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INDIAN LEGAL AND CONSTITUTIONAL HISTORY

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DOI: 10.13140/RG.2.2.17728.46083

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INDIAN LEGAL AND
CONSTITUTIONAL HISTORY

Nimesh Das Guru

Assistant Professor (Law)
Lloyd Law College.edu.in
ndguru@lloydlawcollege.edu.in
 SYLLABUS
This course is intended to introduce students to the Legal and
Constitutional History of India (1600-1950). Emphasis will be laid on
the following:

I. Legal History:
 The Early Charters and the Administration of Justice by the East
India Company, the Mayor's Courts; Judicial Reforms of Warren
Hastings and the Advent of Adalat System; the Regulating Act, Pits
India Act, and the Act of Settlement; Judicial Reforms of Cornwallis
and Lord William Bentick; the High Court’s; Privy Council; the
Supreme Court of India; the Law Commissions and Codification,
Development of Criminal Law, Law of Contract and Law of Evidence
in India; Personal Laws of Hindu and Mohammedans

II. Constitutional History:

 Position of Native States and the development of the Doctrine of
Paramountcy, Development of Legislative Institutions, Indian
Council Act 1861, Government of India Act 1909, Government of
India Act 1919, Government of India Act 1935, Independence Act,
1947, The story of Framing of Indian Constitution.
 INTRODUCTION

The aim of this course is to introduce students to

the history of the development of legal and
constitutional system of India. Modern Indian
legal system and its institutions were established
by British colonial government. The study of the
history of establishment and working of these
institutions would enable learners to understand
the practices of these institutions, their
shortcomings, and challenges that they threw to
the framers of the modern constitution of India.
WORLD AT 1500
VASCO DE GAMA
Beginning at Surat

Charter of 1600, 31st December Queen Elizabeth

“The Governor and Company of Merchants of

London Trading into East Indies”
• Honourable East India Company
• Also John Company
Exclusive trading rights into and from Countries
lying beyond the Cape of Good Hope eastwards to
strait of Magellan
E-COMPANY
ENGLAND TO INDIA
WHY SURAT??
Governing Structures of East India Company

“Court of Directors”
 Consisting of a Governor and 24 directors for managing
Company’s affairs
 Company Headquarters in Leadenhall Street, London

SIR THOMAS ROE IN JAHANGIR'S COURT
Early Legal Instruments

Charter of 1600
King’s Commission 14th December 1615 for for
specific voyage
• “King’s [or currently Queen’s] Commission” means you are a
commissioned officer in one of the UK’s military forces
Charter of 1661
• Power to Governors and Council of “each factory” to
administer justice in Company’s settlement according to
English Laws
THREE PRESIDENCIES
 Madras (now Chennai) Bombay (now Mumbai)
and Calcutta (now Kolkata)
 Madraspattanam, a fishing village from
Vijaynagar Emperor Peda Venkata Raya in 1639-
Fort St. George, India

 Calcutta ,1690 acquired zamindari three villages,

Kalikata, Gobindapur, and Sutanuti from
Moughal Subadar
 And what about Bombay ???
 White Town and

FORT ST. GEORGE, CHENNAI

Black Town of
Early Madras,
Vestiges of Old
Madras (1640-
1800), Henry
Devison Love
(https://archive.org
/details/in.ernet.dli
.2015.530013)
The real center

FORT WILLIAM, KOLKATA

BOMBAY
 Portuguese acquired under Treaty of Bassein
(Vasai) entered between Sultan Bahadur of
Gujrat and Kingdom of Portugal)
 Came under British Control when in
1661 Charles II of England married Catherine of
Braganza and as part of her dowry Charles
received the ports of Tangier and Seven Islands
of Bombay
ENGLISH FORTS IN BOMBAY
GERALD AUNGIER, FOUNDER OF MODERN
‘BOMBAY’

 Within ten years population rose from 10,000 to

80,000 within 8 years
 Established first police force with local militia of
Bhandari youth
 Establishment of Admiralty Court to try
‘Interlopers’, judge to be someone trained in Civil
Laws
 EARLY ADMINISTRATION IN MADRAS
First Period 1639-1665
• 1639- It was acquired with full power of governance
• Madras was Agency and not Presidency
• No regular Proceeding
• Choultry Court for Natives

Second Period 1665-1686

• Mrs. Dawes Case of killing a slave girl
• Power of Governor and Council was extended to Agent

Third Period 1686-1725

• Establishment of Admiralty Court to be presided by a person
trained in Civil Law- Why ??
• The First Court to be run by a person trained in Law
• Sir John Bigs arrives a Judge advocate
ESTABLISHMENT OF CORPORATION AT
MADRAS

1686- First Corporation was established

• A mayor (to be elected) and 12 alderman and 60-120
Burgesses
• Members included Indians
• Among the first 60 burgesses 30 were Indians representing
different castes
Establishment of Mayor’s Court
• As was the tradition a Court known as Mayor’s Court also
came in existence
• After Sir Bigs Company didn’t send any other lawyer so
‘layman’ presided the Court
• Appeal to lie before Governor and Council
• Punishments were still harsher in comparison to local
sensitivity like Theft and Forgery was a capital offence
EARLY ADMINISTRATIVE SET UP AT
BOMBAY (1686-1726)

First Period 1668-1683

•Controlled from Surat
•Court of Governor General and Council
•Charter of Bombay Transfer has given all administrative power to Governor
General and Council Transfer

Second Period 1683-1690

•Charter 1683 – Admiralty Court established with Dr. St. John coming as a Judge
•First Trained lawyer to arrive (learned in civil laws)
•Decide cases according to the rules of equity and good conscience and laws and
customs of merchants
•Conflict with governor gives it a bad start
Dark Period 1690 –1718 ??

Third Period 1718-1726

•A new Court with Chief Justice and nine other judges
•Four judges were Indian representing four principal communities of Bombay,
Hindus, Muslims, Portuguese, and Parsis
 http://www.columbia.edu/itc/mealac/pritchett/00g
enerallinks/gilchrist/index.html
 http://www.columbia.edu/itc/mealac/pritchett/00g
enerallinks/gilchrist/49part.html
MAYOR’S COURT
Established under Charter of 1726
• Why?? Lack of proper testamentary courts , Company lost £ 300 in one
such suite
• Otherwise need for a proper Royal Court to maintain discipline and
orders among English merchants

Important features
• A uniform structure for a Corporation for each Presidency Town
• A Mayor and 9 Alderman (two could be subject of local prince, rest has to
naturally born subject of Crown– Note the deviation from earlier
(Company) Madras Corporation where only members required to be
Company’s Covenanted servant
• A Mayor’s court in each Corporation consisting of Mayor and Alderman
(Quorum -3)
• Still No need to be a lawyer to be judge
• Appointment of Sheriff and Justices of Peace
• Final appeal to go to Privy Council
WORKING OF CHARTER OF 1726 CHARTER
It was meant for governing Englishmen
•Discord between Council and Mayor’s Court on power over natives
•Conflict of interest on superiority
Applied English laws, common laws as well as statutory laws
•Administered English laws and totally ignored the local laws or laws of natives
•Conflict because of fundamental difference between English sensibility vis-à-
vis Indian sensibility

Resentment among Indians when applied to local population

•oath controversy
•Conflict because of fundamental difference between English sensibility vis-à-
vis Indian sensibility

Amendment in 1753
•Provision for election for Mayor was scrapped
•Now Alderman were to be selected by Council and among them one was to be
selected as Mayor
•Establishment of Court of Request for petty matter
CALCUTTA
EARLY ADMINISTRATION OF CALCUTTA
 Grants of Zemindari of three villages gave
administrative power with respect to those
villages
 Not much is on record on working of Corporation
of Calcutta established under 1725 Charter
 Battle of Plassey (1757) and Battle of Buxar
(1764 ) changed the course of History
 Acquisition of Deewani Rights
 Establishment of Local offices for collection of
revenues
 Subsequent Chaos
 Hastings Adalat System
REGULATING ACT 1773
 Concerns on growing corruptions in India and its impact on
the politics and society of England
 Arrival of Clive from India to Home, the richest ‘self made’
man of Europe, ‘Rotten Borough’
 ‘Bailout’ of East India Company by British Parliament
 Beginning of the Parliamentary Control over affairs
of the Company: ‘Board of Control’ in England to direct
and guide Board of Directors of Company
 Governor General and 4 member Council in Bengal
(Madras and Bombay became subordinate) – Supreme
Council
 Authorized Supreme Council to make Regulations for the
governance of the British settlement in Presidencies and
other fort areas
 Institution of Supreme Court at Calcutta, All regulations
made by Supreme Council was to be registered with
Supreme Court
BEGINNING OF THE ADALAT SYSTEM FOR
MUFASSIL AREA
Mufassil -- Areas beyond Presidency Town
 Company becomes Diwan of Moughal Emperor

 Significance of Diwani
 Diwani– Revenue head of Moughal Empire
 Firman that granted diwani rights didn’t clarify how
and what revenue would be collected
 Birth of Dual System of Governance Diwani
(Revenue and Civil Justice) and Crimnial Justice
-1772
WARREN HASTINGS PLAN OF 1772
 Establishment of the office of the Collector
 Primary task was to collect revenue and decide dispute arising
in collection of revenue
 Mufassil Diwani Adalat
 Precursor of District Civil Court
 Collector to act as the Judge
 Sadar Diwani Adalat
 Governor General and Council – As a highest Court of appeal
for civil disputes-
 Small Cause Courts for disputes up Rs 10 presided by local
headman usually zamindar
 Criminal Justice System
 Responsibility of the Nawab
 Muffassil Fouzdari Adalat – each district headed by a Kazi
and Mufti assisted by two moulavi –Collector to Supervise
 Sadar Nizamat Adalat- headed by Mohd. Reza Khan Naib
Nazim
HASTINGS PLAN OF 1774 (TEMPORARY
MEASURES)
 English Collectors were called of from districts
and natives were entrusted with collection of
revenue – Naibs
 Six Provincial Divisions
 Calcutta, Murshidabaad, Burdwan, Dacca, Dinajapur
and Patna
 Company covenanted servants were appointed as
head and members of provincial division –the idea
was to entrust revenue functions to seniors of
Company’s servants
 Heard appeal from Muffassil Diwani Adalat and also
had original jurisdiction for civil and revenue
disputes
HASTINGS PLAN OF 1780
 Separation of Revenue from Judiciary,
 Separate officers for Judicial and revenue works
 Jurisdiction of Provincial Mufassil Adalat was extended to
cover all kind of Civil Disputes
 Refer matters up to Rs 100 to Zamindar or other
respectable persons of the area– Giving birth to office of
Munsif
 Native law officers only to expound law and not to decide
facts and make final decision – Patna Case
 Appeal to go to Sadar Diwani Adalat
 Appointment of Impey as Judge of Sadar Diwani Adalat
 Impey drafted first civil code for functioning of Mufassil and
Provincial adalats
 Recall of Impey
 No Change in the Criminal Justice System
 Raza Khan continued as naib nazim head of Sadar Nizamat Adalat
 Court of Remembrance was instituted in Calcutta, call for report
CORNWALLIS 1786-1793
 Champion of “Oriental Despotism”
 Model Builder
No man in the ordinary service of the company to ever
reach at the highest post
 To deal with the problems of land revenue:
Permanent Settlement
 Improvement in the administrative machinery
 To introduce reforms in Judicial System
 Enhance British Reputation
 Cornwallis Code – implemented in Madras in
Bombay
JUDICIAL REFORMS -1787
 Unification of all powers in the office of Collector
(26 Districts)
 Collector was to be Chief Administrator for revenue
collection, decide revenue disputes, Judge of Mufassil
Adalat, also act as Magistrate
 Advised to keep his various functions separate from
each others –e.g. to hear Revenue disputes in Mal
Adalat only
As a Judge of Mufassil Adalat to decide all civil
disputes , appeal in matters involving Rs. 1000 to
Sadar Diwani Adalat –From Sadar Adalat (for Rs.
5000 and above to King in Council Privy Council )
Court of Registrar for petty matters upto Rs. 200
REFORMS IN CRIMINAL JUSTICE SYSTEM
 Abolished office of Nawab
 Sadar Nizamat Adalat as the highest Court of
Appeal for Criminal Justice – Governor General
and Council
 Establishment of 4 Circuit Courts –to hold
regular trial sessions in the district falling in
their divisions
 Muffassil Fouzdari Adalat abolished- collector to
act as a Magistrate and judge for petty offences
 Modified Mohammedan criminal Law
JUDICIAL PLAN OF 1793
 Cornwallis Codes covering all facets of Revenue,
civil, commercial, criminal, Police
 Separation of Judicial and Executive branch
 Mal Adalats abolished and matters assigned to
Divani Adalat
 A judge (Company’s servant) in all revenue district
(28) were appointed as Judge in Mufassil Diwani
Adalat, to act as Magistrate –Appeal to 4 provincial
Courts of Appeal
 Courts of Registrar and Munsif to try petty civil cases
 Recognition of Legal Professionals – learned in
personal laws
 Abolition of Court fees
 Collectors were made accountable before Judges of
Diwani Adalat
FINAL HIERARCHY POST CORNWALLIS
1793
Civil Criminal

 Sadar Diwani Adalat,  Sadar Nizamat

Calcutta (Governor Adalat, Calcutta,
General and Council)
(Governor General
 4 Provincial Court of
Appeal (Divisional and Council)
Level) (English  Circuit Court
Covenanted Servants) (Touring) (English
 Mufassil Diwani Adalat Covenanted Servants)
(District Level) (English
officers)  Magistrates
 Munsiffs (Rs. 50) and (Collector)/ District
Registrar (Rs. 200) Muffassil Adalat
Cognizance
FURTHER DEVELOPMENT LORD WELLESLEY
(1798 TO 1805)

Civil Criminal

Sadar Diwani Adalat (Three judges


to be appointed by Governor  Sadar Nizamat Adalat
General, Chief Judge must be a
member of Council- Cornwallis (in (Same as Sadar Adalat)
his 2nd tenure removed this
condition)  Circuit Court (Touring)
 Provincial Court of Appeal (English Covenanted
(Divisional Level) (English
Covenanted Servants) Servants)
 Mufassil Diwani Adalat (District
Level) (English officers)  Mufassil Diwani Adalat
 Sadar Amin – A Native Judge- Lord
Amherst in 1824 made it salaried
(District Level) (English
post) officers)
 Munsiffs (50) and Registrar (200) -
Lord Wellesley  Magistrates (Collector)
DUAL JUDICIAL SYSTEM
At Presidency Mufassil
 Supreme Court under Regulating  Adalat System established
Act1773, “Charter Courts” under Company regulation
 One Chief Justice and Two Puisne Mufassil Diwani Adalat at
Judges, appointed by Crown District to Appellate Court-
Sadar Diwani & Nizamat
 Jurisdiction over Calcutta town Adalat at Calcutta
and over Company’s servant,  No Jurisdiction over
British Subjects Englishmen
 English Laws, Hindu and Muslim Hindu and Muslim laws,
laws in civil and personal matters Company's regulation
between natives.  Vakils recognized by Sadar
 Only Barrister were allowed to Adalats
appear before Supreme Court  Appeal to privy Council
 No Jurisdiction over Revenue  Independent of Supreme Court
matter  No Power to issue writ
 Appeal to Privy Council
 No Supervisory Power over Sadar
LORD BENTINCK’S REFORM (1828, 1833)
 Abolition of (Provincial) Circuit Court
 Appointed Commissioners of Revenue and Circuit
 20 Divisions for whole of Bihar Bengal and Odessa
 hold session for ‘gaol delivery’ in districts and cities
at least twice an year – later on this power was
transferred to district courts giving birth to the
modern office of District and Session Judge
 Power of Sadar Amin, district and city judges
increased
 Munsif up to Rs. 300 and Sadar Amin up to Rs. 1000
Sadar Amin
 Principal Sadar Amin up to Rs. 5000
 Establishment of Sadar Diwani Adalat and
Nizamat Adalat in Allahabad (up to Banaras)
UNIFICATION UNDER INDIAN HIGH COURT
ACT 1861
 Abolition of Supreme Court and Sadar Adalats
and in its place instituted a High Court to
exercise all powers exercisable by abolished
courts
 Calcutta, Bombay and Madars
 Writ jurisdiction
 Supervisory powers over other courts falling
within their territory
 Jurisdiction
 Extraordinary –power to remove and try any suit
pending in any court
 Appellate jurisdiction
 Original civil and criminal jurisdiction jurisdiction
APPLICABLE LAWS AND JUDGES
 Ordinary civil jurisdiction
 Same law and Equity (and rule of good conscience) as applied
by Supreme Court
 Appellate jurisdiction
 Same laws and equity (and rule of good conscience) as the
court of original jurisdiction would have applied)
 Criminal jurisdiction
 IPC 1860
 Judges
 Barrister with five years of standing
 Members of civil service of not less than 10 years of
experience, 3 years as district judge
 Principal Sadar Amin for not less than 5 years
 Pleaders before Sadar Adalat for not less than 10 years
* Not less than 1/3rd have to be barristers and not less than
1/3rd were to be from Civil Services
POST 1861
 More High Courts established e.g. Allahabad High Court
(1866), Lahore High Court (1884), Patna High Court in
1918 (under a Letters Patent issued by British Crown), MP
High Court (1936) and Gauhati High Court (1948) under
Govt. of India Act 1935….
 Federal Court under Government of India Act, 1935
 Post independence, Constitution of India provided for a
linear three level hierarchical judicial system (starting
usually at the District (or sub-divisional level) with a Civil
Court headed by District and Session Judge (now called
Principal District Judge) under administrative supervision
of High Court of the state established under article 226,
227 of the Constitution of India, Supreme Court at the top
of it.
 PRIVY COUNCIL
‘THE WORLD COURT’
Curia Regis (King’s Council): an assembly of all “tenants in chief”, All-
important royal officials were selected by king from “Curis-Regis.
Out of this Curia Regis grew three different courts. They were 1) Court of
Common Pleas, which basically resolved disputes between two subjects, 2)
Court of Exchequers resolved revenue related disputes and finally 3) King’s
Bench,
The essential concern of the King’s Bench was with matters affecting the King
other than purely revenue matters which were concern of the Exchequers.
Gradually King’s Bench developed jurisdiction over the supervision of officials.

Privy Council emerged from the same curia regis to advice king on the appeal
from the ‘colonies’.
Increase of number of cases because of expansion of British empire
led to Judicial Committee Act, 1833 replacing the presiding ‘layman’
councilor judges with legal experts to hear cases.

Privy Council was not a ‘court of law’ but an advisory Board whose
duty was to report to His Majesty their opinion, His Majesty
invariably accepted their opinion.
APPEALS FROM INDIA TO PRIVY COUNCIL
 Started with Charter Acts of 1726 and 1753
 Regulating Act provided for Appeal against decision of
Supreme Court at Calcutta (later also against the decision
of Recorder’s Court Bombay and Madras)
 Act of Settlement 1781 provided for appeal against the
decision of Sadar Muffassil Adalats
 Indian High Court Act 1861 allowed appeal against the
decision of High Courts
 It was the highest court of appeal against the decision of
Indian courts till Federal Court (Enlargement of
Jurisdiction) Act 1948 made Federal Court at Delhi
replaced it.
 Appeal in Criminal cases was not a matter of right, In Civil
cases the jurisdiction was based on value of the suits, post
1937 appeals in civil cases exceeding Rs 10,000
INFLUENCE OF PRIVY COUNCIL
 A great unifying force in the judicial
administration of this country
 Laid down the foundation of the principles of
modern Hindu and Muslims (personal) laws.
 Decisions of the Privy Council on Indian laws are
still binding if not overruled by Supreme Court
 In 1934 British Government issued a White
Paper to establish a ‘Supreme Court’ to hear
appeal from Indian High Courts but it was not
taken further.
 “Symbol of Slavery”
FEDERAL COURT 1935
 It was established under Government of India Act
1935 to hear appeal on the dispute arising from the
Act
 Privy Council had appellate jurisdiction against the
decision of Federal Court.
 Original Jurisdiction(Section 204): Disputes
between Dominion and its Units
 Appellate Jurisdiction (Sec.205): On issues related
to constitutional matters (i.e. involving 1935 Act) only
if certificate is granted by High Court, in Civil and
Criminal cases from 1948 (??)
 Advisory Jurisdiction (Sec 209): on the request of
Governor-General, non binding
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