History II Notes CPJ

Chanderprabhu Jain College of Higher Studies
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An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
Class : BALLB
Paper Code : 106
Subject : HISTORY II
Unit 1:Early Developments (1600- 1836)
The advent of the British in India begins with Queen Elizabeth’s Charter of the year sixteen
hundred to some merchants of London who formed the East India Company to trade with the
East Indies. As a consequence of this Charter the British East India Company set up trading
establishments on the east and west coasts of India and in Bengal, called factories. Here in this
article we are giving you list and details of those Charters.
Charter of 1600
The first Charter of 1600 was mainly designed for trade in order to meet competition with the
Portuguese and the Dutch. Charter of 1600 laid the foundations for British Government in India,
although at that time no one in England dreamed for the establishment of British rule in India.
However, this Charter contained all the provisions necessary for the constitution of a government
according to law in any territory. This Charter granted permit to traffic and use the trade of
merchandise and to assemble themselves in any convenient place, to make reasonable laws and
ordinances for the good government of the East India Company. The factories, on the other hand,
were given power to make reasonable laws and impose punishments.
Charter of 1661
The second Charter of 1661 gave East India Company the power to coin money, to administer
justice and to punish the interlopers. It also empowered the Company to constitute Governor’s
council and appoint other officers for their government. The Governor and councils were
authorised to administer justice in all causes, civil as well as criminal, according to the laws of
the kingdom and to execute judgment accordingly. Charter of 1661 gave the East India Company
power to make peace or war with non-Christians, erect fortifications, and seize interlopers. Thus
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it will be seen that various aspects of sovereignty were conferred by the first Charter of sixteen
hundred and they were further extended by the Charter of 1661.
Charter of 1669, Territorial Sovereignty

For the first time the Charter of 1669 gave territorial sovereignty to the East India Company by
granting to it the port of Bombay. It also enlarged its administrative, judicial and other
governmental powers. The East India Company was also invested with Civil and Military
Government.
Charter of 1677, 1683, 1687

The Charter of 1677 empowered the Company to establish a mint at Bombay for coining
money,Indian rupees. The Charter 1683 gave the company full powers with respect to declaring
wars and making peace with heathen nation (the nation where people do not follow Christianity)
and the king established a Court of Justice with maritime jurisdiction. The Courts were
empowered to “adjudge and determine cases according to the rules of equity and good
conscience and the laws and customs of Merchants.”
The Charter of 1687 invested the East India Company with authority to establish a municipality
and a Mayor’s Court at Madras. The court of Record with power to try civil and criminal cases
was also established. Up to 1765 a number of other charters were granted to the East India
Company which considerably extended its power. It established Municipality in Bombay and
Calcutta and empowered them to establish Courts of Requests. The East India Company was
given also power to cede territories and create probate and testamentary jurisdiction.
Cease of Royal Charter

The affairs of the company in England as well as in India were governed by the Charters up to
1773. The Company’s Governors and Agents in India administered the Company’s affairs as
well as the territorial Governments of India according to rules of law and constitution as
provided in these charters. It was the step on the Indian soil for the creation of a constitutional
Government although in a very small strip of the territory. After 1683 the authority of the Crown
to give charters and create monopoly was challenged in England by the People and the
Parliament and on January, 1964, the Parliament had resolved that all subjects of England have
equal rights to trade with the East Indies unless prohibited by the Act of Parliament. With the
emergence of the supremacy of the Parliament after the Glorious Revolution of 1668 in England,
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the system of granting Royal Charter by the Crown ceased, and henceforth, the Parliament itself
assumed that power.
DMINISTRATION OF JUSTICE IN SURAT –
The East India Company established Ist factory in Surat in 1612. British crown sent an
ambassador Sir Thomas Roe to the Mughal Emperor to request to grant certain facilities to the
English man in India. In 1615 the Mughal Emperor on the pleading of Sir Thomas Roe issued a
Firman, the Mughal Emperor allowed the Englishman to live according to their own religion and
laws and to settle dispute among themselves by their president, however the disputes between on
Englishman and an Indian were to be decided by the native Judges.
ADMINISTRATION OF JUSTICE INMADRAS BEFORE 1726 In 1639 Francis Day

acquire a piece of land from a Hindu Raja for the East India Company and constructed a fortified
factory were Englishman and other Europeans and therefore the area of the factory came to be
known as while town and the people residing in the village Madras, Patnam were mostly Indians
and therefore it came to be known as Black Town. The Whole Settlement Consisting of white
town and black town came to be known as Madras. In judicial administration in Madras divided
in 3 stages. First, Second and Third.
FIRST STAGE –
White town before 1665 Madras was not presidency town and it was subordinate to Surat. The
administrative head was called ‘Agent’ and he was to administer the settlement with the help of
Council. The serious criminal cases referred by them to the Company’s authorities in England
for advice. But there was defects the judicial power of the agents and council was vague and
indefinite and much delay also, they did not have any elementary knowledge about law. They
were Merchant. There was no separation between executive and judiciary.
The president of the Surat factory and members of His Council constituted a court to decide
dispute between the Englishman interest in accordance with their own laws and customs. They
were to decide both civil and criminal cases.
Capital offences dealt by a jury there was no separation between executive and judiciary. The
president and the members of his council who were to decide cases and administer justice were
merchant. They did not have even elementary knowledge of English law.
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The cases were decided by them according to their wisdom, commonsense. And the native
judges were corrupt bribery was rampant. They had no request for law and justice.
Surat was the chief trading center till 1687. But there after it lost its importance because in 1687
the headquarters of the president and council were transferred from Surat to Bombay.
BLACK TOWN –
The old judicial system was allowed to function there was a village head man known as Adigar
or Adhikari who was responsible for the maintenance of Law and Order. Adigar administered
justice to the native at the Choulby Court. According to the long established usages, Choulby
Court was court of a petty cases. The Company had no power to inflict death sentences under the
Charter of 160 and the agent in Council could inflict such a sentence only under the authority of
local sovereign. The appeals front the Choulby Court were to be heard by the agent in Council.
An Indian native named Kannappa was appointed Adigar but he misused his power and
consequently he was dismissed from the office and the English servants of the office and the
English servants of the company were appointed to suit at the Choulby court.
CHARTER OF 1661 – It was granted by the British Crown it conferred board powers on the
East India Company. The charter authorized the Governor and Council of Englishman inhabiting
the settlement of the company. The Governor and Council of each factory to hear and decide all
type of civil and criminal cases. Including the cases of capital offences also and it could award
any kind of punishment. Including death sentences.
Under the Charter of 1661, the cases of Indians inhabiting in the settlement of the company
were to be decide according to English law. The powers conferred on the company could only be
exercised by the Governor the chief factor and Council were empowered to send offenders for
punishment either to a place where there was a Governor and Council or to England.
SECOND STAGE – (1665 – 1683) –
In 1665 one Mrs Ascentra Dawes was charged with the commission of Murder her slave girl and
the Agent- in – Council referred the case to the Company’s authority in England for advice.
After raising the status of agent and Council of the factory at Madras to try Mrs. Dawes with the
help of Jury and an unexpected verdict of not guilty was given and consequently Mrs. Dawes
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was acquitted. Later on 1678 the whole judicial administration was re-organized. The judicial
administration in both the towns was improved.
WHITE TOWN – The court of Governor and Council was declared to be the High Court of
Judicature. It was to hear all case of the inhabitance of both towns with the help of jury and also
hear the appeals from the Choulby Court. It was decide cases according to English Law. The
Court was to meet twice a week.
BLACK TOWN – The Choultry Court was also re-organized. The number of the judges was
increased from 2 to 3. All the judges were Englishmen. At least 2 of them were to sit in the Court
for 2 days in each week. The Choultry Court was empowered to hear petty criminal cases. It was
also empowered to hear petty civil cases up to 50 pagoda and the cases of higher value with the
consent of the parties.
THIRD STAGE (1683 – 1726) –
Admiralty Court on August 9 1683 Charles II granted Charter to the Company to establish the
courts which was to consist of person learned in the civil law and two mercantile, maritime
trespass, injury and wrongs etc. again April 12 1686 Charles II issued a new charter with same
provisions. Chief Judge of the Admiralty Court was known as the Judge Advocate. The
admiralty court having the jurisdiction to hear and decide all mercantile and maritime cases. In
1687 company sent from any land Sir John Biggs a professional lawyers learned in Civil Law to
act as the Judge Advocate of Admiralty Court bestowed justice in all cases civil, criminal as well
as maritime. Sir Biggs died in 1689 and Governor again took the charge of judicial function. In
1692 the company sent John Dolben as new Judge advocate and in 1694 he was dismissed on the
charge of taking bribes. In 1696 company directed that members of the Council should in
succession serve as the judge Advocate after Willian Fraser a Merchant was appointed as Judge
Advocate. Later he resigned and no one was ready to become the Judge Advocate, so company
made the Court registrar the Judge Advocate.
MADRAS MAYORS COURT (1688) –
At the time in England there they got London corporation and they got London mayors court as
per the British Law. That time municipal corporation enjoyed the Judicial power also company
issued the charter and started Madras corporation utilizing the power given by British Crown.
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In the year 1687 Company established Madras Corporation and Mayor’s Court was the part of
this corporation. In the year 1686 Madras government levied a house tax on the Madras City
population to repair the City wall. But people of Madras, Local people did not pay tax and
Company faced problems and difficulties to collect tax, after this company decided that to make
the tax collection easy a body should be formed consisting of English men as well as Local
Indians population so it will become easy for the company officials to collect the tax.
The corporation came in to existence on September 29 1968 which consists of a Mayor, 12

Alderman and 60 to 120 Burgesses. It was decided that every year new Mayor will be elected
from Alderman by Alderman and Burgesses and retiring Mayor can be re-elected by them.
The Alderman and Burgesses got the power to remove the Mayor if he is unable to perform his
duties, only Englishman becomes the Mayor. The Alderman hold the office as long as they
stayed in Madras City indirectly they hold the office for life long. Mayor, Burgesses holds the
power to remove the Alderman from office also if he did not perform well.
Among the Alderman minimum three were required to be British Servants of the Company and
other nine can belong to any nationality or religion.
The First Alderman were as Follows –
a) Englishman – 3
b) Hindu – 3
c) Frenchman – 1
d) Portuguese- 2
e) Jews and Americans – 3
The charter appointed 29 Burgesses and then remaining Burgesses were appointed by the Mayor
and Alderman. Among 1st 60 Burgesses the caste head were selected as the Burgesses.
This was the nature of 1st corporation the Mayor and three Senior Alderman were to be the
justice of the peace. The Mayor and Alderman were to form a court of record which was
authorized to try civil as well as criminal case. This court was known as Mayors court.
The Mayor’s Court was authorized to give following punishments –

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Fine, imprisonment and corporeal punishment. The convinced person gets right to file appeal to
the Admiralty Court.
As Mayor and Alderman did not have legal knowledge the provision was made for the
appointment of the recorder of the Court. He helped the Mayor regarding the cases and he also
got the power to vote just like Alderman. The Recorder of the Court was required to be skillful in
the law as well as the servant of the Company. The Charter appointed the Judge Advocate Sir
Biggs as the 1st Recorder. Only in the year 1712 the court got power to give death sentence to
native people.
The Mayor Court did not follow uniform punishment for the same crime. It depends on the Judge
discretion for this, the reason was that the Mayor and his team did not have any legal knowledge.
Sir Biggs got the experience of working as a recorder in the London but here in Madras the
problem was that Sir Biggs sat in the Admiralty Court were went. But company ignored this fact
after the death of Biggs. No recorder was appointed. Like this in the period 1686 to 1726 in
Madras three Courts Functioned.
1) Mayor’s Court
2) Choultry Court
3) Admiralty Court.
After 1704 Governor and Council heard the appeals from the Mayors Court as Admiralty Court
to stop function. In this period also the Criminals were so long kept in jails, that even people
forget the crimes. Justice system was very slow and no one bothered. The capital punishment
was given by hanging. Robbery was punished with death, witch craft was punished with fine.
ADMIRALITY COURT –
In 1683 King Charles II issued a Charter. It empowered the Company to establish Courts of
Admiralty in India. The Court of Admiralty was authorized to try all traders who committed
various crimes on the high seas. The court was empowered to hear and determine all cases
concerning maritime and mercantile transactions. The court was also authorized to deal with all
cases of forfeiture of Ships, Piracy, Trespass, Injuries and Wrongs. It was stated that the court
would be guided by the laws and customs of merchants as well as the rules of equity and good
conscience in the task of administration of justice.
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The provision of the Charter of 1683 was repeated by James II in a charter issued in 1686. On
10th 1686 the court of admiralty was established at Madras John Grey was appointed judge of the
court and to assist him 2 other English man were appointed as his assistants on 22 nd July 1687.
Sir John Biggs who was a Professional Lawyer learned in Civil law was appointed as Judge
Advocate in Chief Judge of the Court.
Thereafter the Governor and Council relinquished the judicial function and ceased to sit as
court. The Jurisdiction of the Admiralty court was not confined to Mercantile and Maritime
Cases. It also decided both civil and criminal cases. Further it heard appeals from the Mayor’s
Court. Thus it became a General Court of the Settlement. The Admiralty court was functioning
regularly till 1704, but thereafter it ceased to sit on regular basis and gradually it disappeared,
and its jurisdiction was transferred to the Governor and Council.
THE CHOULTRY COURT The old Choultry Court was recognized and allowed to continue
by the Governor. The number of Judges was increased to Three – Two Judges were required to
preside over the trail of cases. The Court met 2 days in each week. The court was empowered to
try civil cases up to 50 Pagodas (Pagoda was a gold Coin, One Pagoda was equivalent to 3
Rupees) and petty criminal cases. The High Court of Judicature was authorized to hear appeals
from Choultry Court.
THE HIGH COURT OF JUDICATURE –The court of Governor and Council was designated
as the High Court of Judicature. The Court met twice a week. The Court decided all Civil and
Criminal cases with the help of jury of 12 men.
Meaning of the Words –
1) Mayors – The Name of a court usually established in cities, composed of a Mayor, recorder
and alderman. Generally having Jurisdiction of offence committed with in the city.
2) Alderman –
A member of the municipal, legislative body in a town or city. In many jurisdiction, a member
of the higher branch of the municipal or borough council in England and Ireland before 1974.
One of local council elected by the other Councilors.
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3) Burgesses –
A magistrate of a borough generally the chief officer of the corporation who performs with in the
borough (administrative division) the same kind of duties which a mayor does in a city. In
England the word is sometimes applied to all the inabilities of a borough who are called
burgesses. Sometimes it signifies the representatives of a borough in parliament.
ADMINISTRATION OF JUSTICE IN BOMBAY –
PERIOD 1668 – 1726 Portuguese were the 1st European to acquire the island of Bombay in
1534 from the King of Gujarat in 1661. Portuguese King Alfonsus VI transferred the island to
Charles II as Dowry on the marriage of his sister Catherine with the British King. Charles II
transferred it to the East India Company in 1668 for an insignificant annual rent of 10 pounds.
JUDICIAL SYSTEM – Before 1726, the Judicial system the Island of Bombay grew in Three
Stages –
1) First Stage – (1668 – 1683)

2) Second Stage – (1683 – 1690)
3) Third Stage – (1781 – 1726)
CHARTER OF 1668 – The political position of Bombay was quite different from that of
Madras, the King of Gujarat and from that of Madras, the king of Gujarat and from that time
onwards it was under the political control of the Portuguese. In 1668, the charger authorized the
company the other comprised of Mahim, Parel, Sion and Worli. A separate court of judicature
was established. For each division at Bombay and Mahim. Each court consisted of Five Judges,
the custom officers of each division, an Englishman, was empowered to preside over the
respective court. Three Judges formal the quorum of the court. As it was not possible for an
Englishman to have adequate knowledge of India Laws, some Indians were also appointed
Judges to assist him in the court of each division. The courts were authorized to hear, try and
determine cases of small thefts and all civil actions up to 200 (it was a Portuguese Coin 20
Xeraphins were equal to nearly Rs.150) in value. An appeal from the court of each division was
allowed to the court of Deputy Governor and Council. A part from the appellate Jurisdiction the
court of Deputy Governor and Council also had original jurisdiction in important. Felonies which
were to be tried with the help of Jury and the laws of the company. Englishman was under the
jurisdiction of this court. Further appeal to the president and council at Surat was discouraged
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except in rare cases to legislate and to exercise judicial authority in the island of Bombay. It was
further stated that such laws should be consonant to reason and not repugnant or contrary to the
laws of England and they were also required to be as near may be agreeable to the laws of
England. The system of courts and procedure was to be similar to that established and used in
England. The Charter of 1668 resulted in a transition of the company from a trading association
to a territorial sovereign invested with powers of civil and military government.
The president of Surat, Sir George Oxenden, received the Company’s order in September 1668
to visit the Island of Bombay and establish the executive government under a Deputy Governor
and Council. Oxenden visited Bombay in January 1669. He died in July 1669. The next
Governor of Surat – Gerald Aungier, made same reforms in the Island of Bombay in 1670
JUDICIAL REFORMS OF 1670 – As per the reforms of 167 the Portuguese Laws and
Customs were allowed to continue the Island of Bombay was divided into two divisions. One
division consisted of Bombay, Mazgaon and Girgaon. The other comprised of Mahim, Parel,
Sion and Worli. A separate court of judicature was established for each division at Bombay and
Mahim. Each court consisted of Five Judges. The customs officer of each division, an
Englishman, was empowered to preside over the respective court. Three judges formed the
quorum of the court. Three Judges formed the quorum of the Court. As it was not possible for an
Englishman to have adequate knowledge of Indian Laws, some Indians were also appointed
Judges to assist him in the Court of each division. The Courts were authorized to hear, try and
determines cases of small thefts and all civil actions up to 200 xeraphins (it was a Portuguese
coin 20 xeraphins were equal to nearly Rs.150) in value. An appeal from the court of each
division was allowed to the court of Deputy Governor and Council. Apart from the appellate
jurisdiction the court of Deputy Governor and Council also had original Jurisdiction in important
Felonies which were to be tried with the help of jury and the Laws of the Company. Englishman
was under the jurisdiction of this Court. Further appeal to the President and Council at Surat was
discourages except in rare case.
NEW JUDICIAL PLAN IOF 1672-
It was realized within the next 2 years that the judicial system of 1670 was defective in
various respects. Augier the Governor was himself not satisfied with the working of the Courts.
The Judges of the Superior and Inferior Courts had no knowledge even of the elementary
principles of law, they were Merchants. The judicial and executive powers were exercised by the
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same person. As consequences, the abuse of power created various new problems. Order to
remove these defects a new plan was prepared in 1672 for the administration of Justice in
Bombay.
According to the new plan the government issued a proclamation on 1StAugust 1672
declaring the introduction of English Law into Bombay. The Portuguese Laws and Customs were
totally abolished under the new plan. The Judicial Machinery was again organized. A new
central court known as the Court of Judicature was established. The Court of Judicature was
empowered to exercise its Jurisdiction over all Civil a and Criminal and Testamentary cases.
George Wilcox appointed its Judge assisted by other Justice. The Court sat once a week to try
civil cases with the help of jury. The court charges a fe of five percent of valuation of the suit
from the litigants.
The judges were prohibited from carrying on private trade or business and instead he was
granted a salary of Rs. 2000 per year to meet his expenses. An appeal from the court of
Judicature was allowed to the Deputy General and Council. Juries were duty employed and paid.
Attorneys were allowed to practice. English procedure including arrest and imprisonment was
followed. As far as possible the English substantive law including statue law was made
applicable. In framing the new scheme Aungier was primarily concerned with the speedy and
impartial administration of Justice.
Justice of the Peace was appointed to administer criminal justice. For this purpose
Bombay was divided into four divisions, namely, Bombay, Mahim, Mazagaon and Sion.in each
division a justice of the Peace, an Englishmen was appointed. They acted as committing
Magistrate to arrest the accused and to examine the witness. The record was then placed before
the Court of Judicature which met once a month to decide criminal cases with the assistance of
the Justice of Peace, who acted as assessors in the Court.
The scheme of 1672 also created a Court of Conscience to decide petty civil cases. Once
a week the court dealt summarily with cvil cases under twenty Xeraphins. The decision of the
Court was final and no further appeal was allowed. No Court-Fee was charged from poor persons
and, as such the Court Become famous as, “Poonam’s Court”. George Wilcox, Judge of the
Court of Judicature, also presided over the Court of Conscience which met only once a week to
deal with petty civil cases.
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George Wilcos, the first Judge of the Court of Judicature died in 1674. James Adams was
chosen to succeed Judge Wilcox but he was not well – versed in law. After a few months in
1675, his assistant Niccolls was appointed judge in his place. In 1677 Niccolls was suspended
and later dismissed by the Council in various charges. Gary succeeded Niccolls as Judge and
remained in the office up to 1683. During this tenure, the salary and rank of a Judge was reduced
and the Council became superior in power and position.
Keignwin’s rebellion, which began in December 1683, and continued up to November

1684, gave a death – blow to Aungie’s judicial system in the Island of Bombay.
Admiralty Court (1684 to 1690) –
As stated above, the development of Courts at Bombay was interrupted due to the
Keignwin’s rebellion. After the rebellion was suppressed, efforts were made to set-up a regular
judicial system at Bombay. The Company found its authority to establish courts under the earlier
Charter of 1683 granted by Charles II. The Charter provided for the establishment of Courts at
such places as the Company might direct for Maritime causes of all kinds, including all cases of
Trespasses, Injuries and Wrongs done or committed upon high seas or in Bombay or its adjacent
territory, and each Court was to be held by a learned judge in civil law assisted by two persons
chosen by the company. Such Courts were required to decide cases according to the rules of
equity and good conscience and the laws and customs of merchants. Accordingly, an Admiralty
Court was established at Bombay in 1684. Dr. St. John was also authorized to act as Chief
Justice of the Court of Judicature. The Court of Judicature was again created, as the authority of
the Admiralty Court was not sufficient to cover all other civil business.
John Child, Governor of Bombay at Surat, was not in favour of accepting the theory of
judicial independence which was adopted by dr. St. John in his judicial decisions. It gave rise to
conflicts between the Governor and the Chief Justice. Dr. St. John’s judicial independence was
interrupted by the Governor John Child as insubordination towards himself. In 1685 the powers
of Dr. St. John to act as Chief Justice of the Court of Judicature were withdrawn by the
Governor. Vux, a member of the Bombay Council was appointed as judge to preside over this
Court, in place of Dr. St. John. These steps further developed the existing conflict between the
Governor and the Chief Justice. Dr. St. John strongly criticized the transferring of his power to
Vaux, a new judge, who according to him was ignorant of civil laws. In due course the Governor
and Dr. St. John’s dismissal, Sir J. Wyborne, Deputy Governor of Bombay, was appointed as the
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Judge of the Admiralty Court. In 1688 Vaux succeeded Sir J. Wyborne and remained in the
office up to 1690.
In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial
system of Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer
justice was almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period in
Bombay’s Legal History.
Court of judicature –
A new period in the Judicial history of Bombay began with the revival and inaugutration
of a court of judicature on 25th March,1718 by Governor Charls Boone. It was established by the
order of the Governor and Council which was later on approved by the Company authorities. The
court of Judicature of 1718 consisted of ten Judges in all. It was specially provided that the Chief
Justice and Five Judges will be Englishman. The remaining Four were required to be Indian
representing Four different communities, namely, Hindus, Mohammedans, Portuguese –
Christians and Parsi. All English Judges were also members of the Governor’s Council and
enjoyed status superior to Indian Judges. Three English judges formed the quorum of the court.
The Court met once a week. Indian Judges, who were also known as “Black Justice” were
included mainly to increase the efficiency of the Court and their role was mostly that of assessors
or assistants of the English judges. They do not appear to have enjoyed equal status with English
judges.
The Court of 1718 was given wide powers. It exercised jurisdiction over all civil and
criminal cases according to law, equity and good conscience. It was also guided by the rules and
ordinance issued by the Company from time to time. It was necessary for the Court to give due
consideration to the customs and usages of the Indians. Apart from its jurisdiction over probate
and administrative matters, it was further authorized to act as a Registration House for the
registry of all sales concerning houses, lands and tenements.
An appeal from the decision of the Court of Judicature was allowed to the Court of
Governor and Council in cases where the amount involved was Rs. 100 or more. A notice to file
an appeal was to given within Forty-Eight hours after the judgment was delivers to the Chief
Justice of the Court of Judicature. Moderate fees were prescribed by the Court for different
purposes. For filing an appeal a fee of Rs. 5 was to be paid.
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ADMINISTRATION OF JUSTICE IN CALCUTTA 1690- 1726 –
1. Mughal Judicial system

2. Kaziz and Courts
3. Nawabs Courts
In the year 1668 the grandson of Aurangzeb Azimush Shan, and the Subedar of Bengal
gave Zamindari of villages, Calcutta, Sutanati and Govindapur for annual revenue of 1195
rupees to the East India Company. In the December 1699 Calcutta became Presidency town and
Governor was appointed to administer he settlement. As a Zamindar company got all powers just
like other zamindar of that time. Bengal Zamindar in Mughal Empire zamindars got judicial
power but collected the revenue and maintained law and order in the zamindari area or village
for judicial purpose. That time Kaziz Court were established in each District, Parganah and
Villages.
They handled civila dn criminal matters. Normally villages panchayats solved all
problems. The Judicial System was simple as everyone knew each other and transaction pf each
other Moghul Kings never paid any attention to Judicial System that time nothing was organized.
The highest bidder became the Kazi. Justice was purchased, corruption was rampant Kazi never
got salary so Kazi court fined the criminal and earned money. After this demand money from the
complainant for giving him justice. The other zamindars when gave death sentence the appeal
went to the Nawab, but company never did this the appeal from Zamindar’s. Collectors Court
went to the Governor and Council.
In Calcutta that time Collector enjoyed all the powers up to the year 1727. With the
Charter of 1726 the new system was started in Calcutta presidency. Before this Charter the
authority was given by company and zamindar but the Charter of 1726 was a Royal Charter. The
important of this company but after this Charter Court got their permit authority from the British
Crown.
CHARTER OF 1726 –
Necessity of judicial reforms –
The judicial administration in the settlement of the East India Company before 1726 was
not of high order. The judicial administration was executive ridden. There was no uniform
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judicial system in the settlement of the company. The Courts were of the Courts of East India
Company consequently their decisions were not accepted by the court un England. The director
of the company therefore presented a petition to King George I stating that there was a great
want at Madras, Fort William and Bombay of proper and competent power and authority speedy
and effectual administration of justice in civil cases and for trying and punishing of capital and
other offences.
In the year 1726 King George I issued a Charter to the Company. The Charter of 1726
became an important land mark in the legal history of India due to its various vital provision
having charter is that this charter introduced uniformity of Justice system in all 3 presidency
town. The Charter established Civil and Criminal Courts in each presidency towns.
The another important point is that before 1726 the Court got authority from the company
but after this Charter the Courts got authority from the Royal British Crown. The Court which
were present that time in England with the Charter of 1726 the appeals from Court in India went
to the Privy Council in England.
The way English law system became accepted to Indians. Indians did not find it foreign
and Indian did not have any other judicial system as such with this Charter in each Presidency
town local legislature was established Charter 1726 is also known as Judicial Charter as this is
the beginning of development of Indian law system and judiciary.
ESTABLISHMENT OF CORPORATION –
The Charter of 1726 provided for the establishment of a corporation in each town i.e.
Bombay, Calcutta, and Madras. Each corporation consisted of a Mayor and nine Aldermen. It
provided that the mayor would be elected every year by nine Aldermen and the retiring mayo
from amongst the Alderman. An Alderman was appointed either for life or for the term of his
residence in the presidency town. The Governor – in – Council was empowered to dismiss or
remove any of the Aldermen on reasonable cause.
1) Legislative Power –
The Governor – in – Council of each presidency town was entrusted with the power to
make by-laws, rules ordinances to regulate the working of the Corporation and also for the better
administration of the inhabitants of the settlements. The Governor – in – Council was required to
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obtain in writing prior approval and confirmation of such rules, by-laws, etc. from the Court of
Directors of the Company. It is, therefore, said that the Charter of 1726 for the first time created
a subordinate legislative authority in each of the three presidency town of India.
2) Mayor’s Court –
The Charter of 1726 provided for the establishment of a Mayor’s Court for each of the
presidency town. It was to consist of the Mayor and Nine Aldermen were required to be present
to form the quorum of the Court. The Mayor’s Courts were declared to be Courts of Record and
were authorized to try, hear and determine all Civil Cases. The Mayor’s Court was also granted
testamentary jurisdiction and power to issue letters of administration to the legal heir of the
deceased person. It was authorized to exercise its jurisdiction over all persons living in the
presidency town and working in the Company’s subordinate factories.
The procedure of the Mayor’s Court was clearly laid down by the Charter. The Sheriff,
an officer of the Court, was appointed by the Governor – in – Council every year to serve the
processes of the Court. On the written complaint of the aggrieved party the Court issued
summons directing the Sheriff to order the defendant to appear before the Court. In case the
defendant failed to appear on the fixed day, a warrant was issued by the Court asking the Sheriff
to arrest the defendant and present him before the Court to face the charges. The Court was
empowered to release the defendant on such bail or security as it considered suitable. The
judgment of the Court was followed by a warrant of execution issued to the Sheriff to implement
the decision. The Sheriff was authorized to arrest and imprison the defendant. The whole
procedure of the Court was based on the procedure as adopted by the Courts in England.
An appeal was allowed to the Governor – in – Council from the decision of the Mayor’s
Court in each presidency town. A period of Fourteen Days, from the date of judgment, was
prescribed to file an appeal. The decision of the Governor – in – Council was final in all cases
involving a sum less than 100 Pagodas. In case the sum involved was wither 1000 Pagodas or
more, a further appeal was allowed to be field to the King – in – Council (His Majesty’s Privy
Council) from the decision of the Governor – in – Council. Thus the Charter introduced a new
system of first and second appeals, making the King of England the ultimate fountain of justice
for litigants in India.
3) Justice of Peace –
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The Charter provided that in each presidency town, the Governor and five senior
members of the Council will have criminal jurisdiction and would be justices of the peace. They
were empowered to arrest and punish persons for petty criminal cases. These Courts were
entrusted with the same powers as similar Court in England. These courts were authorized follow
the procedure followed by Court in England. Thus the Charter of 1726 made the beginning of
important English ideas, technical forms and procedure of criminal justice into India.
CONSEQUENCES OF THE CHARTER OF 1726 –
The year 1726 saw the abolition of the Court of Admiralty at Madras. By establishing the
Mayor’s Court at the three presidency town of Bombay, Calcutta and Madras, the Charter
introduced a uniform judicial machinery for justice in India. The civil and criminal courts
established under the Charter derived their authority directly from the King and not from the
Company. In this respect, these courts were superior to the Courts which were established in
1686 by the Company. The King in England, in whose name justice was administered in
England, also became the fountain of justice for Courts in India. It added prestige and status to
these Courts not only in India but also in England. These courts may therefore be said to be
Royal Courts. The very fact that the Courts in India derived their authority from the King, in the
field of judicial set-up, paved the way for importing English ideas of law and justice, in to India.
It was through the Privy Council that the principles of English law were gradually applied in
deciding cases wherever Indian law was silent or defective according to English Judges. Apart
from this, the deep – rooted English tradition of showing respect to the decisions of the highest
judiciary was also adopted in India. With the adaptation of the doctrine of precedent in India, the
principles of English law greatly influenced Indian law and legal institutions. The Charter of
1726 itself played an important role in introducing English Common and Statue law in India.
THE CHARTER OF 1687 AND THE CHARTER OF 1726 – DISTINCTION –
1) The Charter of 1687 applied to Madras only whereas the 1726 Charter applied to all presidency
towns.
2) The mayor’s Court established in 1687 was a Company’s Court. Three Mayor’s Courts
established in 1726 were Royal Courts as they were created by King’s Charter of 1726.
Naturally, the status of these Courts was recognized by the Courts in England.
3) The old Mayor’s Court at Madras was empowered to exercise its jurisdiction over all civil and
criminal matters and an appeal was allowed to go to the Admiralty Court. On the other hand, the
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Mayor’s Court established in 1726 were entrusted with civil jurisdiction only, and from their
decision, first appeal was allowed to the Governor-in-Council in the respective presidency town,
and a further appeal was allowed to go to the King – In – Council in all cases involving a sun of
1000 Pagodas or more.
4) No specific rules of law and procedure were laid down for the old Mayor’s Court at Madras.
The Mayor’s Courts, established by the Charter of 1726, were required to follow a well-defined
procedure based on English and practice. Thus the former can be said to be governed more by
principles of equity whereas the latter was governed by English Law.
5) A lawyer known as Recorder was attached to the old Mayor’s to the old Mayor’s Court at
Madras advice the Court, while no such officer was attached to the three new Mayor’s Courts.
DEFECTS IN THE CHARTER OF 1726 – After the Charter of 1726 was actually
implemented and the Mayor’s Courts began their functioning, gradually the defects and lacunae
in the provisions of the Charter came into limelight. It was realized that the Charter was not quite
clear in its language. The working of the Mayors Courts at Bombay, Calcutta and Madras created
many difficulties for native Indians. For the first time, the Mayor’s Court administered English
law in India. The English law contained both common law and the statute law. Nearly all the
common law and statue law as it existed in England in 1726 was introduced in the three
presidency towns of India. It completely ignored the Indian customs and traditions, and was
hardly suitable to Indian conditions in those days. The Mayor and Aldermen, who presided over
the Mayor’s Court, were either senior servants of the Company or dependent on the Company’s
pleasure for their stay in India. They had neither any regular legal training nor any judicial
experience to their credit. Evil consequences were therefore bound to follow. As there was no
specific mention about jurisdiction, the Courts decided that it was empowered to exercise its
jurisdiction even in such cases where both parties were native Indians. All these created great
dissatisfaction and unrest amongst the native inhabitants of each presidency town.
The Charter of 1726 created a Corporation and a Mayor’s Court in each presidency town.
The Mayor’s Court was constituted to work independently but its relationship with executive.
Governor – in – Council was not stated clearly. In actual practice, the executive machinery
expressed its hatred and jealousy against the independent attitude of the Mayor’s Court. The
executive tried to dictate its terms to the judiciary. But the Mayor and Aldermen came into
conflict with the Governor – in – Council in many cases at Bombay, Calcutta and Madras.
Instead of the smooth working of these two wings – executive and judiciary – their relations
became severely strained in each presidency town.
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The inhabitants of Bombay, Madras and Calcutta were the greatest sufferers due to the
constant conflicts between judiciary and the executive. It created an atmosphere of great unrest
in all the three presidency towns. A petition was sent to the Court of Directors of the Company,
in its reply, made it clear that conflicts should be decided among themselves (natives) according
to their own customs. If they request and choose them to be decided by English laws, then only
the matter can be pursued according to the directions of the Charter of 1726.
POLITICAL CHANGES IN MADRAS (SEPTEMBER 1746 TO AUGUST 1749) – On

September 14, 1746, the French captured the city of Madras. The victory of the French brought
Madras under the temporary rule of Pondicherry. It gave a death blow to the Mayor’s Court at
Madras. In 1749 the city of Madras was recaptured by the English from the French.
CHARTER 1753 –
In the year 1746 the French got the control of Madras presidency because of this Madras
corporation which was created after the Charter of 1726 was ceased to function in the year 1749
again British got the control of Madras to establish again Madras corporation, King George II
again issue a new Charter on the 8th January 1753, to the Company official utilized this chance
and tried to remove all the disadvantages of the Charter of 1726. The new Charter of 1753 was
made applicable to the entire presidency town. New charter changed the method of appointment
of Mayor and Alderman. Governor and Council got the power to appoint the aldermen.
Regarding selection of the Mayor the corporation selected the names of 2 people and Governor
and Council selected one of them as the Mayor every year.
This way Mayor became the puppet of the Governor and Council. This way Mayor as
well as Aldermen becomes the nominee of Government and Government got the Full Control of
corporation.
This way government got the power to appoint the judges of the mayor’s court and
remove him also. If he disobeyed the government or Governor. Mayor’s Court lost all the
autonomy and Independence and became Secondary in nature. The Court was allowed to hear
the Indian cases only if both native Indian parties agreed and submitted the case to the Mayor’s
Court. Mayor’s Court got the right to take action against the Mayor. No person was allowed to
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sit as a judge if he was interested in the matter in any way. Mayor’s Court got the power to hear
the cases against the government and government defended them.
Suitors deposited money with the government not to the Mayor’s Court. The new Charter
also created the new court called as “Court of Request” at each presidency town to decide
cheaply and quickly cases up to 5 Pagodas. This Court was established to help poor Indian
litigants who cannot afford the expenses of the Court. The Court weekly sat once, and was,
manned by Commissioners between 8 to 24 in numbers. The government appointed the
commissioners and every half of the commissioners got retired and those places were filled by
the ballot method by remaining commissioners. Commissioners sat in each court on rotations for
small claims, cognizable by requests Court. If people plaintiff went to the Mayor’s Court the rule
was that Defendant was awarded costs, this way it saved time and money also requests court got
the power to hear the Indian matters also.
There were 3 Courts, namely –
1) Court of request
2) Mayor’s Court
3) Jurisdiction Court of governor and Council.
The court where appeal from the mayor court went criminal cases. Justice of the peace
and Court of quarter sessions consisting of governor and Council. Regarding Civil cases, Privy
Council in the England was the final authority. This Charter introduced many changes but this
Charter took away the independence of Mayor’s Court, which way given to this court by the
Charter of 1726. The East India Company with this Charter also always followed the policy not
to break the customs of Hindu and Muslims. When both Indian parties agreed that time only
Mayor’s Court handseled those cases. An executive enjoyed more powers they appointed
company servants as the judges. The executive handled the cases in such a way it does not harm
them or did not harm the company servants or friends. In 1772 House of Commons appointed a
committee of secrecy to check the affairs of the East India Company, the committee in its
7th report gave adverse report regarding Calcutta judicial system. The report stated that Mayor’s
Court behaved as the wish in all the cases without following English law.
As a result of criticism Supreme Court was established at Calcutta in the year 1774.
Good feature of Charter 1753 –

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The Charter of 1753 removes out the uncertainty and made it clear that the Mayor’s Court could
not hear the cases where both the parties were natives unless such cases were submitted to its
judgment with the consent of both parties. The Mayor’s Court could hear the suits against the
Mayor, Aldermen or the Company.
The establishment of the Court of Requests was of great help to poor inhabitants. The Court
provided quick and cheap justice to the poor litigants with small claims.
Defects of Charter 1753 –
1) Too much executive oriented

2) Non – professional judges
3) Judges independent on the company and governor – in – council.
Regulating Act 1773

British came to India as traders and with the passage of time, they became it’s rulers. In 1600
AD, the British East India Company was granted a charter to trade in East. The company
obtained exclusive right to trade with India for 15 years. From time to time, this charter had to be
renewed. Gradually East India Company also morphed into a territorial power in India. Its career
as a territorial power in India had started with the victory in the battle of Plassey. However, post
battle of Plassey, the affairs of the company went haywire and needed parliamentary control.
Thus a series of acts, beginning from regulating act 1773, were passed to regulate the affairs of
the company; renew its charters; provide for government in India; provide for civil and criminal
laws and so. Thus, the constitutional history of India begins from the Regulating Act 1773.
Regulating Act of 1773 was the first landmark in the constitutional development of India. Via
this act, the British Parliament for the first time interfered into affairs of India. The Prime
Minister of England at the time of Regulating Act of 1773 was Lord North.
Administration of East India Company at the time of Regulating Act of 1773
Before we delve into the details of the act, lets understand how the East India Company was
managed at that time. Administration of the East India Company in England was managed by a
body of 24 directors called Court of Directors. This Court of Directors was elected by
shareholders of the company on annual basis. The collective body of these shareholders was
called Court of Proprietors. The day to day functioning of the East India Company were done by
the committees of the Court of Directors.
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In India, three presidencies were established at Bombay, Madras and Kolkata under a President
called Governor General and his Council or Governor in-council. All the powers were lodged
into the Governor-in-Council and nothing could be transacted without the majority of the votes
in the council.
These presidencies were independent of each other and each of them was an absolute
government in its own limits, only responsible to the Court of Directors in England.
Circumstances that led to Regulating Act 1773
The battle of Plassey (1757) and the Battle of Buxar (1764-65) led to firm establishment of
territorial dominance of East India Company in India. At that time, their territories in the country
included parts of current states of Maharashtra, Gujarat, Goa, Karnataka, Tamil Nadu, Orissa,
West Bengal, Bihar and Uttar Pradesh.
With these two important wars, the Nawab of Awadh became their ally while Mughal emperor
Shah Alam became their pensioner. Bengal and Bihar came under the dual system of
administration of Clive whereby company got Diwani rights or the Fiscal administration rights
while Nizamat (territorial) jurisdiction was with the puppet nawabs. However, this system had
various problems which ultimately led to the Regulating Act 1773. These are as follows:
• This system not only created confusion but also left the people hapless against oppression by
both company and nawabs. The British parliament could not remain a mute spectator and thus
regulation of the trading company was necessitated.
• The servants of the company had become corrupt. Many of them retired and took away heaps
of wealth to England and lived like Indian Nawabs, thus correctly nicknamed “English
Nawabs” in England. In 1772, a secret parliamentary committee reported that the servants of
the company including Clive had received large sums, Jagirs etc.
• The corruption was so much prevalent that the servants of the company led it on the brink of
financial bankruptcy in early 1770s. Further, the famine of 1770 also reduced the revenue. In
August 1772, the East India Company applied for a loan of One Million Pounds to the British
government.
This was enough for the parliament to grab the opportunity, cross examine the doings of the
company and its officials and then enact a legislation to regulate its affairs.
Objectives of the Act
The key objectives of the Regulating Act of 1773 included – addressing the problem of
management of company in India; address the problem of dual system of governance instituted
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by Lord Clive; to control the company, which had morphed from a business entity to a semi-
sovereign political entity.
Key Provisions
Creation of Office of Governor of the Presidency of Fort William
The presidencies of Bombay and Madras were made subordinate to the Presidency of Calcutta.
The Governor of Bengal was designated the Governor of the Presidency of Fort William and
he was to serve as Governor General of all British Territories in India. This Governor General
was to be assisted by an executive council of four members. As per the act, Office of the
Governor-General of the Presidency of Fort William was created in 1773, and on 20 October
1773, Warren Hastings became the first Governor General of India. The members of the council
were Lt. General John Clavering, George Monson, Richard Barwell and Philip Francis. These
members could be removed only by the British Monarch (King or Queen) on representation from
Court of Directors.
Difference between Governor General and Viceroy
Commonly we call Warren Hastings as First Governor General of India. But the official title of
Warren Hastings was the Governor of the Presidency of Fort William. This office
became Governor General of India in 1833 from the times of Lord William Bentinck and in
1858, when India was taken over by England; it remained Viceroy and Governor-General of
India till 1947.
Governors-in-Council of Bombay and Madras were required to pay due obedience to the orders
of Governor -General of Bengal.
Governor-General in council was given power to make rules, ordinances and regulations. These
rules and regulations were required to be registered with the Supremes court and could be
dissolved by the king-in council within 2 years.
Changes in voting qualifications
This act raised the qualifications for a vote in the Court of proprietors from £ 500 to £ 1000.
Further, instead of the annual elections, the act provided the directors to hold office for four
years and a quarter of the number of being annually re-elected. The Directors were required to
submit copies of letters and advices received from the Governor-General in council.
Establishment of Supreme Court at Calcutta
The regulating act provided for establishment of a Supreme Court of Judicature at Fort William
comprising one chief justice and three other judges. Sir Elijah Imphey was appointed as chief
justice of this court. It had power to try civil, criminal, admiralty cases and it had to be a Court of
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Record. It was given supreme judiciary over all British subjects including the provinces of
Bengal, Bihar and Orissa. The Supreme Court was also made to consider and respect the
religious and social customs of the Indians. Appeals could be taken from the provincial courts to
the Governor-General-in-Council and from there to King-in-Council.
Increased control over company
East India Company was kept under the Control of the King of England. The system of
nominating high officials of the Company, Judges, Member of the Court of Directors started.
The court of directors was also required to report on company’s revenue, civil, and military
affairs in India. The act prohibited receiving of presents and bribes by the servants of the
company. No British subject was to charge interest at a rate higher than 12 per cent. The Act also
settled the salaries of the Governor General, Governors, chief justice and other judges.
Importance of the Regulating Act
The Act of 1773 recognized the political functions of the company, because it asserted for the
first time right of the parliament to dictate the form of government. It was the first attempt of
British government to centralize the administrative machinery in India. The act set up a written
constitution for the British possession in India in place of arbitrary rule of the company. A
system was introduced to prevent the Governor-General from becoming autocratic.
This act unequivocally established the supremacy of the Presidency of Bengal over the others. In
matters of foreign policy, the Regulating Act of 1773 made the presidencies of Bombay and
Madras, subordinate to the Governor General and his council. Now, no other presidency could
give orders for commencing hostilities with the Indian Princes, declare a war or negotiate a
treaty. It established a supreme court at Fort William, Calcutta and India’s modern Constitutional
History began.
Defects in the Regulating Act 1773: Analysis
The object of the regulating act was good, but system that it established was imperfect. The act
was a medley of inconstancies with numerous deficiencies. Firstly, the act rendered the
Governor General powerless before his colleagues because he had no veto power. This brought
difficult times for Warren Hastings. He was outvoted and overruled for most of the times by the
members of his council. Further, come of the members were hostile towards Warren
Hastings. Secondly, the provisions regarding the Supreme Court at Fort Williams were vague and
defective. The law did not mention anything regarding the jurisdiction of the Supreme Court. It
also did not demarcate the lines between powers of Governor and Supreme Court. The actions of
the servants of the company were brought under the Supreme Court but this again tussle between
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Governor General and the court. Thirdly, the presidencies of Bombay and Madras continued to
act on their discretion on pretext of emergencies. They also continued wars and alliances without
caring in the least bit to Presidency of Bengal. Fourthly, the parliamentary control ineffective in
the sense that there was no concrete arrangements to study and scrutinized the reports sent by
Governor General in council. Lastly, there was nothing in the act which could address the people
of India, who were paying revenue to the company but now were dying in starvation in Bengal,
Bihar and Orissa.
How the defects of the Regulating Act were removed?
Some of these problems were addressed in an amendment of the Regulating Act in the form of
Amending Act 1781 and other acts which followed it. The Amending Act of 1781 reduced the
powers of Supreme Court much below Governor General in Council. The Pitts India Act 1784
gave veto power to the Governor General and the presidencies were made subordinate to the
Governor General.
• The regulating act of 1773 established a supreme court at Fort William, Calcutta. This
Supreme Court consisted one Chief Justice and three other regular judges or Puisne
Judges.
• Sir Elijah Imphey was the first Chief Justice of this Supreme Court.
• The Supreme Court was the supreme judiciary over all British subjects including the
provinces of Bengal, Bihar and Orissa.
• This was the starting point of Modern Constitutional History of India, under the British.
Please note that this was though a Supreme Court, but still it was not above the Company.
The act of 1773 was obscure with regard to the relation of the Supreme Court with the
Government of Bengal. The Supreme Court subjected the company to the control of British
Government. Later an amendment in this act was made (The amending act of 1881), in
which the actions of the public servants in the company in their official capacity were
exempted from the jurisdiction of the Supreme Court. The Supreme Court was also made to
consider and respect the religious and social customs of the Indians.
• Appeals could be taken from the provincial courts to the Governor-General-in-
Council and that was the final court of appeal.
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• The rules and regulations made by the Governor General-in-Council were not to be
registered with the Supreme Court.
Conflict: Raja Nand Kumar, Kamaluddin, Patna Case, and Cossijurah

Nand Kumar
Nand Kumar, also spelled Nanda Kumar or Nandakumar, (born c. 1705, Birbhum district,
Bengal [now in West Bengal state], India—died Aug. 5, 1775, Calcutta [now Kolkata]), Hindu
Brahman official in Bengal, India, who in 1775, after having accused Warren Hastings (then
governor-general of India) of corruption, was himself accused and convicted of forgery and
executed.
Nand Kumar held several posts under the nawab (ruler) of Bengal, primarily as a revenue
collector. Although he had assisted the British at the Battle of Plassey (1757) by holding back
the contingent of the nawab’s troops under his command, Nand Kumar generally was hostile to
the British. This eventually led to conflict with Hastings, who, before becoming governor of
Bengal (1772) and then governor-general of India (1774), had been employed in Bengal by
the East India Company.
In early 1775 Nand Kumar accused Hastings of having accepted bribes from the nawab and
others, a charge that may have had some basis. However, Nand Kumar was in turn accused by
Hastings of conspiring to coerce a third party to make the bribery accusation against Hastings.
This charge against Nand Kumar was soon dismissed, but in an unrelated case an accusation of
forgery was then brought against him. Although the accuser was Indian, Nand Kumar was tried
in a British court newly established at Calcutta (Kolkata), where he was convicted and (because
forgery was a capital crime in Britain) sentenced to death. Hastings denied that he had played
any part in the proceedings, but his longtime friend, Sir Elijah Impey, was the presiding judge
who imposed the death sentence. Nand Kumar’s execution shocked Indians and provoked strong
protests from Hastings’s critics and rivals, both in India and in England. The corruption charges
against Hastings subsequently were dropped.
THE PATNA CASE
In the words of Dr. M. P. Jain, the Patna case exposed the judicial administration of the
Company. In fact the Patna case is an illustration of various defects and weaknesses in the adalat
system in Bengal, Bihar and Orissa. The facts of the case were as given below,
One Shahbaz Beg, a soldier in the Company’s army, had no son and so he called his nephew
Bahadur Beg from Kabul to live with him. He expressed a desire to adopt Bahadur Beg and to
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hand over his property to him. But before he could do so, he died in 1776. Thereafter, a struggle
ensued for property between Bahadur Beg and Shabhaz’s widow Nadira Begum. The Begum
claimed entire property on the basis of gift said to have been executed in her favour by her late
husband. Bahadur Beg claimed the entire property as the adopted son of the deceased, he filed a
suit against the Begum in the Patna Provincial Council which also functioned as a Diwani Court
for the town.
The Patna Council remitted the entire case to its law officers Kazis and Muftis md required them
to make an inventory of property of the deceased, to collect the property and seal it, and
according to “ascertained facts and legal justice” to transmit to the Council a written report
specifying the shares of parties. Under the Regulations then prevailing, the law officers were
neither to perform any executive functions nor were they to concern themselves with deciding
the questions of fact, their only function was to expound the law applicable to the facts of the
case.
The law officers locked and sealed the house of the deceased. The widow of the deceased was
insulted and humiliated to such an extent that she left the house and took refuge in a mosque.
They rejected her claim holding that ^itt deeds were forged. As Muslim law does not recognise
adoption, Bahadur Beg’s claim was also rejected. The deceased’s property was thus to be divided
according to the Muslim law of intestate succession.
The widow approached the Supreme Court and filed an action against Bahadur Beg, the Kazis
and Muftis for assault breaking and entering her house and taking away her property, and
claimed damages amounting to Rupees 6 lakhs. Bahdur Beg, Kazi and Mutis were arrested and
brought from Patna to Calcutta and were lodged in prison.
The legal issues raised in trial, which started in November 1078, were, (1) Whether Bahadur
Beg, who lived outside Calcutta was subject 10 the jurisdiction of Supreme court, and (2)
Whether the law officers could be prosecuted for acts done in their judicial capacity?
On the first issue, the court said that Bahadur Beg was a farmer of land revenue and he was not
different from the revenue Collector and therefore was ‘directly or indirectly in the services of
the Company’. On the second issue, the court held that although the Patna council was a legally
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constituted court having jurisdiction to decide the civil disputes between the Indians, it had no
jurisdiction to delegate its functions to the law officers, the Kazi and Muftis.
The court criticised the manner in which the Kazi and Muftis had acted for ascertaining facts. All
the proceedings in the Council were ex parte without any I notice being given to the Begum. No
regular trial was held and witnesses had not been examined on oath. Thus, the law officers were
tried not for what they had done in the discharge of their regular functions, but for something
outside thereto the court had an undoubted jurisdiction over the Company’s servants.
The Supreme Court awarded damages of Rupees 3 lakhs to the widow which was quite
inproportionate. The Patna case brought to light the inherent defects in the Dmpany’s judicial
system (that is Adalats and Councils). Also, the case involved he question of the Supreme Court
jurisdiction and its relationship with the officials Of the Adalats. A lesson was perhaps learnt,
which became the basis of further reforms in administration of justice carried out later.
COSSIJURAH CASE
The Cossijurah Case illustrates another aspect of the 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 to
the highest degree. This case in brief 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 the revenues. The affidavit also stated that the Rajah was subject to the jurisdiction of the
Supreme Cc art. 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
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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 I not pay any attention to the notice 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-Gerieral 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. Then they 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
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enough for various interpretations. These defects, however, were removed to a great extent by
the passing of the Act of Settlement 1781.
ACT OF SETTLEMENT 1781
The Act of Settlement 1781 was intended to remove some of the most obvious defects in the
working of the Supreme Court at Calcutta. These defects came to light soon after the court
started functioning and the situation was precipitated, by the famous Patna and Cosijurah cases
(ap per next chapter). The following were its provisions,
(1) The Governor-General and the members of his council were made completely immune from
the jurisdiction of the Court,
(2) Revenue matters were taken out of the jurisdiction of the Supreme Court,
(3) the Act clarified that no person was subject to the jurisdiction of the Supreme Court by being
a landowner, landholder, fanner, or engaged in the collection of revenue.
(4) no person employed by the Governor-General or the members of his Council or by any
servant of the Company was under the jurisdiction of the Supreme Court merely for his being so,
except where he submitted in writing to its jurisdiction. The only cases where the Court could
assume jurisdiction in case of such persons were of trespass or other wrongs,
(5) The Act also made provision for the release of the various officers of the jail by the orders of
the Supreme Court in connection with the Patna Case (ap per next Chapter). The Act further
provided that no action was to be entertained by the Supreme Court against the judicial officers
of the Company. Even in the case of corruption, a notice was to be served on the person
concerned, but no such person could be arrested until the person refused to appear before the
Court after the notice was duly served. This provision gave much relief to the judicial officers of
the Company who were under fear of the Supreme Court and were reluctant to function at the
Adalats.
(6) The Act also made it clear that in cases involving the natives, the personal laws of the natives
should be applied. Where the dispute arose between natives of two different communities, i.e.,
the Hindus and the Muslims, then the law of the defendant would be applied.
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(7) It was made clear that the officers of the native Courts that is adalats were not liable to the
jurisdiction of the Supreme Court for any act done in their judicial capacity. However, if there
were charges of corruption levelled against them, then the Supreme Court could proceed against
them after giving them one to three month’s notice depending upon the distance where the
officials so charged were residing. In that case, the officials were not liable to arrest or detention.
(8) the Sadar Diwani Adalat was declared a Court of Record in Diwani cases and to be a court of
final jurisdiction in civil matters of the value of Rupees five thousand beyond which appeals
could be taken direct to the Privy Council. Thus the Diwani adalat was not a Court, in any way,
subordinate to the Supreme Court.
Thus, it would be clear, the Act of Settlement of 1781 clarified a lot of ambiguities in the
Regulating Act of 1773 and also settled once for all the jurisdictional issue which had become a
cause of conflict and hostility between Supreme Court and the Governor-General in council as
also had created lot of apprehension in the minds of the judicial officers of the natives’ Courts
such as the Adalats. Now the Sadar Diwani Adalat was itself a Court of Record, with a final
jurisdiction in civil or Diwani matter upto the value of Rupees five thousand and now the appeals
from the decisions of the Diwani Adalat could be taken direct to the Privy Council without any
reference etc. being made to the Supreme Court.
THE ADALAT SYSTEM, REFORMS OF WARREN HASTINGS
In 1765, the company entered into an agreement with the Emperor whereby it obtained the
diwani of the three provinces of the Bengal, Bihar and Orissa. In Warren Hastings prepared the
first judicial plan. It was the first step to regulate machinery of administration of justice and the
plan being a landmark in the ial history become famous as Warren Hasting’s plan of 1772. The
main features of the plan were as follows,
Firstly, all the three provinces were sub-divided into districts which were placed Collectors.
These collectors were responsible not only for the collection of revenue, but also for looking
after the general administration of the district, judicial system was sought to be overhauled and
separate civil (diwani) and (nizamat) courts (adalats) were established at various levels.
Secondly, it should be remembered that in the presidency towns, Mayor’s established under the
Charter of 1726 continued to function as usual. In fact, the Mayor’s Courts had been established
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to handle cases which involved or concerned the Englishmen serving under the Company or
foreigners. These Courts, therefore, did not touch upon matters which concerned the natives
living in the areas beyond the Presidency towns. The Adalat System which was introduced under
the Judicial Plan of 1772, therefore, covered the mofussil areas under the Company. Thus the
judicial plan covered the natives living in the mofussil areas.
The Adalat System, thus, introduced, can be discussed under the following main heads,
Courts of original jurisdiction
The Provinces of Bengal, Bihar and Orissa, were divided into various units for the purpose of
administration, both judicial and civil. These units were called districts.
(1) Mofussil Diwani Adalat, At the level of each district, a mofussil diwani adalat was
established. It was a court of original jurisdiction in civil or diwani matters. This court was
headed by the Collector who functioned as a judge. The laws applied by this court were those
embodied in the Shastras in case of the Hindus and in the Koran in case of the Muslims. This
court handled all cases relating to property, inheritance, succession, marriage, castes, contracts
and related matters. The Collector was assisted by the learned Pandits and Kazis who were well
versed in the Hindu and the Muslim laws respectively.
(2) Mofussil Faujdari Adalats, Corresponding to the diwani adalat at each district, Mofussil
Faujdari Adalat was established at the level of each district. This court handled all criminal
cases. 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.
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. There was a further provision for appeal to the Nawab
or the Subedar who finally confirmed, commuted or reduced the punishment.
(3) Adalats of Small Causes, At the level of village or a small town, a Small Causes Adalat was
established under the Head Farmer who decided the cases upto the value of Rupees ten. His
decision in cases upto the value of Rupees one hundred seven were final. In other cases, the
matter could be taken up higher to the Muftissil Diwani Adalat.
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Courts of Appeal
(1) Sadar Faujdari (Nizamat) Adalat, 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. The overall supervisory control on this court was exercised by the Governor
General and his Council.
(2) Sadar Diwani Adalat , This Court was in fact the Governor General and his Council who
all sat as judges in all diwani cases. This court heard all appeals from the Mofussil Diwani
Adalats beyond the value of Rupees five hundred. The Diwani & Nizamat Adalats were
established under the judicial plan of Warren Hastings. 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.
In the field of criminal justice, the Muslim criminal law which was prevalent since long was to
continue. Some improvements were however made from time to time with a view to imparting
impartial justice.
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.
Defects in the Plan
Though the judicial plan of 1772 was the first of its kind for the administration of justice within
the framework of the country, after its working certain major defects came to light. The plan
provided for a civil and a criminal court in each district.
(1) Less number of Courts, The head farmers were given power to decide petty cases up to
Rupees ten. In fact it was necessary to have more subordinate courts keeping in view the
population and the area of each district.
(2) Concentration of power, Another defect was the concentration of power—administrative,

tax collection and judicial, in the hands of the Collector. The Collector was the Civil Judge as
well as supervisor of the criminal courts. It was impossible for the Collector to devote time and
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energy to regulate all these affairs. Evils of the combination of executive and judicial powers in
one person were bound to follow. When the private trade done by Collectors and the misuse of
powers by them and their officials came to the notice of Warren Hastings, he gave a second
thought to the original plan and prepared a new judicial plan on November 23, 1773 which was
implemented from 1774.
REFORMS OF CORNWALLIS
REFORMS OF CORNWALLIS
The Governor -Generalship of Lord Cornwallis (1786-1793) constitutes a very remarkable and a
highly creative period in Indian legal history. He thoroughly reorganised the judicial system. He
introduced for the first time the principle of administration according to law. He made very
important and far-reaching reforms in the judicial administration, some of the basic principles of
which exist even upto now. The reforms were made by Cornwallis in three stages in 1787, 1790
and 1793.
Judicial Plan of 1787
On the instructions from Court of Directors, Lord Cornwallis introduced his first plan in 1787 to
combine revenue and the judicial functions in a single authority called the Collector. Thus, the
Collector collected the revenue as well as decided the revenue disputes. This was done to avoid
the conflict of jurisdiction and to save expenses. The revenue court was called as ‘Mal Adalat’.
The appeal against the decisions of the Collector went to the Board of Revenue at Calcutta and a
second appeal to the Governor-General and Council. Thus there was provision for two appeals in
revenue cases.
For deciding civil disputes, Diwani Adalat with Collector as the sole judge was established. The
Collector was also given some magisterial powers. As Magistrate he had the powers to arrest the
criminals, hear evidence against them and commit the case to the criminal court to be tried by it.
In petty matters, he was given power to inflict 15 days imprisonment.
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The plan was a retrograde step in the administration of justice. Whatever goods had been done
by Warren Hastings by separate revenue and judicial functions was undone by this plan. In Civil
cases, appeal from Mofussil Diwani could be preferred in the Sardar Diwani Adlent if the subject
matter of the suit exceeded Rupees one thousand and in cases more than £ 5000 a further appeal
by to the king in council. The Sadar Adalat consist of the Governor General and all the members
of his council assisted by the Chief Kazi, Chief Mufti and two Moulvis for Muslim law and
Hindu Pandit for Hindus law.
The administration of criminal justice was suffering from various defects before the reforms of
1790,
(1) The criminal administration of justice was completely left in the hands of Muslim officers.
With no proper control over them, they misused their powers e.g. accepted bribes,
(2) The Moffussil Faujdari Adalats had unlimited powers, and with absence of proper control
these courts became autocratic,
(3) There was no relation between the severity of the crime and the punishment provided for that.
Full freedom was given to the courts to given punishment as they liked. Thus, even in the crime
of murder, the criminal went unpunished,
(4) In many cases the protection was afforded to the criminal by Zamindars and by their
influence over the Muslim judges, they could get the criminals escape from the clutches of the
judiciary. In this way, crimes were encouraged,
(5) The Nawab who had the power to control the criminal justice administration, was very
careless.
Lord Cornwallis circulated a questionnaire to all the magistrates to ascertain their views and the
existing facts about the criminal justice system. The replies given by the magistrates painted a
very bad picture of the then existing system. The 1790 reforms eliminated the name of Nawab
from the criminal justice administration. The administration was entrusted to Company’s
servants who were to be assisted by Muslim law officers.
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Three types of Courts were created in the Mofiissil area,
(1) Court of District Magistrate continued as before that is 1787 Plan,
(2) Circuit Courts—It was a moving court which visited every district twice a year to try the
persons charge-sheeted by the Magistrate. It consisted of two Company’s servants assisted by
kazi and mufti. The salaries of the court officers were increased so as to reduce their lure for
bribes,
(3) Sadar Nizamat Adalat-It was transferred to Calcutta where the Governor-General and
Council sat as its judges, assited by Muslim law officers. The system created in 1790 worked
very well, the only defect revealed in the system was that the Courts of Circuit were called upon
to handle huge amount of work. Therefore, in 1792 Cornwallis empowered Magistrates to give
punishment in cases punishable up to one month’s imprisonment. This reduced the pressure on
Circuit Courts. Lord Cornwallis also made some humanitarian reforms viz provisions for
allowance to the prosecutors and witnesses who came to the law courts, abolition of the
provision for attachment of property, provisions for the rehabilitation of criminals after their
release from the jail.
The scheme of 1787 had many defects. The Collector functioned practically without any control
from the above. He very soon became an autocrat and neglected his judicial functions. Actually,
his main function was the collection of the land revenue on which his future promotions and his
remunerations depended. The disputes in the Mal Adalat generally related to the collection of
land revenue which mean that the Collector was a judge in his own cause. From a purely
administrative point of view, the scheme was convenient, simple and economic, but it was hardly
conducive to secure people’s liberty, protect property and promote their general welfare.
The 1793 scheme forms the high water mark in the Indian legal history, as it was based on
certain postulates which are regarded as essential and fundamental for the organization of the
judicature in any civilized country. The scheme provided for a system of administration of
justice which may secure and protect people’s liberty and promote their general welfare.
The basic or general features of the scheme are as follows,-

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(1) Separation of executive and judiciary, Henceforth, the Collector was to be responsible only
for collection of revenue. The power of administering civil justice was given to the diwani
adalats.
(2) Control of judiciary over executive, The Collectors and all executive officials were made
amenable to the diwani adalats for their official acts. They were to be personally liable, and
could be required to pay damages to the injured party, for violations of the Regulations. Thus, for
the first time a privilege was given to the people to get remedy against the Company’s officers
who committed any wrong against them.
(3) Governmental liability, Any person could file a suit for damages in the diwani adalat
against the Government in the same way as he could file suit against a private person.
(4) British subjects and diwani adalats, The position up to now was that native could obtain
redress against the British subjects only in the Supreme Court at Calcutta. It was very difficult
for natives to reach the Supreme Court because of their poverty and long distance. To avoid this,
the diwani adalat was given a power not to allow any British subject to live beyond 10 miles
from Calcutta unless he executed a bond that he shall be liable to the jurisdiction of the court up
to value of Rupees five hundred.
Reorganization of courts-The courts were fully reorganized by the 1793 Scheme
(1) Civil Judiciary—A complete “hierarchy of courts” was established to deal with civil
matters.
(a) Sadar diwani adalats—The highest court in the judicial hierarchy consisted of Governor-
General and Council. It heard appeals against the decision of Provincial Courts of Appeal on
matters exceeding Rupees 1000. These courts now had the supervision and control over the
lower judiciary. The court could receive any original suit to be referred to it if the Provincial
Court or the Diwani Adalat had neglected to entertain the matter. It also heard and decided
charges of corruption and incompetency against the judges of lower courts.
(b) Provincial courts of appeals—Till now the only appellate court was the Sadar Diwani
Adalat, functioning in Calcutta. The provincial courts of appeals were established in four
divisions which had the jurisdiction to try civil suits referred to it by the Government or the
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Sadar. Diwani Adalat, to hear appeals against the decisions of diwani adalat etc. The courts
consisted of three Company’s servants as judges.
(c) Diwani Adalat—A civil servant of the Company was appointed as the judge of diwani adalat
(previously the Collector was the judge) who had no work except deciding the civil and revenue
disputes.
(d) Registrar’s Courts—The Diwani Adalat could refer the suits upto Rupees two thousand to
the court of registrar which was held by the servant of Company.
(e) Munsif’s Courts— Zamindars, Tehsildars, etc appointed as Munsifs to try suits upto the
value of Rupees fifty.
(f) Ameen’s Courts—It had the same composition and powers as the court of munsif, however,
it could not entertain a case directly unless referred to it by the diwani adalat.
(2) Criminal Judiciary— Most of reforms had been introduced under the Scheme of 1790.
Under 1793 plan, only two important changes were madein the place of Collector, the judge of
Diwani Adalat was appointed as the Magistrate, and the work of the Circuit Court was
transferred to the provincial court of appeal.
Other Reforms
(1) Abolition of court fee—The court fee was abolished so that the people could easily reach to
the court for securing justice.
(2) Legal profession—The Sadar Diwani Adalat was authorized to appoint pleaders to the
persons having some legal knowledge.
(3) Cornwallis code—The Regulations made by Governor- General and Council had to have a
preamble and title by which the nature and purpose of the Regulation could easily be ascertained.
The Regulations were to be produced in the form of sections and clauses to be numbered serially.
The Regulations introduced by the Cornwallis were collected together and later on come to be
called as Cornwallis Code. A step was thus taken towards making law certain, definite and easily
accessible to all.
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(4) Native law officers—The position of native law officers improved by requiring that they
shall be appointed by the Governor-General and Council from amongst the people of good
character and having the knowledge of law. They could not be dismissed except for incapacity or
misconduct in their public duty.
Critical appraisal of 1793 Plan
Lord Cornwallis perfected the process started by Warren Hastings. The 1793 Plan was very
logical, comprehensive and well planned. The new system was based on the principle of checks
and balances, the executive officers were amenable to courts and were personaly liable for their
official acts, on the judicial side an elaborate system of supervision and appeals was introduced.
The courts worked with more efficiency, independence and judicial outlook. For the first time
the ‘rule of law’ was estbalished in the Mofussil area.
However, the new system was not completely free from defects,
(1) The provisions for two-three appeals made the judicial machinery complicated and slow
moving. Thus, large number of cases remained pending in the courts for long period.
(2) The Indians were totally excluded from the judiciary except at very low level of munsif.
Cornwallis started with a wrong premise that the Indians from their character and bearing were
unworthy of holding any position of responsibility. This distrust shown towards the Indians
generated the dissatisfaction among the native people as well as made the system less efficient
and to some extent superficial as the English servants did not know and understand the customs,
usages, etc. of the people,
(3) Cornwallis did everything on procedural side but he could not reform the substantive part of
law mainly the criminal law which was based on Muslim law and had many defects.
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Judicial Reforms of William Bentinck

We have studied in previous modules that at the time of Lord Cornwallis, the provinces of Bihar,
Bengal & Orissa were divided into 4 divisions.
• In each of these divisions a Circuit court was established. Besides there were 4 Provincial
Courts of appeal at Calcutta, Murshidabad, Dhaka and Patna.
Judiciary required reforms because of the following reasons:
1. The new territories acquired in last 3 decades expanded the territorial jurisdiction of the Sadar
Diwani Adalat at Calcutta, but it was now too far away from them.
2. The Provincial Courts of appeal were thought to be worthless and a burden on the
administration.
3. The people who were in prison had to be kept for months before a Circuit Court met at district
headquarters and disposed the cases. So, the under trials suffered badly under the Police
oppression.
4. The entire system was considered too expensive.
5. The language of the courts was Persian and it was not easy for the litigants to fight in this
language.
Following reforms were introduced by Lord William Bentinck:
• The first reform done was to abolish the Provincial Courts of Appeal and Circuit Courts
altogether. This was done by a regulation passed in 1829.
• In place of the Provincial courts of appeal and Circuit, the Commissioners of Revenue and
Circuit were appointed to do this job.
• For this purpose, the Bengal Presidency was divided into 20 divisions and each division was
placed under a separate commissioner.
• For revenue cases these commissioners worked directly under the Board of Revenue and for
Criminal cases they worked under Sadar Nizamat Adalat.
• Separate Diwani and Sadar Nizamat Adalat were opened at Allahabad.
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• In 1831, another regulation was passed by which the “Respectable Indians” were to be
appointed in the Zilla or City Courts. They were called “Munsifs“. Munsifs were to be
appointed on a salary and they could decide the cases worth less than Three Hundred Rupees.
• Then, in a separate regulation, it was decided the Governor General in Council would appoint
respectable Indians to the post of Sadar Amins. The Sadar Amins would hear appeals from the
Zilla and city courts.
• Sadar Amin was now the highest Judicial Indian authority. However, neither Munsifs nor Sadar
Amins could trial the Europeans.
• In 1832, a sort of Jury was introduced in Bengal, which was like Indian Jury
(Panchayat) that could help the European Judges.
Results:
1. The abolition of the Provincial Courts of Appeal and Circuit reduced the expenditure of the
company Government.
2. The appointment of the Commissioners introduced individual responsibility.
3. Police was now less oppressive as the Commissioners would dispose the cases.
4. The Jury system in Bengal (Panchayat) made possible the use of local knowledge and opinion.
5. To some extent, Indians were now to enter into the administration. It was not tangible at that
time, but at least it was a ray of hope for the Indians.
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Unit 2: Evolution of Law and Legal Institutions
Personal Law
The people of India belong to different religions and faiths. They are governed by different sets
of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce,
succession, etc.
Marriage
Law relating to marriage and/or divorce has been codified in different enactments applicable to
people of different religions. These are:
• The Converts' Marriage Dissolution Act, 1866

• The Indian Divorce Act, 1869
• The Indian Christian Marriage Act, 1872
• The Kazis Act, 1880
• The Anand Marriage Act, 1909
• The Indian Succession Act, 1925
• The Child Marriage Restraint Act, 1929
• The Parsi Marriage and Divorce Act, 1936
• The Dissolution of Muslim Marriage Act, 1939
• The Special Marriage Act, 1954
• The Hindu Marriage Act, 1955
• The Foreign Marriage Act, 1969 and
• The Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Special Marriage Act, 1954 extends to the whole of India except the State of Jammu and
Kashmir, but also applies to the citizens of India domiciled in Jammu and Kashmir. Persons
governed by this Act can specifically register marriage under the said Act even though they are
of different religious faiths. The Act also provides that the marriage celebrated under any other
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form can also be registered under the Special Marriage Act, if it satisfies the requirements of the
Act. The section 4(b) (iii) of the Act was amended to omit the words "or epilepsy.'' Sections 36
and 38 have been amended to provide that an application for alimony pendente lite or the
maintenance and education of minor children be disposed of within 60 days from the date of
service of notice on the respondent.
An attempt has been made to codify customary law which is prevalent among Hindus by
enacting the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955, which extends to the
whole of India, except the State of Jammu and Kashmir, applies also to Hindus domiciled in
territories to which the Act extends and those who are outside the said territories. It applies to
Hindus (in any of its forms or development) and also to Buddhists, Sikhs, Jains and also those
who are not Muslims, Christians, Parsis or Jews by religion. However, the Act does not apply to
members of any scheduled tribes unless the Central Government by notification in the official
Gazette otherwise directs.
Provisions in regard to divorce are contained in section 13 of the Hindu Marriage Act and section
27 of the Special Marriage Act. Common ground on which divorce can be sought by a husband
or a wife under these Acts fall under these broad heads: Adultery, desertion, cruelty,
unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard of as alive
for seven years.
As regards the Christian community, provisions relating to marriage and divorce are contained in
the Indian Christian Marriage Act, 1872 and in section 10 of the Indian Divorce Act, 1869
respectively. Under that section the husband can seek divorce on grounds of adultery on the part
of his wife and the wife can seek divorce on the ground that the husband has converted to
another religion and has gone through marriage with another woman or has been guilty of:
• Incestuous adultery
• Bigamy with adultery
• Marriage with another woman with adultery
• rape, sodomy or bestiality
• Adultery coupled with such cruelty as without adultery would have entitled her to a
divorce, a mensa etoro (a system of divorce created by the Roman Catholic Church
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equivalent to judicial separation on grounds of adultery, perverse practices, cruelty,

heresy and apostasy) and
• Adultery coupled with desertion without reasonable excuse for two years or more.
In the Indian Divorce Act, 1869 comprehensive Amendments were made through the Indian
Divorce (Amendment) Act, 2001 (No. 51 of 2001) to remove discriminatory provisions against
women in the matter of Divorce. Further, sections 36 and 41 of the Act were amended by the
Marriage Laws (Amendment) Act, 2001 to provide that an application for alimony pendente lite
or the maintenance and education of minor children be disposed of within 60 days from the date
of service of notice on the respondent.
As regards Muslims, marriages are governed by the Mohammedan Law prevalent in the country.
As regards divorce, i.e., Talaq, a Muslim wife has a much restricted right to dissolve her
marriage. Unwritten and traditional law tried to ameliorate her position by permitting her to see
dissolution under the following forms:
• Talaq-I-Tafwid: This is a form of delegated divorce. According to this, the husband

delegates his right to divorce in a marriage contract which may stipulate, inter alia, on his
taking another wife, the first wife has a right to divorce him
• Khula: this is a dissolution of agreement between the parties to marriage on the wife's
giving some consideration to the husband for her release from marriage ties. Terms are a
matter of bargain and usually take the form of the wife giving up her mehr or a portion of
it, and
• Mubarat : this is divorce by mutual consent.
Further, by the Dissolution of Muslim Marriage Act, 1939, a Muslim wife has been given the
right to seek dissolution of her marriage on these grounds:
• Whereabouts of the husband have not been known for a period of four years
• Husband is not maintaining her for a period of two years
• Imprisonment of husband for a period of seven years or more
• Failure on the part of husband to perform his marital obligations, without a reasonable
cause, for a period of three years
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• Impotency of husband
• Two-year long insanity
• Suffering from leprosy or virulent venereal disease'
• Marriage took place before she attained the age of 15 years and not consummated and
• Cruelty.
The Parsi Marriage and Divorce Act, 1936 governs the matrimonial relations of Parsis. The word
'Parsi' is defined in the Act as a Parsi Zoroastrian. A Zoroastrian is a person who professes the
Zoroastrian religion. It has a racial significance. Every marriage as well as divorce under this Act
is required to be registered in accordance with the procedure prescribed in the Act. However,
failure to fulfil requirements on that behalf does not make marriage invalid. The Act provides
only for monogamy. By the Parsi Marriage and Divorce (Amendment) Act, 1988, scope of
certain provisions of the Parsi Marriage and Divorce Act, 1936 have been enlarged so as to bring
them in line with the Hindu Marriage Act, 1955. Recently, sections 39 and 49 of the Parsi
Marriage and Divorce Act, 1936 were amended by the Marriage Laws (Amendment) Act, 2001
to provide that an application for alimony pendent lite or the maintenance and education of
minor children be disposed of within 60 days from the date of service of notice on the wife or the
husband as the case may be.
As for the matrimonial laws of Jews, there is no codified law in India. Even today, they are
governed by their religious laws. Jews do not regard marriage as a civil contract, but as a relation
between two persons involving very sacred duties. Marriage can be dissolved through courts on
grounds of adultery or cruelty. Marriages are monogamous.
Child Marriage
The Child Marriage Restraint Act, 1929, from 1 October 1978, provides that marriage age for
males will be 21 years and for females 18 years.
Adoption
Although there is no general law of adoption, it is permitted by the Hindu Adoption and
Maintenance Act, 1956 amongst Hindus and by custom amongst a few numerically insignificant
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categories of persons. Since adoption is legal affiliation of a child, it forms the subject matter of
personal law. Muslims, Christians and Parsis have no adoption laws and have to approach the
court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child
under the said Act only under foster care. Once a child under foster care becomes major, he is
free to break away all this connections. Besides, such a child does not have the legal right of
inheritance. Foreigners, who want to adopt Indian children, have to approach the court under the
aforesaid Act.
Hindu law relating to adoption has been amended and codified into the Hindu Adoptions and
Maintenance Act, 1956, under which a male or female Hindu having legal capacity, can take a
son or daughter in adoption. In dealing with the question of guardianship of a minor child, as in
other spheres of family law, there is no uniform law. Hindu Law, Muslim Law and the Guardians
and Wards Act, 1890 are three distinct legal systems which are prevalent. A guardian may be a
natural guardian, testamentary guardian or a guardian appointed by the court. In deciding the
question of guardianship two distinct things have to be taken into account-person of the minor
and his property. Often the same person is not entrusted with both.
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to
minority and guardianship. As in the case of uncodified law, it has upheld the superior right of
father. It lays down that a child is a minor till the age of 18 years. Natural guardian for both boys
and unmarried girls is first the father and then the mother. Prior right of mother is recognised
only for the custody of children below five. In case of illegitimate children, the mother has a
better claim than the putative father. The act makes no distinction between the person of the
minor and his property and therefore guardianship implies control over both.
Under the Muslim Law, the father enjoys a dominant position. It also makes a distinction
between guardianship and custody. For guardianship, which has usually reference to
guardianship of property, according to Sunnis, the father is preferred and in his absence his
executor. If not executor has been appointed by the father, the guardianship passes on to the
paternal grandfather to take over responsibility and not that of the executor. Both schools,
however, agree that father while alive is the sole guardian. Mother is not recognised as a natural
guardian even after the death of the father.
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As regards rights of a natural guardian, there is no doubt that father's right extends both to
property and person. Even when mother has the custody of minor child. Father's general right of
supervision and control remains. Father can, however, appoint mother as a testamentary
guardian. Thus, though mother may not be recognised as natural guardian, there is no objection
to her being appointed under the father's will.
Muslim law recognises that mother's right to custody of minor children (Hizanat) is an absolute
right. Even the father cannot deprive her of it. Misconduct is the only condition which can
deprive the mother of this right. As regards the age at which the right of mother to custody
terminates, the Shia school holds that mother's right to the Hizanat is only during the period of
rearing which ends when the child completes the age of two, whereas Hanafi school extends the
period till the minor son has reached the age of seven. In case of girls, Shia law upholds mother's
right till the girl reaches the age of seven and Hanafi school till she attains puberty.
The general law relating to guardians and wards is contained in the Guardians and Wards Act,
1890. It clearly lays down that father's right is primary and no other person can be appointed
unless the father is found unfit. This Act also provides that the court must take into consideration
the welfare of the child while appointing a guardian under the Act.
Maintenance
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to
maintenance forms a part of the personal law.
Under the Code of Criminal Procedure, 1973, (2 of 1974), right of maintenance extends not only
to the wife and dependent children, but also to indigent parents and divorced wives. Claims of
the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance
for all dependent persons was limited to Rs. 500 per month. But, this limit was removed by the
Code of Criminal Procedure (Amendment) Act, 2001 (No. 50 of 2001). Inclusion of the right of
maintenance under the Code of Criminal Procedure has the advantage of making the remedy
both speedy and cheap. However, divorced wives who have received money payable under the
customary personal law are not entitled to claim maintenance under the Code of Criminal
Procedure.
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Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But
she loses her right if she deviates from the path of chastity. Her right to maintenance is codified
in the Hindu Adoptions and Maintenance Act, 1956. In assessing the amount of maintenance, the
court takes into account various factors like position and liabilities of the husband. It also judges
whether the wife is justified in living apart from husband. Justifiable reasons are spelt out in the
Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will
be borne by either, husband or wife, if the other spouse has no independent income for his or her
support. The same principle will govern payment of permanent maintenance.
Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986
protects rights of Muslim women who have been divorced by or have obtained divorce from
their husbands and provides for matters connected therewith or incidental thereto. This Act, inter
alia, provides that a divorced Muslim woman shall be entitled to:
• Reasonable and fair provision and maintenance to be made and paid to her within the
iddat period by her former husband
• Where she herself maintains children born to her before or after her divorce, a reasonable
and fair provision and maintenance to be made and paid by her former husband for a
period of two years from the respective dates of birth of such children
• An amount equal to the sum of mehr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to the Muslim Law and
• All property given to her before or at the time of marriage or after her marriage by her
relatives or friends or by husband or any relatives of the husband or his friends.
In addition, the Act also provides that where a divorced Muslim woman is unable to maintain
herself after the period of iddat, the magistrate shall order directing such of her relatives as
would be entitled to inherit her property on her death according to the Muslim Law and to pay
such reasonable and fair maintenance to her as he may determine fit and proper, having regard to
the needs of the divorced woman, standard of life enjoyed by her during her marriage and means
of such relatives and such maintenance shall be payable by such relatives in proportion to the
size of their inheritance of her property and at such periods as he may specify in his order.
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Where such divorced woman has children, the magistrate shall order only such children to pay
maintenance to her and in the event of any such children being unable to pay such maintenance,
the magistrate shall order parents of such divorced woman to pay maintenance to her.
In the absence of such relatives or where such relatives are not in a position to maintain her, the
magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995
functioning in the area in which the woman resides, to pay such maintenance as determined by
him.
The Parsi Marriage and Divorce Act, 1936 recognises the right of wife to maintenance-both
alimony pendente lite and permanent alimony. The maximum amount that can be decreed by the
court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the
husband's net income. In fixing the quantum as permanent maintenance, the court will determine
what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the
parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The
provisions are the same as those under the Parsi Law and the same considerations are applied in
granting maintenance, both alimony pendente lite and permanent maintenance.
Succession
The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the
large number of laws which were in existence at that time. Laws governing succession to
Muslims and Hindus were excluded from the purview of the Act. While consolidating the law in
respect of succession, two schemes, one relating to succession to property of persons like Indian
Christians, Jews and persons married under the Special Marriage Act, 1954 and the other relating
to succession rights or Parsis, were adopted.
In the first scheme, applying to those other than Parsis, in the case of a person dying intestate
leaving behind a widow and lineal descendants, the widow would be entitled to a fixed share of
one-third of property and lineal descendants shall be entitled to the remaining two-third. This law
was amended subsequently with the object of improving rights of widows and it was provided
that where the intestate dies leaving behind his widows and it was provided that where the
intestate dies leaving behind his widow and no lineal descendant and the net value of the estate
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does not exceed Rs 5,000, the widow would be entitled to the whole of this property. Where the
net value of the estate exceeds Rs 5,000 she is entitled to charge a sum of Rs. 5,000 with interest
at four per cent payment and in the residue, she is entitled to her share. The Act imposes no
restriction on the power of a person to will away his property.
Under the second scheme, the Act provides for Parsi intestate succession. By the Indian
Succession (Amendment) Act, 1991 (51 of 1991), the Act was amended to provide equal shares
for both sons and daughters in their parental properties, irrespective of the fact that it was that of
the father or that of the mother. It also enables the Parsis to bequeath their property to religious
or charitable purposes, etc., without any restrictions. In effect the amended law provides that
where a Parsi dies intestate leaving behind a widow or widower as the case may be, and children,
the property shall be divided so that the widow or widower and each child receives equal share.
Further, where a Parsi dies leaving behind one or both parents in addition to children, or widow
widower and children, the property shall be so divided that the parent or each of the parents shall
receive a share equal to half the share of each child.
This Act was amended by the Indian Succession (Amendment) Act, 2002. It was felt that section
32 of the principal Act is discriminatory to widows and as such the proviso to section 32 was
omitted to remove discrimination in this regard. Section 213 was also amended by this amending
Act to make Christians at par with other communities.
The law relating to intestate succession among Hindus is codified in the Hindu Succession Act,
1956 (30 of 1956). It extends to the whole of India except the State of Jammu and Kashmir. The
remarkable features of the Act are the recognition of the right of women to inherit property of an
intestate equally with men and abolition of the life estate of female heirs.
A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume that
Muslims are governed by Hanafi law unless it is established to be the contrary. Though there are
many features in common between Shia and Sunni schools, yet there are differences in some
respects. Sunni law regards Koranic verses of inheritance as an addendum to pre-Islamic
customary law and preserves the superior position of male agnates. Unlike Hindu and Christian
laws, Muslim law restricts a person's right of testation. A Muslim can bequeath only one-third of
his estate. A bequest to a stranger is valid without the consent of heirs if it does not exceed a
third of the estate, but a bequest to an heir without the consent of other heirs is invalid. Consent
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of heirs to a bequest must be secured after the succession has opened and any consent given to a
bequest during the lifetime of the testator can be retracted after his death. Shia law allows
Muslims the freedom of bequest within the disposable third.
Development of Criminal Law
The Criminal law in India has passed through three main periods the Hindu Criminal Law, the
Muslim Criminal Law and the English Criminal Law.
(1) Hindu Criminal Law:

Mayne in his well known treatise on criminal law has in strong words recognised the greatness
and soundness of the Hindu System of Criminal Law. The known history of India starts after the
settlement of Aryans in this country.
In course of time Aryan society developed its political and social organisation and other
institutions. They established a mature legal system. Their laws including the criminal law were
fully developed. P.N. Sen in his Hindu Jurisprudence says: “In the Hindu Law punishment of
crimes occupied a more prominent place than compensation for wrongs or the penalties.
Although under certain circumstances wrong-doer had to compensate the person wronged but it
was generally levied in addition to and in substitution for the penalty”.
It was the duty of the king to punish offenders. Manu says that it was the duty of the king to
punish those who deserve to be condemned. So penal law of Hindus was law of crimes and the
law of Torts. It recognised various kinds of offences, namely, assault, adultery, defamation, theft,
robbery and violence as crimes. These crimes were recognised by Manu, Yagnavalkya and
Nilkanta.
Further various kinds and degrees of punishments were prescribed to be rendered flexible and
kept in the proportion to the enormity of the offence. Measure of punishment varied according to
the gravity of the offence.
In meeting out punishment a number of factors were to be taken into consideration. According to
Yagnavalkya some such factors were: nature of the offence, time and place of the offence,
strength, age, avocation of the offender, wealth (value of the article stolen) etc.
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End of punishment, according to Hindu law, was protection of the people and purification of the
culprit. No one was exempt from punishment. Even the king himself was liable if he committed
an offence. However, inflicting the punishment, caste was a very important factor.
Brahmins was immune from bodily punishment, persons of higher castes were generally given a
lighter punishment. This aspect of Hindu Criminal Law has been greatly criticised. But one thing
has been generally overlooked. It is that the men of higher castes were given higher punishments
for immoral offences. In this way equality in the matter of punishment was maintained.
Many principles which are corner-stones of Modern Criminal Jurisprudence were well known to
Hindu jurists and were made parts of Hindu Criminal Law. A criminal could never acquire
immunity. Right of private defence, infancy, lunacy and many other conditions, were recognised
as grounds for exemption from criminal liability.
(2) Muslim Criminal Law:

After the conquest of the country by Mohammedans they introduced their own system of
criminal law which was based on Quran. The elucidation and expounding of law was left to the
Kazis, Kazis in the determination of the offences and punishment did not proceed on fixed rules
but shaped their judgment according to the power and financial condition of the offenders before
them.
Thus, law was not certain and known to majority. The crimes against God were deemed worthy
of the public vengeance but offences against men were left to be taken care of the individuals.
(3) English Criminal Law:

When India came under the domain of East India Company, Britishers wanted to preserve status
quo but the defects of Mohammedan Criminal Law were noticed and before the Indian Penal
Code came into force the English Criminal Law, modified by various Acts was applied in the
Presidency-town of Bombay, Calcutta and Madras while courts in the interior were mainly
guided by Muslim Criminal Law.
The local Governments in the interior framed Regulations to remove the glaring defects of the
Muslim Criminal Law. In the Presidency of Bombay there was a revision of the administration of
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Justice in 1827 and the law to be followed in criminal cases was set forth in a Regulation but the
position in the other Presidencies remained precisely where it was.
The Indian Penal Code drafted by the first Indian Law Commission presided over by Lord
Macaulay and the draft was submitted to the Governor-General of India-in-Council in 1837 and
after revision by several persons Sir Barnes Peacock, Sir J.W. Colville and other Judges of the
Calcutta High Court—The draft was finalised in 1850.
It was submitted to the Governor-General-in-Council in 1856 and received the assent of the
Governor-General on October 6, 1860. It was intended to put it into force from the 1st May,
1861 but enforcement was postponed till the 1st January, 1862, the interval being utilised by the
publication of the Code in vernacular for general information and mastery of grasp by Indian
Judges and officers of the new law contained in the Code.
These steps were found necessary as the Indian Penal Code completely revolutionised the then
existing Criminal Law. Livingstone’s Code and the Code of Napoleon as also English and Indian
law provided the background on which the Indian penal Code has been prepared. Constitutional
changes since August, 1947 have led to revisions and change, in many sections of the Code. The
members of the Law Commission which prepared the draft when submitting the draft made the
following observations as to nature of the proposed law: “We cannot admit that a Penal Code is
by any means to be considered as a body of Ethics that the Legislature ought to punish acts
merely because those acts are immoral, or that because an act is not punished at all, it follows
that the Legislature considers that act as innocent.
Many things which are not punishable are morally worse than many things which are punishable.
The man who treats a generous benefactor with gross ingratitude and insolvence deserves more
severe reprehension than the man who aims a blow in a passion, or breaks a window in a frolic;
yet we have punishments for assault and mischief, and none for ingratitude.
The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far
worse man than the starving wretch who snatches and devours the rice; yet we punish the latter
for theft and we do not punish the former for hard-heartedness”.
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Law Commission of India

On September 9, 2015, the Union Cabinet has approved the establishment of 21st Law
Commission of India, for a period of three years w.e.f. September 1, 2015 to August 31, 2018.
This backgrounder deals with the fundamental facts about Law Commission.
What is Law Commission?
Law Commission of India is neither a constitutional body nor a statutory body. It is truly an ad
hoc and advisory body whose work is to do research and make recommendations for law reforms
such as amendments and updations of prevalent and inherited laws. None of these
recommendations is binding upon the Government.
How Law Commission is established?

Law Commission of is established by an order of central government. Who will head the law
commission is completely at the discretion of the Government. However, it is a convention that
a retired judge of Supreme Court heads India’s Law Commission. Further, the States also can
constitute their own law commissions.
Who is composition of Law Commission?

The Commission is headed by a full-time Chairperson. It membership primarily comprises legal
experts, who are entrusted a mandate by the Government. For example, the 21st Law commission
would be comprised of:
• a full-time Chairperson.
• four full-time Members (including a Member-Secretary).

• Secretary, Department of Legal Affairs as ex offcio Member.
• Secretary, Legislative Department as ex offcio Member.
• not more than five part-time Members.
The Commission is established for a fixed tenure (generally three years) and works as an
advisory body to the Ministry of Law and Justice. Before finalising its recommendations, the
Commission needs to consult the law ministry. Law Commission works in close co-ordination
and under the general instruction of Ministry of Law and Justice. It generally acts as the
initiation point for law reform in the country. Internally, the Law Commission works in a
research-oriented manner.
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What is History of Law Commission of India?

India’s first Law Commission was established in 1834 via Charter Act of 1833 under the
Chairmanship of Lord Macaulay. This law commission had recommended codification of the
Penal Code, the Criminal Procedure Code and a few other matters.
• After that, three more law commissions were established in British Era. The Indian Code of
Civil Procedure, the Indian Contract Act, the Indian Evidence Act, the Transfer of Property
Act. etc. are products of the works of Law Commissions of British Era.
• The chairman of second (1853) and third (1861) law commissions of British era was Sir John
Romilly, while that of fourth (1879) was Dr. Whitley Stokes.
The first Law Commission of independent India was established in 1955 for a three year
term. The Chairman of this Commission was Mr. M. C. Setalvad, who was also the First
Attorney General of India. The term of this Commission was established as three years (which
by convention has been followed till date).
Since then 20 more Commissions have been established. The Nineteenth Law Commission
(2009-2012) was headed by justice P.Venkatarama Reddy. The 20th Law Commission was
established in 2013 under the Chairmanship of Justice D.K Jain. Its tenure was fixed till 2015.
Importance of Law Commission

Although Law Commission has not been provided by the Constitution, yet it is inspired by
various parts of Constitution such as Fundamental Rights and DPSP particularly article 39A,
which says that State shall secure that the operation of the legal system promotes justice.
Further, one of the mandates of the Constitution was the continuation of pre-Constitution Laws
(Article 372) till they are amended or repealed. This mandate necessitated the need of a Central
Law Commission which could recommend repeal, revision and updating of the inherited laws to
serve the changing needs of the country. The various Law Commissions have been able to make
important contribution towards the progressive development and codification of laws of the
country. Law Commissions have so far submitted 262 reports.
Law Commission of India is an advisory body but has been a key instrumentality in the process
of law reform in India. It has sometimes has been critical of the government policies and has
been recognized by the Supreme Court of India and also the academia as pioneering and
prospective. In a number of decisions the Supreme Court has referred to the work done by the
Law Commission and followed its recommendations.
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Indian High Courts Act 1861

By Indian High Courts Act 1861, the Supreme & Sadar Courts were amalgamated. The ‘Indian
High Court Act’ of 1861, vested in Queen of England to issue letters patent to erect and establish
High Courts of Calcutta, Madras and Bombay.
• The High Courts of Calcutta, Madras and Bombay were established by Indian High Courts Act
1861.
It’s worth note that Indian High Courts Act, 1861 did not by itself create and establish the High
Courts in India. The objective of this act was to effect a fusion of the Supreme Courts and the
Sadar Adalats in the three Presidencies and this was to be consummated by issuing Letter
Patent. The jurisdiction and powers exercised by these courts was to be assumed by the High
Courts.
Composition of the High Court’s:
The Indian High Courts Act 1861 had also spelled the composition of the High Court.
• Each High Court was to consist of a Chief Justice and NOT more than 15 regular judges.
• The chief Justice and minimum of one third regular judges had to be barristers and minimum
one third regular judges were to be from the “covenanted Civil Service”.
• All Judges were the be in the office on the pleasure of the Crown.
The High Courts had an Original as well as an Appellate Jurisdiction the former derived from
the Supreme Court, and the latter from the Sudder Diwani and Sudder Foujdari Adalats, which
were merged in the High Court.
Please note the following facts:
• The Charter of High Court of Calcutta was issued on 14th May, 1862 and Madras and Bombay
was issued on June 26, 1862.
• So, the Calcutta High Court has the distinction of being the first High Court and one of the
three Chartered High Courts to be set up in India, along with the High Courts of Bombay,
Madras.
• High Court at Calcutta which was formerly known as High Court of Judicature at Fort William
was established on July 1, 1862. Sir Barnes Peacock was its first Chief Justice.
• On 2nd February, 1863, Justice Sumboo Nath Pandit was the first Indian to assume office as a
Judge of the Calcutta High Court.
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• The Bombay High Court was inaugurated on 14th August ,1862.

• Indian High Court Act 1861 also gave power to set up other High Courts like the High Courts
of the Presidency Towns with similar powers.
• Under this power, a High Court was established in 1866 at High Court of Judicature for the
North-Western Provinces at Agra on 17 March 1866 by the Indian High Courts Act of 1861
replacing the Sadr Diwani Adalat.
• Sir Walter Morgan, Barrister-at-Law was appointed the first Chief Justice of the High Court of
North-Western Provinces. However it was shifted to Allahabad in 1869 and the name was
correspondingly changed to the High Court of Judicature at Allahabad from 11 March
1919.
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UNIT-III: Constitutional Developments and Framing of Indian Constitution
Indian Councils Act 1861

The Indian Councils Act 1861 was passed by British Parliament on 1st August 1861 to make
substantial changes in the composition of the Governor General’s council for executive &
legislative purposes. The most significant feature of this Act was the association of Indians with
the legislation work.
Reasons for Enactment of Indian Councils Act
The Government of India Act 1858 had introduced significant changes in the manner in which
India was governed from England, however, it did not alter in any substantial way the system of
government that prevailed in India. Further, in the aftermath of the Mutiny of 1857, there was a
general perception in England that it would be very difficult to secure the government in India
without the cooperation of Indians in administration. These were the main reasons behind
enacting some legislation which could overhaul the system of administration in India. Some
other reasons were as follows:
Centralized law making was defective
The Charter act of 1833 had centralized the legislative procedures and deprived the governments
of Madras and Bombay of their power of legislation. The idea behind centralizing the law
making was secure uniformity of laws in the whole territory of East India Company but this
system proved to be defective. It had only one representative each of the four provinces and it
failed to make laws suiting to local conditions. Thus, there was need to allow the provinces to
make laws for themselves.
Governor General in Council was overburdened
The Governor General in Council was failing in its legislative functions and was not able to work
satisfactorily die to cumbersome procedures leading to delay in enactments.
Absence of representation
It also had no representation of the people in it. There was a growing demand that some
representative element should be introduced in legislative council.
Key Provisions
Expansion of executive council of Governor General / Viceroy
The executive council of Governor General was added a fifth finance member. For legislative
purpose, a provision was made for an addition of 6 to 12 members to the central executive. At
least half of the additional members were to be non-officials. These members were nominated by
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the Viceroy for the period of two years. Further, the Governor General / Viceroy had been given
some more powers such as:
• He was authorized to nominate a president to preside over the meetings of the Executive
council in his absence.
• He had the power of making rules and regulations for the conduct of business of executive
council.
• He could create new provinces for legislative purposes and to appoint Lieutenant Governors for
them. He was also empowered to alter, modify or adjust the limits of the provinces.
• He could promulgate ordinances, without the concurrence of the legislative council, during and
emergency.
• Though the central council was empowered to legislate on all subjects concerning all persons
and courts in British India but every bill passed required the assent of viceroy.
• He could withhold his assent or exercise his veto power if he felt that the bill affected the
safety, peace and interest of British India.
• He had to communicate all laws to secretary of state for India who could disallow them with
the assent of the crown.
Introduction of Portfolio System
The Act empowered the Governor-General to delegate special task to individual members of the
Executive council and hence all members have their own portfolio and death with their own
initiative with all but the most important matters. This was the first beginning of Portfolio system
in India.
Process of Decentralization
The Governments of Bombay and Madras were given the power of nominating Advocate-
General and not less than 4 and not more than 8 additional members of the Executive council for
purpose of legislation. These additional members were to hold office for two years. The consent
of the Governor and the Governor-General was made necessary for all legislation passed or
amended by the Governments of Madras and Bombay. Further, the act provided for the
establishment of new legislative councils for Bengal, North-Western Frontier Province and
Punjab, which were established in 1862, 1866, and 1897 respectively.
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No distinction between Central and Provincial subjects

No distinction was made between the central and provincial subject. But measures concerning
public debt, finances, currency, post-office, telegraph, religion, patents and copyrights were to be
ordinarily considered by the Central Government.
Critical Examination of the Indian Councils Act 1861
The Act of 1861 was important in the constitutional history because it enabled the Governor-
General to associate the people of the land with work of legislation. And by vesting legislative
powers in the Governments of Bombay and Madras which ultimately culminated in grant of
almost complete internal autonomy to the provinces in the 1937.
However, the legislative councils were merely talk shops with no power to criticize the
administration or ask for some information. Their scope was fixed in legislation purpose alone;
they had no right to move some kind of vote of no confidence. Further, there was no statutory /
specific provision for the nomination of Indians.
This nomination power of the Viceroy could be used only to placate the princes who could help
the British to keep their stronghold. Further, the ordinance making power of the Governor
General allowed him to make laws it his own whim. In summary, the Indian Councils Act 1861
failed to satisfy the aspirations of the people of India.
Indian Councils Act 1909 (Morley Minto reforms)

The Indian Councils Act 1909 or Morley-Minto Reforms or Minto-Morley Reforms was passed
by British Parliament in 1909 in an attempt to widen the scope of legislative councils, placate the
demands of moderates in Indian National Congress and to increase the participation of Indians
the governance. This act got royal assent on 25 May 1909.
Background
Though the Indian Councils Act of 1892 had introduced limited representation with indirect
elections, it failed to placate the Indians who were much more conscious of their rights by
now. There was a lot of resentment against reign of Lord Curzon, who had already irked the
public by the foolish idea of partition of Bengal. There was a rise of extremism in the congress.
Government, on one hand wanted to suppress the extremists but on other hand wanted to pacify
the moderates. Meanwhile, Gopal Krishna Gokhale went to England and met Mr. Morley, the
Secretary of State for India. Viceroy Lord Minto also emphasised the need of making some
reforms. Both the Viceroy and the Secretary of State for India decided to work out some scheme
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to reform the Legislative councils. This culminated as Indian Councils act 1909. The idea was to
give locals some more power in the legislative affairs. A provision was made for the expansion
of legislative councils at the both the levels viz. central as well as provincial.
Salient Provisions
Expansion of the Legislative Councils
The act enlarged the size of the legislative council both Central and Provincial. The number of
members in the Central Legislative Council was raised from 16 to 60. The number in Provincial
legislative council was not uniform. Legislative councils of Bengal , Bombay and Madras was
increased to 50 members each. The provincial legislature of U.P. was to have 50, of Assam,
Burma and Punjab 30 each.
Communal Representation
For the first time, the Indian Councils act gave recognition to elective principle for the
appointment of nonofficial members to the councils. However, it introduced separate and
discriminatory electorate. The electorate was decided on the basis of class & community. For
the provincial councils a provision of three categories was made viz. general, special and
chambers of commerce. However, for the central council, a fourth category Muslims was added.
This was for the first time that, the seats in the legislative bodies were reserved on the basis of
religion for Muslims. Separate constituencies were marked for the Muslims and only Muslim
community members were given the right to elect their representatives.
The separate electorate for Muslims had a long lasting impact on India’s polity. It recognized the
Muslim community as a separate section of the India and triggered the cancer of Hindu-Muslim
disharmony which ultimately culminated in the partition.
Under the separate electorates, Muslims could vote exclusively for the Muslim candidates in
constituencies specially reserved for them. The idea was to establish that the political, economic
and cultural interests of the Hindus and Muslims were distinct. The unity between Hindus and
Muslims is a illusion and this act sowed the seeds of the Muslim Communism.
Other Features
• The act empowered the members to discuss the budget and move resolutions before it was
approved finally. They were given rights to ask supplementary questions and move resolutions
to on matters related toloans to the local bodies.
• The members given right to discuss matters of the public interest however, the house was not
binding on the government.Rules were also framed under the act for the discussion of matters
of general public interest in the legislative councils.
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• No discussion was permitted on any subject not within legislative competence of the particular
legislature any matter affecting the relations of the Government of India with a foreign power
or a native state, and any matter under adjudication by a court of law.
Critical Analysis of the Act
The Minto-Morley Reforms of 19O9 could not come up to the expectations of the Indians. What
the people of India demanded was that there should be set up a responsible government in the
country. But the sacred heart of the reforms of 1909 was “benevolent despotism” and it was
basically a subtle attempt to create a “constitutional autocracy”.
Further, though non-official majority was given in the Provincial Councils, the practical result
was nothing. The non-official majority was nullified by the fact that it included nominated
members. There was no real majority of those who represented the people.
A shadow rather than substance
The reforms of 1909 afforded no answer and could afford no answer to the Indian political
problem. The real political solution was lying in complete self-rule and accountable governance
but the 1909 Act was only a face saving device. The position of the Governor- General remained
unchanged and his veto power remained undiluted and the Act was successfully maintained
relentless constitutional autocracy. Under such circumstances narrow franchises, indirect
elections, limited powers of the Legislative Councils ushered a complete irresponsible
government. The Act rather added new political problem with the introduction of the separate
electorate system. While the parliamentary forms were introduced, no responsibility was
conceded. At the same time there were no connection between the supposed primary voter and a
man who sits as his representative on the Legislative Council. In such a situation, the political
participation, awareness and education remained a distant dream. In nutshell, it can be said that
1909 Act was ‘the shadow rather than the substance’.
Merits of Minto-Morley Reforms
Nevertheless, the Minto-Morley Reforms had some of their merits. They mark an important stage
in the growth of representative institution, and one step ahead towards the responsible
association of elected Indians with the administration. Further, it also gave recognition to
the elective principle as the basis of the composition of legislative council for the first time. It
gave some further avenues to Indians to ventilate their grievances. They also got opportunity to
criticise the executives and make suggestions for better administration. The enlargement of the
legislatures furthered the demand of complete indianization of the legislature.
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The Government of India Acts, 1919 and 1935
Government of India Act 1935 was passed by British Parliament in August 1935. With 321
sections and 10 schedules, this was the longest act passed by British Parliament so far and was
later split into two parts viz. Government of India Act 1935 and Government of Burma Act 1935.
The Government of India Act 1935 derived material from four key sources viz. Report of the
Simon Commission, discussions at the Third Round Table Conference, the White Paper of 1933
and the reports of the Joint select committees. This act ended the system of dyarchy introduced
by GOI Act 1919 and provided for establishment of a Federation of India to be made up of
provinces of British India and some or all of the Princely states. However, the federation never
came into being as the required number of princely states did not join it.
Salient Features
Salient Features of the Government of India Act 1935 were as follows:
• Abolition of provincial dyarchy and introduction of dyarchy at centre.
• Abolition of Indian Council and introduction of an advisory body in its place.

• Provision for an All India Federation with British India territories and princely states.
• Elaborate safeguards and protective instruments for minorities.
• Supremacy of British Parliament.
• Increase in size of legislatures, extension of franchise, division of subjects into three lists and
retention of communal electorate.
• Separation of Burma from India
All India Federation
The proposed all India federation included 11 provinces of British India, 6 Chief Commissioners
Provinces and those princely states who might accede to the federation. For princely states, the
accession to the Federation was voluntary. The federation could not be established until:
• A number of states, the rulers whereof were entitled to choose not less than half of the 104
seats of the council of state , and
• The aggregate population whereof amounted to be at least one half of the total population of all
the Indian stales had acceded to the federation.
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The term on which a state joined the Federation were to be laid down in the Instrument of
Accession. Joining the federation was compulsory for the British Provinces and chief
commissioners provinces.
Dyarchy at Centre
Under this act, the executive authority of the centre was vested in the Governor
General on behalf of the Crown. The federal subjects were divided into two fold categories
of Reserved and Transferred subjects. The Reserved list comprised of subjects such as
administration of defence, external affairs, ecclesiastical affairs and matters related to tribal
areas. These subjects were to administered by Governor General in his discretion with the help of
three counsellors appointed by him. They were not responsible to legislative.
The administration of the transferred subjects was to be done by Governor General on advice of
the Council of Ministers whose number could not exceed 10. The council of ministers had to
command the confidence of legislature. However, the Governor General could act on contrary to
the advice of the Council of Ministers if any of his ‘special responsibilities’ was involved in such
act. However, in that case {when an act involved special responsibilities}, the Governor General
would work under the control and direction of the Secretary of State.
Further, the Governor General was also responsible for the coordination of work between the
two wings and for encouraging joint deliberations between the counsellors and the ministers.
Federal Legislature
The bicameral federal legislature would be consisted of two houses viz. Council of states and
Federal Assembly.
Council of States
The Council of States was to be upper house and a permanent body with one third of its
membership retiring every 3rd year. It was to be composed of 260 members of which 156 were
to be representatives of British India while 101 of the Indian states.
Representatives of British India
The 150 out of 156 representatives of British India were to be elected on communal basis while
six were to be nominated by Governor General from amongst women, minorities and depressed
classes. Further, the seats which were reserved for Hindus, Muslims and Sikhs had to be filled
via direct election while those reserved for Europeans, Anglo-Indians, Indian Christians and
Depressed Classes were to be filled by Indirect election.
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Representatives of Princely states

The distribution of the seats among states was on their relative importance and not population.
The representatives of the princely states would be nominated by rulers.
Federal Assembly
The Federal Assembly was the lower house with a tenure of five years. It was to be made of 375
members who which 250 representatives of British India and not more than 125 members from
princely states. While the seats reserved for princely states were to be filled by nominated
members, the provinces were given different numbers of seats. Election to the Federal assembly
was to be indirect. The term of the assembly was five years but it could be dissolved earlier also.
Provincial Autonomy
The most remarkable feature of the Act was the provincial autonomy. With the abolition of
Dyarchy at provinces, the entire provincial administration was instructed to the responsible
ministers who were controlled and removed by the provincial legislatures.
The provincial autonomy means two things. First, the Provincial Governments were wholly,
responsible to the provincial legislatures and secondly, provinces, were free from outside control
and interference in a large number of matters. Thus, in the provincial sphere, the Act of 1935
made a fundamental departure from the act of 1919.
The act divided the powers between the Centre and provinces in terms of three list-Federal List
(for Centre, with 59 items), Provincial List (for Provinces, with 54 items), and Concurrent list
(for both, with 36 items). Residuary powers were given to the Viceroy.
The degree of autonomy introduced at the provincial level was subject to important limitations:
the provincial Governors retained important reserve powers, and the British authorities also
retained a right to suspend responsible government.
Safeguards and Reservations
A controversial feature of the Government of India Act, 1935 was the safeguards and
reservations provided in the Act, would serve as checks and limitations on such undesirable
tendencies which might lead to the failure of the responsible government in India. A plea was
given that those safeguards and reservations were necessary for the interests of the country. They
were imposed either on the exercise of powers by the Government of India on of the states.
Establishment of Federal Court
The Government of India Act, 1935 provided for the establishment of Federal Court to interpret
the Act and adjudicate disputes relating to the federal matters. It provided that the Federal Courts
should consist of one Chief justice and not more than six judges.
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The Federal Court was given exclusive original jurisdiction to decide disputes between the
Centre and constituent Units. The provision was made for filing of appeals from High Courts to
the Federal Court and from Federal Court to the Privy Council. The Federal Court also had
jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court
was essential.
Factbox: Abolition of Privy Council
We note here that India retained the right of appeal from the Federal Court to the Privy Council
even after the establishment of the Dominion of India. Then, the Federal Court Enlargement of
Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court
and also abolished the old system of filing direct appeals from the High Court to the Privy
Council. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the
Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain
new appeals and petitions as well as to dispose of any pending appeals and petitions. It also
provided for transfer of all cases filed before Privy Council to the Federal Court in India. All
powers of the Privy Council regarding appeals from the High Court were conferred to the
Federal Court. Thereafter with the commencement of the Constitution of India in 1950, the
Supreme Court has been established and is serving as the Apex Court for all purposes in India. It
hears appeals from all the High Courts and Subordinate Courts. With this the appellate
jurisdiction of the Privy Council finally came to an end.
Abolition of Indian Council
It abolished the council of India, established by the Government of India Act of 1858. The
secretary of state for India was provided with a team of advisors in its place.
Extension of Franchise
The act extended the franchise. This act introduced for the first time the direct elections. About
10% of the total population got the voting rights.
Federal Railway Authority
The GOI act 1935 vested the control of Railway in a new authority called Federal Railway
Authority, which had seven members and was free from control of ministers and councillors. The
members of this authority reported directly to Governor General. The idea was to assure the
British Stakeholders of the railways that their investment was safe.
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Reorganization of the provinces

The partial reorganization of the provinces included separation of Sind from Bombay, Splitting
Bihar and Orissa into separate provinces, Complete separation of Burma from India, detachment
of Aden from India and establishing as a separate colony.
Separation of Burma
The Government of India Act 1935 contemplated the Federation of the British Indian Provinces
and Indian States. But for Burma, there was a separate set of Events. Burma was proposed to be
separated in pursuance of the recommendation of the Indian Statutory (Simon Commission)
whose proposal was accepted in principle by the Government. Consequently a Burma Round
Table Conference was held in London in 1932. In 1935, Burma Act was passed and separation of
Burma actually took place in 1937. The Government of India Act 1935 also provided a new
Burma Office, in preparation for the establishment of Burma as a separate colony, but the same
Secretary of State headed both Departments and was styled the Secretary of State for India and
Burma. The first secretary of state for India and Burma was Lord Dundas.
Implications of the GOI Act 1935
The proposal for setting up of the Federation of India did not materialize because the act
proposed that federation could come into existence only if as many princely states (which had
been given option to join or not to join) were entitled to one half of the states seats in the upper
house of the federal legislature. Due to this, Central Government in India continued to be
governed by the provision of the Act of 1919. However, some parts of the GOI Act 1935 came
into force for example : the Federal Bank (The Reserve Bank of India) and the Federal Court
were established in 1935 and 1937 respectively. The other parts of the Act, particularly
provincial Autonomy, came into force on 1st April 1937. The first elections under the Act were
also held in 1937.
What happened to Dominion status?
The Simon commission had promised ‘Dominion Status’ for India in 1929 , but the Government
of India Act did not confer it. This act by providing separate electorates for Hindus, Muslims,
Sikhs, Europeans, Anglo Indians, Indian Christians etc. proved to be further an instrument of
disintegrating India. It was over obstructing and Nehru called it “all breaks, no engine”.\
Accession of Princely States and Reorganisation of the States
The early history of British expansion in India was characterised by the co-existence of two
approaches towards the existing princely states. The first was a policy of annexation, where the
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British sought to forcibly absorb the Indian princely states into the provinces which constituted
their Empire in India . The second was a policy of indirect rule, where the British assumed
suzerainty and paramountcy over princely states, but conceded some degree of sovereignty to
them.
Accession of princely states.
After British leave India princely states will become independent.This was the legal statues of
Indian states but like always practice because of political realities were different than theory.
Mountbattens instructions on practice.
Even though princely states are theoretically free to choose independence mountbatten insisted
that princely states should join either India or Pakistan to maintain unity, while doing so
geographical continuity should be considered.This instructions were non binding as a rule but it
was suggested, pressed and practiced by mountbatten for many practical reasons such as
geography, peoples aspirations, lack of resources, administrative ability etc.
Congress's position
congress maintained that princely states should join India or Pakistan according to the
geographical continuity and wishes of the people.when ever a dispute come on this matter a
plebiscite should be held.
Jinnaha's position
jinaha did not think people have any say in it and maintained that ruler of the state can decide
whether to remain interdependent or to choose India or Pakistan.He also rejected the role of
geographic realities.
kashmir, junagadh, hydrabad and kalat
kashmir.
kashmir had a Hindu ruler who preferred independence and had a dominant Muslim
population(75%). he made standstill agreement with Pakistan but but couldn't reach one with
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India.
Nehru was intrusted in accession of Kashmir to India, but when the issue of the accession of
junagadh come up Nehru told liaqat ali khan on Sept 30 1947 that while
India objected to the Nawab’ s accession, it would always be willing to abide by the verdict of a
plebiscite. Mountbatten played his role by adding that if need arose Nehru would apply the same
principle to other States too , whereupon, in Mountbattens words “ Nehru nodded his head
sadly. Mr Laiqat eyes sparkled. There is no doubt that both of them were thinking of Kashmir” .
SP (patel)made it clear that a plebiscite in Kashmir would be conditional on one in Hyderabad.
Not prepared for the latter, Jinnah offered no plebiscite in Junagagadh.
“ Indian Army had already landed in Kashmir. Mountbatten’ s proposal was wherever ruler’ s
religion differed from that of the majority of people, plebiscite should be held. But Jinnah urged
for excluding Hyderabad from the plan,” Noorani revealed.
Jinnah s refusal jinxed Kashmir Noorani Lastupdate:- Thu, 16 May 2013 18:30:00 GMT
GreaterKashmir.com
Patel didn't mind Kashmir joining Pakistan if the raja decides so. Visiting Kashmir between 18
and 23/6/47 Mountbatten had told Maharaja Singh “ that if Kashmir joined Pakistan this would
not be considered an unfriendly act by the Govt of India” . According to Menon, Mountbatten
said, “ he had a firm assurance from Patel himself” . But patel was angered by Pakistan's
acceptance of accession junagadh on Sept 16, 1947 and thereafter he started to work for the
accession of Kashmir to India.
Pakistan was already pressuring the raja through border raids and by blocking supplies . On Oct
22, 5000-armed tribesmen from Pakistan entered Kashmir. maharajd requested Indian help, on
26 October 1947 maharaja signed instrument of accession.on 27th it was accepted by
Mountbatten.
Life Of Sardar Patel ::Great Indian Leaders
The number one argument in the case of Kashmir vs other princely states which was forcefully
accessed by Pakistan is that, UN recognised it as a disputed land and it's an international dispute.
1)In domestic law, if A questions B's title to his bungalow and files a lis pendens (pending
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litigation) notice, it ceases to have a marketable title. Internationally, however, the

existence of a political dispute does not becloud legal sovereignty. Ireland seeks reunion with
Northern Ireland but meanwhile the U.K.'s sovereignty over it is not affected. Even the U.N.'s
plebiscite resolutions did not contest India's legal sovereignty over the State
Navigation News | Frontline

2.) To people who ask for plebiscite - UN plebiscite is not legally enforceable with out both
parties agreement, when India was ready Pakistan refused act on UN instructions.
Thus Pakistan is responsible for the situation in Kashmir,
1.by not agreeing for plebiscite in Hydrabad as demanded by India for accepting the plebiscite
demand by Pakistan in Kashmir which was in return of Pakistan's demand for agreeing for a
plebiscite in junagadh. India was for plebiscite in all three princely states but Pakistan's non
cooperation in case of Hydrabad has become a stumbling block in reaching an agreement in
other two states too.
2. by initiating an attack on princely state Kashmir without respecting the standstill agreement
and there by starting the whole chain of military actions.
3. By not by withdrawing it's troops as demanded by UN for the requirement of a plebiscite.
junagadh and hydrabad
junagadh & hydrabad
Hydrabad 's ruler choose to remain independent with the support of jinaha. .There was a
standstill agreement on agreement that Hydrabad will not join Pakistan.
The Nizam of Hyderabad initially approached the British government with a request to take on
the status of an independent constitutional monarchy under the British Commonwealth of
Nations . This request was however rejected.
India didn't like the idea of a independent state inside India, which even threatened to side with
Pakistan in case of any India pak war , nizam rejected even to surrender defence, communication
and external affairs and to conduct a plebiscite to decide the matter of accession with India,
Patel warned Nizam that India would never agree to Hyderabad’ s independence. Instead he
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offered to hold plebiscite in Hyderabad to determine the will of the people on the issue of
accession. Nizam first rejected the idea but pursuant to hard negotiations later accepted it and
issued a firman (Ruler’ s order)
on April 23rd 1948 specifically stating that a plebiscite will be taken on the basis of adult
franchise. But this agreement fell apart on issues like disbanding of Razakars, Stationing of
Indian army on peripheries & installation of responsible Govt. with the result that plebiscite
could not be held.
Hyderabad and Kashmir some parallels Lastupdate:- Sat, 2 Jul 2011 18:30:00 GMT
GreaterKashmir.com
so finally India had to overthrew the nizam by a military action called operation polo on Sept
1948 , and subsequently conducted a plebiscite to secure Hydrabad.
Ruler of junagadh acceded to Pakistan on sept 15, 1947 (Pakistan accepted it on16th in line with
it's view that rulers has all the freedom to take decision regardless of peoples opinion, completely
ignoring it's earlier claim that Hindus and Muslims could not live together ), against the
instructions of mountbatten that only those princely states which share a boundary should accede
to Pakistan, by sighting possibility of sea link with Pakistan.it was against the wishes of the
people who were 80% Hindu. India tried to negotiate by sending menon on Sept 19 , but both
nawab and bhutto were evasive, India surrounded the state (on Sept 24) and asked Pakistan to
take back the acceptance of accession and invited to conduct a plebiscite, India waited for four
weeks however Pakistan refused this offer(Pakistan was ready for a plebiscite if India agree to
conduct a plebiscite in Kashmir India in turn said it would agree if Pakistan willing to accept a
plebiscite in Hydrabad ) saying that the accession was in accordance with the Scheme of
Independence announced by the outgoing British and that Junagadh was now part of
Pakistan. Indian cabinet aapproved the take over of junagadhs three feudatories on Oct 21st and
completed by Nov 1. As invited by the diwan of junagadh who took charge when nawab and
bhuto escaped to Pakistan, India conducted plebiscite to secure the state.
Both this actions were in line with the congress view that princely states should join India
Pakistan according to geography and wishes of the people not buy the decision of the ruler
alone.technically incorrect yet ethnically and morally correct actions.This situation could have
been avoided if jinaha agreed to the mountbatten proposal on Nov 1 1947 to conduct plebiscite in
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al three states
Accession of kalat
British considered kalat to be a India princely state, just like many other princely states which
were free to stay independent by rule but not allowed to do so in practice for already explained
reasons.how ever only mountbatten and India shared this view,( jinaha being a lawyer have took
a legaly correct but often politically and practically impossible or incorrect decision).jinaha
recognised kalat as an independent state different than other Indian princely states because
1) jinaha calculated that by doing so Pakistan will become successor of British in terms of treaty
relations with kalat.
2) Pakistan would get direct control of leased areas given by khan to British.
3) Pakistan's official position was that princely states are free to become independent so jinaha
feared if India enters into an agreement with kalat as a counter strategy against Pakistan's support
for Hydrabad and accession of junagadh it will be a difficult situation, so if Pakistan gain the
trust of kalat by accepting it as a sovereign state then Pakistan has a better chance to reach an
agreement with khan of kalat.
khan opted for such a agreement because
1) it will allow him the freedom to stay independent(except for defence, communications and
foreign affairs, Since British were not ready to accept kalath any different than Indian princely
state and in practice none of them were allowed to stay independent . Pakistan's acceptance of
kalat's soverginity will allow them to stay independent. 2) khan considerd jinaha to be a friend so
he trusted him to protect kalath's internal freedom 3) khan was of the impression that leased
areas also will return to him, he failed to see legal complexity.
On 12 th August 1947 the Khan of Kalat proclaimed independence and the flag of Kalat was
hoisted.
at a round table conference held in Delhi on August 4, 1947, and attended by Lord Mountbatten,
the Khan of Kalat, chief minister of Kalat and Mohammed Ali Jinnah, in his capacity as the legal
advisor of Kalat State, it was decided that Kalat State would become independent on August 5,
1947. Subsequently, the rulers of Kharan and Lesbela were informed by the British that control
of their regions had been transferred to Kalat State and the Marri and Bugti tribal regions which
were under the British control were also returned into the Kalat fold, thereby bringing the whole
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of Balochistanunder the suzerainty of the Khan of Kalat .

A meeting of the Kalat National Assembly (elections for which had been held a few weeks
earlier) held on August 15, 1947 as well as subsequent meetings of the Assembly, decided not to
join Pakistan and Affirmed the position that Kalat was an independent
state and would only enter into friendly treaty relations with Pakistan.
What was the position of the Muslim League on this issue? The League had, in fact, signed a
joint statement with Kalat and repeated the declaration two or three times
that the League recognized that Kalat was not an Indian state and constituted an independent
entity and the League would recognize and respect this independence. In
fact, as late as August 11, 1947 a joint statement was signed in which the League leaders, now as
the government of Pakistan,again recognize the independence of Kalat. The operative portions of
the communiqué dated August 11, 1947 is worth quoting from:
"As a result of a meeting held between a delegation from Kalat and officials of the Pakistan
States Department, presided over by the Crown Representative, and a series of meetings between
the Crown Representative, HH the Khan of Kalat, and Mr Jinnah, the following
was the situation:
1. The Government of Pakistan recognizes Kalat as an independent sovereign state; in treaty
relations with British government, with a status different from that of Indian
states.
2. Legal opinion will be sought as to whether or not agreements of leases made between the
British government and Kalat will be inherited by the Pakistan
government.
3. Meanwhile, a Standstill Agreement has been made between the Government of
Pakistan and the Khan of Kalat.
4. Discussions will take place between Pakistan and Kalat at Karachi at an early date with a view
to reaching decisions on Defence, External Affairs and Communications (currency was not
mentioned as it was understood that the Pakistani Rupee was to be used in Kalat, as a successor
to its previouscurrency, the British Indian Rupee). [3]
By October 1947, Muhammad Ali Jinnah had a change of heart on the recognition of Kalat as an
“ Independent and a Sovereign State” , and wanted the Khan to sign the same form of
instrument of accession as the other states, which had joined Pakistan. The Khan was unwilling
to abandon the nominally achieved independent status but ready to concede on Defense, Foreign
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Affairs and Communications.

However, he was unwilling to sign either a treaty or an Instrument, until and unless he had got a
satisfactory agreement on the leased areas.
As negotiations were not reaching anywhere, The Khan summoned both the houses of the
legislative and a joint session was held on 14 th December 1947 in Dhadar. The issue of
accession to Pakistan was presented before the lower house (Dar-ul_
Awam) by Mr. Douglas Y. Fell, the foreign minister of Kalat. Mr. Fell told
the house that the Government of Pakistan wanted the state of Kalat to announce accession with
Pakistan and subsequent to this the fate of leased areas, Kharan and Lasbela would be decided.
He further told that the Khan categorically told Jinnah that Kalat was not prepared for accession
with Pakistan.
Bizenjos speech of December 14, 1947, in the Kalat Assembly is noteworthy for the ample
warnings that it conveyed to the Pakistani state:
"Pakistan’ s unpleasant and loathsome desire that our national homeland, Balochistan should
merge with it is impossible to consider. We are ready to have friendship with that
country on the basis of sovereign equality but by no means ready to merge with Pakistan. We can
survive without Pakistan. But the question is what Pakistan would be without us? I do not
propose to create hurdles for the newly created Pakistan in the matters of defense and external
communication. But we want an honorable relationship not a humiliating one. "
When the Dar-ul-Awam met on February 21, 1948, it decided not to accede, but to negotiate a
treaty to determine Kalat’ s future relations with Pakistan.
The Khan of Kalat also called a meeting of the Dar-ul-Umara to consider Quaid’ s request for
Kalat to accede to Pakistan. An intelligence report on the proceedings of the meetings reported
that the Kalat State National Party was “ propagating that accession meant restriction on their
forces and armament, undesired freedom for their women and
migration of Muslim refuges into the State which will weaken the voice of the original
residents” . The Khan of Kalat, the report said, made a brief speech before the Dar-ul Awam, in
which he emphasized the need to have friendly relations with Pakistan, and also said that the
intentions of the Quaid towards Kalat were good. The Prime Minister of Kalat spoke next, and
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said that since this House had voted for Kalat’ s independence,
he went to see the Quaid in January and had a two-and-a-half hour meeting. He said the Quaid
was prepared to help the State in every way, and while independence of the State would remain
intact, the only way forward for Kalat was to accede to Pakistan in the matters of Defence,
Communications and Foreign Affairs.41 The Prime Minister argued
that with accession in respect of the three subjects, the internal independence of Kalat would not
be affected. But Mir Ghaus Baksh Bizanjo spoke against accession to Pakistan, and he argued
that if Pakistan wanted friendship with Kalat, it should restore its leased territories as well as
Kharan and Las Bela. The House dispersed without any intention of meeting again. Dar- ul-
Umara asked for three months to study the terms of accession in order to understand its
implications.
The Khan then sent the unanimous decision of both the houses to Pakistan’ s Foreign Office
through Prime Minister of Kalat that both houses rejected to accede to Pakistan and will only
enter with treaty relations with Pakistan.he also.asked three months time to study the
implications of accession.apparently Pakistan's claims on kharan lasbela and leased territories
were the reasons which provoked leaders of kalat.
On 17 th March 1948 the Government of Pakistan announced accession of Kharan and Lasbela.
Similarly Makran which was part of Kalat for 300 years was declared a separate state and
annexed.
The Khan of Kalat objected to their accession, arguing that it was a violation of Kalat’ s
Standstill Agreement with Pakistan. He also said that while Kharan and Las Bela were its
feudatories, Mekran was a district of Kalat. The British Government had placed the control of
the foreign policy of the two feudatories under Kalat in July 1947, prior to
partition.
All these actions generated unrest and strong negative sentiments among the people of
Balochistan. On 27 March 1948, Lt.Colonel Gulzar of the 7 th Baluch Regiment under GOC
Major General Mohammad Akbar Khan invaded the Khanate of Kalat. General Akbar escorted
the Khan of Kalat to Karachi and forced him to sign on the instrument of accession, as reported
by Selig Harrison in his book “ On the Shadows of
Afghanistan” , while Pakistan Navy’ s destroyers reached Pasni and Jiwani.
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The Khan of Kalat signed the accession papers on 28 th March 1948. Mr. Jinnah signed them on
31st March 1948.The Khan was then detained, his cabinet dissolved, a large number of Baloch
“ dissidents” arrested and the army assumed full control of the state.
let's see some counter arguments.
1) British didn't recognise kalat as independent state but as a Indian princely state by
including it in 1935 govt of India act.
when khan of kalat contested the inclusion of kalat as Indian state , mountbatten in his personal
letter assured him that his excellency recognised the treaty of 1876 and it would henceforth form
the basis of relation between British govt and kalath state.despite of personal assurance it seems
mountbatten was reluctant to recognise kalat as an independent state because, it was obvious that
khan if khan is allowed to stay independent his position will make the position of nizam of
Hydrabad adamant and it will create trouble for unification of India.
As the Viceroy, Lord Mountbatten, sought to settle the question of accession of all princely
states, Kalat was the subject of a meeting on July 19, 1947. At this meeting Lord Mountbatten,
the Crown Representative, said that those districts which all acknowledged to be administered by
Kalat were Mekran, Jhalawan, Sarawan, Kachhi, Dombki and Kaheri. He also said that Las Bela
and Kharan were disputed, as their rulers claimed not to be under the suzerainty of the Khan
of.Kalat.
At this meeting, the Prime Minister of Kalat, Nawabzada Aslam Khan, claimed that the
relationship of Kalat with the British Government was defined in the Treaty of 1876 as one of an
independent, sovereign state. While the Viceroy said he would accept this for the purposes of
negotiations, Nishtar, the Pakistan government representative said thathe would not contest this
claim.
so you can see that even though kalat was deserving to be independent mountbatten didn't allow
its claim of independence option, to force the khan to come to an agreement with Pakistan. If
mountbatten did not followed that policy then kalat as an Indian state had full right to stay
independent, kalat wouldn't have to claim to be different than India states, it didn't have to enter
into a agreement with Pakistan to be recognised as a sovereign state in order to retain it's
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soverginity, the leased ares would have come back to kalat instead of Pakistan, it was same the
mountbatten practice which Pakistan used to oppose benefited Pakistan. Pakistan initially
recognised kalaths independence status, of kalat but later back tracked and forced the merger.
2 . khan was not forced but he willingly signed accession document.

A) khan of kalat didn't have the authority to sign accession without the agreement of upper and
lower house of parliament, and it's clear that they rejected the proposal of accession.khan himself
acknowleged this fact later.
B). khan himself many times declared his wish to stay independent when he was not under the
control of Pakistan,(he was only ready to surrender defence, communication and foreign affairs,
when he get a satisfactory agreement on leased areas) what he spoke under the control of
Pakistan is just like someone's statements recorded under police custody, can't be trusted to be
true because he was under Pakistani pressure. even under such pressure he and his brother who
finished jail term once again agitated against Pakistan govt in 1958, although not successful it
will give an idea of what he really wanted.
3. makren, lasbela and kharan were independent princely states.
lord mountbatten, the crown's representatives only acknowledged(on July meeting ) that kharan
and lasbela are ' disputed ' because the there rulers contested the claim of kalat's control over
them.makren was always under the control of kalath,dipute calls for a stand still and settlement
as per legal decision not one sided action of accepting their accession. British never recognise
makren as separate state.After the meeting on August 4 ,the British themselves informed kharan
and lasbela that the control of their territories is given back to kalat state.
For argument sake let's assume that these states were not part of kalath and they had the right to
decide for themselves,even then kalath's situation becomes same as " Hydrabad " was, or even
better because there was no conflict of interest between ruler and his subjects unlike Hydrabad,
where he ruler was a Muslim and population was Hindu,Pakistan already agreed that kalat is not
mearlly a Indian princely state but it's even above that.
This will now show jinaha's hypocrisy, in Hydrabad he supported independent state even when
he knew that it was completely surrounded by India, but he didn't allow kalath to stay
independent, he merged it by pressure and force so Pakistani who shout about Kashmir plebiscite
should think about that first before giving long passionate speeches about self determination and
plebiscite in Kashmir.
4) Kashmir is international dispute kalat is not
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Any dispute when two countries are involved is a international dispute, not because the merit or
validity of the claims but simply because two countries are involved.In kalat's case it was
recognised as a independent state, so technically it becomes a international issue , but it's not
considered as such only because kalath as a country didn't exist today, it lost it's existence to
Pakistan,so Pakistan is ble to contain it as a domestic issue.Regardless of whether today it's an
international issue or not we have the right to talk about and draw comparisons , to the actions of
both countries in accessing the princely states
especially when Pakistan is alleging that India is illegally occupying Kashmir, against the will of
the people.so it's only fair to look at the policys and actions of India and Pakistan regarding the
accession of princely states to know who is what?
The argument of "you shouldn't talk about kalat because we don't talk about khalistan,maoists
,goa, etc is just a escapist strategy to prevent Indians from questioning the hypocrisy in Pakistan's
arguments and a strategy to keep Indian arguments always in defensive position so Pakistan can
pretend to be the champions of self determination, once the whole history of ' kalat's accession
comes into the picture, hypocrisy in Pakistani argument will be exposed.
Finally Pakistan in the beginning stood with the ruler's supremacy and freedom of choice
regardless of peoples aspirations, congress and mountbatten stood for peoples choice over
rulers's decision if there is a conflict, but of course byconsidering geographical realities also.
Pakistan accepted junagadh's choice /India opposed it - consistently with their policy
Pakistan accepted Hydrabads choice/India objected - consistently with their policy
Pakistan accepted kalats independence/India rejected it, nor did India wanted to accede it - again
both nations are consistent in their approach
But hypocrisy is started by Pakistan

1)By not respecting the free choice of Kashmir maharaja and standstill agreement when it
attacked Kashmir.
2) Again another hypocrisy by forcing the kan of kalat to sign a instrument of accession on terms
which were against his wishes as well as against both house of parliament of kalat.
where is Indian hypocrisy ?? as accused by Pakistan ?? only thing Pakistan can show as a
hypocrisy is India's withdrawal of plebiscite offer. Pakistan is in no position to expect India to
continue with the offer of plebiscite after it rejected the plebiscite offer twice
1)Initial offer by Indian leaders and mountbatten to conduct plebiscite in all three states
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2) Rejection of UN plebiscite offer by not agreeing to withdraw it's troops as requested by UN as

a pre condition for conducting a plebiscite.
UNIT-IV: Modern and Contemporary India
Role of Gandhiji in Civil Disobedience Movement (1930-1934)

Though the non-cooperation movement was suspended, yet it left a ray of hope for the people.
However, a group for Congress leaders likes C.R. Das, Motilal Nehru etc. were dissatisfied with
the sudden suspension of the movement.
They formed a separate party known as Swaraj Party and were ready to contest in elections for
Council entry. Their purpose was to oppose the government from within.
In the election of 1923, the Swaraj Party secured absolute majority in Bengal and Central
Provinces. But gradually they joined the Gandhian movement.
In 1927, the British Government appointed the Simon Commission consisting of seven members
of the British Parliament with Sir John Simon as its chairman. The Commission was to look into
the functioning of the Government of India Act 1919 and to suggest further constitutional
reforms for India. Since not a single Indian was included in it, the National Congress rejected to
co-operate with the Commission. Everywhere, the Commission was greeted with hartals, black
flags and slogans of Simon Go Back’.
In such a hostile atmosphere, the Commission completed its inquiry and submitted its report. But
before the report could be considered by the British parliament, the Government proposed to
convene a Round Table Conference to determine the nature of future constitutional reforms in
India. Being challenged by the British Government to prepare a constitution acceptable to all
political parties in India, the Congress appointed a committee under the chairmanship of Motilal
Nehru. The Nehru Committee Report suggested for a representative government in India like
other dominions such as Canada and Australia. But the British Government even did not assure a
Dominion status for India.
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In such circumstances, the Congress session was held at Lahore in 1929 where the Congress
dropped. The Nehru Report and instead of Dominion status, it demanded Poorna Swaraj”. The
historic Independence Resolution was adopted and the tri-colour flag of independence was
hoisted at the midnight of 31st December 1929. The Congress under the leadership of Mahatma
Gandhi presented a definite challenge to the British Government. The Congress also authorized
Gandhiji to start a Civil Disobedience Movement which can lead India in the direction of
complete independence.
The Movement:
As the British Government did not show any interest in providing meaningful political
concessions to Indians, Gandhiji decided to start the Civil Disobedience Movement.On 2th March
1930, Gandhiji wrote his famous letter to Lord Irwin, the Viceroy of India, narrating the evils of
the British rule, He also communicated the decision to launch the ‘Satyagraha’ campaign by
manufacturing salt at Dandi, a village on the sea coast of Gujarat, in case his eleven point
demands were turned down by the Government.
Some of these demands were abolition of salt tax, reduction of the land revenue, reduction of
military expenditure and expenditure on civil administration, imposition of custom duty on
foreign cloth, release of all political prisoners, and prohibition of intoxicants etc. When Lord
Irwin did not pay any attention to his demands and warned him of the consequences of his
action, Gandhiji was left with no alternative but to start the Civil Disobedience Movement.
On March 12, 1930, Gandhiji led a march from his Sabarmati Ashram with his 78 followers and
reached the sea at Dandi on 5th April 1930. The distance covered was 241 miles. There was
tremendous enthusiasm among the people during the march. On the morning of 6th April
Gandhiji and other ‘Satyagrahis’ prepared salt as an instance of braking the Salt Law. In
response to Gandhiji’s call for Civil Disobedience, the people of India in large number took part
in the movement.
Mostly the activities of the ‘Satyagrahis’ were taking out processions, holding of meetings,
boycotting of foreign goods, withholding payment of and revenue, picketing before the liquor
shops, violating restraint orders, distributing leaflets among the people, celebrating national
weeks etc.. Thousands of women also came out of their homes to participate in the movement
and even did not fear of imprisonment. The imperialistic government was made alarmed. The
people who first doubted the very approach of Gandhi that a small object like salt could not be an
issue of a national movement, now were forced to change their opinion.
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Government resorted to severe repression. Mass arrests, torture, firing, lathi charges and police
excesses became common incidents. The Congress was outlawed and nearly ninety thousand
people were put behind the bar. On 5th May 1930, Gandhiji and other top leaders of Congress
were imprisoned. Meanwhile, the British Government summoned the First Round Table
Conference at London on 12 November 1930 to discuss the Simon Commission Report. But
when Congress boycotted it, the conference was adjourned sine die.
Gandhiji and other important leaders of Congress were released from jails in the last week of
January 1931. The situation forced the British Government to negotiate with the Congress for a
rapprochement. As a result of a long negotiation, on 5th March 1931, the Gandhi-Irwin
Pact was signed. The government agreed to remove all repressive ordinances, to restore the
confiscated property, to set free all prisoners except those who were guilty of having committed
any violence.
The government also allowed the manufacture of salt by the people and for peaceful picketing
before the liquor shops and foreign goods shops. Il return, the Congress agreed to suspend the
Civil Disobedience Movement and to attend the Second Round Table Conference. With this
pact, the government indirectly accepted the Congress as the representative organisation of the
Indians.
Since the British Government did not accept any important demands of the Congress, the pact
was made subject to criticism. The Congress ratified the pact at the Karachi Session of march
1931. But there was protest against it. Even Gandhi was shown black flags when he arrived to
attend the session.
It was due to his failure to get the release of Bhagat Singh and two of his comrades who had been
given death sentence and were executed only two days before the Karachi session of the
Congress. However, the Congress suspended the Civil Disobedience Movement and deputed
Gandhiji as the sole representative of the Congress to participate in the Second Round Table
Conference.
In the Second Round Table Conference, Gandhiji made it clear that India would think of
Dominion status, if it was to be given at once and in full and also India would be made equal
with Britain. But the Conservative Party which came to power in the general elections of
November 1931, refused to concede the demands of Gandhiji. So Gandhiji could not achieve any
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practical success and returned empty handed. Lord Irwin was replaced by Lord Willingdon as the
Viceroy of India and he revived again the repressive policy of the government.
The new Viceroy regarded the Gandhi—Irwin Pact as dead and gone. The moment Gandhiji
reached India, he was arrested along with many other leaders. A reign of terror was let loose. In
this circumstance, Gandhi decided to revive the Civil Disobedience Movement and it was again
started in January 1932. The Viceroy was determined to crush the movement. All important
Congress leaders were arrested, their property was confiscated, the Congress organisation was
declared illegal. Despite the police atrocities, the movement continued for more than six months.
In August 1932, the British Prime Minister Ramsay Macdonald announced the “Communal
Award” by providing separate electorate to Muslims, Sikhs, Europeans and the other depressed
class. Gandhiji started his fast till death which created a deep emotion among the leaders of all
sections of the people. An agreement known as Poona Pact was signed with the leaders of the
oppressed classes.
The Pact provided representation to depressed classes along with the caste Hindus and their seats
were to be reserved on the basis of their population. However, it is alleged that the Poona Pact
shifted the attention of the Indian leaders from the central motive of the movement. When
Gandhiji became concerned with the Harijan movement, his lion became weak on the Civil
Disobedience Movement.
Usually the movement lost its vigor and vitality. The congress off- sally suspended the
movement in May 1933 and withdrew it in April 1934. Besides the oppression of -the British
Government, the disunity among the Indian leaders were primarily responsible for the failure of
the Civil Disobedience Movement. Moreover, the diversion of Gandhiji’s attention towards the
sensible communal issues was another factor which highly contributed for the weakening of the
movement.
However, this movement is memorable in the history of India. It was more widespread than the
previous one. Mass participation provided the Congress a new all-India status. Therefore, the
government decided to give encouragement to communal, regional and other forces which would
work against the Indian unity. But the Poona Pact saved the Indian society.
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Though the Congress boycotted the Third Round Table Conference, yet after the conclusion of
the conference a white paper was published in May 1933, which became the basis of the
Government of India Act 1935. This Act was far away from the demand of the Congress and was
totally disappointing. Yet the Congress decided to participate in the election which was
announced as the provision of the Act.
The Congress was able to form government in six and coalition government in two other out of
the total eleven provinces. The Congress Governments resigned in October 1939 when India was
made a party with the Britain in the Second World War without any consultation with the Indian
leaders. The British Government encouraged communalism to the maximum extent by giving
support to the Muslim League. When the Congress was out of power, the Muslim League
observed it as the “Day of Deliverance”. With the support of British Government, the Muslim
League demanded a separate homeland for Muslims on the soil of India in May 1940.
In order to win the support of Indians for Britain’s war efforts, the Viceroy of India, proposed the
so called “August Offer” on 8th August 1940. It promised to grant Dominion Status to India and
also assured the framing of the Constitution by the representatives of India after the end of the
war.
Both the Congress and the Muslim League rejected the offer. With the direction of Gandhi,
individual Satyagraha was started. But when Japan entered the Second World war against the
Allies, Britain was forced to change its attitude. In order to have some sort of understanding with
the Indians, the British Government sent a Mission to India under Sir Stafford Cripps in March
1942.
The Mission talked to the leaders of the different sections of India. Finally, it offered for the
Dominion status to India after the war. Cripps also gave the proposal of a Constituent Assembly
consisting of the elected members of the Lower House of Provincial Legislatures and
representatives of Princely States to formulate a Constitution for India. But the Cripps proposal
was rejected by both the Congress and the Muslim League.
The Congress Working Committee reiterated the demand for freedom before India could join the
war. But the Conservative Government of Britain did not desire to share power with the Indians
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during the war. The Muslim League rejected the proposal as it did not clearly pointed to the
formation of a separate state for the Muslims.
Emergence of Communal Politics in India

An important feature of colonial India was the emergence of communalism as a force that guided
the destiny of India into a blood bath and inevitable partition of the Indian subcontinent on
communal lines.
Though India was a land of multi-religions, creeds and faiths, pre-colonial India was never
plagued by the worm of communalism.
It was the purposeful colonial policy of divide and rule that laid the seeds of communalism
which grew into a huge tree that disturbed the solidarity, of the age-old mosaic of India and it is
still haunting to sap the vitality of the newly won independence.
Communalism is thus a modern phenomenon which has gained currency as a negative concept in
recent times. Bipan Chandra observes: ‘communalism is basically an ideology appears to be a
simple and easily understood. Communalism or communal ideology consists of three basic
elements or stages, one following the other.
The three basic premises are:

(1) Belief that people who follow the same religion has common political, economic, cultural and
social interests,
(2) Belief in a notion that in a multi-religious society like India, the common interests of the
followers of one religion are dissimilar and divergent from the interests of the followers of
another religion, and
(3) Belief that the interests of the followers of different religions or different communities are
seen to be mutually incompatible, antagonistic and hostile”.
The practice of communalism based on the above principles leads to communal politics,
communal violence and communal terrorism. We can trace stages in the growth of the trends of
liberal and extreme communalism. Bipan Chandra is of the view that 1937 was the dividing
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landmark and pre 1937, was an era of liberal communalism and the post-1937 phase was that of
extreme communalism.
We may agree with Bipan Chandra’s perception that communalism emerged as consequence of
the modern politics based on mass mobilization and politicization which has become evident in
the Indian context from 1930 onwards. Nehru also notices “one must never forget that
communalism in India is a latter day phenomenon which has grown up before our eyes”. Thus,
the communal consciousness arose as a result of the transformation of Indian society under
colonialism and its results like administrative unification of regions, the formation of modem
social classes and the spread of new ideas of nationalism based on cultural and linguistic
development.
Another factor was the economic stagnation, ruination of industries and crafts, stark
unemployment and dwindling of resources and the growing number of people vying for the pie.
Communalism does not mean social conflict or class conflict between the exploiter and the
exploited. Communalism is thus a complex phenomenon where many factors real and unreal,
contributed to the rise of consciousness of communalism.
There is a considered, view advocated by Bipan Chandra and agreed upon by many, a strong
contributory factor in the growth of communalism was the pronounced Hindu tinge in much of
nationalist thought and propaganda in the beginning of the 20th century. Added to this, the
communal approach adopted by James Mill, the British historian in dividing the periods of
Indian history as the Hindu, the Muslim and the British showed considerable influence on the
thought process of young and old mind in developing communal consciousness of superiority
and inferiority.
Some sections of the Hindu and the Muslim communalists used religion as the mobilizing factor
for their selfish interests. We may say that religion by itself was not a major contributor to
communalism as such but the narrow minded religiosity promoted by intolerant leaders led to
extreme communalism with a political end.
In India, till 1880 communal consciousness as a driving force was absent both in the Hindus and
the Muslims. Sir Sayyad Ahmad Khan, an outstanding intellectual of India announced in 1884,
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“Do you, not inhabit this land? Are you not buried in it or cremated on it? Surely, you live and
die in the same land. Remember that Hindus and Muslims are religious terms.
Otherwise Hindus, Muslims and Christians who live in this country are by virtue of this fact one
Qauam (nation or community)”. Till the founding of Indian National Congress, he believed in
the oneness of Indians, i.e., Hindus and Muslims. The establishment of the Indian National
Congress in 1885 sowed the seeds of uncertainty and made him view Congress as a Hindu body,
whose major objectives were against the Muslim interest.
The concept of elections and consequential power made him oppose the Congress and as desired
by the government, the Muslims began to be loyal to the British. But some Muslims under the
leadership of Badruddin Tyabji joined Congress and by the time of Swadeshi movement some
more sided with the Congress. In such a situation, the Indian Muslim League was founded in
1907 by big landlords and Zamindars. This loyalist, communal and conservative political
organization supported the partition of Bengal, demanded separate electorates and made its
motto to oppose Congress but not colonial rule.
Side by side, with Muslim communalism, Hindu communalism also began by demanding that
Hindi language was the language of the Hindus and it should be protected. They also started a
movement for banning cow slaughter in 1896. They also began to demand due share to the
Hindus in legislature and government jobs.
The Punjab Hindu Sabha founded in 1909 and the All India Hindu Mahasabha founded in 1915
spearheaded the activities of the Hindu communalists. But the younger generation of the Muslim
League was dissatisfied with the loyalist approach and in 1916 there was an understanding
between the League and Congress known as Lucknow Pact which led to the Khilafat and non-
cooperation movement. Once again the communalists became active after the end of the non-
cooperation movement in 1922.
The nationalists made determined bid to frustrate the efforts of the communalists. But the Round
Table Conference once again provided an opportunity to the communalists to stress, “the
inherent impossibility of securing any merger of Hindu and Muslim, political or indeed social
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interests and the impracticability of ever governing India through anything but a British agency”.
The announcement of communal award of 1932 which included the demands embodied in 1927
Delhi proposals and Jinnah’s 14 points of 1929 further bolstered the communalists.
Since 1937 began the extreme communalism of the Muslims and the Hindus. It was so because
the Congress formed ministries in five provinces and the Congress refused to cooperate with
Muslim League. In 1938, M.A. Jinnah, in his presidential address of the League announced “The
High Command of the Congress is determined, absolutely determined to crush all other
communities and cultures in this country and establish Hindu raj in the country”.
In 1940, he told the students of Aligarh, “Mr. Gandhi’s hope is to subjugate and vassalize the
Muslims under a Hindu raj”. By 1941, Jinnah announced that “Pakistan is not only a practical
goal but the only goal if you want to save Islam from complete annihilation in this country”.
Finally, in 1946, while asking the Muslims to vote for the League, he declared if we fail to
realize our duty today you will be reduced to the status of Sudras and Islam will be vanquished
from India”.
Besides Jinnah, Z.A. Suleri, F.M. Durrani and M.A. Gazdar also propagated for the annihilation
of the Hindus. Gazdar proclaimed “The Hindus will have to be eradicated like the Jews in
Germany if they did not behave properly”. The Muslim communalists launched a vicious
campaign against Maulana Abdul Kalam Azad and Khan Abdul Gafar Khan as the stooges of the
nationalist Hindus. While Muslim communalism was becoming extremely violent, Hindu
communalism was lagging behind. By 1923, Lala Lajpat Rai was no more and by 1937 another
liberal communalist Madan Mohan Malaviya also retired from active politics. V.D. Savarkar of
the Hindu Mahasabha and M.S. Golwarkar of the RSS led the extreme communalists of the
Hindus. In 1937, V.D. Savarkar announced that Muslims “want to brand the forehead of the
Hindu down and other non-Muslim sections of the Hindustan with a stamp of self-humiliation
and Muslim domination” and “to induce the Hindus to the position of helots in their own land”.
In 1938, he reiterated and affirmed “we Hindus are (already) reduced to the veritable helots
throughout our land”. M.S. Golwalkar in 1939 declared that if minority demands were accepted,
Hindu national life runs the risk of being shattered and he attacked the nationalists for “hugging
to our bosom our most inveterate enemies (Muslims) and thus endangering our very existence”.
Thus both the Hindu and Muslim extremists tried to play on the fears and suspicious of majority
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and minority and raised the cry of ‘Hinduism in danger’ and ‘Islam in danger’ or Hindu culture
and Islamic culture in danger. This creation of hatred proved harmful to both the Hindus and the
Muslims in the end and thousands lost their lives in the communal holocaust.
In this atmosphere of extreme communalism preached and practiced by the determined few from
both sides, the British added fuel to the fire. When the Second World War began and the Viceroy
without consulting the Indian leaders, admitted India into the Second World War, the Congress
ministries resigned in 1939.
The Muslim League celebrated that day as the day of deliverance. The British assured that they
would grant Dominion status to India immediately after the war. This announcement made the
Muslim League to press for a separate homeland for Muslims in 1940. By his August offer of
1940, Linlithgow, the Viceroy assured the Muslims that their interests would be protected.
Dr B.R. Ambedkar, C. Rajagopalachari and the communists suggested that the demand of a
separate homeland to the Muslims be accepted. The British appointed Cripps Mission in 1942
and the proposals of Cripps were rejected by both the League and Congress.
When Congress launched Quit India movement in August 1942, the League opposed it and
propagated its dream of separate homeland. The League took the help of Islam to spread its idea
of Pakistan along with popular newspapers. In 1944, C. Rajagopalachari placed his compromise
formula before Jinnah. Owing to the adamancy of the League, the Wavel plan and the Simla plan
failed. When elections were held in 1946 as per the 1935 Act, the League rejected it and refused
to participate in the interim government.
In protest, the Muslim League observed August 16, 1946 as the Direct Action Day which led to
Hindu and Muslim riots throughout India. The League joined, the interim government formed
under the leadership of Nehru.
When Constituent Assembly was formed, the League refused to accept it. In the meanwhile
communal riots flared up throughout the country in which both Hindus and Muslims suffered a
lot. In February 1947, the British government announced that it would leave India certainly
before June 1948. On March 27, 1947, the League celebrated ‘Pakistan Day’ in East Bengal and
Punjab.
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It led to the worst fears of large scale massacre and the interim government remained helpless.
Except Gandhi, the others agreed for the partition and V.P. Menon drafted the proposal for
partition of India. It was put as June Plan or Mountbatten Plan before the League and Congress.
This was accepted by both the League and Congress. The Independence Act of 1947 made the
partition legal and real.
As the entire nation rejoiced, very disappointed and disillusioned Gandhi spent the first day of
Indian independence in 24-hour fast. Later, he spent the rest of the time in healing the wounds of
suspicion and hatred of communal frenzy. On 30 January, 1948 in an evening prayer Gandhi was
shot by a fanatic; thus the cause so near and dear to him cost his life and plunged the nation into
darkness.

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Chanderprabhu Jain College of Higher Studies

Paper Code : 106

Unit 1:Early Developments (1600- 1836)

Charter of 1669, Territorial Sovereignty

Charter of 1677, 1683, 1687

Cease of Royal Charter

DMINISTRATION OF JUSTICE IN SURAT –

ADMINISTRATION OF JUSTICE INMADRAS BEFORE 1726 In 1639 Francis Day

SECOND STAGE – (1665 – 1683) –

THIRD STAGE (1683 – 1726) –

MADRAS MAYORS COURT (1688) –

The corporation came in to existence on September 29 1968 which consists of a Mayor, 12

The First Alderman were as Follows –

The Mayor’s Court was authorized to give following punishments –

Meaning of the Words –

ADMINISTRATION OF JUSTICE IN BOMBAY –

1) First Stage – (1668 – 1683)

NEW JUDICIAL PLAN IOF 1672-

Keignwin’s rebellion, which began in December 1683, and continued up to November

Admiralty Court (1684 to 1690) –

ADMINISTRATION OF JUSTICE IN CALCUTTA 1690- 1726 –

1. Mughal Judicial system

Necessity of judicial reforms –

CONSEQUENCES OF THE CHARTER OF 1726 –

THE CHARTER OF 1687 AND THE CHARTER OF 1726 – DISTINCTION –

POLITICAL CHANGES IN MADRAS (SEPTEMBER 1746 TO AUGUST 1749) – On

There were 3 Courts, namely –

Good feature of Charter 1753 –

Defects of Charter 1753 –

1) Too much executive oriented

Regulating Act 1773

Conflict: Raja Nand Kumar, Kamaluddin, Patna Case, and Cossijurah

ACT OF SETTLEMENT 1781

THE ADALAT SYSTEM, REFORMS OF WARREN HASTINGS

Courts of original jurisdiction

Defects in the Plan

(2) Concentration of power, Another defect was the concentration of power—administrative,

Judicial Plan of 1787

Judicial Plan of 1790

Three types of Courts were created in the Mofiissil area,

(1) Court of District Magistrate continued as before that is 1787 Plan,

Judicial Plan of 1793

The basic or general features of the scheme are as follows,-

Reorganization of courts-The courts were fully reorganized by the 1793 Scheme

Critical appraisal of 1793 Plan

Judicial Reforms of William Bentinck

Unit 2: Evolution of Law and Legal Institutions

• The Converts' Marriage Dissolution Act, 1866

equivalent to judicial separation on grounds of adultery, perverse practices, cruelty,

• Talaq-I-Tafwid: This is a form of delegated divorce. According to this, the husband

Development of Criminal Law

(1) Hindu Criminal Law:

(2) Muslim Criminal Law:

(3) English Criminal Law:

Law Commission of India

How Law Commission is established?

Who is composition of Law Commission?

• four full-time Members (including a Member-Secretary).

What is History of Law Commission of India?

Importance of Law Commission

Indian High Courts Act 1861

• The Bombay High Court was inaugurated on 14th August ,1862.

UNIT-III: Constitutional Developments and Framing of Indian Constitution

Indian Councils Act 1861