term pecuniary jurisdiction means financial limit which a court can not exceed;
territorial jurisdiction means local jurisdiction which a court can not violate to try a case/
suit; the territorial jurisdiction of a Court is fixed by the Government from time to time; the
territorial jurisdictions of a judge or Magistrate may be fixed by the Chief Justice for the
Supreme Court or District and Sessions Judge for the District or by the Metropolitan Session
Judge or CMM or CJM for his own respective area; there is no territorial bindings for the
High Court Divisions; the Chief Justice fixes the jurisdiction of the judges; jurisdiction as to
subject matter means a suit or case to be filed before the concerned courts having
jurisdictions on that particular subject that includes civil, criminal, company, laboure, special
cases/ suits relating to specific subject.

Original jurisdiction means when a case can be lodged directly to a Court; Appellate
jurisdiction means file a case/ suit to the superior court when a man is aggrieved by the order/
decisions/ decrees/ judgments etc by a subordinate court on the ground of of law or error of
fact; Revisional jurisdictions means to revise a judgement when there is an error of law
resulting in an error occasioning failure of justice; Review jurisdiction means to review or a
courts own judgement; Transfer jurisdiction means to transfer case for securing ends of
justice; Reference jurisdiction means to refer the matter to the higher court to know the exact
meaning of legal term etc; and Quashment means to quash a proceeding to secure ends of
justice and to prevent abuse of the process of the court.

It is important to note that all civil courts can exercise their inherent power to ensure justice
when there is no exact provisions of law or the provisions are not sufficient to deal with the
matter. Article-152 of our constitution states that law means any Act Ordinance, Rules,
Regulations, Bye-laws, Order, Notifications, Customs and Usages having the force of law in
our country .

Names of the Courts and their Jurisdictions

01. Supreme Court of Bangladesh:

a) The Appellate Division (AD)

b) The High Court Division (HCD)

Subordinate civil courts of Bangladesh

1) The Court of the District Judge

2) The Court of the Additional District Judge

3) The Court of the Joint District Judge

4) The Court of the Senior Assistant Judge and

5) The Court of the Assistant Judge

There is a Court known as Divisional special Judge and Drug Court.

The subordinate criminal courts of Bangladesh

i) Sessions Court (District level and Metropolitan level)

ii) Magistrates Thana/Upazilla; and Metropolitan level) Court (District level which
includes Thana Upazilla and Metropoliton level.
District level:

i) Sessions Court can be divided into 3-catagories i.e.

a) District sessions Judges Court

b)Additional District Sessions Judges Court and

c) Joint Session Judge Court (Asst. Sessions Judge Court)

Appointment of Judges

Section 2 and 3 of the Act made provisions for member of judges, their qualifications and
their tenure. The judges were to be selected from the following categories of persons: i)
Barristers who had at least five years standing; ii) The members of the covenanted civil
service who had not less than ten years standing, who should have served as "Zillah Judges"
for at least three years of that period. iii) Persons who shall have held judicial office not
inferior to that of principal Sadar Ameen or Judge of a Small Cause Court for a period of not
less than five years; iv) Persons who have been pleaders at a Sadar Court or High Court for a
period of not less than ten years.

Tenure: The Judges of High Court were to hold office during Her Majesty's pleasure.