MODULE I

THE CHARTER OF 1661

The Company spent 60 years of trade in India and facing of problem control
over that the Englishmen who were not the workers of company. But they were
trading in Indian Territory and were residing in British colonies.

Therefore, the company put on the demand before the British King to make
such legal instrument for controlling their colonies and its institutions and
penalize to that person who were interloper (law breakers).

The Company’s trade was growing continuously in India. Apart from this
company was taking interest in political conflicts and took benefits of internal
rebels and splitting.

The British King Charles II realized the weak condition of Indian rulers. The
income of the Company was very beneficial to British fund and it was become
necessary to give extra facilities. The growth of income was depended on the
legal adjudication system.

With view of all things the Charter of 1661 had been issued on third April,
1661. So, that it was called the judicial Charter. The Charter of 1600 C.E. had
become a milestone and it was first step to establish the Judicial Court in
British India. This Charter entrusted law-making power into the Company.
During the year 1661 Charles II issued a new charter which increased the
authority of the Company and that it was allowed "to keep away and exercise
power and command over its fortresses" in India.
By the Charter of 1661, the company was empowered to appoint Governor
and Council to decide civil and criminal cases of all persons of the
company.
The Governor and his Council were given general judicial authority "to judge
all persons belonging to the said Governor and Company or that shall live under
them in all cases, whether civil or criminal according to the laws of this
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, 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.
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 authorized 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, 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.
THE MAIN FEATURE OF CHARTER OF 1661 AD
1. Right to Administration. –
 The Charter empowered to the Company to administrate over the
Fort, Colonies and cities. If it is expedient to maintain the
administration could fought the war with Indian local King and could
make the peace treaty.
 Company was authorized for that if any person who interferes in the
trade monopoly of Company be sent to Britain for starting litigation.
2. Appointment of Officer:
 Company was authorized to appoint the Governor and officers for
judicial administration over all subjects as well as workers of
Company.
 Every person equally punished for the breach of law and orders of
Company.
3. Security.-
 Company was enabled by this Charter that it could keep the armed
forces, weapons, and fighters ship for itself security.
 Company could keep the commander and other officers who were
suitable for Governor and his Council and they were convenience for
trading purposes.
4. Judicial Administration.-
Following rights were given to Governor and his Council: That they could
adjudicate and execute accordance with the English law in cases which is
there under:
a) Cases concerned with company,
b) Matters within the limits of Company, and
 c) All the cases of civil and criminal nature.
5. The direction was given by this Charter that the governor and his Council
will apply the English law in all cases. Those Indian who was residing in
their colonies the also will be governed by this English law. It was very
arbitrary compliance of English law and orders of upon the Indians. That
was very undesirable.
6. Punishment. –
 The Charter of 1600 AD provided very simple punishment. But the
Charter of 1661 enabled to Governor and his Council to penalize with
the punishment of hanging in the heinous crime.
 Wherever the Governor and his Council was not constituted the
accused was sent for nearby Governor and his Council or sent to
Britain for trial.
Q-2 RECORDERS COURT

1688 - MADRAS MAYORS COURT –

At that time in England there they got London Corporation and they got London
mayors court, as per the British Law that time Municipal corporations enjoyed the
judicial powers also. Company issued the charter and started Madras Corporation
utilizing the powers given by British Crown. In the year 1687 company established
Madras Corporation and Mayors 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 the tax
and company faced problems and difficulties to collect the 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 Indian population so it will become easy for the Company
officials to collect the tax. The corporation came into existence on September, 29, 1968
which consisted of a Mayor, 12 Aldermen and from 60 to 120 Burgesses.

This court was known as Mayors Court.

The Mayors court was authorized to give following punishments. Fine,

amercement, imprisonment and corporal punishment. The convicted persons got right
to file appeal at the Admiralty court. As Mayor and Aldermen 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
Aldermen. 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 first 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
depend on the judges 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
as Judge Advocate where appeals from the Mayors Court were went. But company
ignored this fact. After the death of Sir Biggs no Recorder was appointed. Like this in
the period of 1686 to 1726 in Madras city 3 Courts functioned.
Mayors Court, Choultry Court and Admiralty Court. After 1704, Governor and Council
heard the appeals from the Mayors court as Admiralty court stop to function. In this
period also the criminals were so long kept in jails that even people forgot the crimes.
Justice system was very slow and no one bothered.
The capital punishment was given by Hanging.
Robbery was punished with Death.
Witchcraft was punished with fine and pillory.
The entire area under Bengal,
Bihar and Orissa (now Odisha)
under the new plan was
divided into multiple
‘District’, which now became
the unit for revenue collection
and
each district was to be headed
by a Collector who was to be
an English servant who was
appointed as the In-charge of
revenue collection in his
district.
Revenue boards which were
earlier setup at Murshidabad
and Patna were now abolished
and a Board of Revenue at
Calcutta came up, which sat
twice a month in order to
dispose
of the grievances of the people
at a steady pace. The treasury
of the company was also
now shifted to Calcutta.
Amid all these developments
the entire judicial setup was
completely restructured to now
consist of a Mofussil Diwani
Adalat, Mofussil
Fauzdari/Nizamat Adalat,
Sadar Diwani
Adalat and Sadar
Fauzdari/Nizamat Adalat
Q-3

The entire area under Bengal,

Bihar and Orissa (now Odisha)
under the new plan was
divided into multiple
‘District’, which now became
the unit for revenue collection
and
each district was to be headed
by a Collector who was to be
an English servant who was
appointed as the In-charge of
revenue collection in his
district.
Revenue boards which were
earlier setup at Murshidabad
and Patna were now abolished
and a Board of Revenue at
Calcutta came up, which sat
twice a month in order to
dispose
of the grievances of the people
at a steady pace. The treasury
of the company was also
now shifted to Calcutta.
Amid all these developments
the entire judicial setup was
completely restructured to now
consist of a Mofussil Diwani
Adalat, Mofussil
Fauzdari/Nizamat Adalat,
Sadar Diwani
Adalat and Sadar
Fauzdari/Nizamat Adalat
The entire area under Bengal,
Bihar and Orissa (now Odisha)
under the new plan was
divided into multiple
‘District’, which now became
the unit for revenue collection
and
each district was to be headed
by a Collector who was to be
an English servant who was
appointed as the In-charge of
revenue collection in his
district.
Revenue boards which were
earlier setup at Murshidabad
and Patna were now abolished
and a Board of Revenue at
Calcutta came up, which sat
twice a month in order to
dispose
of the grievances of the people
at a steady pace. The treasury
of the company was also
now shifted to Calcutta.
Amid all these developments
the entire judicial setup was
completely restructured to now
consist of a Mofussil Diwani
Adalat, Mofussil
Fauzdari/Nizamat Adalat,
Sadar Diwani
Adalat and Sadar
Fauzdari/Nizamat Adalat
The entire area under Bengal,
Bihar and Orissa (now Odisha)
under the new plan was
divided into multiple
‘District’, which now became
the unit for revenue collection
and
each district was to be headed
by a Collector who was to be
an English servant who was
appointed as the In-charge of
revenue collection in his
district.
Revenue boards which were
earlier setup at Murshidabad
and Patna were now abolished
and a Board of Revenue at
Calcutta came up, which sat
twice a month in order to
dispose
of the grievances of the people
at a steady pace. The treasury
of the company was also
now shifted to Calcutta.
Amid all these developments
the entire judicial setup was
completely restructured to now
consist of a Mofussil Diwani
Adalat, Mofussil
Fauzdari/Nizamat Adalat,
Sadar Diwani
Adalat and Sadar
Fauzdari/Nizamat Adalat
Q-4

CABINET MISSION PLAN Impact & Purpose On 22nd January 1946, the decision to send
Cabinet Mission was taken and on 19th February 1946, the British PM C.R Attlee Government
announced in the House of Lords about the mission and the plan to quit India. On 22nd January
1946, the decision to send Cabinet Mission was taken and on 19th February 1946, the British PM
C.R Attlee Government announced in the House of Lords about the mission and the plan to quit
India. A high-powered mission of three British Cabinet members- Lord Pethick-Lawrence, the
Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V.
Alexander, the First Lord of the Admiralty reached Delhi on 24th March 1946. Proposals of
Mission The Mission proposed to secure an agreement on the method of framing the Constitution
to the discussions with elected representatives of British India and the Indian states on Preceding
and preparing. Proposes to set up a constitution body Proposes to set up an Executive Council
with the support of the main Indian parties.

Purpose of the Mission To resolve political deadlock between the Indian National Congress and
the All-India Muslim League at their stance to prevent a communal dispute whether British India
would be better-off unified or divided. The Congress party wanted to obtain a strong central
government with more powers as compared to state governments. All India Muslim League
under Jinnah wanted to keep India united but with political safeguards provided to Muslims such
as ‘guarantee’ of ‘parity’ in the legislatures. On 16 May 1946, this plan was announced and
preceded by the Simla Conference of 1945. Recommendations of Mission The unity of India had
to be retained. It proposed a very loose union of all the Indian territories under a Centre that
would control merely defence, the Foreign Affairs and the Communication. The Union would
have the powers necessary to raise the finances to manage these subjects. All subjects other than
Union subjects and residuary power would vest in the provinces of British India. The Princely
Legislatures would then elect a Constituent Assembly or a Constitution making body with each
province being allotted a specified number of seats proportionate to its population. The proposed
Constituent Assembly was to consist of 292 members from British India and 93 from Indian
States. The Mission proposed an immediate formation of Interim Government at the centre,
enjoying the support of major political parties and with the Indians holding all the portfolios.
Why did the Cabinet Mission fail? The main reasons for the failure of the Cabinet Mission are
given below: The Congress Party wanted a strong Centre with minimum powers for the
provinces. The Muslim League wanted strong political safeguards for the Muslims like parity in
the legislatures. Since both parties had many ideological differences and could not find common
ground, the mission came up with its own set of proposals in May 1946. The Dominion of India
would be granted independence, without any partition. The provinces would be divided into
three groups/sections: 1. Group A: Madras, Central Provinces, UP, Bihar, Bombay and Orissa 2.
Group B: Punjab, Sindh, NWFP and Balochistan 3. Group C: Bengal and Assam The Muslim-
majority provinces were grouped into two groups and the remaining Hindumajority in one of the
groups. The central government at Delhi would have powers over the defence, foreign affairs,
communications and currency. The rest of the powers would be vested with the provinces. A
constituent assembly would be set up for writing a new constitution for the country. An interim
government would be established until a new government was formed on the basis of the
constitution written by the constituent assembly. The Congress was not keen on the idea of the
groupings of provinces on the basis of Hindu-Muslim majority and vying for control at the
Centre. It was also against the idea of a weak Centre. The Muslim League did not want any
changes to the proposals. Since the plan was not accepted, a new plan was proposed by the
mission in June 1946. This plan proposed the division of India into a Hindu-majority India and a
Muslim-majority India later to be renamed Pakistan. A list of princely states was also made that
could either join the union or remain independent. The Congress Party under Jawaharlal Nehru
did not accept the second plan. Instead, it agreed to be part of the constituent assembly. The
Viceroy invited 14 men to form the interim government. There were 5 from the Congress, 5 from
the League, 1 member each representing the Sikh, Parsee, Indian Christian and scheduled caste
communities. Both the League and the Congress were given the right to nominate 5 members to
the Viceroy’s interim council. The Congress nominated ZakirHussain as one of the members to
which the League objected saying only it represented Indian Muslims and no other party. The
Muslim League did not take part in it. The Congress leaders entered the viceroy’s interim council
and thus Nehru headed the interim government. The new government began the task of framing a
constitution for the country. Congress-led governments were formed in most provinces including
the NWFP. In Bengal and Sind, the League formed the governments. Jinnah and the League
objected to the new central government. He geared to agitate for Pakistan and urged Muslims to
demand Pakistan by any means. He called for ‘Direct Action Day’ on 16 August 1946. This call
led to widespread communal rioting in the country with 5000 people being killed on the first day
in Calcutta. Communal riots spread to many other areas notably Noakhali and Bihar. There was a
call for the partitioning of the country on account of the riots. SardarVallabhbhai Patel was one
of the first Congress leaders to acknowledge the inevitability of the partition as a means to stop
the brutal violence. Conclusion The main objective of Cabinet Mission was to find out ways and
means for the peaceful transfer of power in India, to suggest measures for the formation of a
Constitution making machinery and also to set up the Interim Government.

Q-5

I. Hierarchy of courts
The Indian judiciary is divided into several levels in order to decentralize and
address matters at the grassroots levels. The basic structure is as follows:

1. Supreme Court: It is the Apex court of the country and was constituted on 28th
January 1950. It is the highest court of appeal and enjoys both original suits and
appeals of High Court judgments. The Supreme Court is comprised of the Chief
Justice of India and 25 other judges. Articles 124-147 of the Constitution of India lay
down the authority of the Supreme Court.

2. High Courts: High Courts are the highest judicial body at the State level. Article
214 lays down the authority of High Courts. There are 25 High Courts in India. High
Courts exercise civil or criminal jurisdiction only if the subordinate courts in the State
are not competent to try the matters. High Courts may even take appeals from lower
courts. High Court judges are appointed by the President of India upon consultation
with the Chief Justice of India, the Chief Justice of the High Court and the Governor
of the State.

3. District Courts: District Courts are established by the State Governments of

India for every district or group of districts based on the caseload and population
density. District Courts are under the direct administration of High Courts and are
bound by High Court judgments. Every district generally has two kinds of courts:

a. Civil Courts

b. Criminal Courts

District Courts are presided over by District Judges. Additional District Judges and
Assistant District Judges may be appointed based on the caseload. Appeals against
District Court judgments lie in the High Court.

4. Lok Adalats/Village Courts: these are subordinate courts at the village level

which provide a system for alternate dispute resolution in villages.

5. Tribunals: the Constitution provides the government with the power to set up

special Tribunals for the administration of specific matters such as tax cases, land
cases, consumer cases etc.
Appellate jurisdiction refers to the authority of a court to rehear/review a case
decided by a lower court. In India, appellate jurisdiction is vested in both the
Supreme Court and High Courts. They may either overrule or uphold the judgments
of lower courts.

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II. Civil Courts

Civil courts provide remedies for civil wrongs committed by individuals against other
individuals and entities. Civil matters range from property disputes to breaches of
contract to divorce cases. Civil courts follow the principle of ubi jus ibi remedium (for
every wrong the law provides remedy). Unless expressly or impliedly barred by any
other law in force, civil courts have the jurisdiction to try all suits of civil nature.

The Code of Civil Procedure (CPC) 1908 governs the procedures to be followed

by civil courts in administering civil cases in India.

As a matter of fact, every suit must be instituted before the court of lowest
jurisdiction (the Munsif court). Upon institution, it is decided whether the respective
court has competence to try the case.

The Civil Court hierarchy in districts is as follows:

1. District Court: The court of district judges is the highest civil court in a district. It
exercises both judicial and administrative functions. The District Judge combines the
powers of trying both civil and criminal cases. Hence, they are designated the
District and Sessions Judge.

2. Sub-judge Court: if the value of the subject-matter of the suit is worth more than
Rs. 1 lakh, the Sub-judge and Additional Sub-judge courts may try the suit.

3. Additional Sub-judge Court: this is created based on the case-load.

4. Munsif Court: if the value of the subject-matter of the suit is worth Rs. 1 lakh or
below, the Munsif court is competent to try the suit.

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III. Criminal Courts

The power of the various criminal courts is mentioned under the Code of Criminal
Procedure (CrPC).

According to Section 26 of the CrPC, any offence mentioned under the Indian Penal
Code may be tried by:
1. High Courts
2. Courts of Session
3. Any other Court as specified in the First Schedule of the Code of Criminal
Procedure

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IV. Judicial Authority of the Supreme Court

Articles 141 and 144 of the Constitution uphold the authority and jurisdiction given to
the Supreme Court to make decisions and uphold the law of the land. These Articles
give animal welfare judgments their binding force, ensuring that they are
appropriately enforced and implemented by the respective authorities. They allow for
the Supreme Court to issue directives and fill gaps in law until the legislature steps
in.

Article 141
Article 141 lays down that “the law declared by the Supreme Court shall be binding
on all courts within the territory of India.”

This Article embodies the English principle of stare decisis which holds that law must
be definite, fixed, known and consistent. Since the Supreme Court is the Apex court
of the country and all courts and tribunals are bound by its decisions, Supreme
Court judgments become a source of law in themselves.

The binding part is the operative part of the judgment or the ratio decidendi (“reason
of decision) determined after reading the judgment in its entirety. It is the general
principle derived from a judgment that is deduced by courts when deciding the case
based on facts. Mere observations, or the obiter dicta (“said by the way”), on the
other hand, refer to those parts of judicial decisions which are general observations
of the judge in the case. Obiter dicta have only persuasive value, not binding
authority.

Article 144
Article 144 lays down that “all authorities, civil and judicial, in the territory of India
shall act in aid of the Supreme Court.”

The Supreme Court has the power to hold any authority in contempt if they
disregard or disobey the order of the court.

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V. Binding value of Judicial Precedents

Since India is a common law country, previously decided judgments of higher courts
such as the Supreme Court and High Courts are binding on subordinate and lower
 courts, i.e., subordinate courts are bound to follow the decisions and hold them to be
the law. Precedents are an important source of law in India. The binding value of
different courts in the court hierarchy is as follows:

1. Decisions of the Supreme Court are binding on all courts in India. The

Supreme Court is not bound by decisions of High Courts, lower courts or other
judicial authorities.
2. Decisions of a High Court are binding on all inferior courts (as long as they
don’t conflict with Supreme Court decisions) within its jurisdiction but holds only
persuasive value for courts outside its jurisdiction. In case the decisions of the High
Court conflict with the decisions of a similar bench, the matter is referred to a higher
bench.
3. Lower courts are bound by decisions of higher courts in their own states.
Decisions by High Courts of other states hold only persuasive value.

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VI. Public Interest Litigation (PIL)

Public Interest Litigation (PIL) is an effective tool to advance social justice in India.
Borrowed from the American tradition of Social Action Litigation, PILs have been
widely used in India to advance the causes of disadvantaged and marginalized
communities. The general rule to bring a cause of action in court is the rule of locus
standi i.e. the party must possess sufficient connection or suffer particular harm in
order to be a party to the case. In PILs, this rule is relaxed considerably as any
citizen of India may bring an action in court to reduce a wrong if there has been a
breach of Fundamental Rights. PILs are an effective tool in the furtherance of animal
protection by allowing animal rights groups and activists to file PILs at the Supreme
Court and give a voice to the voiceless.

Q-6

Lord William Bentinck was known as the first official governor-general of British India who
served India between 1828 to 1835. In 1828, Lord William Bentinck became the governor of
Bengal, and as per the Charter of 1833, he became the official governor of British India. Among
the other officers, the contribution of Lord William Bentinck was known to be most valuable.

He was known as the man of peace, discipline, and economy and he was a liberal reformist who
took an active part in the reform moments in England, and he wanted to make some important
reforms in India too. His immediate directive was to recover India from its financial crisis or
somewhat financial difficulties, and he soon succeeded in revering the deficit in a surplus
amount due to which the deteriorating condition of the East India Company was again balanced.
He was a great reformer and was considered the first governor that had sympathy towards the
Indians, so he introduced several reforms of great importance in various fields such as
administrative reforms, judicial reforms, educational reforms, financial reforms, and social
reforms. As per the title of the article, I will focus only on the judicial reforms of Lord William
Bentinck.

Since Lord Cornwallis divided the courts into Provincial courts and Session courts, but these
courts were abolished by Lord William Bentinck by passing a regulation in 1829. He realized
some defects in administrative justice of civil as well as criminal cases, and both were to be
decided in the Provincial Court, and thus many times prisoners suffered in jails for a long time
without even the trial proceeding.

All the judicial procedures must be followed by the English courts, that often results in delays
and uncertainties, due to the delay in the process of justice, Lord William Bentick took this step
forward.

Then after the Commissioners of Revenue and Circuit were appointed in the place of Provincial
Courts, and for the same, the Bengal Presidency was divided into twenty divisions that were
under the control of separate governors. The commissioner has headed the small territories to
enable him to visit frequently different places that come under his/her jurisdiction. At Allahabad,
separate Sadar Nizamat Adalat and Diwani were established to hear the criminal cases and for
the revenue cases, the commissioners directly worked under the Board of Revenue. The
appointment of Muslim Law Officers was optional under it.

Another important judicial reform was that the District Magistrate was empowered to punish the
victim for up to two years. As we studied in the time of Lord Cornwallis, there was the
decentralization of the powers of the District Magistrate, but Lord Bentinck examined a different
way and made that judicial reform again give that power to the District Magistrate.

Usually, at that time both in the High court and lower courts the Persian language was necessary
to be used, but Lord Bentinck ordered to use the vernacular language instead of the Persian
language in the courts. The Sadar Amins or the Principal Sadar Amins were authorized under the
Magistrate to investigate any of the criminal cases but can’t make any decision over the case, so
the expected results of speedy trial of criminal cases were not forthcoming.

Since the Governor-General-in-council was authorized to empower any Zila and City Judge to
try the major commitments in their jurisdictions, and hence it gave rise to the creation of District
and Sessions Courts in each district which decided the civil as well as criminal cases.
One of the most important reforms took place during the tenure of Lord William Bentinck was
the abolition of Sati. It was a kind of an evil, inhuman rite according to which a Hindu widow
was forced to burn herself in the burning pyre of her husband. Later it was declared as culpable
homicide and a punishable offense, any kind of assistance for this offense was also punishable.

Lord Bentinck also took an initiative towards the abolition of unwanted children’s murder,
especially in the case of the girl child. In that era, there were some oaths and rituals that believe
in murdering people or any animals in the name of goddess Kali, the same custom also banned
by Lord Bentinck. But as we know India is a country of custom and rituals, so at many places,
these rituals were still carried. As like giving an open decision in every sector, Lord William
Bentinck adopted an unprejudiced policy against the Indian Press. He gave a free hand to the
Indian Press, or we can say that he allowed its free functioning with the thinking that he didn’t
permit the government officials to misemploy the power of the Press against the government.

Lord Bentinck disliked the old policy of Lord Cornwallis because he excluded Indians from
judicial officers and, as per the suggestion of Directors, Indians were appointed in the civil and
criminal courts.

The power of Sadar Amins, Principal Sadar Amins, and other Indian Law officers was increased
up to the passing of the sentence. Since Indians began to be appointed at the judicial level,
Indians became more confident and loyal towards Lord William Bentinck.

In 1831 the power of Indian judges was extended more as the claim amount or pecuniary
jurisdiction of the Munsiffs was increased to Rs. 300, also the Sadar Amins were authorized to
decide on any suit that was referred by Zila or City Judge, but that must be up to the valuation of
Rs. 1000. Principal Sadar Amins were also started to decide original suits that come under the
Courts of Registrars up to Rs. 5000. In 1831 all the functions of the Provincial Courts of Appeal
were transferred to the District Diwani Adalat, so its jurisdiction became unlimited.

Regulation 8 of 1833 gave the power to the Governor-General that he can appoint any number
of additional judges in a district on the recommendation of Sadar Diwani Adalat. The rent-
related suits were transferred under the jurisdiction of the Collectors of Revenue, and they were
further empowered to summarize the same. The fact held that over judging these cases it will be
further easier to collect the revenue.

The Charter Act of 1833 was considered one of the most important charters at that time as it
played an important role in shaping the future course of the legislative and judicial developments
in India. The charter also gave the territorial possession to the East India Company for the next
twenty years and to legislate with general powers it established and All India Legislature. The
Governor-General of Bengal was declared as the first Governor-General of India who was Lord
William Bentinck. Somehow, the charter tried to provide an opportunity towards the
centralization of law by adding a law minister to the Governor-General’s Council to preside over
the Law Commission, by regulating the Provinces, and also by abolishing the right to legislate.

The Act of Settlement was an Amending Act of 1781, which was passed by British
Parliament on 5th July 1781 to remove the defects of the Regulating Act 1773. It is
also known as Declaratory Act, 1781.

Q-7

The Aim of the Act

The main objectives of the enactment of this Act were :

To remove ambiguity regarding the few provisions of the Regulating Act and the
Charter which had created the division between the court and the government.

To support the lawful government of Bengal, Bihar, and Orissa, so that revenue
could be collected smoothly.

To maintain and protect the laws and customs of the native people.

Salient features of Act of settlement :

Change in the powers of the Supreme Court : The servants of the company which
earlier came within the jurisdiction of the Supreme Court were now exempted from
the jurisdiction of the Supreme Court.

Jurisdiction in Revenue Matter : Expressly set the limit of jurisdiction of supreme

court in revenue matters.

Exemption of Jamindar and land holder : Supreme court would not have
jurisdiction of any person be position of land holder, farmer, employee of the
company.
Recognition of the provisional court of the company

Recognition of Sadar Diwani Adalat as chief court. The Act provides that Sadar
Diwani Adalat will be court of appeal to hear appeals from company courts in civil
cases

Conclusion :
Still, the Act failed to give a vibrant impact and to remove all the flaws of the 
Regulating Act of 1773. These to enactment brought many great changes to the
system of administration and justice.

Q-8

 The Supreme Court of India is the highest judicial court and the final

court of appeal under the Constitution of India, the highest constitutional
court, with the power of judicial review.
 India is a federal State and has a single and unified judicial
system with three tier structure, i.e. Supreme Court, High Courts and
Subordinate Courts.

Brief History of the Supreme Court of India

 The promulgation of Regulating Act of 1773 established the Supreme
Court of Judicature at Calcutta as a Court of Record, with full power &
authority.
 It was established to hear and determine all complaints for any crimes and
also to entertain, hear and determine any suits or actions in Bengal, Bihar and
Orissa.
 The Supreme Courts at Madras and Bombay were established by King
George – III in 1800 and 1823 respectively.
 The India High Courts Act 1861 created High Courts for various provinces
and abolished Supreme Courts at Calcutta, Madras and Bombay and also
the Sadar Adalats in Presidency towns.
 These High Courts had the distinction of being the highest Courts for all
cases till the creation of Federal Court of India under the Government of
India Act 1935.
 The Federal Court had jurisdiction to solve disputes between provinces and
federal states and hear appeal against Judgements from High Courts.
 After India attained independence in 1947, the Constitution of India came
into being on 26 January 1950. The Supreme Court of India also came into
existence and its first sitting was held on 28 January 1950.
 The law declared by the Supreme Court is binding on all Courts within the
territory of India.
 It has the power of judicial review – to strike down the legislative and
executive action contrary to the provisions and the scheme of the constitution,
the distribution of power between Union and States or inimical to the
fundamental rights guaranteed by the Constitution.

Constitutional Provisions
 The Indian constitution provides for a provision of Supreme Court under Part
V (The Union) and Chapter 6 (The Union Judiciary).
 Articles 124 to 147 in Part V of the Constitution deal with the organisation,
independence, jurisdiction, powers and procedures of the Supreme Court.
 The Indian constitution under Article 124(1) states that there shall be a
Supreme Court of India constituting of a Chief Justice of India (CJI) and, until
Parliament by law prescribes a larger number, of not more than seven other
Judges.
 The Jurisdiction of the Supreme Court of India can broadly be categorised
into original jurisdiction, appellate jurisdiction and advisory
jurisdiction. However, there are other multiple powers of the Supreme Court.

Appointment of Judges
 The judges of the Supreme Court are appointed by the President. The
CJI is appointed by the President after consultation with such judges of the
Supreme Court and high courts as he deems necessary.
 The other judges are appointed by the President after consultation with the
CJI and such other judges of the Supreme Court and the high courts as he
deems necessary. The consultation with the chief justice is obligatory in the
case of appointment of a judge other than Chief justice.
 Appointment of Chief Justice From 1950 to 1973: The practice has been
to appoint the senior most judge of the Supreme Court as the chief justice of
India. This established convention was violated in 1973 when A N Ray was
appointed as the Chief Justice of India by superseding three senior
judges. Again in 1977, M U Beg was appointed as the chief justice of India by
 superseding the then senior-most judge.

o This discretion of the government was curtailed by the Supreme

Court in the Second Judges Case (1993), in which the Supreme Court
ruled that the senior most judge of the Supreme Court should alone be
appointed to the office of the Chief Justice of India.

Qualifications of Judges
 A person to be appointed as a judge of the Supreme Court should have the
following qualifications:

o He should be a citizen of India.

o He should have been a judge of a High Court (or high courts in
succession) for five years; or
o He should have been an advocate of a High Court (or High Courts in
succession) for ten years; or
o He should be a distinguished jurist in the opinion of the
president.
 The Constitution has not prescribed a minimum age for appointment as a
judge of the Supreme Court.

Tenure of Judges
 The Constitution has not fixed the tenure of a judge of the Supreme Court.
However, it makes the following three provisions in this regard:

o He holds office until he attains the age of 65 years. Any question

regarding his age is to be determined by such authority and in such
manner as provided by Parliament.
o He can resign his office by writing to the President.
o He can be removed from his office by the President on the
recommendation of the Parliament.

Removal of Judges
 A judge of the Supreme Court can be removed from his office by an order
of the President. The President can issue the removal order only after an
address by Parliament has been presented to him in the same session for such
removal.
 The address must be supported by a special majority of each House of
Parliament (ie, a majority of the total membership of that House and a majority
of not less than two-thirds of the members of that House present and voting).
The grounds of removal are two—proved misbehaviour or incapacity.
 The Judges Enquiry Act (1968) regulates the procedure relating to the
removal of a judge of the Supreme Court by the process of impeachment:

o No judge of the Supreme Court has been impeached so far.

Impeachment motions of Justice V Ramaswami (1991–1993) and the
Justice Dipak Misra (2017-18) were defeated in the Parliament.

Salaries and Allowances

 The salaries, allowances, privileges, leave and pension of the judges of the
Supreme Court are determined from time to time by the Parliament. They
cannot be varied to their disadvantage after their appointment except during a
financial emergency.

Acting Chief Justice

 The President can appoint a judge of the Supreme Court as an acting Chief
Justice of India when:

o the office of Chief Justice of India is vacant; or

o the Chief Justice of India is temporarily absent; or
o the Chief Justice of India is unable to perform the duties of his office.

Independence of Supreme Court

 The Supreme Court is a Federal court, the highest court of appeal, the
guarantor of the fundamental rights of the citizens and guardian of the
Constitution.

o Therefore, its independence becomes very essential for the effective

discharge of the duties assigned to it. It should be free from the
encroachments, pressures and interferences of the executive (council of
ministers) and the Legislature (Parliament). It should be allowed to do
justice without fear or favour.
 The Constitution has made the following provisions to safeguard and
ensure the independent and impartial functioning of the Supreme Court:
 o Mode of appointment
o Security of tenure
o Fixed service conditions
o Expenses charged on the consolidated fund
o Conduct of judges cannot be discussed
o Ban on practice after retirement
o Power to punish for its contempt
o Freedom to appoint its staff
o Its jurisdiction cannot be curtailed
o Separation from Executive

Jurisdiction and Powers of Supreme Court

Original Jurisdiction

 As a Federal court, the Supreme Court decides disputes between different

units of the Indian Federation. More elaborately, any dispute between:

o the Centre and one or more states; or

o the Centre and any state or states on one side and one or more
states on the other; or
o between two or more states.
 In the above federal disputes, the Supreme Court has exclusive original
jurisdiction.
 Further, this jurisdiction of the Supreme Court does not extend to the
following:

o A dispute arising out of any pre-Constitution treaty, agreement,

covenant,
o engagement, sanad or other similar instrument.
o A dispute arising out of any treaty, agreement, etc.,which specifically
provides that the said jurisdiction does not extent to such a dispute.
o Inter-state water disputes.
 o Matters referred to the Finance Commission.
o Adjustment of certain expenses and pensions between the Centre
and the states.
o Ordinary dispute of Commercial nature between the Centre and the
states.
o Recovery of damages by a state against the Centre.
Writ Jurisdiction

 The Supreme Court is empowered to issue writs, including habeas corpus,

mandamus, prohibition, quo-warranto and certiorari for the enforcement of
the fundamental rights of an aggrieved citizen.

o In this regard, the Supreme Court has original jurisdiction in the

sense that an aggrieved citizen can go directly to the Supreme Court, not
necessarily by way of appeal.
o However, the writ jurisdiction of the Supreme Court is not exclusive.
The High Courts are also empowered to issue writs for the enforcement of
the Fundamental Rights.
Appellate Jurisdiction

 The Supreme Court is primarily a court of appeal and hears appeals against
the judgements of the lower courts. It enjoys a wide appellate jurisdiction which
can be classified under four heads:

o Appeals in constitutional matters

o Appeals in civil matters
o Appeals in criminal matters
o Appeals by special leave
Advisory Jurisdiction

 The Constitution under Article 143 authorises the President to seek the

opinion of the Supreme Court in the two categories of matters:

o On any question of law or fact of public importance which has arisen

or which is likely to arise.
 o On any dispute arising out of any pre-constitution treaty, agreement,
covenant, engagement, sanador other similar instruments.
A Court of Record

 As a Court of Record, the Supreme Court has two powers:

o The judgements, proceedings and acts of the Supreme Court are

recorded for perpetual memory and testimony. These records are admitted
to be of evidentiary value and cannot be questioned when produced
before any court.
o They are recognised as legal precedents and legal references.
o It has power to punish for contempt of court, either with simple
imprisonment for a term up to six months or with fine up to 2,000 or with
both.
Power of Judicial Review

 Judicial review is the power of the Supreme Court to examine the

constitutionality of legislative enactments and executive orders of both the
Central and state governments.

o On examination, if they are found to be violative of the

Constitution (ultra-vires), they can be declared as illegal,
unconstitutional and invalid (null and void) by the Supreme Court.
Consequently, they cannot be enforced by the Government.

Recent issues in Supreme Court

 Master of Roster: It refers to the privilege of the Chief Justice to constitute
Benches to hear cases.

o The controversy has emerged in the Supreme Court over absolute

power of Chief Justice on the judicial administration.
o The SC has upheld a number of times that “the Chief Justice is the
master of the roster and he alone has the prerogative to constitute the
Benches of the Court and allocate cases to the Benches so constituted.”
o Be it the Chief Justice of India or Chief Justice of any high court it is
he or she who heads the administrative side. This includes allocation of
matters before a judge as well.
  So, no Judge can take up the matter on his own, unless
allocated by the Chief Justice of India.

Q-9

Madras:
It was developed in three stages.
They are:
Stage I:    1639 – 1678
Stage II:   1678 – 1683
Stage III:  1683 – 1726

1639 – 1678:
In 1639, an Englishman, Francis Day acquired a piece of land from Hindu Raja of Chandragiri,
for the East India Company.  It was known as Madraspatnam.  The company constructed a
factory on this land called FORT ST. GEORGE in 1640.  This Fort was known as WHITE
TOWN.  While the nearby villages inhabited by local population was called BLACK TOWN.

Agent And Council:

In the White Town, the agent and council were authorised to decide both civil and criminal
cases of English people residing at Fort St. George.  Judiciary was vague.  So they referred the
cases to England.

Choultry Court:
The primitive and native Choultry Court functioned there.  This court was presided with a native
judicial officer called ADIKARI.  It have not tried serious offences like murder but tried other
cases only.

Governor And Council:

By the Charter of 1661, the company was empowered to appoint Governor and Council to
decide civil and criminal cases of all persons of the company.  English rule was followed.

1678 – 1683:
High Court of Judicature:
The Governor reorganised the whole judicial system in 1678.  They sat twice a week and tried
civil and criminal cases with the help of 12 juries.  They tried appeals from the Choultry Court.

Choultry Court:
Old Choultry Court was reconstituted.  Adikari was replaced by three English Officers.  They sat
twice a week and tried all civil cases up to the value of 50 pagodas.  Their decision was
appealable to the GOVERNOR IN COUNCIL.

1683 – 1726:
Admiralty Court:
This court was established in Madras in 1686 by the Charter of 1683 headed by JUDGE
ADVOCATE.  It consisted of one person learned in civil law and two merchants appointed by
the company.  The court decided,
all cases of mercantile or maritime nature, trespass, injuries and wrongs committed on high
seas, forfeiture and seizure of ships or goods.

This court applied the rules of equity, good conscience and the laws and customs of merchants.
This court becomes the general court of the city for all practical purposes in setting all civil and
criminal cases.  This court functioned till 1704.

Mayors's Court:
The company’s Charter of 1687 established a Mayor’s Court at Madras.  It consisted of a
Mayor, twelve Aldermen and sixty or more Burgesses.  The first Mayor and Aldermen were
nominated by the Charter.  The Mayor holds office for one year.  Aldermen elected the Mayor
annually.  The Mayor and Aldermen selected Burgesses whose strength was not to exceed 120.
The Mayor and three Aldermen were to be English servants of the company and others were to
be from any nation.

A man learned law called Recorder was attacked to Mayor’s Court.  (Court of reward).  The
Mayor court tried,
All civil cases up to the value of 3 pagodas
All criminal cases with the help of jury and punished the offenders by fine or imprisonment.

Appeals were allowed to the Admiralty Court.  In civil matters, the Admiralty Court had decided
more than the value of 3 pagodas.  In criminal cases, it had decided when the punishment was
to lose life or limbs.
Appeals from the Mayor’s Court and Admiralty Court were heard by Governor and Council.

The Charter of 1726 established Mayor’s Court at Madras, Bombay and Calcutta consisted of a
Mayor and 9 Aldermen.  Mayor and 7 Aldermen were to be English and the rest were subjects
of princely Indian States friendly with Britain.  The Mayor holds office for one year.  The
Aldermen hold office for lifelong.  Every year the outgoing Mayor and Aldermen elected a new
Mayor out of the Aldermen.  The Mayor and Aldermen filled up the vacancy of Aldermen from
among the inhabitants of the Presidency Town.  The Governor in Council could dismiss the
Aldermen on reasonable ground.

This court tried only civil matters.  It granted probation of wills and letters of administration in
case of intestate.  During the proceedings the parties were required to take oath produce and
examine witnesses and plead their cases.

Sheriff was appointed by Governor and Council.  It is his duty to produce the defendant in the
court if a written complaint was filed by an aggrieved party.  He executed judgments as in
English Law.
Governor in Council heard appeals from the Mayor’s Courts up to the value of 1000 pagodas.

Privy Council:
If the value of the suit was more than 1000 pagodas a second appeal was permitted to this
court.

Administration of Justice in Presidencies:

Justice of Peace:
The Governor and 5 senior members of the Council would have criminal jurisdiction and would
be justice of peace.
Some cases were finalized in these courts:
Arab Merchant’s Case:
An Arab Merchant brought a suit in the Mayor’s Court for the recovery of the valuable pearls
which were alleged to have been escorted from him by a man who saved him from the burning
boat at the coast of Gujarat.  The Mayor’s Court consulted the Governor in Council.  The
Governor upheld the jurisdiction of the Mayor’s Court.  It suggested the Mayor’s Court not to try
the case as the defendant had been previously hired for piracy regarding the same occurrence
and acquitted.

The Mayor’s Court ignored this and decreed the suit.  This was reversed by the Governor.

Hindu Woman’s Case: (1730)

A 12 year old boy (Hindu) left his mother and began to live with his relatives, since his mother
became Roman Catholic in Bombay.  The mother filed a suit for the custody of the boy in the
Mayor’s Court.  The Court ordered the relatives to hand over the boy to his mother.  On a
complaint filed by the head of the caste, the Governor in Council held that the Mayor’s Court
had no power to decide cases of religious nature or caste disputes of the natives.  The
Governor removed the Mayor from his office.

Pagoda Oath Case:

In Madras, Hindus gave evidence in the Court on Bhagwad Geetha Oath.  Two Hindu
Merchants were put to jail by the Mayor’s Court for refusing to take the pagoda oath which they
said was contrary to their religion and the rules of the castle.  This made the Hindu Residents
very furious and they approach the Governor to interfere.  So Governor released those
merchant on parole.  At the same time the Court was directed to pay regard to the religious rites
and ceremonies of the natives.

Re-electing as Mayor Case:

In 1734, a conflict arose over the Mayor’s re-election.  Naish was re-elected as Mayor but the
Governor refused to allow him to take the Oath of Office on the ground that an outgoing Mayor
could not be re-elected under the Charter of 1726.  Ultimately another Mayor was to be elected.

Mayor and Secretary Betting Case:

Terrain the Secretary to the Madras Government and Mayor Naish met at a dinner party and
entered into a bet which Naish lost and refused to pay.  Terrain sued him in the Mayor’s Court
which ruled that Mayor was immune from prosecution.  The Government later complained that
its secretary had been treated with indignity by the Court.

Q-10
Lord Cornwallis succeeded Warren Hastings as the Governor General of
India. He put forward certain conditions before The Crown before accepting
the post of Governor-General. They were:

 The office of Governor General and the commander-in-chief would

be united under one person i.e. the Governor General.
  The Governor General-in-council will have veto over the council on
all decisions made concerning administration and military.
 His aims as Governor General were to:
 Uproot corruption from the present judiciary and administration
system.
 Tackle the problem of land revenue.
 Develop a proper system of administration of justice.
Lord Cornwallis was Governor General from the year 1786 to 1793 and his
most noted work was in the field of criminal judicature. He introduced
changes in the judicial system in three years – 1787, 1790 and 1793. These
were known as Judicial Plan of 1787, 1790 and 1793 respectively.

Judicial Plan of 1793

1. Separation of Executive and the Judiciary
The powers vested in the collector were administrative and judicial as he
was also in charge of collection of revenue and for deciding cases arising out
of revenue matter. Now, the collector was only responsible for the collection
of revenue.

2. Mal Adalats were abolished

Revenue courts which exclusively tried cases arising out of revenue matters
and presided by the Collector as Judge, was now abolished.

All powers and pending suits of the Revenue courts were now transferred to
Mofussil Diwani Adalats and thus not tried by the collector.

3. Executive subjected judicial control

The Governor General and his council were now subject to judicial control.
Any wrong acts committed by them while carrying out their functions and
outside of it could be heard or tried and punished by the Diwani Adalats.
Suits against the Government by private individuals could be brought
forward and were tried by the Diwani Courts.

4. Indian natives had to sign a bond with the British Subjects

agreeing to go to court
British could recover claims from Indian natives and vice versa by signing a
bond with each other agreeing to go to court.

5. Establishment of Provincial Courts of Appeal at the four

divisions
Earlier the appeal from the Mofussil Diwani Adalats lay to the Sadr Diwani
Adalat situated at Calcutta. But this process for time consuming and
expensive so provincial courts of appeal were established at each division
i.e. Patna, Calcutta Murshidabad and Dacca. Appeals from the Mofussil
Adalat now lay to the provincial court of appeal which were to be heard
within three months of filing them. These courts were presided by three
covenant English servants of the company. Quorum was of two servants. It
was an open court and could try revenue, civil and criminal cases. They
could also try cases referred to them by the Sadr Diwani Adalats.  

Cases valued more than Rs. 5000 were referred to the King-in-council.

6. Native Officers given important posts

Native officers were appointed by the Governor General-in-council.Native
officers were made Munsiffs of the Munsiff courts at district level. This court
could try cases upto Rs.50. Zamindars, Tehsildars, etc appointed as
Munsiffs.

Personal Laws of Hindus and Muslims were applicable in cases relating to

marriage, inheritance, caste, religious usages and institutions. These
personal laws were interpreted by the native officers who were appointed to
assist the court to expound the personal law

7.Sadr Diwani Adalat

It was highest court of appeal in India. It was presided over by the Governor
General and the Council who were the Judges of the Sadr Diwani Adalat.
Their function was to supervise the lower courts and to hear appeals from
the provincial courts of appeal when the sum of the matter of the case was
more than Rs.1000.

Further an appeal from the Sadr Diwani Adalat lay to the King-in-council,
when the sum of the matter of the case was more than Rs.5000.

8. Reforms in criminal judicature

The court of circuit was merged with the provincial court of appeal. The
power of the collector as a magistrate was taken away and was vested in the
judges of the diwani adalats instead.

9. Uniform pattern of Regulations

Until now, any new regulation that was issued did not follow an uniform
pattern. This was changed by making it a rule that any new regulation that
would be made would have a title to explain the nature of the subject matter
and contain a preamble which would state the purpose for enacting the
regulation.

10. Reforms in Muslim Personal Law

The Sadr Nizamat Adalat was directed to to follow the muslim personal law
to try and punish criminal cases, but with some modifications. The relatives
of murder victims did not have a provision to pardon the murderer. The cruel
and inhuman punishments such as cutting off limbs of the offender were
replaced with punishment of imprisonment and hard labour for 14 years.

11. Court Fees abolished

Court fees which was imposed in the judicial plan of 1787 was
abolished. The court fee was abolished so that the people could easily reach
to the court for securing justice.

12. Legal Profession recognised for the first time in India

The legal profession was recognised in India for the first time. The pleaders
of the case had to have prior legal knowledge to be eligible to be a pleader
of the court.

Through his various judicial plans, Cornwallis was successful to uproot the
evil of corruption. Though Cornwallis was a just administrator, he was seen
as a racial discriminatory as he reserved all the high posts of judicature for
the Europeans. Even though Cornwallis almost perfected the administration
of civil judicature, the problem of criminal law was still prevalent as the
criminal law was based on Muslim personal law which already had prevalent
defects in it.

Q-11

The Indian High Courts Act of 1861 was an act of the Parliament of the United Kingdom
to authorize the Crown to create High Courts in the Indian colony. Queen Victoria
created the High Courts in Calcutta, Madras, and Bombay by Letters Patent in
1862. These High Courts would become the precursors to the High Courts in the modern
day India, Pakistan, and Bangladesh. The Act was passed after the First War of
Independence of 1857 and consolidated the parallel legal systems of the Crown and
the East India Company.

The Indian High Courts Act of 1861– Salient

Features
 The Indian High Courts Act of 1861, was an act that authorized The
Crown to establish High Courts in India.
 This Act created the High Courts in Calcutta, Madras, and Bombay.
 The Act was passed after the First War of Independence of 1857 and merged
the parallel Legal and Justice Systems of the Crown and the East India
Company.
 The Indian High Courts bill was moved by the Secretary of State Sir Charles
Wood on 6th June 1861 and was passed on 6th August 1861.
 The Act consisted of 19 sections.
 It dissolved all the existing courts located at Calcutta, Madras and Bombay.
 Each High Court could consist of a Chief justice and up to 15 judges.
 The Judges could be selected from barristers (5 years of experience), civil
servants (10 years of experience including 3 years as a zillah judge), judges
of small cause courts (5 years of experience), or Pleaders of High Courts (5
years of experience).
 The Chief Justice and Minimum of one-third of The Regular Judges were to
be Barristers and Minimum of one third Regular Judges were to be from the
Civil Service.
 All Judges held office during the pleasure of the Crown.
 The law which the high court applied was the same as applied by the
Supreme Court i.e., The English law.
 The High Courts were also permitted to use the principles of justice, equity
and good conscience on the appellate side.
 In criminal law, it followed the Indian Penal Code (1860).
 The High Court’s followed civil and criminal codes.

Jurisdiction
 The High Courts had an Original as well as an Appellate Jurisdiction the
former derived from the Supreme Court, while the latter was derived from
 the Sudder Diwani and Sudder Foujdari Adalat’s, which were all merged
into The High Court.
 The Jurisdiction of each high court was dependant on the Letters Patent
issued by her Majesty.
 She could give them the power to exercise civil, criminal, intestate,
testamentary, admiralty and matrimonial jurisdiction.
 She could also confer on them original and appellate jurisdiction and all
such powers and authority for the administration of justice in the presidency,
as she deemed necessary.
 Original jurisdiction: The court had original jurisdiction in Civil
Jurisdiction and Criminal Jurisdiction
 Civil Jurisdiction: The Original Civil Jurisdiction of the court was of two
types: –
1.
 Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction
extended to the town of Calcutta, Madras and Bombay and any such local
limit as defined from by a legislature from time to time. The Ordinary
civil Jurisdiction could be invoked only if:
1.
1.
1. The movable property was situated within the town of Calcutta,
Madras and Bombay.
2. The cause of action wholly or partly arose in Calcutta, Madras
and Bombay.
3. The defendant was carrying on business or working for profit in
Calcutta, Madras and Bombay.

 Extra Ordinary Civil Jurisdiction: The Extra Ordinary Civil
Jurisdiction provides that the High Court could call a case pending in any
lower court subject to its superintendence limits and could produce the
judgement itself. This jurisdiction could be exercised in a case where the
parties agreed to before-hand.
 Criminal Jurisdiction: The Original Criminal Jurisdiction of the court was
of two types: –
 Ordinary Original Criminal Jurisdiction: In exercise of its
Ordinary Original Criminal Jurisdiction the High Court was empowered
to try all persons brought before it in due course of law. This Jurisdiction
was over the native people and the crimes committed within the local
 limits of the presidency towns. It also extended to The Britishers and
Europeans.
 Extra Ordinary Original Criminal Jurisdiction: The High Courts
were to have Extra Ordinary Original Criminal Jurisdiction which was
not enjoyed by the High Court. Under The Extra Ordinary Original
Criminal Jurisdiction, the Court hear any criminal case against any
person within the limits of any court which was subject to the supervision
of the High Court, only If such a case was referred to the court by the
advocate general /by any magistrate/any other officer specially
empowered for that purpose.
 Appellate Jurisdiction: The appellate jurisdiction of the High Court was of
two types: –
 Civil Jurisdiction: The High Court could hear appeals in all cases
authorised by any law or regulation.
 Criminal Jurisdiction: The High Court had criminal jurisdiction in
all cases decided by the subordinate courts to it. An appeal to The Privy
Council lay from the judgement of High Court in Criminal cases if the
High Court certified that the case is a fit one for appeal to The Privy
Council or if it felt so while using it’s Original Jurisdiction Powers.
 Revenue Jurisdiction: The High Court was given The Jurisdiction to settle
Revenue cases which were not in the jurisdiction of the Supreme Court by
the Act of Settlement, 1781.
 Admiralty Jurisdiction: The Admiralty and Vice-Admiralty Jurisdiction
were given to the high court.
 Testamentary and Miscellaneous Jurisdiction: The High Courts were also
given similar testamentary, intestate and probate jurisdiction as was enjoyed
by the Supreme Court.

 An appeal to The Privy Council lay from the judgement of High Court in

Criminal cases if the High Court certified that the case is a fit one for appeal
to The Privy Council or if it felt so while using it’s Original Jurisdiction
Powers.
 Although the High Court was the Highest in India, A court by the name of
The Privy Council did exist. However, the problem was that to approach the
Privy Council required huge expenses and time of the litigants.
 The British Parliament passed The Government of India Act, 1935. It
provided for the establishment of a Federal Court in India. Thus in 1937, the
federal court was established. The seat of the court was in Delhi.
  The Federal Court was a Court of record.
 The Federal Court also saved the time and expenses of the litigants.
Q-12

MERITS & DEMERITS OF

CODIFICATION OF LAWS
Introduction:
According to the dictionary meaning “code” means a systematic collection of
statutes, body of law, so arranged as to avoid overlapping and inconsistency. By
legislation, sometimes a new law is made, sometimes, a custom or a usage is
embodied in a statute, and it is put in a coherent and systematic form. The law
placed in this kind is called code. The law creating and putting it in this form is
called codification. Thus, codification suggests that promulgation, compilation,
assortment associated with the systematization of the body of law in a coherent
form by an authority in a state competent to do so.

History of codes:
Codes were existed since the ancient times. In India, code of Manu was the ancient
code. There were various codes which were applied in different parts of the
country. They are very important because the modern codes have been evolved
from these codes.

According to Salmond, The reduction of whole corpus juis, so far as practicable to

from enacted law.

Conditions for codification:

For codification, certain background and certain social development are necessary.
There are certain conditions which led to the codification. Roscoe Pound had laid
down the following important conditions which lead to codification:

1) The exhaustion for the time being of the possibilities of juristic development of
existing legal materials or in other words, where the legal institutions have become
completely mature, or where the country has no juristic past,
2) The unwieldiness, uncertainty and archaic character of the existing law,
3) The development of an efficient organ of legislation,
4) The need for one uniform law in a political community whose several sub-
divisions had developed or received divergent local laws.

Codification in India:
In India, during medieval period people were governed by their personal law and
customs. Under the provisions of the Charter Act of 1833 the First Indian Law
commission was appointed with Lord Macaulay as its Chairman. They drafted a
number of codes such as Indian Penal code, the Civil Procedure Code, and the
Indian Limitation Act. Later on, the Criminal Procedure Code and some other acts
were drafted and passed. With the introduction of legislatures in Provinces and the
Centre the Codification was expedited. India is an undeveloped and economically
backward country facing a lot of problem. Planning has been resorted to for a
comprehensive development of the country.

Thus, in India though much has been done towards codification, there still remains
more to be done.

Classification of Codes:
– Creative: creative code is that code which makes a law for the first time without
any reference to any other laws. It is law-making by legislation.
– Consolidating:
is that code which consolidates the whole law- statutory, customary and precedent,
on particular subject and declares it.
– Creative and consolidating: The codes which make law as well as consolidate the
existing law on a particular subject fall under this class.
Merits of codification:
1) Certainty – By Codification, law becomes certain. It no longer remains vague
and uncertain as it generally in precedent and custom.
2) Simplicity: The codification makes law simple and by the way of simplicity it
makes it easy and accessible to everybody. By code anyone can know the law on a
particular point. This enables the citizens to know their rights and duties and thus
greatly helps the administration of justice.
3) Logical arrangement: In code, law is logically arranged in a coherent form. There
are little chances of any conflict arising among the different provisions of the law.
Thus, the law is coordinated and systematized in the code.
4) Stability: The codification makes the law stable. The law which comes into
existence by the way of other sources has not that much of stability. Stability is
very essential for law so that the people may have confidence in it and the legal
transaction may be made easily and smoothly.
5) Unity:
The codification is an instrument of forging unity among the people. Codified laws
have uniform and wider application. Thus it helps in creating unity and integration
in a country.
6) Planned development: The planned development in a country is possible only
through codification. A nation cannot make the desired divergent ways. By
codification there comes uniformity and the desired development is speedily
achieved.

Demerits of codification:
1) Rigidity: The codification causes rigidity in the law. It is essential that the law
must keep up with the time and should change itself to new conditions. When the
law once it is codified, there will be a little scope that there maybe a little change.
When the law is codified, the only way of changing it is through the way of
amendments. Generally, it is not easy and it takes time. Hence, codification gives
rigidity to law.
2) Incompleteness: The codes are generally incomplete. It is not possible to expect
all the problems that might arise in the future. Therefore, provisions cannot be
made for them in code. Thus, by this way the code is incomplete. Thus, in regard
with the law, the indefiniteness and uncertainty happens.
3) Hardship:
The code generally provides uniform laws, which are applicable to all present
within the territory or part of it. The application rarely views on the grounds which
say about the customs, convictions and that even includes the habits of the people.
4) Defective codes: Certain defects are bounded in a code. They cannot be removed
and it can be removed by the legislative amendment. This causes great delay and
inconvenience. Hence, the defects of a code remain for a very long time.
Conclusion:
Codification has undoubtedly some demerits but they are very insignificant in
comparison with the merits it has. Codification causes planned idea of
development. It enables the law to fulfil the purpose for which it has been set for.
Codification has become imperative. Therefore, it is the most potent means of legal
development and that is why it has been adopted all over the world. From the
aspect of India, two things must be kept: First, in India, one of the most important
purposes of law reform should be the unification of laws. Second, there must be
harmony between the law Commission, the legislature and the courts.

Q-13

the rule of law is nothing more than an instrument of societal control

supported by a sovereign, but that law or control must be balanced by
certain principles or tenets of justice. Only a state governed by such a law
can be said to have the ‘rule of law’.

The pre-independence ruling in India by the British, where law used to be

enforced unequally on parties with a different set of rules for the Indians and
the British, is a clear illustration of what it means to be ruled without
fairness and justice. ‘Law’ was used as a tool of political repression by the
British on Indians. It can be said that rather than the rule of law, ‘rule by
law’ was the aim of the British. Judicial remedies lost their importance since
they were administered with the best interests of the colonial authority in
mind, rather than what was right or legitimate.

The Raja Nand Kumar case is one of its kind that adequately demonstrates
the oppression by the British and is heavily criticized even now. Raja Nand
Kumar was hanged to death by the colonial government because of a
conspiracy initiated by the then governor-general Warren Hastings against
him to fulfill his grudge and to take revenge for the trial conducted against
him because of a report presented by Raja Nand Kumar.

A brief about Raja Nand Kumar

Raja Nand Kumar, also known as Maharajah Nuncomar, was a Hindu
Brahmin of the highest rank. He was given the title ‘Maharaja’ by Shah Alam
II in the year 1764. He was a big zamindar. He worked for the Nawab of
Bengal in a variety of capacities, mostly as a revenue collector. He was
made the Governor of Hugli under Nawab Siraj-Ud-Daulah once in 1756. 
He had earned the confidence of the Murshidabad Durbar. After holding a
succession of posts under native governments of Bengal, owing to his loyalty
pledged towards the English East India Company during 1757, he was
awarded the name “Black Colonel” during Governor General Robert Clive’s
period. In 1758, he was even recommended to Lord Robert Clive for
appointment as an agent to collect revenues for the districts of Burdwan,
Hooghly, and Nadia. He was a very influential person in Bengal.

First-person of India to get executed by hanging

Raja Nand Kumar brought several charges against then Governor-General
Warren Hastings. The charges were related to the offenses of bribery and
corruption, after which he himself was accused and convicted of forgery and
became the first person of India to be executed by hanging.

Facts of the case 

 At Warren Hastings and his favorite council member Barnwell’s

instance, Raja Nand Kumar, Fawkes, and Radhacharan were
arrested. Both of them clearly declared their intention before the
Supreme Court judges to prosecute all three persons for conspiracy.
 Hastings wanted to take revenge from Raja Nand Kumar in
furtherance of which he demanded Mohan Prasad to humiliate
Nandkumar by filing a case of forgery against him. The charges of
forgery against him were in connection to a deed or bond which was
executed by Raja Nand Kumar in 1765 and was claimed as an
acclamation and ratification of a debt from a banker, Bulaki Das.
The judgment was reserved for Nand Kumar whereas Fawkes was
fined.
 The trial against Raja Nand Kumar for forgery and conspiracy ran
concurrently. Warren Hastings anticipated that involving Nand
Kumar directly in any way possible as far as charges for the
conspiracy were concerned, would be laboriously difficult, so he
implicated and scapegoated Raja Nand Kumar in another case of
forgery. 
The final decision of the court
The matter was summarized on the morning of 16th June 1775 by Chief
Justice Impey. Raja Nand Kumar was held unanimously “guilty” by judges
and the jury also gave the same verdict. He was incarcerated to death by
the Chief Justice under the English Act of 1729 of the British Parliament. The
then Hon’ble Supreme Court dismissed the ‘conspiracy case’ as they did not
have any evidence against Raja Nand Kumar. 

Therefore, he was hanged on August 5, 1775, at 8 o’clock in the morning at

the Cooly Market near Fort William and close to the modern Hastings
Bridge. 

The historical significance of the trial

The trial sparked a lot of controversies, shocking not just the Indians but
also the British living in India. The trial of Raja Nand Kumar is historically
significant because it was a primary ground for the impeachment of Chief
Justice Impey of the Supreme Court of Calcutta and Governor-General
Warren Hastings by the House of Commons after they returned to England.
Despite being chastised by famous statesmen Edmund Burke and Lord
Macaulay, Hastings was cleared of all accusations after 19 years. At the
present time, Victoria Memorial authorities are putting Nand Kumar’s turban
on display.

The Cossijurah case is a landmark case in the history of law and order during
the Colonial Rule in India. The Supreme Court’s and the Supreme Council’s
conflicts gained a peak in this case. While the Supreme Court instructed the
sheriff to use force to carry out the court’s commands, the Supreme Council
instructed its troops to defend the court’s orders. The Supreme Court also
claimed jurisdiction over the entire native population, which the Supreme
Council opposed. Because of these anomalies, this case is historically
significant.
COSSIJURAH CASE

Background
On October 22, 1774, in Calcutta, Bengal, the Supreme Court of Judicature
at Fort William was established. The Regulating Act of 1773 gave it legal
status. The Mayor’s Court, which had been in session in Calcutta since 1753,
was replaced by this court. Until 1862, when the Indian High Courts Act of
1861 established the High Court of Calcutta, British India’s highest court was
the supreme court of judicature.

The Supreme Council of Bengal was also established in Calcutta in 1773

under the Regulating Act of 1773. Until 1833, it was considered the highest
level of executive government in British India. The Governor-General
presided over this council, which was made up of five members, including
the Governor-General himself. Governor-General-in-Council was another
name for the council. The council was formally subjected to the British crown
and the East India Company’s Board of Directors.

Conflicts over court’s jurisdiction

The conflicts between the Governor-General-in-Council and the Supreme
Court are the highlights of the first 6-8 years after the establishment of the
Supreme Court of Judicature in Calcutta. 

The Supreme Court’s jurisdiction had been specified in the Regulating Act of
1773, although many issues were left unclear in the Act, causing confusion.
This resulted in a tumultuous relationship between the court and the council.
The Supreme Court’s official penned jurisdiction, according to the Regulating
Act of 1773, was all British subjects in Bengal and anyone employed directly
or indirectly by the said United Company. The confrontation between the
court and the Governor-General-in-Council became inevitable because the
words “directly or indirectly” could be applied to practically everyone who
worked for the company. 

From 1774 to 1782, the Supreme Court claimed jurisdiction over anybody
resident in Bengal, Orissa, or Bihar after its formation in 1774. For eight
years, this was the source of a heated dispute between the Supreme Court
and the Governor-General-in-Council. The conflict was finally put to rest in
1782 when the Bengal Judicature Act of 1781 was passed. The Bengal
Judicature Act of 1781 limited the Supreme Court’s jurisdiction to people
who lived in Calcutta or any British subject resident in Bengal, Orissa, or
Bihar. The Act abolished the Supreme Court’s contentious jurisdiction over
anyone resident in Bengal, Odisha, or Bihar. 

The Cossijurah Case (1779-80)

Facts of the case

Raja Sundernarain, zamindar of Cossijurah (Kasijora), owed Cossinaut Babu
a huge sum of money (Kashinath). Despite Cossinaut Babu’s best efforts,
the money was not recovered from the Raja. As a result, he launched a civil
suit at the Supreme Court of Calcutta against the Raja of Cossijurah. Raja
was arrested when the Supreme Court issued a writ of Capias. 

Raja went into hiding in order to avoid serving the writ since he was
terrified. The Council published a notice alerting all landowners that they did
not need to pay attention to the Supreme Court’s proceedings unless they
were either an employee of the firm or had consented to the court’s
jurisdiction. The Raja was also expressly notified by the council, and the
Council further ordered the collector of Midnapur (an Orissa district) to
refuse the Sheriff and his men any assistance. As a result, when the Sheriff
of the SC arrived with a writ to arrest the Raja of Cossijurah, his people
drove him away. 

The conflict of jurisdiction in the case

On the 12th of November 1779, the SC issued another writ of
sequestration to seize the property of Raja’s house in order to compel him to
appear in court. The Raja was imprisoned by the British, who are reported to
have violated the sacredness of the family idol by entering the Zenana.
Meanwhile, the Governor-General and Council directed Colonel Ahmuty, the
commander of the armed forces, to deploy a strong force to intercept and
arrest Sheriff and his party and further release Raja. 
The sheriff and his party were arrested on December 3rd, 1779, and held in
confinement for three days. They were then deported to Calcutta as
prisoners, but the Sheriff’s party was released by the Council, who also
directed Colonel Ahmuty to release any additional writs issued by the
Supreme Court. 

The Supreme Court of Judicature’s early years in Fort William, Bengal, was
tumultuous. During these years, there were several conflicts between the
Governor-General-in-Council and the Supreme Court. The majority of these
disagreements were over who had jurisdiction over certain subjects.
Conflicts over jurisdiction between the council and the court were evident in
disputed cases such as the Cossijurah Case.

This sequence of confrontations continued until 1781 when the Bengal

Judicature Act was passed. It established the Supreme Court’s jurisdiction in
respect to the council and resolved disputes between the Governor-General-
in-Council and the Supreme Court.