Purva_Alankrita_B001_F.Y.B.L.S.,LL.

B_Pravin_Gandhi_Collage_of_Law

How much colonial was the Judiciary in

Colonial India?

Under the guidance of Ronald George Sir

Submitted by;
Purva Alankrita
Roll-B001
F.Y.B.L.S., LL. B

Introduction

I
f we revitalize our memory regarding the colonial era what all flashes in our memory are
the hue and cry of masses because of the oppression caused by their British as well as
Britishers puppet Indian tyrant rulers, protesting leaders and commoners following them,
the unfruitful negotiation of moderates regarding financial and revenue policies and their
management with their masters, the atrocious revolts by the entire nation. Whether it is social,
political or economic grounds everywhere picture is depressing and painted with exploitations.
During my research regarding judiciary in colonial times I was very very prejudiced as to what
the outcome will be. Then I found a suggestion given by Sir Jamshedji Kanga to M C Chagla
on his enthroning the post of Chief Justice of Bombay High Court.

“You have the honour to succeed illustrious Chief Justices who have made the name of the
Bombay High Court famous in India and even in England. Those of us who know you are fully confident
that you will maintain the best traditions of British Justice and will prove a worthy successor of Chief
Justices like Sir Charles Sargent and Sir Lawrence Jenkins.”1

On further research I found what MC Chagla said on his first day in court as Chief Justice,
Chagla made a speech in which he openly declared that the Bombay High Court would do well
to maintain its old British traditions even in independent India. Another quote by himself on
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the same lines, several decades after India became independent, as he was nearing the end of
his life, he proudly remembered this promise he had made, as Chief Justice of the Bombay
High Court, to maintain the high traditions that the British had left behind: 1

[W]when I look back at the line of illustrious predecessors whom I am following, I feel
very humbled indeed. I know the great traditions they have laid down for this Court and my
one prayer to the Almighty is not that I should improve upon those traditions but that I should
succeed in keeping those traditions intact and untarnished…. We are scrapping many things
which we have inherited from the British, but there is one thing we should not scrap and that
is the administration of justice.2

However discriminatory English legal system, it actually lacked the color of exploitation. In
the book written by Abhinav Chandrachud “An independent Judiciary of Colonial India: A
history of Bombay High Court during British Raj” he mentions his findings that “When India
became independent, none of the judges of the Bombay High Court lost their jobs, except the
outgoing British Chief Justice, Sir Leonard Stone.

Oddly, at the stroke of the midnight hour on 15 August 1947, the judges who had once served
on a colonial court in British India transitioned almost effortlessly into being judges on a
decolonized court in independent India.” In his views itself as the title of the book suggest he
gives us the glimpse of how by 1899 court culture began its leniency policy. And with the
appointment of Lawrence Hugh Jenkins as the chief justice of the Bombay High Court the
leniency which Indian pleaders enjoyed even did put the judge in cross with his own people. In

1
. Letter dated 8 February 1948, from Kanga to Chagla, M.C. Chagla Papers, Nehru Memorial Museum
and Library. Others who wrote similar messages to Chagla included: Vicaji F. Taraporewala (‘The first
Indian Chief Justice will have to maintain the tradition of independence of the judiciary’); the outgoing
Chief Justice of the Bombay High Court, Sir Leonard Stone (‘I am confident that you, who will be the
first permanent Indian Chief Justice of Bombay, will uphold and maintain the great traditions of our
Court’); and T.K. Tope, later principal of the Government Law College (‘I have no doubt that the High
Court under your regime will maintain and continue its traditions of learning fearlessness and
independence of which we are justly proud’). M.C. Chagla Papers, Nehru Memorial Museum and
Library.
2
Chagla wrote in his autobiography, published in the 1970s, several decades after India became
independent: ‘The Bombay High Court had a long line of distinguished Chief Justices, and had very
high traditions as one of the premier High Courts of India. When I took office, I offered a prayer that I
would have the capacity to maintain those traditions, and that when I retired it should not be said of me
that I had in any way lowered them or had not proved worthy of them. Whether my prayer was answered
or not, it is for others to judge’ (1974: 147).
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fact, the Governor of Bombay once informed the Secretary of State that Jenkins was looked upon by
British officials with a ‘shade of suspicion…on account of his strong sympathies with Natives’.

Defence of India Act 1939

On 3 September, 1939, India was made a participant of world war by a mere ordinance passed
by the governor general of Bengal. The other day an ordinance called Defence of India
ordinance came into force and within a fortnight Defence of India Act 1939 came into being.
Here legislature was made free to pass any law in the name of safety and defence of people of
India. On 22 April, 1943, Sir M. Gwyer ruled in the Federal Court that Defence of India Rule
26 (under which Gandhi and the members of the Congress Working Committee were detained)
was invalid as it went beyond the provisions of the enabling legislation - Clause X of Section
2(2) of the Defence of India Act. On 28 April an ordinance promulgated by the Governor-
General substituted a new and retrospectively effective Clause X, thus validating orders made
under Rule 26. 2 Even judicial independence had been curtailed to a degree undreamt of by the
British jurists. The Chief Justice of Lahore High Court said:

"There appears to be persistent endeavour on the part of the Executive these days not
only to ignore and flout the legislature, but even to interfere with and curtail the powers of the
judiciary as well. The judiciary have, therefore, got to be extra vigilant to preserve and
maintain their authority and prestige intact.”3

According to the findings of SB Singh; on 17 June, 1943, nine detenus had applied for release
on the ground that the provision under which they were held (Defence of India Rule 26) was
invalid. The High Court allowed the applications whereupon the prisoners were re-arrested
within the High Court premises under Bengal Regulation III of 1818. Subsequently, the Court
issued notice on police officers, Chief Secretary and Additional Secretary, the Deputy
Commissioner, Special Branch, Calcutta and the Jail Superintendent 'to show cause why they
should not be committed for contempt and why the prisoners should not be released. Likewise,
the government was so frustrated by the judiciary that they were afraid of issuing any direct
instructions to their magistrates as to how to deal with cases, and contented themselves with
instructions to District Magistrates to instruct the Public Prosecutors to do the needful.
Rutherford, Acting Governor General of Bengal himself said that the detention laws being
followed were not appropriate and rendered the high court views to be right. He turned down

3
Central Legislative Assembly Debates, 15 March, 1
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a proposal that the Government should review some of its provisions. 8 Later on Ordinance III

of 1944 was promulgated as a replacement for Defence of India Rule 26.

Culture within the court

The appointment procedure being followed was discriminatory. Because to become a barrister
one needed an approval from bar of London which was next to impossible for an average Indian
student to acquire. Moreover, there prevailed a quota system in in courts. Out of total officials
one third were supposed to be judge, one third barristers and one third pleaders. Also, there
was a rule as to the civil services and barristers could only be the British subjects. Likewise, it
was also that a barrister could only become a judge. So, there was little chance of an Indian to
become a judge. The only thing open to them was of becoming a pleader, advocate or an
attorney. And a barrister enjoyed much more privilege. For becoming the former three a law
degree was not required. Only one has to qualify in two tests. Two tests were: one a COMMON
LAW TEST and another one a ROMAN LAW TEST.

However, they were quite time consuming and did not prove any significance. Both
Gandhiji and a British judge opined they were just useless and did not make any good a lawyer.
Indian lawyers complained that they were initially discriminated against while practising at the
Bombay Bar. However, all this changed when Lawrence Jenkins became the Chief Justice of
the Bombay High Court in the early twentieth century. The result of Jenkins’ Chief Justiceship,
according to another Indian lawyer, was ‘a slow but continuous process of the Indianisation of
the Original Side Bar.’ Jenkins was also responsible for founding the Orient Club, a club where
both Europeans and Indians could mix with one another—the first of its kind.

Around 1863, only a year after the High Court was established at Bombay, an Indian
subordinate court judge, Janardhan Wassoodew, was temporarily promoted to the High Court
as an ‘acting’ judge. Despite being the first Indian judge to ever serve on the Bombay High
Court, remarkably little is known about Wassoodew. Not even why he was not appointed as a
puisne judge. Then in the midst of Ripon’s Viceroyalty, in 1882, for the first time in the history
of colonial India, an Indian judge, Romesh Chunder Mitter, was appointed to act as Chief
Justice of the Calcutta High Court, when Chief Justice Sir Richard Garth went on leave. In
1883, the Law Member of Ripon’s Executive Council, Sir Courtenay Ilbert, introduced a bill
in the Legislative Council of British India, which came to be called the ‘Ilbert Bill’, designed
to amend the Criminal Procedure Code. The Bill essentially sought to make it possible for
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Indians to exercise criminal jurisdiction over European British subjects in the interiors of
British India.

In a speech delivered at the Government Law School in 1911, the first Parsi judge of the
Bombay High Court, Dinsha Davar, advised students to work hard because Indians were
recognized as excellent lawyers by the British administration, and that the:

‘Highest position in the judicial administration of this country’, namely, a seat on the
Bombay High Court, ‘is always open to an Indian’. 4

A few years later, in 1913, the Governor of Bombay wrote in a newspaper that though ‘the
European element is in a majority’ at the High Court, ‘the administration of law in the lower
stages is predominantly Indian’. This hints at the fact that the inclusion of Indians in the
judiciary was increasingly becoming a priority. The number of Indian lawyers far exceeded the
number of British barristers at the Bombay bar in the early twentieth century—in 1911, out of
250 Advocates, only sixteen were British barristers, while the rest were Indian lawyers. With
the end of World War I, there was a sudden rise in suits filed on the Original Side of the Bombay
High Court, which arose out of speculation in piece goods during the war. Until then, the
Bombay High Court had almost always had only seven judges serving on it at any given point
in time, though it was permitted to have as many as fifteen judges in addition to the Chief
Justice. Of the seven judges, four sat on the Appellate Side, and three on the Original Side.
Two of these seven judges were Indians. As a consequence of the court’s rising Original Side
docket, an additional seat was added to the court in 1925 when the first Indian member of the
Indian Civil Service to become a High Court judge, Govind Madgaonkar, was elevated to the
Bombay High Court, despite the fact that a Hindu Pleader-judge was still serving on the court.
Now, around a third of the court’s judges were Indians. Thus, at the end of Chief Justice Basil
Scott’s term in 1926, two Hindu judges and one Muslim judge were serving on the court
simultaneously. In 1929, the court’s strength was increased again, from eight to ten seats. The
number of Indian judges rose further during Chief Justice Beaumont’s term in the 1930s, and
by the end of it, in 1943, two-thirds of the court’s judges were Indians. The High Court at Patna
during the Chief Justiceship of Courtney Terrell had a majority of Indian judges as well. We
have already seen that for most of the British Raj, High Court judges in India were paid the

4
Davar (1911: 36).
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same compensation, regardless of whether they were Indians or Britishers. There also existed
some Indian favourites of European judges just as M. Setalvad for J. Beaumont.

Some court decided cases

In the words of Gandhiji during his trial the regard with which he held the court and the judges
despite his evident rhetoric is non rebuttable. Same was the case with the judges not only once
but each time Gandhiji entered the court room. Though initial story does not seem to be too
promising but gradually cases like Dadaji Bhikaji vs Rukhmabai on 21 September, 1885, were
also decided. Rukmabai was a child marriage case where the girl refuges to cohabit with her
husband on turning 16. There were several judgements given some in favour of Rukmabai and
others in against. But even the against ones were in consonance to the design of the society
prevailing. There were also various laws regarding widow remarriage and Sati was passed and
without a doubt, rulings would have been in consonance.

Conclusion
In the colonial era, the court had been responsible for sentencing many of India’s most
prominent nationalist leaders to prison. Yet, none of the court’s judges were penalized, or
removed from office, in independent India. Instead, colonial-era lawyers and judges continued
to command respect in India’s legal profession. The Chandrachud book has made the case that
the survival of colonial courts like the Bombay High Court in independent India can, at least
partially, be explained by looking at how those courts functioned and evolved under the British
Raj. Colonial courts were perceived to be legitimate, and to not be oppressive colonial
institutions of injustice, especially by the stakeholders of independent India. British Civilian
judge, Eric Weston, not merely did he continue as a judge of the Bombay High Court after
Indian independence in 1947, but in 1950, he was even appointed to the Punjab High Court as
its Chief Justice, despite the fact that he was a member of the Indian Civil Service. MC Chagla,
a judge who had been appointed to the Bombay High Court during the British Raj in 1942
under Chief Justice Beaumont. According to the book in the nineteenth century, Indian
solicitors rose in prominence on the Original Side of the court, perhaps as a result of a market-
driven process whereby Indian litigants preferred to retain Indian solicitors, with whom they
bore a cultural relevance the Chief Justice of the court was always a British. Yet, cases which
most often brought individuals into direct conflict with the colonial government—were often
decided against the government and in favour of the Indian accused. There had been instances
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of a British bench decision in favour of Indian subjects and an Indian bench decision in favour
of British subjects.

Bibliography
1. An Independent, Colonial Judiciary A History of the Bombay High Court during the
British Raj, 1862–1947 by ABHINAV CHANDRACHUD, Published in India by
Oxford University Press.
2. Dadaji Bhikaji vs Rukhmabai on 21 September, 1885
3. CLASH BETWEEN INDIAN JUDICIARY AND EXECUTIVE DURING SECOND
WORLD WAR Author(s): S.B. SINGH Source: Proceedings of the Indian History
Congress, 1993, Vol. 54 (1993), pp. 451-457, Published by: Indian History Congress
4. Central Legislative Assembly Debates, 15 March, 1.
5. Davar (1911: 36).
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