CRIME AND PUNISHMENT IN ANCIENT PERIOD:

In ancient Hindu period punishment was considered to be sort of expiation

which removed impurities from the man of sinful promptings and reformed his
character. Manu states that men who are guilty of crimes and have been
punished by king go to heaven, becoming pure like those who perform
meritorious deeds. Ancient Smriti writers were also fully aware of various
purposes served by punishing the criminals. The punishments served four main
purposes, namely, to meet the urge of the person who suffered, for revenge or
retaliation, as deterrent and preventive measures, and for reformation or
redemption of the evil-doer.

Manu, Yajnavalkya and Brihaspati state that there were four methods of
punishment, namely,

1. by gentle admonition,

2. by severe reproof,

3. by fine and

4. by corporal punishment.

They declared that these punishments may be inflicted separately or together

according to nature of offence.

Kautilya lays down that the awarding of punishment must be regulated by a

consideration of the motive and nature of the offence, time and place, strength,
age, conduct (or duties), learning and monetary position of the offender, and by
the fact, whether the offence is repeated. This means judges always considered
the relevant circumstances before deciding the actual punishment. The
Dandaviveka quotes a verse in which the considerations that should weigh in
awarding punishment are brought together, namely, the offender’s caste, the
value of the thing, the extend or measure, use or usefulness of the thing with
regard to which an offence is committed (such as an idol or temple or king or
Brahmin), age, ability (to pay), place the nature of the offence (whether it was
repeated or was a first offence). The severity of punishment depended on the
caste also.

Certain classes of persons were exempted from punishment under the ancient
criminal law in India. An old man over eighty a boy below sixteen, women and
persons suffering from diseases are to be given half Prayaschitta and sankha; a
child less than five commits no crime nor sin by any act and is to suffer any
punishment nor to undergo any Prayaschitta.

Gautama and Manu prescribe the details of penalty to be paid by Sudras,

Vaishyas, Kshatriyas, Brahmins and upper class persons. On a large scale
serious thefts were punished with death. In certain cases the whole village was
held responsible for theft or lost property. The villagers were held liable to
make restitution of lost property if they were unable to prove that the lost
property was taken away from their village. The king or his local representative
was held liable to pay for the missing property or theft, as they were responsible
for the police and maintain law and order.

In adultery and rape, punishment was awarded on the basis of the caste
considerations of the offender and of the woman.

In abuse or contempt cases, every care was taken to see that each higher caste
got due respect from persons of the lower caste. A Kshatriya or a vaishya
abusing or defaming a Brahmin was to be punished with a fine of 100 panas and
150 panas. A sudra was punished by corporal punishment (cutting of the
tongue). While a Brahmin defaming a Kshatriya or vaishya was to be fined 50,
25, or 12 panas respectively. According to Gautama, a Brahmin could flout a
sudra with impurity. If a person of a lower caste sat on the same bench with a
man of a higher caste, the man of the lower caste was branded on the breech.

For committing murder, early sutras prescribe that the murderer should pay fine
according to the caste-considerations. The arthasastra prescribes death penalty
for the murder, even if it occurred in a quarrel or duel. Capital punishment was
given in varied form, namely roasting alive, drowning, trampling by elephants,
devouring by dogs, cutting into pieces, impalement, etc. Mutilation, torture and
imprisonment were common penalties for many other crimes.
ROLE OF WITNESS IN ANCIENT PERIOD:

The jurisprudence of Ancient India was shaped by the concept of `Dharma’, or rules of right conduct, as outlined in
the various manuals explaining the Vedic scriptures such as `Puranas’ and `Smritis’. The King had no independent
authority but derived his powers from `Dharma’, which he was expected to uphold.

Law Relating to Witnesses

In ancient India to hearsay was not allowed, but a witness in a foreign country can give his evidence in writing
before a learned man in the three Vedas and the writing sent by him may be read in the Court. As regards the
number of witnesses, it is said that this number may be multiple. But a single witness is not accepted as the facts
cannot be collaborated. But Narada Smrti states that a single witness may be accepted, if it is approved by both the
parties. Kautilya states that a single witness can be accepted, if the very transaction has taken in secret.

Qualifications for witness, he should be a man of good character, trustworthy, knows Dharma and acts up to it.
Witness from the same caste is to be prepared, and in cases relating to women a woman can be witness. As regards
the nature of incompetent witnesses, it may be said that the persons having no faith in the Dharma, the persons who
are very old persons, minors, oil presser, intoxicated person, lunatic, distressed, inattentive, undertaking long
journeys, gambler etc.

Narada further gives us five-fold classification of incompetent witnesses,

(1) the learned Brahamanas, and ascetics practising austerities.
(2) Thieves, robbers, gamblers
(3) witnesses are to be rejected on the ground of contradiction in their evidence
(4) one who comes of his own accord for leading an evidence is also treated as incompetent,
(5) When a person dies, he names some persons as witnesses for the transaction, they can come as witnesses and the
person who is informed by the parties in a general way and not in a specific way is not to be admitted as a witness.
Ordinarily the witnesses are to be examined in the presence of the parties and never behind their back. Further, a
witness should be examined by his tone, change of colour, eyes gestures etc
The judge should address a Brahmana witness by ‘speak and swear by veracity’. He should address the Ksatriya
witness as speak the truth and he should swear by the animal he rides and his weapon. A Vasisya should swear by
kine, gold, and grian and a Sudra should swear by all grave sins. The view of majority witnesses shall be prepared,
in case where there is no majority opinion is possible, and then the quality of statement made by the witnesses is to
be taken into consideration. The claim is not said to be established when witnesses depose more or less than that
mentioned in the statement or pliant of plaintiff and the disposition has not taken place at all and in such a case no
fine is to be imposed. When there is conflict among the witnesses as regards time, place, property, amount, then the
dispositions are as good as not taken place. Generally no ordeals (divyas) are to be resorted to when the witnesses
are available. The oaths are to be employed in the disputes of small value and the ordeals are to be resorted to in
serious disputes of crimes.

Punishment for false witnesses,

(a) where a witness denies deposing in the Court matter, after giving promise to that effect along with other
witnesses,

(b) if for unfavourable circumstances, a witness denies to depose,

(c) if a witness gives false evidence frequently, in all these cases witness shall be punished with fine and in last case
physical punishment can also be imposed on such witness.
TRIAL BY ORDEAL IN ANCIENT INDIA:

TRIAL BY ORDEAL:

Trial by ordeal was a method to determine the guilt of a person. The ancient Indian society,
which was largely dominated by religion and faith in god, considered the trial by ordeal as a
valid method of proof. It was very common to swear “by my troth” or to call upon the gods to
witness the truth of a statement, as it clear from various illustrations of the ordeal given in the
epics. Smriti writers generally limited its application to cases where any concrete evidence on
either side was not available. Its greatest drawback was that sometimes a person proved his
innocence by death as the ordeal was very painful and dangerous.

A detailed account of ordeals, as they existed in ancient India, is given in Agni Purana. It
points out that only in cases of high treason or very serious offences the trial by ordeal was
used. In other petty matters, it was sufficient to prove the truth by taking an oath. Some
important types of ordeal, which were commonly adopted, may be stated as follows:

These ordeals were: a) ordeal of balance, b) ordeal of fire, c) ordeal by water, d) ordeal of
poison, e) ordeal of lot, f) ordeal of rice-grains, g) ordeal of fountain-cheese, h) order by
snake.

• Ordeal of balance (Tula, Dhata)—mostly given to women, minors and old or disabled
people. The person performing the ordeal was twice weighed on a balance. If the person
weighed lighter than the previous weight they were considered innocent; if they were
heavier the second time they were considered guilty.
• Ordeal of fire (Agni)—A hot ball of iron had to be carried across a certain distance in
the palm of the hand using pipul leaves. If the hand did not end up getting burnt the
person was declared innocent. If the hand was burnt the person was found guilty.
• Ordeal of water (Salila)—The person had to dive into a river and keep themselves under
water, while at the same time an arrow was also shot into the water and was brought back
by a fleet runner. If the person stayed under water till that time and no body part was
visible then the person was considered innocent. If the person floated back up again
before the arrow was retrieved or a body part other than the top of the head became
visible the person was found guilty.
• Ordeal of Poison (Visa)—the person had to take a certain quantity of poison and was
monitored for any reactions for a certain time period. If there was no visible effect of the
poison the person was considered innocent.
• Ordeal of lot: it meant that two lots of the same representing right (dharma) and wrong
(adharma) were placed in a jar. The accused person was asked to draw any lot. If the
person drew Dharma he was declared innocent.
• Ordeal of rice-grains: the accused was required to chew unhusked rice and then was
asked to spit out. If traces of blood appeared in his mouth he was found guilty.
• Ordeal of fountain-cheese: ktesias stated that the kings in ancient India used another type
of ordeal which was remarkable lie detector. He mentions a fountain from which water
coagulated like cheese. If this is mixed with ordinary water and given to the accused
person to drink, he becomes delirious and confesses everything he has done.
 • ordeal by snakes: This type of trial by ordeal was usually used when the defendant
was accused of making a false accusation about another person or lying to get another
person punished. The crime was equivalent to perjury.
During the trial, a cobra was placed inside a clay pot along with a ring. The accused
would try to retrieve the ring from beneath the snake without getting bitten. If he was
able to do so, he was declared innocent.

Other types of ordeals included ordeals mentioned in the Smrtis like the ordeal of sacred
libation in which an image of a deity was washed in holy water and the accused had to
drink that water. If within a certain time period a misfortune occurred in his life he was
found to be guilty. Ordeal of rice grains, ordeal of heated piece of gold, ordeal by
ploughshare, ordeal by lot also existed within various texts. Ordeals played a significant
part in the judicial administration of ancient India, even though they were not really
rational and couldn’t really detect guilt. As pointed out in Medhatithi ordeals were like
magic and were meant to scare the guilty party and come out with the truth.
Trial by jury: in the ancient judicial system of india trial by jury existed but not in the same
form as we understand the term now. In the court scene of the Mrichchhaakatika, which
according to Jayaswal is the product of the third century, the jury is mentioned. Sukraniti,
Brihaspati and Narada defined the functions of the jury. It shows that members of community
assisted in the administration of justice. They were merely the examiners of the cause of
conflict and to place true facts before the judge. But the administration of justice was done by
the presiding judge and not by juries.
CLASSIFICATION OF DISPUTES IN ANCIENT PERIOD:

Sacred law (Dharma), evidence (Vyavahára), history (Charitra), and edicts of kings
(Rájasásana) are the four legs of Law, of these four in order: the later is superior to the
previously mentioned. Dharma is eternal truth holding its sway over the world; Vyavahára,
evidence, is in witnesses; Charitra, history, is to be found in the tradition (sangraha), of the
people; and the order of kings is what is called sásana (legislations).

Grounds of Litigation:
These eighteen “Titles of Law” or “Grounds for Litigation” given by Manu mentions following
grounds on which litigation may be instituted, (1) Non-payments of debts; (2) deposits; (3) sale
without ownership; (4) partnership; (5) non-delivery of gifts; (6) non-payment of wages; (7)
Breach of Contract; (8) cancellation of a sale or purchase; (9) disputes between owners and
herdsmen; (10) the law on boundary disputes; (11) verbal assault; (12) physical assault; (13)
theft; (14) violence; (15) sexual crimes against women; (16) law concerning husband and wife;
(17) partition of inheritance; and (18) gambling and betting.

Classification of Vivada (disputes)

Apart from 18 subject matters of legal proceedings (as classified by Manu), distinction has been
made between Artha-Vivada (civil dispute) and Himsra samudbhava Vivada (criminal
disputes), amongst criminal dispute there are 4 sub division

(i) Danda Parusya (assault and battery)

(ii) Vak- Parusya (Defamation)

(iii) Sahasa (Murder and other violation) and

(iv) Strisangrahana (adultery). A cause of action arises when a person, being harassed in a way
contrary to the rules of Smriti and usage, lodges a complaint.

The judicial proceedings usually comprise four parts, namely complaint, reply, evidence and
judgment. Replies can probably be of four kinds, and these are admission, denial, a special plea,
relating to a former judgment. Three types of evidences are mentioned namely document,
possession and witness.

(1) As regards the rules for summoning, it is evident that the opponent or the defendant, against
whom the suit is filed, must be summoned to the Court.

(2) Even other persons connected with the defendant (in the suit) may also be summoned.

(3) When, however, some persons like soldiers, Agriculturists, cowherds etc. are fully occupied
with their work, their representative may be allowed to appear before the Court, as held by the
Narada Smriti.

(4) In serious matters, however, the persons are allowed to appear in person before the Court,
particularly with proper safeguards
(5) in more serious matters like Murder of Woman, Adultery with her, as held by the
Mitakashara on the Yajanvalkay Smriti no representative is allowed. But in such matters, the
concerned must appear before the Court

(6) it should be noted that the presence of some persons like the deceased, very old (more than
Seventy years old), persons in calamities, engaged in religious rites, in king’s duties, a woman
whose family is in bad condition, is actually condoned.

(7) If, however after serving the summons defendant fails to come before the Court the King
should wait for 30 days or 15 days and pass the Judgment in favour of the plaintiff.

(8) But if there is an invasion by enemy or famine, or epidemic, than the King should not fine
the defendant who is thus prevented from coming to the Court

(9) However agents can be allowed to represent on behalf of his disabled Master.
 TYPES OF COURTS IN ANCIENT PERIOD

The Dharma Shastras, Niti Shastras and the Arthashastra provide us information about
the well-developed judiciary. According to these literatures the king is the fountain head
of all justice and he was required to spend every day about a couple of hours in
adjudication. The paramount duty of the king is the protection of his subjects which
involves the punishment of the wrongdoer. The law to be administered is the Dharma
Shastras subject to local and other usages which are not inconsistent with the shastras.

Type of courts:

Brihaspati mentioned about 4 types of courts

Pratishtitha –established at a particular village or town.

Apratishtita-was a mobile court which will assemble in a particular place to try a specific
case or called up on by the king

Mudrita-a higher level court which was authorized to use the royal seal.

Sasita-Highest court of law presided over by the king himself.

Mripa-(king himself) He was the supreme authority who was guided by the principles of
dharma, which he consider over ride.

In ancient India, there were 6 courts with different juisdictions.They were Kula (Family
council), shreni (council of trade or profession), Gana (assembly of a village) Adhikrita,
(court appointed by the king), Sasita king’s court and Nripa (The King).

He mentions three kinds of itinerant courts, one for the benefit of forest dwellers, one for
the benefit of caravan serai merchants and one for the benefit of military men.

According to Bhrighu there were fifteen kinds of courts. Some of the prominent courts
were justice was delivered were-

• Kula– The Kula has been defined by the Mitakshara as consisting of a group of relations,
near or distant. The Kula or joint families were often very extensive in ancient India. If
there was a quarrel between two members the elders used to attempt to settle it. The Kula
court was this informal body of family elders.
• Sreni– When the effort at family arbitration failed, the matter was taken to Sreni court.
The term Sreni was used to denote the courts of guilds which became a prominent feature
of the commercial life in ancient India from 500 B.C. Sreni had their own executive
committees of four or five members and it’s likely that they might have functioned as the
Sreni court also for settling the disputes among their members. This was an assembly of
persons following a particular profession like betel sellers, weavers, shoe makers and
such like.
• Puga– This was an association of persons drawn from various castes and following
different professions but staying in the same village or town. The Sabha or the village
assembly of the Vedic period and Gramavriddha court of the Arthasastra were the
forerunner of the Puga court.

Dharmastiya and Kontakasadhana

These were civil and criminal courts mentioned in Arthasastra, Dharmastiya were civil
court and kantakasadhana criminal court. Civil court presided over by 3 Amatyas and
three dharmastras.

The cases involving violence are to trusted but Adhikrita a court appointed by the king.
Corporate punishment to be decided by the sasita (king’s court) but to be finalized by the
king himself.

Kings court

It was the highest court of appeal as well as the original court in cases of vital importance
to the state. King was advised by learned Brahmins, the chief Justice and other judges,
ministers and other elders. Next to the king was the court of chief justice
(pradvivaka).Apart from chief justice it consisted of judges who were from three upper
classes preferably Brahmins.

Principal Courts: Another court of importance were the principal courts in large town
where royal officers assisted by learned person administered justice. They were presided
by Adhyakshas appointed by the central government.

Popular Courts: One special feature of ancient Indian judicial system is the existence of
popular courts. Yajnavalkya for the first time refers to three types of popular courts.
 CRIME AND PUNISHMENT IN MUGHAL PERIOD
Judicial Procedure was mainly governed by two Muslim codes, namely
Figh – e – Firuz Shahi and Fatwal – i– Alamgiri, Proof has been
categorized into 3 categories
1. Absolute corroboration
2. Single – person testimony
3. Admission including confession. The court has always preferred
full backing to other classes of evidence. According to the Quran
Muslim criminal law classified crimes broadly into three types:
• Crimes against Allah (God)
• Crimes against Shahenshah (king) or crime against state
• Crimes against individuals or Personal crimes
The Mughal Penal Code was quite severe. Mutilation of limbs and
physical torture was awarded by the qazis with the consent only. But
during Akbar’s rule governors of provincial regions were allowed to
award death punishment without the former's permission. It was said
that Emperor Shahjahan kept on official with several baskets full of
poisonous snakes for punishing the guilty. It was also very common for
criminals to be imprisoned for trivial offences.
According to the Quran the Courts have executed these kinds of
Punishment under Muslim law:
1.HADD (Fixed Penalties):
This was awarded for crimes against god which were unpardonable. So
this punishment cannot be reduced or changed by human agency. It is
applied equally to Muslims & Non – Muslims and it has meant specific
punishment for particular offences.
2.TAZIR (Discretionary Punishment):
It is applied to all crimes not classified under Hadd or to all offences
against Shahenshah. It means prohibition. It contained offences such as
gumbling, minor, theft etc. The kind & sum of punishment is completely
under the discretionary of the Judges & the court. Generally, it was
punishable by public reprimand, dragging of the offender and exposing
him to public scorn, boxing of his ears and scourging.
3.QISAS (Retaliation) and DIYA (Blood money):
Qisas meant life for life and limb for limb. Qisas has been applied to
cases of wilful killing and certain types of serious wounding or
mutilation characterized as crimes against the human body. Qisas was
considered the victim’s personal right or his next kin's right to inflict on
the wrongdoer like injury as he had inflicted on his victim.
4.NAZIR
The punishment which was given to the criminal for mending his ways
was called Nazir. For sub crimes sometimes the criminal was required to
pay fine. He was dragged on the threshold of the court of Justice,
condemned by the people and also imprisoned, exiled and thrashed by
whip. It involved public degradation. It was in the form of shaving the
head of the offender, putting him on an ass, with its face towards the tail
covered with dust sometimes with a garland of shoes placed around his
neck.
CLASSIFICATION OF COURTS DURING THE MUGHAL PERIOD

The significant courts that operated during this period were as follows:

The Court systems at capital:

India’s capital city Delhi had its courts divided into three. They were as follows: The Emperor’s Court

The Emperor’s court, which was controlled by the emperor, was the court of the empire’s highest order.
The said court has jurisdiction over the case civil as well as criminal cases. The Emperor was supported
by Daroga-e-Adalat, Mir Adil & Mufti when hearing the cases as a court of first instance. The Emperor
presided over a bench consisting of the Chief Justice (Qazi-ul-Quzat) and other chief justice court Qazis
while hearing the appeal.

The Chief Justice’s Court

It was the capital’s second significant courtroom. The said court was controlled over by the Chief Justice
which was supported by two highly essential Qazies who were appointed as puîne judges who were
working in this court. It had jurisdiction and the discretion to hear civil, original as well as criminal cases
and hear provincial court appeals as well. These also had supervisory authority over the operation of
the Provincial tribunals.

The Chief Revenue Court

It was the third relevant court of appeal to entertain those cases involving revenue. The four officials,
namely Daroga-e-Adalat, Mir Adil, Mufti and Muhtasib have also supported this court. In addition to
these three important courts, Delhi already had two courts. Qazi-e-Askar court was a court that was
especially where military matters were determined. The court travelled with troops from place to place.

Provincial Courts
The provinces in the Mogul period were called Subahs. During Mughal rule in India courts were present
in province level also. Each Subah had courts. The provincial courts were divided into following three
types.
a)The Governor‟s Court (Adalat-e-Nazim-e-Subah):The Governor or Nazim presided over this court and
he had original jurisdiction in all cases arising in the Province. This court had also jurisdiction to hear
appeals from the subordinate courts. Further appeal from this court lay to the Emperor‟s court.

This court had also supervisory power over the administration of justice in the Province. One Mufti and a
Daroga-e-Adalat were attached to this court.

b)The Provincial Chief Appeal Court (Qazi-i-Subah‟s Court): This court heard appeals from the decisions
of the Qazis of the districts. The powers of Qazi-i-Subah were co-extensive with those of Governors. This
court had original civil and criminal jurisdiction as well. The officers attached to this court were, Mufti,
Muhtasib, Daroga-e- Adalat-e-Subah, Mir Adil, Pandit, Sawaneh Nawis and Waque Nigar.
c)Provincial Chief Revenue Court (Diwan‟s Court):This court presided over by Diwan-e-Subah had
original and appellate jurisdiction at the imperial capital. Four officers attached to this court were
Peshker, Daroga, Treasurer and Cashier.
District Courts :-

The districts Courts were called Sarkars Courts and was present in each and every district of the Mogul
Empire. There were four types of district courts. They were as follows:
a)District Qazi: The chief civil and criminal court of the district was presided over by Qazi-e-Sarkar.
This court had jurisdiction to try all civil and criminal matters. Appeal from this court lay to the Qazi-e-
Subah .Qazi-e-Sarkar was the principal judicial officer in the district. Six officers were appointed to this
court, Daroga-e-Adalat, Mir Adil, Mufti, Pandit, Muhtasib, and Vakil-e-Sharayat.
b)Faujdar Adalat: This court presided over by a Faujdar had jurisdiction to try cases concerning riots and
state security.An appeal lay to the court of Governor from the decisions of this court.

c)Kotwali court: This court presided over by a Kotwal-e-Shahar decided all petty criminal cases.

Appeals from this court lay to the Qazi-e-Sarkar.

d)Amalguzari Kachari: This court presided over by an Amalguzar decided revenue matters. An appeal
from this court lay to Diwan-e-Subah‟s Adalat.

Parganah‟s Court:

The districts were further divided into parganahs. So to administer justice, three courts were appointed
in the parganahs. The courts present in the parganahs were:

a)Qazi-e-Parganah‟s Court:This court had jurisdiction over all civil and criminal cases arising within its
original jurisdiction. This court had no appellate jurisdiction. Appeal from this court lay to the court of
district Qazi.
b)Court Of Kotwal: This court decided all petty criminal cases. Appeals from this court's decision lay to
the Court of District Qazi.
c)Amin-e-Parganah: This court presided over by an Amin decide all revenue matters. An Appeal from this
court lay to District Amaguzar Village Courts:

In each village two types of courts were working-court of village Panchayat and the court of Zamindar.
The village panchayat consisted of five persons headed by a headman called Sarpanch.The members of
the village panchayat were called the Panch. The panchayat had the power to decide petty local civil and
criminal matters. No appeal was allowed from the decision of a panchayat. In the late Mughal period,
Zamindar‟s courts were empowered to try petty criminal and civil matters.
DEFECTS OF THE MUSLIM ADMINISTRATION OF JUSTICE

The Muslim administration of justice particularly the criminal justice in medieval

India suffered from many defects. The British people who gradually took over to
administer justice here always had an owl-look over the Muslim criminal law. Warren
Hastings declared it to be a more barbarous law than anything. The inherent defects of
Muslim administration of justice were as follows:

(i) The judicial administration was defective in the sense that there was no separation
between the executive and judiciary. The emperor who was the head of the
government was also the fountain of justice and administered justice directly.

(ii) In many cases Muslim criminal law was not certain and uniform. In practice it was
discovered that the law laid down in Hidaya and Fatwa-e-Alamgiri was mostly
conflicting. There were differences of opinions among Muslim jurists which gave the
Qazis a good deal of leeway to interpret the law and apply it to a specific fact before
him. Thus in each case the interpretation of law depended on the Qazi.

(iii) The Muslim criminal law did not draw any distinction between public law and
private law. Criminal law was regarded as a branch of private law. It had not
developed the idea that crime was an offence not only against the injured individual
but also against the society as well.

(iv) Muslim criminal law suffered from much illogicality. This is because crimes
against God were regarded crimes of an atrocious character. Crimes against men were
regarded as crimes of a private nature and punishment was regarded as private right of
the aggrieved party.

(v) The most defective provision in Muslim criminal law was the provision of Diya. In
many cases the murderer escaped simply by paying money to the dependants of the
murdered person. Many evil practices developed out of it.

(vi) In cases where murdered person left no heirs to punish the murderer or to demand
blood-money no specific provisions was available in Muslim law. A minor heir was to
wait till he attained majority for punishing the murderer or demanding the blood-
money.

(vii) Though Muslim law tried to distinguish between murder and culpable homicide,
it did not rest on the intention or want of intention of the culprit. It rested on the
method of weapons employed in committing the crime. This was peculiar and
generated grave injustice.

(viii)The law of tazir which provided for discretionary punishment was also very
vague which gave too much power to the judges. On the one hand, even innocent
persons were punished by the courts while on the other hand, it led to corruption and
injustice. Punishment could be unduly severe or ridiculously light as there was no
standard or measure for them.
(ix) The law of evidence under Muslim law was very defective unsatisfactory, and of
primitive nature which made conviction of offenders quite difficult. For example, no
Muslim could be given capital punishment on the evidence of an infidel. In other
cases evidence of one Muslim was regarded as being equivalent to those of two
Hindus. Evidence of two women was regarded as being equal to that of one man.
Again, evidence was to be direct; no circumstantial evidence was allowed. To convict
a man for rape, for example, it was necessary to have four witnesses who would swear
that they had actually seen the accused in the very act of committing the offence. A
thief would be convicted only on the evidence of two men, or of one man and two
women. It was an invariable case rule to exclude the evidence of women in all cases
under haddor qisas.

(x) The nature of punishment of stoning, mutilation etc were so cruel and inhuman
that no flesh and blood could even think of it in a civilized society. The punishment of
mutilation meant slow, cruel and lingering death to the unfortunate person who had to
undergo it, for he could not adopt any means of livelihood. The manner was one to
give gooseflesh in ones body. The culprit was tied down. The executioner took a blunt
hatchet and hacked off the hand by the joint of a wrist and the foot by the joint of an
ankle. The bleeding stump was immediately immerged into a pot of boiling butter
(ghee) in order to stop bleeding.
 Legal and Constitutional History

The British Empire in India was the creation of a petty company which was
originally formed for developing British commercial interests in Overseas
Countries.

In 1599, a company of London merchants which was called “The Governor and
Company of Merchants of London Trading into the East Indies” was formed. It
was later known as the East India Company.

1600:

The East India Company was incorporated in England on December 31, 1600
by a Charter of Queen Elizabeth.

Initially the company was established for a period of 15 years but the British
Crown was empowered to revoke the Charter even earlier on a two years notice.

British Settlement of Surat and Administration of Justice:

After landing on the Indian soil, the foremost task before the company was to
find out a suitable place as a centre for its trade. The company selected Surat
for this purpose as it was on important commercial centre and enjoyed the status
of an international port under the reign of Mughal Emperor Jahangir.

In 1609, the company sent Captain Hawkins to India. He reached Jahangir’s

Court and sought permission to settle at Surat. But the Portuguese were already
in occupation of this place and they could not tolerate any interference in their
commercial activities by the British. Company was denied permission by
Jahangir also.

1611:

So Captain Hawkins came to Surat with 3 English ships and he ousted the
Portuguese from that trading centre.
1612:

Two English vessels were admitted to Surat for trade. Thus Surat was the first
place where the English Company established its factory. Sultan Jahangir by a
FIRMAN permitted them to set up a permanent factory at Surat.

1615:

The King of England, James I sent Sir Thomas Roe to India as an ambassador to
conclude a treaty with Jahangir for more concessions. He reached Mughal
Darbar at Agra in 1615 and succeeded in securing the following important
concessions:

1. They were allowed to trade and establish a factory at Surat in a hired

house.
2. To live according to their own religion and laws without interference.
3. Disputes among them were to be settled by their own tribunals.
4. The disputes between the Englishmen and Indians were to be settled by
the local native authorities. But in such cases of complaints the
Englishmen should be protected and speedy justice to be given.

By 1619, the Englishmen had established factories at Surat, Agra, Ahmadabad

and Broach. Surat became as the 1st Presidency.

British Settlement at Bombay:

The Island of Bombay which was under the rule of Gujarat King Sultan
Bahadur came under the control of Portuguese in 1534. Portuguese King
transferred it to the British King Charles II as dowry on the marriage of his
sister Princess Catheline with Charles II. However King Charles II found it
inconvenient to exercise control over it from England. So he gave it to British
Company in India for a petty annual rent of £10 by the Charter of 1668.

Bombay gradually grew very prosperous and in 1687 it superseded Surat in

trading activities. Therefore the headquarters of the President and Council was
shifted to Bombay in May 1687. So the company from being a trading concern
lifted to the position of a territorial sovereign.
Madras:

It was admitted that “a little mistake in the form of commercial concession by

Jahangir cost his successors lost the Indian Empire”. The same mistake was
later made in 1639 by Raja of Chandragiri.

On 22.07.1639 an Englishman Francis Day, acquired a piece of land from a

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 the local population were called as BLACK TOWN.

Francis Day acquired many areas around the factory and added it to the
company. Madras city was formed with the unification of Triplicane,
Purasaivakam, Chintadripet, etc.

The Raja empowered the company to even mint money, (MINT STREET in
Parrys was named after it) and to govern the whole city of Madraspatnam.

British were able to set up trading centres in Masulipatnam, Karaikal,

Cassimbazar, Nagapattinam, Ceylon, and Cochin

In 1658, they founded settlements in Bengal, Bihar and Orissa and made them
subordinates to Fort St. George.

In 1691, under Mughal Emperor Aurangzeb’s order Shaistakhan issued a

FIRMAN to establish a factory(given the name FORT WILLIAM) there in
Sutanati (modern Calcutta) exempted from payment of Custom Duties.
Administration of Justice in Madras, Bombay and Calcutta (1600 – 1726):

Madras:

Judicial administration and development of courts in Madras developed in three

stages.

They are:

Stage I: 1639 – 1665

Stage II: 1665 – 1683

Stage III: 1683 – 1726

1639 – 1665:

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.The whole settlement
consisting of white town and black town came to be known as Madras.

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 most of the cases to England.

Agent and his Council who were administering justice were merchants and not
lawyers. They were supposed to decide cases according to English law, but
actually they did not even have elementary knowledge of the English law. So
the decided cases according to their own wisdom and common sense.

CHOULTRY COURT:

In Black Town the company could not start any judicial tribunal during this
period and left the old setup to continue. So 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.

Appeals from this Court was to be heard by the Agent-in-Council.

An Indian native, Kanappa, was appointed as Adikar. But he misused his power
and consequently he was dismissed from the office and English servants of the
company were appointed to fit in Choultry Courts.

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.

1665 – 1683:

High Court of Judicature:

The Governor reorganised the whole judicial system in 1665. 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:

During this period two important courts were established,i.e.,1. Court of

Admiralty under the Charter of 1683, 2. Mayor’s Court under Charter of 1687
issued by East India Company and not by British crown.
ADMIRALTY COURT:

Need for this Court

o The East India Company was given Monopoly of trade in Asia,

Africa and America. If other British subjects wanted to do trading,
they are supposed to get a license from the East India Company.
But the rights of the company were being infringed by other British
traders and on account of it a court having jurisdiction to punish
such traders was felt.

o Crime of piracy on the high seas was on increase. To deal with it

they need a court.

Functions

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,

1. all cases of mercantile or maritime nature

2. trespass, injuries and wrongs committed on high seas
3. forfeiture and seizure of ships or goods.

This court applied the rules of equity, good conscience and the laws and
customs of merchants. When it was established, John Grey was appointed as
judge of the court. In 1687, Sir John Biggs, a professional lawyer, was
appointed as Judge-Advocate (Chief Justice). This court becomes the general
court of the city for all practical purposes in setting all civil and criminal cases.

In certain cases, the appeals from Mayor’s court were also heard by the
Admiralty Court. This court functioned till 1704.

MERITS

o The Separation of Judiciary and executive was maintained. The

Governor and council had executive powers only. The judicial
power was exercised by the court of Admiralty.

o The administration of justice came to the hands of a professional

lawyer and thus the Admiralty court was able to administer justice
according to English law, whereas before the establishment of this
 court the judges were only laymen and were deciding cases
according to their common sense.

But the above good features in Madras did not continue for a long
time because Sir John Biggs died in 1689. His death checked the progress
of Admiralty court.

John Dolben and Sir William Frazer who were appointed as judge
advocates were all professional lawyers and decided cases impartially.
The company did not like this and dismissed them. So the court ceased to
function from 1704. Its jurisdiction was transferred to the Governor and
the Council. Ultimately the separation of executive and judiciary came to
an end. The company was neither in favour of appointing professional
lawyers nor maintaining judicial independence because it was afraid that
the lawyers would be too independent and would decide cases according
to law so the company could not use the judiciary as a tool to achieve its
political objects i.e., to acquire Indian territories.

MAYOR’S COURT:

The company’s Charter of 1687 established a Mayor’s Court at

Madras(Corporation). 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 in law called Recorder was attached to Mayor’s Court. (Court of
record). John Viges, Judge-Advocate of the Admiralty Court became the
Recorder of this Court. The Mayor court tried,

1. All civil cases up to the value of 3 pagodas

2. 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.

After 1704, since Admiralty Court did not function the appeals were referred to
Governor and council.

Appeals from the Mayor’s Court and Admiralty Court were heard by Governor
and Council.

DEFECTS OF MAYOR’S COURT

1. There was no separation between executive and judiciary. The Mayor,

Aldermen were the members of Governor’s council who was the
executive government of Madras.

2. The judges of Mayor Court were laymen and they had no knowledge of
English laws. No uniform and consistency in their decisions.

3. Even though an expert was appointed as Recorder, less importance was

given by the judge to the advice and opinion of Recorder.

4. The Judges were not honest and impartial.

CHOULTRY COURT

It could hear petty civil cases up to 2 pagodas only. By 1800, its power
declined.
Bombay:

It was under the control of the Portuguese from 1534 onwards. Portuguese
King gave it as a dowry to Charles II of England when he married the formers
sister in 1661. King leased it to the company. The Judicial Administration
developed in three stages. They are:

Stage I: 1668 – 1683

Stage II: 1684 – 1690

Stage III: 1718 – 1726

1668 – 1683:

Judicial Reforms of 1670:

Gerald Aungier reorganised the old judicial setup of Bombay and all laws were
classified into six sections. They are:

1. related to the freedom of worship and religious believes

2. impartial administration of justice
3. establishment of a court of Judicature to decide all criminal cases and for
the appointment of justice of peace and order, to arrest criminals
4. registration of transactions concerning sale of land and houses
5. contained miscellaneous provisions dealt with penalties for different
crimes
6. military discipline and prevention of disorder and revolt.

Bombay was divided into two divisions. One division consisted of Bombay,
Mezagaon and Girgaon, while the other division consisted of Mahim, Parel,
Sion and Worly. Each division had a court of five Judges. The customs officer
of each division, an Englishman presided this court. Some Indians were also
appointed as judges but they were not paid any emoluments. They sat once a
week and tried petty civil and criminal cases up to the value of two hundred
xerophins (A Portuguese coin equal to nearly Rs. 7.50).
Appeals from this court went to Deputy Governor in Council. All criminal cases
like murder and mutiny etc were to be decided by the Deputy Governor.
DEFECTS: As Gerald Aungier felt the court had only judges who were all
laymen, who did not have any elementary knowledge of law. So he requested
the Company to send a law expert from England. When the law expert arrived,
with his advice he prepared Judicial plan of 1672.

New Judicial Plan of 1672:

1. All cases were tried according to English Law.

2. Central Court of Judicature was established and presided by a single
Judge – sat once a week and tried all civil, criminal and testamentary
cases.
3. Justice of Peace – Bombay was divided into four divisions. Each headed
by an Englishman called Justice of Peace.

He acted as committing magistrate, recorded the necessary proceedings and sent

the accused to the Court of Judicature for trial.

4. The appellate authority was Deputy Governor and Council.

5. Court of Conscience was established. It sat once a week. It decided petty
cases summarily without charging fees from the litigants.

1673-74 :

Several Panchayats were established which were authorized to hear cases

among persons of their own caste only if they were willing to submit the case
before the Panchayats or else the cases will be referred before Central Court of
Judicature.

1684 – 1690:

1. Admiralty Court was established in 1684 under the Charter of 1683 with the
same guidelines as in Madras.

2. This court had judge-advocates who is well versed in civil laws.

3. Dr. St.John who was an expert in civil laws was appointed as judge-advocate.
4. But the authority of admiralty court was not sufficient to cover all the civil
cases. So, a Court of Judicature was established and Dr.John was made as its
Chief Justice.

5. Dr. John was much spirited in having Independent Judiciary which caused
much annoyance to the Governor-in-Council, Mr.Child who did not respect the
judges.

6. Dr.John took some evidence against the Governor but the Governor directed
him not to take such type of evidence. Dr.John refused on the ground that he
was bound by the oath not to conceal any information which was brought to his
notice against any person.

7. So, conflict between John and Governor arose which finally resulted in the
dismissal of John.

8. Vaux was appointed as the Judge. He remained from 1685-90.

9. Criminal and civil jurisdiction of the court were forfeited after this period.

From 1690 – 1718, there was no court in Bombay. The Governor-in-Council

was deciding civil and criminal cases roughly.

1718 – 1726:

Court of Judicature:

It consisted of a Chief Justice and nine Judges. The Chief Justice and five
Judges were to be English. Other four were Indian Judges. They represented
four principal communities – Hindus, Muslims, Christians and Parsis. The
quorum was three English Judges. This court sat once a week and tried all civil,
criminal, testamentary cases as per law, equity, good conscience and rules and
ordinance of the company from time to time.

Appeal was heard by the Governor and Council.

Calcutta:

In 1690, the English Merchants founded a settlement at Sutanati, a site where

future Calcutta developed. In 1698, they secured Zamindari rights over
Sutanati, Calcutta and Gobindpur. The company established Fort William at
Calcutta in 1700. Calcutta became a Presidency with the Governor and Council
to manage its affairs. A member of the Council was appointed as Collector to
act as Zamindar on behalf of the company in 1700.

Faujdari Court:

The Collector decided criminal cases of the natives of three villages – Sutanati,
Gobindpur and Calcutta. The criminals were punished by whipping, imposing
fines, imprisonment, banishment or work on roads. Capital punishment was
given only after confirmation by the Governor in Council.

Justice administered by Local Zamindars:

Each Zamindar (Collectors) held a cutcherry or Adalat and decided all civil
cases according to the customs of the country. Appeals from this Court lay to
the Nawab’s Court at Murshidabad. Death sentences had to be confirmed by
the Nawab who is a native governor during the time of the Mughal empire.

Mayor’s Court

1) As per the Charter of 1687, Mayor’s Court was established by the Company. The reason
for establishment of this Court was when the Madras Government levied house tax, it was
strongly opposed by the Hindus of the Black town. They involved in strikes like abandoning
their duties, shutting up of shops, etc.

2) This Court was started with natives mixed with Englishmen

3) This Court consisted of one Mayor and 12 Aldermen and 60 or more Burgesses

4) The Mayor and 3 Senior Aldermen were always British servants of the Company. The
remaining Aldermen could be of any Nationality
5) 30 of the 60 Burgesses were to be heads of several castes. Appointment of caste leaders
was for the purpose that they would be ready to tax themselves and the inhabitants generally
for various municipal purposes

6) Mayor was to continue in office for 1 year and Aldermen could continue till their lifetime
or residence in Madras and the Aldermen elected the Mayor annually

7) Aldermen’s vacancy was to be filled by the mayor from amongst the Burgesses.

8) A man learned in law called Recorder was attached to the Mayor’s Court (Court of
Record)

Sir John Biggs, the Judge Advocate of the Admiralty Court was appointed as the 1st Recorder
of the Mayor’s Court.

9) Mayor’s Court tried

a)All civil cases upto 3 pagodas

b) All criminal cases with the help of jury and punished the offenders by fine or
imprisonment

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

11) The Governor and council were given power to remove any Mayor, Aldermen and
Burgesses and appoint any one in place of vacancy.

Charter of 1726

It established Mayor’s Court at Madras, Calcutta and Bombay and it consisted of one Mayor,
and 9 Aldermen. Mayor and 7 Aldermen were to be English and the others were to be from
any Princely States friendly with Britain.

2) Mayor holds office for 1 year. The Aldermen held office for lifelong. Outgoing Mayor and
Aldermen elected the new Mayor out of the Aldermen.

3) The Governor and Council was given the power to remove any Mayor and Aldermen, and
to appoint anyone in place of vacancy on reasonable grounds.

4) This Court tried only Civil cases. It was empowered to try testamentary cases. 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 the witnesses and plead their
cases.
5) The Court could commit persons for its contempt. Sheriff was appointed by Governor and
Council and his duty was to produce the defendant in Court if a written complaint was filed
by an aggrieved party.

6) The Court executed judgments as per English law, as 1726 Charter did not prescribe what
law to follow.

7) Governor in Council heard appeals from the Mayor’s Court upto the value of 1000
pagodas. If the value of the suit was more than 1000 pagodas a second appeal was permitted
to the Privy Council.

8) Mayor’s Court had no criminal jurisdiction. The Governor and 5 senior members of the
Council were appointed as Justice of Peace for the administration of Criminal Justice.

Working of Mayor’s Court:

From 1726 to 1753, frequent disputes between the Government and Mayor’s Court arose.
Mayor’s Court were made completely independent of the Executive Government. The
Charter of 1726 adopted the principle of independent Judiciary to a considerable extent which
was a positive development in the legal history of India.

Some cases referred were:

Madras:

1. Pagoda oath case (1736)

2. Mayor Naish’s re-election case
3. Mayor and Secretary betting case

Pagoda Oath Case:

In Madras, Hindus gave evidence in the Court on BhagwadGeetha 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:

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:
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.

Bombay:

1. Arab Merchant’s case (1746)

2. Woman’s case (1730)

Arab Merchant’s Case:

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.

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

Hindu Woman’s Case: (1730)

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 Mayor and Council on the ground that the dispute before the Court was not
really religious and it had jurisdiction to decide it under the Charter. The Governor
 and Council stuck to their previous opinion and took serious action by removing the
Mayor from his office.

Cause for the conflict between Mayor’s Court and Governor-in-Council

THE DEFECTS IN THE CHARTER OF 1726:

1. The Charter did not lay down in clear terms the Law which the Mayor’s
Court was to apply. Thus the Court applied the principles of British Law.
The Charter did not make any provision for the appointment of qualified
legal persons as judges.
2. The Governor and Council were of despotic nature having no respect for
the judiciary. So always interfered with the judicial function of the
Mayor’s Court. When the Mayor’s Courts took that as the violation of
judicial independence and avoided them, they were annoyed with them
and made every attempt to lower down the judiciary in the public eyes
and to punish its judges.
3. SUPERIORITY COMPLEX OF JUDGES OF MAYOR’S COURTS:
They thought themselves as superior and independent of executive as
appointed under the royal authority. This Court was staffed by people
having no legal knowledge. So they lacked the discipline of legal
training, and at times acted in a manner that would be derogatory to a
Court.
4. Personal hatred, jealousy, prejudices among the Company’s servants
manifested itself in the conflicts between the executive and the court.
5. As Indians were unfamiliar regarding British Laws and suffered a lot with
the working of the Mayor’s Court, the executive always sided with the
Indians. They asked the Courts not to interfere with Indian customs and
religions and if any differences among them arises, it was to be settled as
per their own customs.
 CHARTER OF 1600:

The history of the legal system in British India opens with the establishment of
the East India Company. It was incorporated in England by the Crown’s
Charter of 1600. It was incorporated for a period of 15 years, (its official title
“The Governor and Company of Merchants of London Trading into the East
Indies”) but could be wound up earlier on 2 years of notice if trade was found
unprofitable. The Company was given exclusive trading rights in Asia
(including India), Africa and America. No British subject could carry on trade
within these areas without the licence granted by the Company.

ORGANISATION AND MANAGEMENT:

It was a Regulated company in the sense that the affairs of the Company were
to be conducted on democratic lines (Capital is based on the shares invested
only for a particular trade or voyage). All the members constituted themselves
as General Court. It was to elect annually the Court of Directors. The Court
of Directors consisted of 1 Governor and 24 Directors, to manage the entire
business. The Governor and Directors were to hold office for 1 year though
they were eligible for re-election. The General Court could remove any of them
before expiry of their term if considered unfit or inefficient and elect a new
person to fill the vacancy.

INTERLOPERS PROSECUTED:

East India Company had the monopoly of trade. Interlopers were liable for
punishment. Unauthorised British traders were liable to forfeiture of their
merchandise and ships; and the crown could also imprison them.

LEGISLATIVE POWER:

These powers were delegated by the Crown to Company’s officials for

managing the Company’s affairs. But the Company was given limited powers.
The Charter authorised the General Court to make byelaws, ordinances, etc. for
the good governance of the Company and its servants and also for the better
advancement of trade and traffic. They could even punish offences against
them by fine or imprisonment according to laws, statutes and customs of
England. So the legislative authority was given to the Company in order to
enable it to regulate its own business and maintain discipline among its
servants.

The Charter did not intend to confer on the Company a power to legislate for
and govern some territories. The Company was not allowed to decide the case
of capital offences and to prescribe death sentence.

The 1600 Charter made no reference to factories or territories and so the

Company was not given the power to govern any province or factory. The
Company was considered a purely commercial concern. The Company too was
not thinking of territorial acquisition but only trade.

The legislative powers were equal only to those given to Municipal and
Commercial Corporations in England.

MERITS OF THE CHARTER OF 1600:

The Charter helped the East India Company to establish itself in India.

It is out of this modest beginning in the year 1600 that the vast powers of
legislation grew in course of time.

Even though at its inception the Company’s object was commercial, it gradually
inclined to acquire territories, which would be beneficial from commercial point
of view. Portuguese occupation of Indian territories and disunity among Indian
kings inspired them to acquire territories. So it is of historic importance as it is
the germ out of which the Anglo-Indian codes were ultimately developed.

DRAWBACKS OF THE CHARTER OF 1600:

The limited scope of the legislative powers proved to be an inadequate deterrent

to prevent lawlessness among the servants while on the high seas. The
Company used Crown’s prerogative and used to secure from it a commission to
the Commander in Chief of each voyage separately empowering him to inflict
punishment for Capital Offences such as murder or mutiny or to put into
execution the Law called “Law martial”. So this limited power of the
Company was not conducive for furthering their interests. Moreover the British
Government at that time unlike Dutch and Portuguese did not evince an active
interest in the Company’s development. So it also stood in the way of the
Company’s growth.

As early as January 24th, 1601 within a month of granting the 1st Charter, Queen
Elizabeth issued the 1st Commission to Captain Lanchester for the 1st voyage.

Every time an English ship sailed to India, its captain took care to arm himself
with the powers given by the Queen. Instead of granting a separate royal
commission for each voyage, on December 14th, 1615(Royal Grant) King James
I conferred on the Company, a general power to issue such commissions to its
captains subject to the condition that in case of a capital offence, such as wilful
murder or mutiny, the verdict was to be given by a Jury of 12 Company’s
Servants.

Example:

The 1st such conviction was reported for a crime which was committed on board
the ship Charles lying at the Surat Port. Gregory Lellington killed Henry Barton
near Surat. He was convicted on his own confession and condemned to death
(1616).
 CHARTERS OF 1661:

REASON FOR PASSING OF CHARTER

The prosperity of the Company suffered during the reign of Charles I due to
Dutch competition and Royal differences at home. The condition became worse
when in 1635, Charles I granted licence to Sir William Counter to form a new
trading association under the name of Counter’s Association to trade with East
Indies. This rival company though did not trade in India, it severely depressed
the fortunes of East India Company.

The efforts of Oliver Cromwell however redressed the grievances of the East
India Company. Cromwell was also instrumental in the merger of East India
Company and William Counter’s Association.

The separate shares of the Company united in a single joint stock. This changes
the character of the Company, which became a permanent joint stock enterprise.
This was further stabilized by the Charter of 1661.

The Charter of 1661 gave more powers to the Company – Legislative as well as
Judicial. The Company also started receiving some patronage from the
Government.

THE CHARTER OF 1661:

On April 3rd, 1661, Charles II issued a Charter which granted more powers to
the East India Company.

The provisions are,

1. The Company was recognised on a permanent joint stock basis.

2. Each member of the Company was given one vote for every £500 stock
subscribed by him. So a person who invested more would naturally get
more votes.
3. The Government recognised the fact that the Company in India owned
fortresses and not merely trading factories. So they were authorised to
send ships of war, men and ammunitions for the security of their factories
and to erect fortifications. They even supplied them with provisions and
ammunitions free of export duty and to transport volunteers to garrison
them.
 4. The Company was given permission to choose commanders and officers
to make peace or war with any non – Christian people in any places of
their trade. This was for the advantage and benefit of the Company and
their trade.
5. The Company in order to effectively exercise power and control over
their fortresses were allowed to appoint Governors and other officers for
the above said purpose.
6. The Company was permitted to govern their employees in a legal and
reasonable manner and punish them for misdemeanour and fine them for
breach of orders.
7. The trading monopoly of the Company was re-affirmed. The Company
was allowed to punish or seize unlicensed persons and send them to
England. There they would be dealt as per Law.

JUDICIAL POWERS:

8. In addition to this, the Company was given general judicial authority.

The Governor and Council of each factory had the power to judge all
persons in their forts or factories. Both civil and criminal cases could be
tried by them according to the Laws of the Kingdom.

9. In places where there was no Governor, the Chief Factor and Council
were empowered to send offenders for punishment either to England or to
a place where there was a Governor and Council.
10.Prisoners could be sent to England in case the prisoners appealed against
the judgment of the Governor and Council. The main advantage of this
provision was that the unruly servants could be expelled from India.

IMPORTANCE OF THE CHARTER OF 1661:

Broader powers were conferred on the Company to administer justice in its

settlements had an important bearing on the evolution of judicial system of
India.

The Company got permission to grant more powers to President and Council in
India to enforce obedience among English resident within their jurisdiction.
They could punish offenders according to English Law. The main grouse of the
Company was that it had to carry on its business in a far off land without proper
authority to enforce obedience amongst its subjects. So the Charter of 1661 was
passed by Charles II authorising the Governor and Council of each factory to
judge all persons within their jurisdiction, in all cases civil or criminal,
according to the Laws of England and execute judgment accordingly.

In a place – no Governor, the Chief Factor sent offenders to England or to a

place having Governor and Council.

DRAWBACKS:

1. As judicial powers were granted to Governor and Council – No line of

demarcation between the executive and the judiciary.
2. Justice was to be administered as per the English Law. This was a
safeguard and privilege for Englishmen but it worked against the Indians.
English Law was an alien system for Indians.
3. This Charter did not become immediately operative in Madras. So there
was no change in the judicial setup. There was only an Agent in Madras
but the Charter bestowed powers only to Governor and his Council.

In 1665, the trial of Mrs. Ascentia Dawes, an English woman proved to be a

turning point in Anglo-Indian history of India. She was accused for murdering
her slave girl. The case was referred to the Agent and Council of Madras, who
referred it to the authorities in England. As the Charter of 1661 had granted
judicial powers to the Governors and Council, after great consideration
Company decided that the Agency of Madras should be upgraded as Presidency
of Madras. So the Agent and Council would become the President and Council
and empowered to try Mrs. Dawes case. She was not found guilty by the Jury
and was consequently acquitted. This clearly shows the absence of legal expert
who is conversant with the Law and Procedures.
 THE CHARTER OF 1726:

The Company emphasised the need for a proper and competent authority to
implement an effective system of administration of civil and criminal justice to
the British King George I through a petition.

1. As judges were laymen, they did not have adequate knowledge of English
Law. So decided cases according to their own common sense notion of
justice.
2. The Judicial Administration and working of Courts in the 3 Presidency
Towns was unsatisfactory.
3. With the growth in company’s trade, the population of British settlements
had increased considerably. Therefore, more cases were coming to the
Courts for adjudication.
4. Encouraged by the successful working of Corporation at Madras the
Company wanted similar Corporations at Bombay and Calcutta.
5. Many Englishmen who settled in India died leaving behind considerable
movable and immovable property. This created problem for the
Company to dispose and distribute their assets. No doubt, the Mayor’s
Court of Madras (established in 1687) was empowered to decide
testamentary cases but its decisions not recognised by the Court of
England as it was a Court of the Company and not of British Crown. So
there was a need of a Court in each Presidency which derivestheir
authority from the British Crown. Finally the Judicial Charter was
granted by the British King George I on September 24th, 1726.

PROVISIONS:

The Charter provided for the establishment of Corporation at Bombay and

Calcutta like the one in Madras. The Corporation consisted of 1 Mayor and 9
Aldermen. The Mayor and 7 Aldermen were to be natural born British subjects
while 2 Aldermen could be of subjects of Indian Princely States friendly with
Britain. The first Mayor and Aldermen were to be appointed by the Charter
itself and thereafter Mayor to be elected annually by the Aldermen. Aldermen
were to hold office for life or till their residence in the Presidency town but they
could be removed by the Governor in Council on a reasonable cause. An appeal
against this could be made to the King in Council in England.
MAYOR’S COURT IN PRESIDENCY TOWNS:

The Mayor and Aldermen formed a Court of Record called ‘MAYOR’S

COURT’. It was empowered to decide all civil cases. The Mayor together
with two other English Aldermen formed the quorum. The Court also exercised
testamentary jurisdiction. It could grant probates of wills and letters of
Administration in case of intestacy. An appeal from this Court lay to the
Governor and Council. A further appeal lay to the King in Council if the case
involves the subject matter above 1000 pagodas.

The Court could commit persons for its contempt. The process of the Court was
to be executed by the Sheriffs, who were initially nominated but subsequently
chosen annually by the Governor and Council. The Charter did not prescribe
what law to follow but as the earlier Charter of 1661 provided that justice to be
in accordance with English Law, it was presumed that the same law was to be
followed.

CRIMES AND PUNISHMENTS:

Mayor’s Court had no criminal jurisdiction. The Governor and 5 Senior

Members of the Council were appointed as Justice of Peace in each Presidency
for the administration of criminal justice. They also constituted a Court of
OYER, TERMINER AND GAOL delivery and were required to hold quarter
sessions. So altogether they possessed complete criminal jurisdiction.

JURY TRIAL IN CRIMINAL CASES:

The Charter provided that criminal cases in Presidencies be decided with the
help of Grand Jury and Petty Jury. The Grand Jury consisting of 23 persons and
they were entrusted with the task of presenting persons suspected of having
committed a crime. So they are called as “Jury of Presentment”.After an
offender was apprehended and brought before a justice of peace for preliminary
enquiry, the latter examined both the parties and recorded evidence and sent it
to theCourt of Governor in Council for trial. Before the commencement of trial,
all the evidences of prosecution, accusation or indictment was placed before
Grand Jury. In case the Grand Jury returned a verdict of “no prima facie case”
the accused was acquitted without trial. However if majority of the Jury was
satisfied with a propriety of the case, then the prisoner was tried by Petty Jury.

If Petty Jury after hearing both sides returned a verdict of ‘guilty’, the accused
was sentenced by the Court of Quarter Sessions(Governor and Council).

As per the Charter, Company sent to each Presidency list of Statutes, Law
books and instructions. This was intended to maintain uniformity in the
functioning of Law Courts in all the Presidencies and follow English Law.

LEGISLATIVE POWERS UNDER THE CHARTER:

Until 1726 the law making powers were exercised by the Court of Directors of
the Company in England. As they hardly had any knowledge about the local
conditions in India, the Laws framed by them were ineffective. Therefore
Charter of 1726 empowered the Governor and Council of each Presidency to
make byelaws, rules and ordinances for the regulation of the Corporations and
inhabitants of the Presidencies and they would also prescribe punishment for the
breach of such Laws and Rules. But these rules and ordinances and
punishments could not be effective unless approved by the Company’s Court of
Directors in England.

WORKING OF MAYOR’S COURT OF 1726:

From 1726 to 1753 frequent disputes between the Government and the Mayor’s
Court arises. Governor and Council did not have any voice in the appointment
of Mayor as he was elected by the Corporation independently.

The Corporation and Mayor’s Courts were completely independent of the

executive Government. The Charter of 1726 adopted the principle of
independence of judiciary to a considerable extent which was a positive
development in the legal history of India.

Some cases referred were:

1. Arab Merchant’s Case (1746)

2. Hindu Woman’s Case (1730)
3. Pagoda Oath Case (1736)
 4. Mayor Naish’s Re-election Case
5. Mayor and Secretary betting case

CAUSES FOR THE CONFLICTS BETWEEN MAYOR’S COURT AND

GOVERNOR IN COUNCIL:

THE DEFECTS IN THE CHARTER OF 1726:

6. The Charter did not lay down in clear terms the Law which the Mayor’s
Court was to apply. Thus the Court applied the principles of British Law.
The Charter did not make any provision for the appointment of qualified
legal persons as judges.
7. The Governor and Council were of despotic nature having no respect for
the judiciary. So always interfered with the judicial function of the
Mayor’s Court. When the Mayor’s Courts took that as the violation of
judicial independence and avoided them, they were annoyed with them
and made every attempt to lower down the judiciary in the public eyes
and to punish its judges.
8. SUPERIORITY COMPLEX OF JUDGES OF MAYOR’S COURTS:
They thought themselves as superior and independent of executive as
appointed under the royal authority. This Court was staffed by people
having no legal knowledge. So they lacked the discipline of legal
training, and at times acted in a manner that would be derogatory to a
Court.
9. Personal hatred, jealousy, prejudices among the Company’s servants
manifested itself in the conflicts between the executive and the court.
10.As Indians were unfamiliar regarding British Laws and suffered a lot with
the working of the Mayor’s Court, the executive always sided with the
Indians. They asked the Courts not to interfere with Indiancustoms and
religions and if any differences among them arises, it was to be settled as
per their own customs.

DISTINCTION BETWEEN THE COMPANY’S CHARTER OF 1687

AND THE CROWN’S CHARTER OF 1726:

THE COMPANY’S CHARTER OF THE CROWN’S CHARTER OF

1687 1726
The Mayor’s Court established in Established in Madras, Bombay and
Madras only. Calcutta.
This Court was Company’s Court. This Court was King’s Court i.e. Royal
Court.
This Court decided all civil and This Court decided only civil cases.
criminal cases. Appeals were to be Governor in Council were the
allowed in the Admiralty Court. appellate authority.
No specific rules of laws and English Law was followed.
procedures.
A Law learned person was appointed There was no such officer in this
in the Court. So it was called Court.
Recorder’s Court.
Some Indians sat as Judges together Out of 9 Aldermen, 7 were British
with English Aldermen in the Court. subjects and 2 were required to be
subjects of Indian princely states
friendly with Britain.
The administration of justice was The Charter mixed executive and
entrusted only to the Mayor’s Court judiciary. It granted original criminal
and the Admiralty Court in Madras. jurisdiction and appellate civil
Executive had no power in this jurisdiction to the Governor and
respect. Council who were already entrusted
with executive powers of Presidencies.
 Mayor’s Court

1) As per the Charter of 1687, Mayor’s Court was established by the Company. The reason for
establishment of this Court was when the Madras Government levied house tax; it was strongly
opposed by the Hindus of the Black town. They involved in strikes like abandoning their duties,
shutting up of shops, etc.

2) This Court was started with natives mixed with Englishmen

3) This Court consisted of one Mayor and 12 Aldermen and 60 or more Burgesses

4) The Mayor and 3 Senior Aldermen were always British servants of the Company. The
remaining Aldermen could be of any Nationality

5) 30 of the 60 Burgesses were to be heads of several castes. Appointment of caste leaders was
for the purpose that they would be ready to tax themselves and the inhabitants generally for
various municipal purposes

6) Mayor was to continue in office for 1 year and Aldermen could continue till their lifetime or
residence in Madras and the Aldermen elected the Mayor annually

7) Aldermen’s vacancy was to be filled by the mayor from amongst the Burgesses.

8) A man learned in law called Recorder was attached to the Mayor’s Court (Court of Record)

Sir John Biggs, the Judge Advocate of the Admiralty Court was appointed as the 1st Recorder of
the Mayor’s Court.

9) Mayor’s Court tried

a)All civil cases upto 3 pagodas

b) All criminal cases with the help of jury and punished the offenders by fine or
imprisonment

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

11) The Governor and council were given power to remove any Mayor, Aldermen and Burgesses
and appoint any one in place of vacancy.
 Charter of 1726

It established Mayor’s Court at Madras, Calcutta and Bombay and it consisted of one Mayor, and
9 Aldermen. Mayor and 7 Aldermen were to be English and the others were to be from any
Princely States friendly with Britain.

2) Mayor holds office for 1 year. The Aldermen held office for lifelong. Outgoing Mayor and
Aldermen elected the new Mayor out of the Aldermen.

3) The Governor and Council was given the power to remove any Mayor and Aldermen, and to
appoint anyone in place of vacancy on reasonable grounds.

4) This Court tried only Civil cases. It was empowered to try testamentary cases. 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 the witnesses and plead their cases.

5) The Court could commit persons for its contempt. Sheriff was appointed by Governor and
Council and his duty was to produce the defendant in Court if a written complaint was filed by
an aggrieved party.

6) The Court executed judgments as per English law, as 1726 Charter did not prescribe what law
to follow.

7) Governor in Council heard appeals from the Mayor’s Court upto the value of 1000 pagodas. If
the value of the suit was more than 1000 pagodas a second appeal was permitted to the Privy
Council.

8) Mayor’s Court had no criminal jurisdiction. The Governor and 5 senior members of the
Council were appointed as Justice of Peace for the administration of Criminal Justice.

Working of Mayor’s Court:

From 1726 to 1753, frequent disputes between the Government and Mayor’s Court arose.
Mayor’s Court were made completely independent of the Executive Government. The Charter
of 1726 adopted the principle of independent Judiciary to a considerable extent which was a
positive development in the legal history of India.

Some cases referred were:

Madras:

1. Pagoda oath case (1736)

2. Mayor Naish’s re-election case
3. Mayor and Secretary betting case
 Pagoda Oath Case:
In Madras, Hindus gave evidence in the Court on BhagwadGeetha 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:

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:

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.

Bombay:

3. Arab Merchant’s case (1746)

4. Woman’s case (1730)

Arab Merchant’s Case:

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 tried for piracy regarding the same occurrence and acquitted.

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

Hindu Woman’s Case: (1730)

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.
But the Mayor argued that the dispute before the Court was not really
religious. It is connected with the custody of the boy which is a civil case so
it had Jurisdiction to decide it. But the Governor stuck to the previous
opinion and took serious action by removing the Mayor from his office. The
Governor removed the Mayor on the ground that the dispute before the
Court was not really religious and it had jurisdiction to decide it under the
Charter. The Governor and Council stuck to their previous opinion and took
serious action by removing the Mayor from his office.

Cause for the conflict between Mayor’s Court and Governor-in-Council

THE DEFECTS IN THE CHARTER OF 1726:

11.The Charter did not lay down in clear terms the Law which the Mayor’s
Court was to apply. Thus the Court applied the principles of British Law.
The Charter did not make any provision for the appointment of qualified
legal persons as judges.
12.The Governor and Council were of despotic nature having no respect for the
judiciary. So always interfered with the judicial function of the Mayor’s
Court. When the Mayor’s Courts took that as the violation of judicial
independence and avoided them, they were annoyed with them and made
 every attempt to lower down the judiciary in the public eyes and to punish
its judges.
13.SUPERIORITY COMPLEX OF JUDGES OF MAYOR’S COURTS:
They thought themselves as superior and independent of executive as
appointed under the royal authority. This Court was staffed by people
having no legal knowledge. So they lacked the discipline of legal training,
and at times acted in a manner that would be derogatory to a Court.
14.Personal hatred, jealousy, prejudices among the Company’s servants
manifested itself in the conflicts between the executive and the court.
15.As Indians were unfamiliar regarding British Laws and suffered a lot with
the working of the Mayor’s Court, the executive always sided with the
Indians. They asked the Courts not to interfere with Indian customs and
religions and if any differences among them arises, it was to be settled as per
their own customs.
 The Regulating Act, 1773

The Regulating Act was the first enactment passed by the British parliament to
regulate the working of the territorial acquisitions of the English Company in
India. Robert Clive established dual government in Bengal. As the revenues of the
Company increased on account of the income from the Diwani of Bengal, Bihar
and Orissa, the share-holders of the company demanded and got a dividend of 12
½ % on their shares. The British government got annual payment of Rs. 400000
from the Company.

The servants of the company took undue advantage of the situation and
exploited their powers for selfish gains. Consequently, the economy of the
country suffered a major setback. To add fuel to the fire, the famine of 1770
reduced the population to about 1/5th which added to the miseries and
misfortunes of the people of Bengal, Bihar and Orissa. So, the British Government
appointed a secet committee to enquire into the affairs of the East India
Company to submit its reports .This report ultimately led to the enactment of
Regulating Act of 1773 during the time of Lord North.

Provisions of the Act:

1. Previously, the directors used to be elected for one year. This act extended their
term to four years, one fourth of them retiring every year. The retired directors
were not eligible for re-election. The directors were required to lay the
correspondence with the Indian authorities regarding civil and military
 administration before the treasury. Voting qualifications of the Court of
Proprietors was increased. Only those who hold a stock of 1000 pounds for the
preceding 12 months would be allowed to vote at the election. Shareholders who
possessed 3000 pounds’ worth of stocks were given two votes and those
possessing 10000 pounds’ worth of stocks were given 4 votes.

2.A new govt. was established with a governor general and a council of 4 members.
The governor general’s annual salary would be 25000 pounds and the annual
salary of the 4 council members would be 10000 pounds. They held office for five
years. In meetings, majority opinion was considered. In case of equal decisions, a
casting vote was given to the Governor general.
3.The governor general was given the power to make rules and regulations
consistent with English laws and were required to be registered with the Supreme
Court.
4.The governor General and the Council had the powers to maintain territories,
acquisitions and revenues of the Kingdom of Bengal, Bihar and Orissa.
5.This Act established a Supreme Court at Calcutta consisting of a Chief Justice and 3
puisne judges. Sir Elijah Impey was appointed as the Chief Justice. This court was
given the power to try civil, criminal, admiralty and ecclesiastical cases. It was
given both original and appellate jurisdiction, to be tried by means of a jury.

6.This Act prohibited the receiving of presents and bribes by the servants of the
Company.
7.No British subject was to charge interest at a rate of higher than 12%. If the
Governor General, Governor, members of the Council, judges of the Supreme
Court or any other servant of the Company committed any offence, he was liable
 to be tried and punished by the King’s Bench in England. This Act fixed the salaries
of the Chief Justice at 8000 pounds and the other judges at 6000 pounds.

Cases Referred:

1.Trial of Raja Nand Kumar (1775)

2.Case of Kamaluddin (1775)
3.The Patna Case (1777-1779)
4.The Cossijurah Case (1779-1880)
Importance of the Act:

It made a beginning in the system of the written Constitution for British

India. It is a landmark in the transfer of power from the Company to the
Parliament. It recognised the political functions of the Company.

Criticism:

1.It did not clearly define the jurisdiction of the Governor-General in Council and the
judges of the Supreme Court on their relation with one another.
2.The powers of the Supreme Court were not clearly defined. So the conflict of
jurisdiction between this court and the court of the Company arose. Example: The
Cossijurah Case and the Patna Case.
3.The Supreme Court also claimed to have jurisdiction over the revenue collectors of
the Company for the wrongs done by them. Example: Kamaluddin case
4.The Supreme Court claimed to try the judicial officers of the Company for the
wrongs done by them in their official capacity.
5.The Supreme Court refused to recognise the jurisdiction of the Choultry or the
provincial Courts.
6.It was not clearly stated whether the Hindu, Muslim, Christian or English law was
to be administered by the Supreme Court. The judges of the Supreme Court knew
only the English law and imparted the same all over. The results were absolutely
unsatisfactory.
7.Some of the appointments made by the Parliament were very unfortunate. Francis
and Clavering had no Indian experience and were deeply rooted in their minds
that the Government was corrupt and tyrannous. Francis believed himself to be
on the road to the Governorship of Bengal.
8.The Act was a half measure and disastrously vague in many points.
 SUPREME COURT OF CALCUTTA– Its composition, powers and functions:

The Regulating act empowered the British Crown to establish a Supreme Court at
Fort William (Calcutta) by issuing a charter. So British Crown issued a charter in
1774 establishing the Supreme Court of judicature which superseded the
provisions the charter of 1753 and resulted in abolition of mayor court of
Calcutta.

1) Composition: The Supreme Court was to consist of a Chief Justice and 3 puisne
judges to be appointed by the Crown. Only those persons who were barristers of
not less than 5 years standing could be appointed as judges. They were to hold
office during the pleasure of the Crown.

2) Function: The Supreme Court was a Co

urt of Record. It was conferred extensive jurisdiction over civil, criminal,

admiralty, and ecclesiastical cases. It was also a court of equity and therefore, it
was given the power to administer justice according to the principles of equity
and good conscience.

The Supreme Court was to nominate three persons annually to the Governor
General and Council who would select one of them as Sheriff. The primary duty of
the Sheriff was to execute the orders of the Supreme Court and detain in prison
the

persons committed by the Court. The Supreme Court was authorized to enroll
attorneys and advocates. It could appoint sub-ordinate officers but their salaries
required approval of the Governor General and Council. The Supreme Court was
also authorized to regulate the court fee with the approval of the Supreme
Council.
3) JURISDICATION: It can be explained under the following heads:

1) CIVIL JURISDICTION: The Supreme Court was conferred with wide jurisdiction
in civil matters. It was conferred original jurisdiction in civil matters.

a) This jurisdiction extended to the East India Company.

b) His Majesty’s subjects and British subjects residing in Bengal, Bihar and Orissa.

c) Any other person directly or indirectly under the employment or service of the
company.

d) the inhabitants of Bengal, Bihar and Orissa if they consented in writing to refer
their disputes to the Supreme Court provided the subject matter of the suit
exceeded rupees 500.

2) CRIMINAL JURISDICTION: The Supreme Court was made a Court of Oyer,

Terminer and Gaol delivery in and for the town of Calcutta; The factory of Fort
William and factories sub-ordinate thereto. It employed the services of Grand jury
and petty jury for trial of criminal cases of British subjects. The Supreme Court did
not have jurisdiction over the native inhabitants of Calcutta and territory of
Bengal, Bihar and Orissa. Its jurisdiction extended to His Majesty’s subjects and
persons in the service of the company.

Significantly, the Supreme Court did not have jurisdiction over Governor General
and members of the council for any offence excepting treason or felony. The
Governor General, the councilors and the judges of the Supreme Court acted as
justices of Peace and held quarter sessions.

Besides, the Supreme Court was also empowered to reprieve or suspend the
execution of any capital sentence if in its opinion it was a fit case for mercy. In
that case, it could refer the case to the British Crown with reasons for
recommending mercy. The final decision in this regard was however left to the
pleasure of the crown.
3) ADMIRALTY JURISDICTION: The Supreme Court was to be the Court of
Admiralty for the territories of Bengal, Bihar and Orissa. In this capacity, it could
try all cases – civil and maritime and all crimes committed upon vessels, ships,
ferries and high seas and off shores of Bengal, Bihar and Orissa with the help of
petty jury consisting of British subjects residing in Calcutta. This jurisdiction
extended to all his majesty’s subjects and persons who were directly or indirectly
in the service of the company, residing in Calcutta and territories of Bengal, Bihar
and Orissa.

ECCLESIASTICAL JURISDICTIONL:

This jurisdiction extended to all British subjects living in Bengal, Bihar and Orissa
according to the Ecclesiastical law prevailing in the Diocese of London. Thus it
could grant probates of wills to the British subjects within the territories of
Bengal, Bihar and Orissa and also letter of administration of the British subjects
dying inter-state. It could also appoint guardians and keepers for infants and
insane persons and their estates in accordance with the rules prevalent in
England.

EQUITY JURISDICTION: In this capacity,

Supreme Court was to administer justice in a summary manner according to the

rules and proceedings of the Chancery court of England. B) The court of Chancery
of England was not bound by technicalities of law and could administer justice
according to the principles of equality and good conscience.

WRIT JURISDICTION: Being a Supreme Court, it could issue writs to court and
officer’s sub-ordinate to it - Court of Collector, Court of requests, Quarter
sessions, Sheriff, etc. It could issue writs of certiorari, mandamus, error or
procedendo.

PROVISION FOR APPEALS:

In Civil cases, appeals from the decision of Supreme Court could be taken to the
King in Council. Its decisions were final in England provided the subject matter in
dispute exceeded 1000 pagodas. Such an appeal could be filed within 6 months of
the date of judgment.

In criminal cases, the Supreme Court enjoyed absolute discretion to allow or not
to allow appeal to the King-in-council.

Cases tried by the Supreme Court:

The trial of Nanda Kumar

Raja Nand Kumar, a Hindu Brahmin was a big zamindar
and very influential person of Bengal. He was loyal to the English company ever
since the days of Clive and was popularly called as Black colonel by the Company.
Three out of 4 members of Governor General’s council were opponents of
Warren Hastings. So Francis, Clavering and Monson instigated Nanda Kumar to
bring charges of bribery and corruption against Warren Hastings.

In march 1775 Nanda kumar gave a letter of complaint

to Francis one of the member of the council that Hastings accepted from him
bribery of more than Rs. 100000 for appointing sonGurudas, as the Diwan.
Another allegation that Hastings accepted 2.5 lakhs from Munni Begum as bribe
for appointing her as the guardian of minor Nawab Mubarak-Ud-Daullah. Nanda
kumar attached vouchers also. Discussions took place in the council about this.
But Warren Hastings opposed this and dissolved the meeting of the council.
Majority of the members joined and appointed Clavreing as president of the
council. They declared that the charges levelled against Hastings were proved. So
asked him to deposit an amount of Rs. 3,54,105 in treasury of the company
 This event made Hastings a bitter enemy of Nanda kumar.
A few months later Nanda kumar was arrested on charge of forgery manipulated
by warren hastings.

A man by name Mohan Prasad charged him for forgery

of a bond (1770) related to debt. Supreme Court took this case. Finally judgment
was delivered by Impey the Chief justice .Death sentence was given under English
Act of 1729 for forgery

From 16th June to 4th July 1775 several efforts were

made to save the life of Nanda Kumar. The defense council wanted to appeal to
the King in Council which was rejected by the Supreme Court. Another petition
recommending the case for mercy to the British council was also turned down by
the Supreme Court.

At last Nandakumar was hanged on August 5th 1775 at 8

A.M at coolly bazar at fort William

The judgment not only shocked Indians but also

foreigners residing in India. Neither under Muslim law or Hindu law was forgery a
capital crime. It was considered most unfortunate and unjust. On return to
England Impey and Hastings were impeached by the House of Commons for
execution of Nandkumar.

The Patna case (1777-1779):

A native of Kabul (Afghanistan) Shahbaz Beg Khan came to

India and served in the company’s army for some time and retired. He earned
considerable wealth and settled in Patna and married Nadirah Begum. Having no
issues, he expressed his desire to adopt his nephew Bahadur Beg as his son and
made him the heir of his property. But before giving effect to his wish, he died in
December 1776
 After his death, both Nadirah Begum and Bahadur Beg
claimed his whole property. Nadira Begum asserted her claim to the said property
on basis of three documents namely dower deed, gift deed and
acknowledgement executed by her husband but Bahadur Beg that he was living
with his deceased uncle as an adopted son claimed the property

Bahadur Bag first filed petition before the provincial

court at Calcutta. Mohammedan law officers Qazi and Muftis heard this case. The
provincial council ordered the division of the property into 4 parts. One was given
toNadirah Begum and other 3 parts to Bahadur Beg. But Begum did not accept
this. She moved an appeal before Sadar Diwani Adalat which consisted of
Governor General Warren Hastings and council members. The case was pending
for a long time. No action was taken. Then she filed a suit before the Supreme
Court against Bahadur Beg, Kazi and Mufti for assault for entering forcibly into her
house and other personal injuries and claimed damages to the tune of rupees six
lakhs. The supreme court ordered in favour of her and issued a warrant of arrest
against muhammaden officers and Bahadur Beg. Court awarded the damages of
rupees three lakhs for the plaintiffs .As there were not able to the pay damages,
they were ordered to be imprisoned . They were sent to Calcutta and remind
behind bars until the enactment of the Settlement Act of 1781underwhich they
were directed to be released. However old Kazi died while being taken to
Calcutta.

An appraisal of the case

1. Entire judicial work was entrusted to be native law officers of the provincial
council as the English judges of the company where quite ignorant about
the languages, laws and the customs of the natives
2. Sadar Diwani Adalat at Calcutta (Governor General and council) hardly had
any time to attempt to the judicial work.
 3. Supreme court’s contention that it had jurisdiction over Bahadur Beg as he
was a farmer of land revenue of the company (So a servant of the company
) does not appear to be correct . A farmer was only a person who paid the
land revenue to the company. Only revenue collector was a person
employed by the company on regular fixed salary. This created a panic and
fear among the native farmers of Bengal, Bihar, Orissa and tried to relieve
themselves of their farms.
The Cossijurah Case (1779-80)

There was a clash between Supreme Court and Supreme

Council over the issue of Supreme Court’s jurisdiction over zamindars. Raja
Sundaranarayan was zamindar of Cossijurah in the district of Midnapore in Orissa.
He was to pay to the company a fixed sum of money as the land revenue
annually. He was under a heavy debt to Kasinath Babu. Having failed to recover
the money from the raja through Board of Revenue at Calcutta, Kasinath filed a
debt suit against the Raja in the supreme court at Calcutta. His contention was
that Raja being revenue collector was in the service of the company and so came
under the jurisdiction of Supreme Court. Supreme court issued a writ of capias for
the arrest of the Raja but he absconded

In the meantime the collector of Midnapure reported the

matter to the Governor General and council complaining that the revenue
collection in the district is adversely affected because of the absenceof Raja.So
Supreme Council instructed the Zamindar not to obey the supreme court

Supreme Court sent sheriff along with 60 men to execute

the writ. Zamindar alleged that sheriff’s men entered his house, injured his
servants, and committed outrages upon the place of religious worship. So sheriff
and his fellows were arrested and kept in confinement for 3 days

So the Supreme Court ordered the councillors to appear

before them for charges leveled against them for arrest of sheriff and the motive
to deprive kasinath of the recovery of his debts from Raja. But Attorney- general
advised councillor not to appear before Supreme Court. The Supreme Court felt
offended and put the Attorney General of the company north Naylor in prison
where he died. It was at this stage that Kasinath Babu withdrew his suit against
Raja in viewof the serious consequences arising out of the case.

CASE OF KAMALUDDIN(1775):

Kammaluddin was an ostensible holder of a salt farm at

Hijili on behalf of Kant Babu, who was the real farmer. In 1775, he was arrested by
the order of the Revenue Council of Calcutta on the ground that he defaulted
payment of arrears or revenue. He was committed to prison without bail.
Kamaluddin approached the Supreme Court and obtained the writ of Habeas
Corpus. The Supreme Court directed to set him free on bail and it even granted
him the bail.

The judges further directed that he should not be

imprisoned again until the real farmer Kant Babu had been called upon to pay the
arrears. The members of The Supreme Council expressed their resentment
against this. According to them, the Company was confirmed as Diwn of Bengal by
the Regulating Act, so the council had exclusive jurisdiction. The Supreme Council
ordered for the imprisonment of Kamaluddin (without paying attention to the
order of the Supreme Court). But Governor General Warren Hastings srefused to
support the proposed steps of the Supreme Council.

This case was an eye-opener disclosing defective provisions

of the Regulating Act due to which the Supreme Court and the Council came into
conflict.

The cause for the conflict relating to jurisdiction and powers of the Supreme
Court are as follows:

1. The difficulty arose because the various terms like ‘British Subjects’, ‘His
Majesty’s Subjects’,‘ persons employed by or directly or indirectly, in the
service of the Company’ or ‘the persons employed by, or directly or
 indirectly in the service of any of his Majesty’s subjects’ etc. were not
defined. So the whole jurisdiction became vague.
2. It was not clearly stated whether Hindu, Muslim, Christian or the English
law was to be followed. But the Judges knew only English law. The Supreme
Court replaced the Mayor’s Court which administered English Law and
therefore it appears that the Supreme Court was to administer the English
law.
3. The Supreme Court also claimed to have jurisdiction over the revenue
collectors of the Company for the wrongs done by them. E.g.: Kamaluddin
case.
4. The proceeding of the Supreme Court proved to be very expensive. Even
the preliminary proceedings in a case caused heavy expenses, because
litigants were required to engage an English Barrister and had to cover long
distances to attend to their cases.
5. In Criminal matters, the Supreme Court invariably followed the provisions
of the British Criminal Law which were quite foreign to the Indians. The
substantive provisions of the criminal law were also punitive and harsh. For
minor offences, a person could be hanged which was an added cause of
resentment against the Supreme Court by the Indians. E.g.: Rajan
Nandhakumar Case.
6. Even in civil cases, their technical procedures had undesirable features. In a
case being filed by a plaintiff after swearing an affidavit to the effect that
the defendant fall within the jurisdiction of the court, the court would issue
‘writ of copius’ ordering the arrest of the defendant with provision to
release him on bail. But the amount of bail had been very high which the
 defendant failed to pay, he had to remain in prison till the initial plea
regarding the Court’s jurisdiction was disposed of. This rule of procedure
appeared very much oppressing to the Indians.
7. There was much uncertainty and confusion as to the relation and
jurisdiction of the Supreme Court and the Company’s Adalats.
8. There was uncertainty and confusion as to the writ jurisdiction of the
Supreme Court. The Act of settlement was passed in 1781 to remove the
defects of the Regulations Act, 1774.

Merits of the Supreme Court:

1. While the judges of the Mayor’s Court were mostly the English servants of
the Company and quite ignorant of the legal system, the judges of the
Supreme Court were professional lawyers appointed by His Majesty.
2. The Supreme Court exercised Common law, Equity, Admiralty, Ecclesiastical
jurisdictions and an improvement even on the judicial system of England.
3. The Charter of 1774 made praise-worthy attempt to make the Supreme
Court independent of the Executive council.
4. This court was empowered to superintend the Court of Collector, Quarters
sessions, Court of Request, Sheriffs. For this purpose, it could issue writs in
the nature of certiorari, Mandamus, procedento. This shows the Court was
conferred on with wider jurisdiction.
5. The judiciary was made independent and got divorced from the executive.
Warren hasting plan

Accruing Diwani rights by the company:

Clive organised an expedition from Madras and captured Calcutta in 1757 and
defeated Nawab Siraj-ud-daula in the battle of Plassey in 1757. The company installed Mir
Jafar as Nawab and later Mir kasim and again Mir Jafar in 1763. Nawab was only a
figurehead as the real power was in the hands of the company
The company could not acquire sovereignty over any territory and it
must vest in the crown as per the doctrine of English Constitutional Law.
After the battle of Buxar. Company got the Diwani of Bengal, Bihar, and Orissa in
1765
By a ferman, Shah Alam, nominal Mugal ruler entrusted the company with the
functions to maintain the law and order and collect land revenue. Clive agreed to pay revenue
of Rs.28 lakhs a year and Bengal tributes of Rs. 26 lakhs per annum

Diwani system:
During Mughal rule there existed two departments Nizamat and Diwani. Nizamat was
under Nawab or Nizam. Diwani was under the control of the Diwan.
The granting of Diwani right to the company left the Nawab with the powers to
administer criminal justice and maintain military. The company wanted to make the Nawab
completely powerless by depriving him of his powers to maintain the army. So the Nawab
handed over his rights to maintain army to the company in exchange of 53 lakh of rupees as
annual grant for its maintenance

Execution of power of Diwani:

The dual system proved ruinous. No one felt any responsibility for the welfare of
the people. The wide spread corruption, bribery, misery and oppression fell on revenue. In
1767. Lord Clive left India. The directors suspected foul play on the part of the Indian
officers. So1771 they declared a resolution to stand forth as Diwan and agency of the
company’s servants to take upon themselves the entire care and management to the revenue.
For that purpose they chose Warren Hasting and transferred him from Madras to the court of
Bengal.(Governorship of Bengal)
The entire work of Warren Hastings can be studied in the following headings
1. Warren Hasting’s Plan of 1772
2. Warren Hasting’s New Plan 1774
3. Reorganisation of Adalat in 1780
Warren Hastings wanted to remove corruption from the administration of justice and
prepared a judicial plan on August 15th 1772
Warren Hastings Plan of 1772:
Under this Plan whole of Bengal, Bihar, and Orissa were divided into districts. The districts
was selected as the unit for the collection of revenue and for the administration of civil and
criminal justice. In each district an English officer, called collector was appointed

Civil justice:
This Plan established Mofussil Diwani Adalat in each district. Collector was the
presiding authority over the court. This court was empowered to decide all cases dealing with
property, caste, marriage, inheritance, contract, partnership, and rent etc. Its decision was
final for all suits up to the valuation of Rs.500. The cases relating to natives were to be
decided according to the Hindu law for Hindus and as per Muslim law for Muslims. The
collector being an Englishman he was assisted by native law officers called kazis and pandits
held its sittings twice a week.
Sadr DiwaniAdalatat Calcutta was to hear appeals from all Mofussil Diwani
Adalat where the value of the suit was more than Rs.500. It comprised Governor as its
president and at least 2 members of the council
Besides the Head Farmer of the parganas had authority to decide petty disputes
up to the value of Rs.10

Criminal justice:
In each district FauzdariAdalat was established to try serious offences (murder,
robbery, theft, fraud, perjury, etc) Collector was the presiding authority. The court was
assisted by a kazi or mufti and two Maulvies who were to expound the law and to hold trails
for criminal case
A superior court called Sadr NizamatAdalat was established at Calcutta to hear criminal
appeals. It was presided by an Indian judge known as the Daroga-i-Adalat who was to be
assisted by chief Kazi,a chief Mufti and 3 maulvies. It enjoyed thepower to revise the orders
passed by the MofussilAdalat .In case of death sentence, the death warrant was required to be
signed by the Nawab of Bengal and he was the head of the NizamatAdalat.

Merits:
1. It safeguarded the personal law of Hindus and the Muslims( law of Quran and laws
of Sastras)
2. By making districts , unit of administration of justice it is no longernecessary for
them to cover long distance for reaching the courts
3. Functions of Diwani and FauzdariAdalat were clearly defined
4. Though the judges of the Adalat were English men they were assisted by the native
law officers well versed in Indian law
 5. Instead of taking commission from the litigant a court fee was to be deposited in the
Government treasury. This put an end to judge taking personal interest in some
cases. So corruption ended

Demerits:
1. The collector was over burdened with heavy work as an administrator, revenue
collector, civil judge and magistrate in the district
2. Based on erroneous assumptions of Hastings that the Indian population consisted of
only the Hindus , Muslims, only Hindu and Muslim laws were followed. No
provision for other communities
3. The absence of adequate means of communication made it impossible for the
SadarAdalat to keep constant watch on working of collectors
4. As judges being Englishmen the native officers who assisted them misinterpreted the
provisions of the Quran and Sastras for their personal interest

The New Plan of 1774:

Revenue was administered by a committee of the covenanted servants of the company
under inspection of the President and Council
The territory of Bengal, Bihar, and Orissa with headquarters at
Calcutta, Murshidabad, Dacca, Burdwan, Patna and Dinapur and each division was under
a Provincial Council consisting of 4 or 5 covenanted servants of the company. They were
responsible for revenue and administration of justice within their jurisdiction. They had to
submit their periodical reports to a separate department called Council of Revenue. A
Diwan was appointed to maintain accounts
Each division was divided into several districts. Naibs were appointed to
control the collection of the revenue and to decide civil cases according to therules under
the plan of 1772 ( final court of appeal-SadarDiwaniAdalat)
The decision of Naibs were appealed to Provincial Council up to the value of Rs.1000 . If
exceeded 1000 it was appealed to SadarDiwaniAdalat in Calcutta

Merits:
1. English collectors were replaced by the Indian officers called Naibs. Thus the
district judicial administration was put in the hands of the Indians
2. On account of the establishment of the Provincial Council or Adalat, the burden
on the Sadr DiwaniAdalat was lessened
3. The establishment of the provincial Adalat in each division reduced the hardships
of the litigants and made justice cheaper

Demerits:
The Judicial Plan of 1774 continued in operation in Bengal, Bihar, and Orissa till 1780 when
it was modified again by the Warren Hastings due to the following reasons
1. He considered this plan only a temporary measure
2. A trial and error process
 3. Corruption and bribery continued in the company
4. The separation between the civil justice and revenue could not be maintained
5. Provincial council were conferred with excessive powers so they became despots.
They could not be controlled by the governor and the council at Calcutta

Reorganisation of Adalat in 1780

Separation of revenue from judiciary:
The Provincial Council of revenue continued at 6 divisions for collection
of revenue. The Provincial Court of DiwaniAdalat and the SadarDiwaniadalat were
governed judicial functions.
Zamindars or public officers heard small cases upto the value of 100 rupees.
DiwaniAdalat decided cases up to the value of Rs.1000. If the amount exceeded 1000
decided by SadarDiwaniAdalat.

Reforms of 1781:
Sir Elijah Impey was appointed sole justice of Sadar Diwani Adalat 1780. The 1st civil
code was adopted in 1781. The number of Moffussil Diwani Adalats was increased from
6-18 in order to remove the difficulties of the litigants. The SadarDiwaniAdalat was given
full power to frame rules, make necessary alterations in the existing rules.

Even in the criminal justice Moffussil Diwani Adalat judges acted as

magistrates. They tried petty offences. Sadar Nizamat Adalat was the final court of
appeal.
Warren Hastings was not only a capable administrator but also a great
inventive genious. He adopted the methods of the trial and error.

.
Judicial measures of Cornwallis 1787, 1790 and 1793

Lord Cornwallis succeeded Warren Hastings in 1786. The

Governor- General ship of Lord Cornwallis which extended from 1787-1793 constitutes a
very remarkable and a highly creative period in Indian legal history. Lord Cornwallis brought
with him the instructions from the Court of Directors, dictated with a view to carry out the
object of the Parliament aimed at securing inter alia the happiness of the native population.
He bought reforms in revenue, military, civil, criminal judicial system in India in his tenure.
Lord Cornwallis introduced the concept of administration
according to the law for the first time in India and it was due to his devotion to the concept of
justices that he recognised and over haled the Adalat system left by his predecessor in such a
way that he won the praise of all.

Judicial plan of 1787:

He was dissatisfied with the exsisting system of the

administration of justice. Cornwallis reformed the whole system of civil and criminal
justice by the method of trial and error. In the judicial system Cornwallis introduced
reforms in three periods in 1787, 1790 and 1793 respectively.

The Directors gave instructions to Cornwallis to bring simplicity,

economy and purity into the judicial system. Revenue and judicial functions were
united. The number of districts was reduced from 36 to 23. Each district was in the
charge of a collector, an Englishman. The collector was responsible for the collection
of revenue. He was also to act as judge in the Mofussil Diwani Adalat of the district
and decide civil cases. He also got magisterial powers. His revenue functions in the
revenue court known as the mal Adalat.

Appeals:
From the collector’s revenue court, first appeal goes to the
Board of Revenue at Calcutta and final appeal goes to the Governor in Council on the
executive side. The collector followed local customs and usages while dealing with
the succession to zamindaries etc. Appeal from Mofussil DiwaniAdalat lay to Sadar
Diwani Adalat in matters more from 1000 rupees. Sadar Diwani Adalat consisted of
the Governor General and members of his council. They were assisted by native law
officers. Where the valuation of suits was 5000 pounds or more a further appeal was
allowed to the king in council in England.
 The collector also acted as the magistrate in the district. In this
capacity he was to arrest the criminals and send them to Mofussil DiwaniAdalat for
the trial.

Office of the registrar:

In addition Indian Registrar was appointed in each district civil
court to try petty cases up to Rs.200. Decrees passed by the Registrar was countersigned by
the Collector.

Defects:
1. The collector was over empowered
2. The collector was more interested in revenue than in the administration of
justice
3. The justice was made subservient to the needs of the revenue collection

Judicial plan of 1790:

From 1786 to 1790, Cornwallis wanted to modify criminal
administration. Robberies, murder and other crimes relating to life and property of the native
were increasing .He found two causes. One is defective state of the Mohammedan criminal
law. Secondly defects in the constitution of the trial courts due to which they failed to deal
with the criminals.
Cornwallis abolished the authority of the Nawab over the
criminal judicature. The Governor General and member of his council presided over Sadar
Nizamat Adalat. They were assisted by Chief kazi of the province and two Muftis who
expounded the law and issued Fatwa (Islamic legal pronouncement issued by an expert in
religious law) . Full record of the court was maintained. The court decided cases in appeal on
the basis of the report of the trial magistrate, proceedings of the circuit court and written
pleading and the defence of the parties.
Mofussil Faujdari Adalats were abolished. The whole
Diwani area was divided into four divisions of Calcutta, Murshidabad, Dacca, and Patna. In
each division a criminal court was established which was called the court of Circuit. Each
court of circuit was presided over by two covenanted servants of the company who were
Englishmen. This was a moving court and the appeals laid down in the Sadar Nizamat Adalat
at Calcutta.
Magistrate court was the lower criminal court. It tried and
punished criminals in petty offences. Magistrate was to send the criminals to the court of
circuit for trial and punishment and monthly report to the Sadar Nizamat Adalat.
Reforms introduced in Mohammedan criminal law

Lord Cornwallis made the following reforms in the Mohammedan criminal

law and all Adalats were directed to decide cases according to the following
modified Mohammedan law:

1) The reforms show humaneness.

2) In determining the punishment to be inflicted for the crimes of murder,
the intention of the parties rather than the manner of instrument
employed should be taken into account.
3) The punishment of mutilation was abolished and imprisonment and
hard labour for 14 years and 7 years were substituted for the loss of
two limbs and that of one limb respectively.
4) The law of evidence were modified so as to make provision that the
religion would not be a bar to be a witness and thus the rule that a
Hindu could not be the witness against the Mohammedan was
abolished.
5) The relation of the murdered person could not grand pardon to the
offender so as to do away with the trial.
6) The Sadar Nizamat Adalat could pass death sentence instead of grating
blood money to the heir as provided under Muslim law.
7) Abolished the practice of attachment of property to those committed to
stand their trials for criminal offence.

Judicial plan of 1793:

A set of regulation, which were prepared by Cornwallis were
known as Cornwallis code. They dealt with the commercial, civil and criminal justice, with
the police and with the land revenue

Separation of Judicial and Revenue functions:

In 1793 Mal Adalator revenue court was abolished. The trial
of these suits was transferred to the Mofussil DiwaniAdalat. The collector was in charge of
the revenue. Judicial powers were given to the Diwani Adalat.

Reorganisation of the civil courts:

Cornwallis appointed 28 judges in the civil courts in the
district and established 4 courts of circuit which were civil courts of appeal. The four courts
of circuit were called the provincial court of appeal having four headquarters at Patna, Dacca,
Calcutta and Murshidabad. Each of them presided by three covenanted servants of the
company. These courts were empowered to hear appeals from the district Diwani Adalats. In
cases involving sums less than Rs.1000 their decision was final. Where the amount exceeded
Rs.1000, a second appeal was allowed to the Sadar Diwani Adalat. If the valuation of the suit
was 5000 pounds or more, a further appeal was allowed to king in council.
In each district, Sadar Amins and Commissioners were appointed to decide the cases
up to Rs.50. they were known as Munsiffs. The Munsiffs were selected out of the landholders
or the agents who were expected to do the job honorary and were getting some commission
on the sums involved in the litigation. Indians were allowed to be Munsiffs.
Native law officers:
They were authorised to assist all the courts by expounding the
Hindu and Mohammedan laws in cases like marriage, inheritance, caste, religion, wages and
institutions. Native law officers were appointed by the governor general in council.
Abolition of the court fees:
Cornwallis abolished the court fees from the litigants
Reforms in the criminal courts:
The magisterial power of the collector was taken away and the
judges of the Diwani Adalat were empowered to exercise the jurisdiction. The judges
exercised magisterial powers. Provincial courts and the circuit courts were united in the civil
and criminal matters.
Legal profession:
Cornwallis realised the importance of the well organised and
regulated professional lawyers. Those who joined the legal profession were given Sanad
certificates after they qualified in the prescribed minimum requirement of the education and
honesty.
Uniform pattern of regulation:
It was made necessary to divide each regulation into sections
and sections were divided into sub sections and clauses, which were duly numbered in serial
order. It enabled the members of the legal profession and the public to know what the law
was on a particular point. This process of the collection of regulations, periodically in the set
form, introduced certainty and uniformity of law.

Permanent settlement of land revenue:

The zamindars were regarded as land owners. They were
required to pay 9/10 of the revenue to government through the collectors and the Talukdars
.Efforts was made to protect the cultivators and ryots from oppressions and corruption of
revenue officers.
Merits:
1. The separation between the judicial and the revenue functions were maintained.
2. The separation between the judicial and the executive functions were maintained to
some extent.
 3. The organisation of the courts was improved.
4. Provincial court of appeal was established for the first appeal.
5. Legal professions, for the first was organised in India
6. Court fee was abolished.
Demerits:
1. The judicial arrangements of 1793 were expected to caste an additional sum of four
lacs of rupees of the company.
2. The abolition of the court fee resulted in a great increase in the litigation.
3. The appointment of English judges only led to the failure of administration of justice
on account of their ignorance of the customs and traditions of the country.
4. An anxiety to make the system perfect resulted in making it complicated and
encumbered.

John Strachy said that “although much has been done by warren
Hastings to perform and organise branches of the public service, the main foundation of the
administration of judicial system in India was laid down by Cornwallis”
Cornwallis reforms in 1787 aimed:
1. Economy
2. Modification
3. Purification
1790 reforms introduced criminal justice and 1793 reforms aimed at separation of revenue
from judiciary
 The Pitt’s India Act 1784

The British Parliament was largely convinced that the atrocities of the Company’s government in India
could be checked only through the Parliamentary Control on its working. Pitt, the youngest Prime Minister
of England introduced his Bill in the House of Commons. It was passed by the House and became an Act
(Pitt’s India Act) of 1784. The authors of this Act out of sheer humanitarian consideration to enlarge and
confirm the advantage derived by Britain from its connection with India and also to render that connection a
blessing to the natives of India.
Main Provisions:
1. The Company’s affairs were divided into two parts namely, Commercial and Political.
2. The Commercial Affairs of the Company were put directly under the Control of the Court
of Directors.
3. The political Affairs of the Company were put under the Board of 6 Commissioners for the Affairs
of India i.e. Board of Control consisting of Chancellor of Exchequer, Secretary of State and 4
members of the Privy Council. The quorum of the Board was fixed a5t Three. The Secretary of
State was to act as the Chairman of the Board having a casting vote. The Senior Commissioner
was to preside in the absence of the Secretary of State and the Chancellor of Exchequer.
4. The Secretary of State and other members of the Board were to hold office on honorary basis
5. The Board was fully empowered to superintend, direct and control all acts, operations relating to
civil and military governments or revenue of the British territorial possessions in East India.
However, it was not vested with the power of appointing any of the Company’s servants.
6. The court of Proprietors was given the powers to make important appointments in India to
handle the Indian affairs.
7. All offences of the Crowns servants in India were to be tried by English Courts in England. A
special Court for this purpose was created in England.
8. The Directors of the Company were required to supply to the Board, the copies of the
minutes, orders, resolutions and proceedings of the Company and the copies of the dispatches
sent or received by the Directors. The Board could approve, modify or disapprove the
despatches and receive the copies of the modified despatches.
9. The Board of Control was empowered to send secret orders and directions regarding secret
matters such as declaring of war, making of peace or negotiating with any of the native princes or
states in India to the Secret Committee of the Court of Directors. This secret Committee consisting
o0f not more than 3 Directors was top transmit them to the Government of India without
disclosing their contents to other Directors
10. Any order or resolution of the Court of Directors which had received the ratification of the
Board of Control was not to be revoked by the Court of Proprietors
11. If the Board of Control issued orders which encroached upon the commercial activities of the
Company, the Directors could appeal to the King-in-Council and the decision of the King-in-
Council was final.
12. The number of members of the Governor-General-in-Council of India was reduced from 4 to 3
and the Commander-in-Chief of the Company’s forces in India was to be one of the members. The
control of Bengal Presidency over the other Presidencies was further tightened up.
13. The Governor’s Council in each Presidency was to consist of 3 and not 4 members as before and
the Commander-in-Chief was to be one of them. The Governor had a casting vote. The
presidencies were to send the copies of their rules, regulations and papers on important matters to
the Governor General and the Council at Calcutta.
14. The Parliament was empowered to pay salaries, expenses of staff of Board of Control out of
the revenue of India and this charge did not exceed 16000 pounds per annum.
 15. The Act directed the Company to reduce its expenditure through retrenchment and reduction
of staff
16. The power to recall the principal servants of the Company was a sharp weapon in the hands of
the Board and the Board made use of this power extensively.
Defects:
1. In the Board of Control, it was usually the will of the President that prevailed.
2. There was dual control on the company from home (England). The company was controlled by
the Court of Directors on one hand and the Board of Control on the other.
3. Transmission of despatches through the Board of Control was cumbersome and was a
delaying factor.
4. The Governor-General had two masters to obey namely, the Court of Directors and the Board
of Control.
Merits:
1. Power to recall the principal servants of the Company was a sharp weapon. The effective
machinery of the trial of English offenders in India was established.
2. The Board represented the crown while the Directors represented the Company. The power of the
Court of Directors to influence political decisions in India came to an end.
 The Charter Act of 1793:
The Charter Act, 1793 was the first in the series of Charter Acts and made no significant changes
in the existing arrangement. It only consolidates the existing laws.

Circumstances for the enactment:

The East India Company was granted to monopolize the Eastern Trade in 1773 for 20 years,
which expired in 1793. So Court of Directors applied to the Parliament for renewal.
British Government was at war with revolutionary France. So petitions put by the leading
merchants of the country to abolish the monopoly of the company failed to take the attention of
the Government. So the Bill was passed without any difficulty.

Main provisions:
1. The Company’s commercial monopoly was renewed for 20 years, with the important
provision that private individuals would be allowed to trade to the extent of 3000 tons of
shipping.
2. The members of the Board of Control and their staff, were henceforth to be paid out of
Indian revenue.
3. The Governor-General of Bengal and Governors of Bombay and Madras were to have
only 3 members of these Councils, These members were required to be persons who had
resided in India for 12 years at the time of their appointment.
4. The Commander-in-Chief ceased to be a member of the Governor-General-in-Council
unless specially appointed by a member of the Directors.
5. The Governor-General-in-Council full po
6. wer and authority to superintendent, direct and control the presidencies.
7. The Governor-General and the Governors could exercise their veto in case affecting in
any way the safety, tranquillity or interests of British possession in India.
8. The Governor-General, Governors, the Commander-in-Chief and a few other high
officials could not go out of India on leave so long as they held the office.
9. The admiralty jurisdiction of the Calcutta Supreme Court was extended to the high seas.
10. Receiving of gifts was henceforth considered a misdemeanour.
11. The civil servants of the Company were to be graded in ranks according to seniority of
service. No post with pay of over 500 pounds was to be awarded to any person except
covenanted servants of the Company.
12. The sale of liquor was made subject to the grant of a license.
13. Power was given to the Governor-General to appoint members of the civil service as
justices of peace, to appoint scavengers, to levy a sanitary tax in the Presidency Towns.
 THE ACT OF SETTLEMENT, 1781
This Act was passed with a view to remove the defects in The Regulating Act. This Act exempted
the persons under the employment of the Company or the Governor General and Council in
matters of civil litigations under the jurisdiction of Supreme Court. But in Criminal trials they
were under jurisdiction of Supreme Court.

2) Revenue officials or collectors and judicial officers of the Country courts were exempted
from the jurisdiction of Supreme Court for acts done by them in executive or judicial capacity.

3) The Governor General and members of his Council were exempted from the jurisdiction of
Supreme Court .

4) The Question of the jurisdiction of the Supreme Court was settled. This court was to have
jurisdiction over all the inhabitants of Calcutta.

5) The Company was to keep registers containing the names, occupations, etc. of its Indian
employees.

6) The Supreme Court was required to take into consideration and respect the religious and
social customs and usages of the Indians while enforcing its decrees.

7) Appeals were to be taken from the Provincial Courts to the Governor General in Council. Its
decisions were final. If in civil matters, the subject matter of the cases involved value of more
than 5000 pounds it may be appealed to King in Council.

8) The Governor General was given the power to make regulations for the provincial courts and
councils, but was not to be registered in the Supreme Court. Even prior to this Act, under
Regulating Act 1773, they had the power to enact rules and regulations for Calcutta. But under
this Act (1781) the Supreme Council (Governor General and Council) could frame such rules and
regulations for the territories of Bengal Bihar and Orissa also.

9) The Act provided for Supreme Court to try Judicial officers of the Company for corrupt
practices or bribery after being served due notice about such action. But no such officer could
be arrested until he refused to appear before the court to answer, after notice had been served
upon them.
 Charter Act of 1813 (George III):
The Charter of 1813 was passed after many changes and compromises after the Charter of 1793.

Provisions:
1. The Charter of 1813 renewed the Charter of the East India Company for 20 years. The
Company was deprived of the monopoly except for the tea trade.
2. The Act threw open the Indian Trade to all Britishers.
3. The Act conferred jurisdiction in case of trespass or assault committed by the British
subjects on natives of India.
4. The British subjects residing, trading or occupying immovable property at more than 10
miles from Presidency towns were placed under the jurisdiction of DiwaniAdalats (local
civil courts) for civil cases and an appeal was allowed to the higher courts.
5. Special penalties for the offences like theft, and forgery as the existing provisions were
considered insufficient.
6. Special provisions for jurisdiction in criminal cases over British subjects residing at a
distance of beyond 10 miles from the Presidency Towns who would register themselves
with the District Courts.
7. The Act provided for religious training and education of the people of India. A sum of
Rs. 100,000/- was allotted for this per year.
8. The Act made provision for the training of the civil and military servants of the
Company. The College at Heileybury and military school at Adiscombe were to be
maintained and brought under the authority of the Board of Control.
9. The Act provided for the appointment of a Bishop and 3 Arch-Deacons for the religious
welfare of the Europeans in India.
10. The local courts in India were empowered to impose taxes on persons and punish those
who did not pay them.
 Charter Act of 1833

The charter Act of 1833 played a vital role in the consolidation and codification of
Indian laws.

Factors for the enactment of this Act:

1. The company acquired many territories in India. The need for a strong
Central Government was felt for the effective administration of such vast
empire.
2. There was no uniform law. Each Presidency Town formed their own
legislations and laws. So need for an All India Legislature to make laws and
a regulation for the territories under the control of the company was felt
necessary.
3. Lord Macaulay, the Secretary to the Board of control directed the attention
of the Parliament to three leading vices in the process of Indian
Government. The 1st in the nature of laws and regulations 2nd in the ill-
defined authority and power from which these laws emanated; 3rd
conflicting judicature by which the laws were administered. With the object
to remove the aforesaid defects, the charter Act of 1833 was enacted by
the British Parliament

Provisions:
1. The Englishmen were opposed to the continuance of the monopoly of the
company. So as per the Act that monopoly was abolished while the
commercial functions of the company ended, its political functions were to
continue. The Government of India was to pay the debts of the company.
The shareholders of the company were guaranteed a dividend of 10 1/2%
per annum out of the Indian revenues for the next 40 years. The Indian
possessions of the company to be held in trust or agent for the British
Crown.
2. The charter Act restricted the patronage of the Directors. It was provided
that nominations to seats in the Haileybury College were to be double the
number of vacancies in the services. Nominated persons were to join the
college and the topmost candidates among them were to be selected to fill
the vacancies. The Directors fought against this provision. So their
patronage was continued up to 1853.
3. President of the Board of Control became the Minister for Indian affairs. His
colleagues disappeared both in fact and in name. The minister was to have
two Assistant Commissioners who were to be assistants. The secretary of
Minister occupied a position of great importance on account of his
presence in parliament and he spoke for his Chief (minister) when the latter
sat in the House of Lords.
4. Centralization of administration:
This Act centralized the administration of the English company in India.
Governor-General of Bengal became the Governor-General of India. The
Governor-General-in-Council was given the power to control, superintend
and direct the civil and military affairs of the company. All revenues have to
be raised under the authority of the central Government. It had complete
control over expenditure. Governor-General in-Council could suspend any
member of the Governments of Madras and Bombay who disobeyed him. If
the provincial government failed to carry out his orders, it could be
superseded.
5. This Act brought about complete legislative centralization. Formerly, the
Presidencies made their own laws which led to lot of confusion. With a
view to setup a uniform system of laws for the whole country, Presidencies
were deprived of their law-making power. Only Governor-General-in-
Council alone could make laws on all subjects, to all persons in British India.
6. Those laws were enforceable by all the courts in the country.
7. Governor-General was authorized to make Articles of War and Code of
military discipline and provide for the administration of justice which
includes power of making, repealing amending any law or regulation in
force in India.
8. The laws passed by the Government of India were to be called as Acts.
Before 1833 they were called as Regulations.
9. The Act added a new member to the Executive Council of the Governor-
General known as the Law-Member. His work was purely legislative. He
attended meetings of the Executive Council by special invitation. He was
not given any vote. His concurrence was not necessary either for the
consideration of the Bill or for its passage. The Quorum of the Executive
Council was fixed at 3 for legislative work and 2 for administrative work.
10.The number of the members of the Councils of the Governors of Bombay
and Madras was reduced to two.
11.Bombay and Madras to have their separate armies under their
Commander- in – Chief, but were to be under the control of the Central
Government.
12.Codifying the Laws:

The Act provided for the codification of Laws in India. Provision

was made for the appointment of a Law Commission. It was felt that lot of
confusion was there in enforcing law, as laws varied from Presidency to
Presidency. What was legal at one place was illegal at another. What was
considered minor offence at one place was considered serious at another.
To quote law commission “In Bengal serious forgeries were punishable with
imprisonment, for a term double of the term fixed for perjury in Bombay.
On the contrary, perjury is punishable with imprisonment for a term double
of the Madras Presidency”.

13.The Act of 1833 authorized the Governor-General to appoint Indian Law

Commissioners to stud
14.y, collect and codify various rules and regulations, laws and customs
prevalent in India. The Indian Penal Code and Code of Civil and Criminal
Procedure were enacted as a result of this Commission.
15.Indians in Government Service:
 No Indian subject of the Company was to be debarred from
holding any office under the Company “by reason of his religion ,place of
birth ,descent and color.”

16.
17.Europeans were permitted to come to India to settle. But they had to
register themselves on landing in India. The Europeans were still considered
to be a menace in India. Governor –General was directed to protect the
Indians from Europeans.
18.The Bishops of Bombay, Madras and Calcutta were to be appointed for the
benefit of Christians in India
19.Mitigation of Slavery:
Government of India was required to take measures for the
abolition of slavery persisting in India since Sultanate Era.

20.The Act proposed to divide the Presidency of Bengal into two Presidencies
viz., Presidency of Agra and Presidency of Bengal.

Criticism:

As per the Act, the Governor-General-in-Council alone could

make laws. But could not alter the Constitution of the Company or amend
the Charter itself.

The Act provided that no Indian subject of the Company would be

debarred from holding any office by reason of his religion, place of birth,
descent or color. But the provision was simply grandiose gesture which
signified nothing in reality.

Compulsory education at Haileybury for entering into Civil Service

rendered Clause 87 totally nugatory and a dead letter because Indian
guardians would not allow their wards to take admission in Haileybury as to
cross the seas was regarded a sin by the Orthodox Hindus.
 The Charter Act-1853:
The Crown granted the Charter Act of 1853 the last attempt including some more new provisions
for the better administration.

The main provisions:

1. It provided that Indian territories shall remain under the Company’s Government in trust
for the Crown until otherwise directed. In the Charter Act 1833, the period of 20 years
was fixed. But as per the Charter Act 1853, such limitation was not imposed.
2. The number of Directors of the Company were reduced from 24 to 18. Six of them were
to be appointed by the Crown of England.
3. Regular cadre of ICS officers was constituted and recruitment was to be made by open
competition. Ability was given top priority.
4. A separate Lieutenant Governor for Bengal was appointed. By this, the workload of
Governor-General was decreased.
5. The Second Law Commission was appointed with 8 members and Sir John Romilly as its
head.
6. For the first time Legislative Council for India was created. It consisted of 12 members.
They were
a) Governor-General
b) Commander-in-Chief
c) 4 members of Governor-General’s Council
d) 4 representatives of the provinces of Bombay, Madras, Bengal and N.W.P.
e) Chief Justice of Supreme Court
f) One Judge of Supreme Court
7. The executive functions of the Governor General in Council were clearly distinguished
from the legislative.
8. The Governor General presided over the meetings of the Legislative Council. In his
absence, the Vice-President who was appointed by the Governor-General was to preside.
9. No Bill was passed into an Act without the assent of the Governor-General.
10. Till 1853 the legislative member of the Council had a special status but now he was made
an ordinary member. He was given the right to sit and vote at any meeting of the Council.
11. The Indian Law Commission appointed under the Act of 1833 had ceased to exist before
1853. Therefore, the Act of 1853 authorised the Crown to appoint a Law Commission in
England to examine and put into shape the work and recommendation of the 1st Indian
Law Commission.
 THE GOVERNMENT OF INDIA ACT, 1858

There was division of responsibility with regard to Indian Affairs amongst

1) The Board of Control (2) Director of Company (3) The Governor-General in Council.

There was mass discontentment among the Indians against the Britishers. This resentment resulted in
the Revolt of 1857 which cautioned the Crown.

In 1855, a Bill was prepared under the leadership of Lord Palmerston, the then Prime Minister of
England with the intention of “Direct assumption of the Government of India by the Crown”. Opposing
this the East India Company submitted a petition known as ‘Grand Petition’ defending its position. But
the members of the Parliament critised the attitude of the company and its corrupt, rapacious
employees.

So the Bill introduced by Lord Palmerston was passed by a majority. The Act received Queen Victoria’s
assent on 2.8.1858. 250 years of rule of East India Company in India was ended.

Main Provisions of the Government of India Act, 1858 :

1) The Act declared that henceforth India would be governed by and in the name of Her Majesty, the
Queen of England.

2) The Act abolished both the Board of Control and the Court of Directors, two important organs of the
Company and their powers were transformed to a Secretary of State for India with a Council of 15
members to assist him. Atleast 9 out of these 15 members who had served or resided in India for atleast
10 years and had not left India for more than 10 years preceding the date of the appointment.

3) Future vacancies were to be filled by the Crown. The members were to hold office during good
behavior and could be removed by the Crown. Each of the members was to be paid an annual salary of
1200 pounds out of the revenues of India.

4) The Secretary of State for India was to be the President of the India Council. He was given a casting
vote in case of a tie. He could normally overrule the decision of his Council but in certain matters such as
appropriation of revenue and property, issuing of security for money, powers of nomination, etc, he was
bound by the decision of majority.

5) The Council was to meet atleast once a week and its quorum was 5

6) Each order was to be signed by the Secretary of State.

7) Secretary of State as further empowered to send and receive ‘secret’ despatches from the Governor-
General of India without having the necessity of communicating them to the members of his Council. He
could even send urgent despatches to India without referring them to the Council but had to state his
reasons justifying it.
8) The Secretary of State was given the power to super-intend, control and direct Indian affairs. He was
to sit in Parliament and assisted by Parliamentary Undersecretary. His salary was paid out of the
revenues of India from 1858 to 1919.

9) The expenditure on India office, the debts of East India Company and dividends on its stocks, were all
to be charged on Indian revenues. The Secretary of State was required to lay before the Parliament, a
financial statement of expenditure and revenue of India.

10) He was also to report on the moral and material progress of India.

11) The Act of 1858 gave the Council of India the power of financial veto. But this veto power was
extended only to ordinary business of the administration. While levying of war and other measures
involving large expenditure from the India revenues, the Cabinet and Secretary of State had to decide.

12) The Act divided the patronage between the Crown and the Secretary of State in Council. Lieutenant-
Governors were to be appointed by the Governor-General subject to approval of the Crown. The control
over military was under Secretary of State in Council.

13) The Act declared that the Secretary of State could sue or be sued in India and in England.

Changes in the Government of India:

14) The Governor-General of India was henceforth designated as “Viceroy and Governor-General of
India”. When he dealt with the British Indian provinces, he was known as Governor-General but when
he dealt with Indian states as he was called “Viceroy”.

15) All treaties made by the Company were to be binding on the Crown

16) Parliament acquired full and legal control over Indian Affairs. ..OK !

17) The military and naval forces of the Company were transferred to the Crown, subject to the same
conditions of service.

Queen’s Proclamation of 1858: The assumption of the Government of India by the Crown was
announced to the people of India at the Durbar held by Lord Canning in the name of Queen Victoria at
Allahabad on November 1, 1858. The Royal Proclamation was intended to explain to the people of India,
the principles on which the future government of India was to be modelled.

Proclamation: 1) A new administrative policy towards the Indian Rulers and Princes was formulated to
assure them that there will be no encroachment on their territory and that all treaties made with them
by the East India Company would be maintained and their rights and dignities would be honoured.

2) It promised to all the people of India the conscientious fulfillment of the obligations
of duty to which the Government was bound and assured them an equal and impartial protection of
law.
 3) Royal Proclamation solemnly assured that Her Majesty’s Government desired no
expansion of the present territorial possessions. Thus the policy of expansion and annexation was totally
denounced.

4) Her Majesty did not desire to impose her religion and faith on any of her subjects. It
further assured equality in respect of services without any discrimination as to caste, creed or religion.

5) While framing the law for India, due regard would be paid to the ancient rights,
usages and customs of India.

6) Her Majesty’s Government in India shall endeavor to stimulate peaceful industry,

promote works of public utility and administer its government for the benefit of all its subjects.

7) In the end of the Proclamation, the Queen expressed her regrets for the Mutiny of
1857 and granted amnesty to those who rebelled, except to those who were directly guilty of murder of
British soldiers.

She concluded it by impressing upon the people that “in their prosperity will be our strength, in
their contentment our security and in their gratitude our best reward.”

The Queen’s Proclamation of 1858 is often described as “Magna Carta of Indian Liberties”

An Appraisal of the Act:

1) The transfer of Indian rule to the Crown was a significant landmark in the constitutional history of
India.

2) It gave a death blow to a dual government which was notorious for its complex character.

3) This enabled a greater and close control by the ‘Home’ Government over the Indian Affairs.

4) The innovation of a new office of the Secretary of State was in itself an important factor. Nothing in
respect to Indian Administration could be done or undone without the consent of the Secretary of State.
It was only in 1947, when the British left India that this office was abolished

5) The Creation of Indian Council with Councillors having served or lived in India for considerable time
who were well acquainted and really interested in Indian Affairs

Defects:

1) The Government of Bombay and Madras complained of undue interference in their administrative
works by the Governor-General in Council.

2) Exclusion of Indians from services, inspite of assurance given to them.

3) India came under the direct control of the British Crown, but the internal administration of India
remained the same.

4) The need for the inclusion of Indians in the Central Legislative Council was not dealt with properly.

5) The Council of the Governor-General did not do any constructive work for the upliftment of masses of
India.
 THE INDIAN COUNCILS ACT, 1861

Circumstances leading to the Act:

1) The Legislative Council instituted in 1853 functioned in a manner which was not to the liking of
authorities in England or India.

2) The presence of the judges in the Council gave a certain independence as they refused to be
controlled by the Executive Councilor, the Court of Directors and Secretary of State for India.

3) The vast extent of territory under the control of the Governor-General made it impossible to have an
effective control over it.

4) The Government of Bombay and d Madras complained of undue interference in their administrative
work by the Governor-General.

5) The Council of the Governor-General did not do any constructive work for the upliftment of the Indian
masses.

6) In the Central Legislative Council, all the members were British officials.

7) The exclusion of the Indians from the services inspite of assurance by the Act of 1858, gave rise to
discontentment among the Indians.

8) The serious repercussions of the Revolt of 1857 compelled the British Government to associate
Indians in large number with the administration of the Country.

Consequent to the scheme of reforms submitted by the Government of Lord Canning to the Secretary of
State, a Bill known as the Indian Councils Bill was introduced in the British Parliament by Sir Charles
Wood who called it a “most important measure”. The Bill was readily passed by the House and finally
received Royal assent on August 1, 1861. The main provisions under this Act may be summarized under
the following sub-heads:

1) The provisions relating to the Central Executive

2) The provisions relating to the Central Legislative

3) The provisions relating to the Provincial Legislatures

I) Provisions relating to the Central Executive:

1) The Act of 1861 enlarged the Executive Council of the Governor-General. It was to consist of 5
members of which 3 were to be persons who had served in India for 10 years either under the company
or the Crown and 1 was to be a Barrister or Advocate of 5 years standing. The 5th was the Finance
Member.
2) The Secretary of State for India retained the power to appoint Commander-in-Chief as an
gExtraordinary Member of the Executive Council.

3) The Act empowered the Governor-General to make rules and orders concerning the conduct of
business. It marks the beginning of the ‘portfolio system’ in which every member of the Council was
made responsible to his department.

4) The Governor-General was empowered to appoint a President who would preside over the meetings
of the Council in his absence.

5) The Governor-General had power to overrule the majority in the Council in matters of safety,
tranquility and interests of the British possessions in India

6) He also empowered to create new Provinces for legislative purposes and appoint Lieutenant-
Governors for them and to divide or alter the limits of any presidency or Province.

II) The provisions relating to the Central Legislature

1) For the purpose of Legislation, the Governor-General’s Council was enlarged into a Central Legislative
Council consisting of not less than six and not more than 12 additional members. They were nominated
by the Governor-General and held office for 2 years. Of these not less than half were to be non-official
i.e. Persons not in the civil or military service of the Crown.

2) The Lieutenant-Governor of a province was also to be an additional member whenever the Council
held a legislative within his province.

3) The Legislative Council was purely legislative in character. It could not inquire into the grievances, call
for information or examine the conduct of the executive.

4) The Legislative Council was to make laws for British India but the measures relating to the public
revenues, religion, army, navy or foreign relations were not introduced without the previous sanction of
the Governor-General. The assent of the Governor-General was required for every Act passed by the
Council but could be disallowed by Her Majesty.

5) The Legislative power of the Governor-General in Council extended to make laws and regulations for
repealing, amending or altering any laws for the time-being in force in British India. The power was
extended over all persons whether British or Indians or foreigners, within the said territories and for all
the servants of the Government of India.

6) The Act empowered the Governor-General to issue ordinances on his own authority in case of
emergency. But such ordinances were not to remain in force for more than 6 months.

III) Provisions relating to the Provincial Legislatures:

1) Provincial Legislature set up in Bombay, Madras, Bengal, N.W Provinces and Punjab. On account of it,
it was possible to make laws according to the local needs and conditions. The Act may be praised for
starting the process of decentralization.
2) The Legislative Council established by the Governor-General in provinces consisted of Lieutenant-
Governor and certain nominated councilors to make laws for the good government of the territories
concerned.

3) In Bombay and Madras councils, the number of additional members were not less than 4 and not
more than 8. Most of the non-official members were Indians.

4) The assent of the Governor-General was necessary for validating any Bill or Law passed by these
provincial councils in addition to the assent of the Governor of the province. The Crown could disallow
any law.

5) The powers of the Provincial Legislature limited to legislative functions. It could not interfere with the
executive functions of the Government.

6) Provincial Legislatures were not empowered to take into consideration any of the laws relating to
army, navy, foreign and political affairs, customs, currency, Penal Code, religion or Post and Telegraph,
etc., without the prior sanction of the Governor-General.

Good Features:e

1) The Act restored to the Governors in Council of Madras, Bombay, Bengal, N.W Provinces and Punjab,
power to make laws according to the local needs and conditions.

2) It was a step in the direction of the complete internal autonomy to the provinces and for starting the
process of decentralization.

3) Most of the non-official members of the Council were Indians and thus Indians were associated with
the legislative functions

Defects:

1) The power of the Governor-General was wide. His assent to any law was required. His previous
sanction was required for the introduction of certain measures in the Council. As regards Provincial
Legislature, the Bill passed by the Local council could not become law without the assent of the local
Governor and also of the Governor-General.

2) Besides the non-official members nominated by the Governor-General in the Council were not
elected persons and so not representatives of the people. They were generally ‘yes-men’ of the
Governor-General.
 The India Councils Act, 1892

Causes for the passing of the Act:

The Act of 1892 was passed in the light of the following circumstances:

1) Between1861-92, the economic conditions of India deteriorated because of

the financial and economic policies pursued by the Governor General of
India.
2) The liberal political ideas of the west inspired the educated elite. So their
craving for political independence strengthened.
3) Religious revival enhanced the faith of the Indian people in the glory of
ancient India.
4) The Indian press and vernacular literature played an effective role in rousing
national consciousness.
5) The development of means of communication.
6) Establishment of universities of Calcutta, Bombay and Madras were
responsible for political awakening among the intelligentsia.
7) Acute Famine of 1877
8) Racial discrimination practiced by the British Government.
9) Establishement of Indian National Congress (1885) voiced the opinion of the
country for greater share in the Government.
10) The Indian Councils Act 1861 did not give right to the Indians to elect their
own representatives in the Council. The non-official members nominated by
the Governor-General were generally yes-men of the Governor General.
Passing of the Act (1892)-

The Indian National Congress demanded extension of their powers not only
in legislation but also in financial and administrative matters, and the right to
discuss the budget and to ask questions. In order to satisfy them, the Viceroy
Lord Dufferin appointed a committee of his
Council to draw up a plan for the enlargement of the Councils and also to
introduce elective principle in the Councils.

Though the Secretary of State did not agree with all the
recommendations of the viceroy, yet a Bill was introduced in British
Parliament which was passed two years later. This Act is known as Indian
Councils Act of 1892.

Provisions:

1) The Act made an increase in the number of additional members in the

councils.

In the central Council, the minimum number of additional

members for legislative functions was raised from 6 to 10 and maximum -12
to 16. Of that 16, ten were non-officials of whom 4 were nominated on the
recommendations of non-official members of the Provincial legislatures.
One on the recommendations of the Calcutta Chamber of Commerce and the
remaining to represent landlords and other interests in the country. No direct
election in the central Legislature.
2) In the Provincial legislative council, the non-official members were
nominated on the recommendations of institutions like the universities,
Chamber of Commerce and Municipal Corporation.
3) The Act proposed to enhance the powers of the legislature. The member
could ask questions on domestic matters. A previous notice of 6 days to be
given to the President for asking a question. The members were authorized
to discuss the budget but could not vote or demand a division of the House
on any issue.
4) Technically all the members were to be nominated by the Governor –
General, the Governor or the Lieutenant Governor. If a member failed to
attend the sitting of Legislatures for months or resigned his membership or
died, his seat was declared vacant, to be filled by the Governor General.
5) The functions of the Provincial Legislative Councils were further enlarged.
They were empowered to make new laws or repeal the old ones with the
previous permission of Governor General.
6) The government agreed to allow elections in India under the rules, though
the members so elected could take their seats only after being nominated
by the Government.
 Critical Appreciation:
Though it did not produce promising results, it was undoubtedly a step
forward.

1) There was a small increase in the membership of the councils and

indirect adoption of the principle of election.
2) The members were granted the right to discuss the budget and to ask
questions.
3) The Act provided for an opportunity for Indians to participate in
legislative functions of the Government. They could sit with the
Viceroy and his Executive. Though they could not override the official
majority of the councils, they had the right to express their view freely
and criticize the administration of the Government if it is against the
interests of the people.
4) The Act provided that the Budget should be laid before the Council and
the members could discuss and criticize it. This helped the Government
to explain their financial policy to the Indians and remove their
misapprehensions, if any.

Defects of the Act:

(a) Representation given to various groups and territories were neither fair
nor satisfactory. Some classes were over represented.
(b) The powers of the Legislative Council were also hedged in by several
restrictions. Members of the Council could not ask supplementary
questions. They could not even question the executive without serving
six days notice.
(c) The President could disallow any question without giving any reason for
it.

The Act fell short of the expectations of Indian National

Congress which intensified its agitation and pressed for more concessions
and reforms.
 THE PRIVY COUNCIL

As the British Empire acquired many colonies overseas, Privy Council was formed
which acted as the highest appellate institution so far as appeals from the overseas
British colonies were concerned.

NATURE AND EXTENT OF THE COUNCIL'S JURISDICTION

1. Though the Privy Council was the last court of appeal for colonies and dominions, the
decision of the Council was always in the form of advice to his Majesty, regarding the
action to be taken in appeal cases. His Majesty always accepted the report of the
Judicial Committee of the Privy Council.
2. Regardi

3. ng the extent of jurisdiction to hear, the greater difficulty was that different colonies
had different laws. Mentioning about India, Lord Broughan pointed out that, 'These
variations are greater since while one territory is swayed by the Mohammedan Law,
another is ruled by Hindu Law, some superseded by the law of Buddha, the English
jurisprudence being confined to a handful of British settlers and to inhabitants of 3
presidencies.'

PARLIAMENTARY ACT OF 1833

Under this Act, the Judicial Committee of the Privy Council became an effective Court of
Appeal with provision for inclusion of members with experience of overseas jurisprudence.
However, the judgment here was also in the form of recommendation made to the king. It was
therefore alwaysconcluded with the words, ' Their Lordships humbly advise His Majesty'.

The history of Indian appeals to the Privy Council maybe explained under the following
headings-

AP

PEALS FROM THE MAYOR'S COURT

The Charter of 1726 introduced Mayor's Court in each Presidency

 Town. The mayor's courts were the courts of British Crown.
Each mayor's court was to hear and try all civil suits pertaining to the people living
in the Presidency Town and working in the company's subordinate factories. The first
appeal from this court lay before the governor and council if the case involves subject
matter upto 1000 pagodas in value. Cases whose value is more than 1000 pagodas a
further appeal from the governor and council goes to the King-in Council within a period
of 14 days from the date on which the judgement appealed against was recorded.

APPEALS FROM THE SUPREME COURT OF CALCUTTA

1. The Regulating Act of 1773 and the Judicial Charter of 1774 made provisions for
Supreme Courts at three presidencies. The mayor's court at Calcutta was
abolished.

2. An appeal from the decision of the Supreme Court could be taken to Privy Council
provided the subject matter in dispute was worth 1000 pagodas and more. Thus it
was to be made by way of petition, which was to be moved in the Supreme Court.
Such an appeal could be filed within 6 months from the date of pronouncing the
judgment.

3. In criminal matters, the Supreme Court was to have full and absolute power
and authority to allow or deny permission to make an appeal to the Privy Council
as per the merit of the cases.

APPEALS FROM THE RECORDER'S COURT UNDER THE ACT OF 1797

1. The Mayor's Court in Madras and Bombay gave way to the Recorder's Court in 1797. Thus appeals to
Privy Council could be allowed in the cases involving the subject matter upto 1000 pagodas. These
Recorder’s Courts were subsequently replaced by the Supreme Court.

2. In 1800, the British Parliament passed an Act empowering the Crown to establish a Supreme Court in
Madras in the place of the Recorder’s Court.
3. In 1801, the Supreme Court was replaced by the charter.

4. In 1823, the Recorder's Court at Bombay was replaced by the Supreme Court by a Charter. Anact was
passed by the British Parliament to this effect.

5. The appeals from Madras Supreme Court to the Privy Council were allowed if the subject matter in
dispute exceeded 1000 pagodas. Appeals from Bombay Supreme Court were allowed if the value
exceeded 3000 Rs.

6. There were two kinds of appeal-

a) Appeals as a matter of right when the prescribed conditions were fulfilled.

b) Appeals by special leave of the Privy Council.

APPEALS FROM THE COMPANY'S COURT

APPEALS FROM SADAR ADALATS

1. The Sadar Diwani Adalat was empowered to hear appeals from the judgment of lower courts of the
company in the province of Bengal. Before Act of Settlement (1781) the decision of this Adalat was final.

2. The Act of Settlement(1781) allowed appeals from this Adalat where the value of the subject matter in
dispute was 5000 pounds or more.

3. In 1797, Governor General-in-Council passed Regulation XVI which limited the right of appeal to the
 value of 5000 pounds or more, exclusive of the cost of the suit and within 6 months of the date of the
delivery of the judgment.

APPEALS FROM SADAR ADALATS FROM BOMBAY AND MADRAS

1. In 1802, a Sadar Diwani Adalat was also established in Madras. The appeals for this Adalat was to be laid
before the Governor General-inCouncil.

2. In 1818 by an Act, Sadar Diwani Adalat at Calcutta relinquished the authority to hear appeals from
Madras Sadar Adalats. Now an appeal lay directly to the King-in-Council.

3. In Bombay the right to appeal was allowed as early as 1812 under a Regulation. It extended to civil cases
upto 5000 pounds or more.

4. In 1827, Elphinstone Code came into existence. The most striking feature was the absence of any limit for
moving an appeal.

JUDICIALS COMMITTEE ACT 1833

In 1833, the Judicial Committee Act was passed to regulate the system of appeal to the Privy Council. An
order was issued on 10th April 1838 under this Act. This Order in Councilprovided that appeal from the
judgment, decree; order of the Supreme Court or Sadar Diwani Adalat in India could be filed in the Privy
Councilwithin 6 months from the date of the judgment if the value is more than Rs 10000/-. Thus the
Crown's Court and Company's Court were put on the same footing in the matter of valuation.
The Judicial Committee passed the following orders to expedite the pending appeals:

a) By the 1st order of 1833, the company was directed to bring before the Privy Council all the cases of
appeal from Sadar Diwani Adalat.

b) By the 2nd order, the Company was required to appoint solicitors or agents to act as Councils for different
parties whose appeals were pending before the Privy Council.

c) By the 3rd order (1833), the Company was authorized to recover costs from the appellants incurred by it
 in bringing appeals through agents in the Privy Council.

THE JUDICATURE ACT 1845

In 1845, the British Parliament passed on Act regarding the management of appeals. The Company had to
spend a sum of 1,51,537 pounds on these appeals of which only a nominal part could be recovered from
the parties. Therefore the Act of 1845 took out from the hands of the company the management of appeal.
Such appeals were to be managed by the parties themselves.

APPEALS FROM THE INDIAN HIGH COURTS

Consequent to the passing of the Indian High Courts Act 1861, the Supreme Courts and the Sadar
Adalats at Calcutta, Bombay and Madras were abolished. In that place High Courts were established in
the 3 Presidencies. An appeal could be made to the Privy Council in any case of not being a criminal one,
if the value of the subject matter was not less than Rs 10000/- or the High Court declared that the case was
fit one for such appeal.

In criminal cases an appeal could lie to the Privy Council from any judgment of High Court made in
exercise of its original jurisdiction or in the opinion ofthe High Court the case was a fit one for appeal to
the Privy Council.

APPEALS FROM THE FEDERAL COURTS

A Federal Court was established in India by the Government of India Act 1935. An appeal from the
decision of the federal court to the Privy Council in the exercise of its original jurisdiction without leave
and in any other case; by leave of the federal courts or His Majesty's Council namely the Privy Council.
 ROLE OF PRIVY COUNCIL IN THE DEVELOPMENT OF LAW IN INDIA

It consisted of judges having legal learning and experience. So it’s decisions were of high quality.

It served as a bridge between Indian Law and English legal systems over which legal ideas travelled from
England to India. At a time when there was no link between the various Sadar Adalat, Supreme Courts
and the high courts as they interrupted the law differently; the Privy Council provided a unifying force. It
played an important role in ascertaining laws, setting legal principles, moulding and shaping them.

ABOLITION OF THE JURISDICTION OF THE PRIVY COUNCIL TO HEAR APPEALS FROM

INDIAN DECISIONS

After The Independence Act of 1947, a new constitutionalsetup came into existence in India when the
Indian Constituent Assembly was assigned the task to frame the Indian Constitution. Under the changed
set-up some restrictions were imposed on the right of appeal from the decisions of the Federal Court to the
Privy Council.

The Federal Court Act of 1948 had not completely abolished appeals to Privy Council but only put a
restriction on appeal pertaining to civil matters and it did not disturb the position with regard to criminal
cases.

THE ABOLITION OF PRIVY COUNCIL JURISDICTION ACT 1949

The New Constitution of the Republic of India was due to come into force from Jan 26 1950 and the
jurisdiction of the Privy Council to hear appeals was to come to an end. Hence the Indian Constituent
Assembly passed the Abolition of Privy Council Jurisdiction Act 1949.

However, section 4 of the Act made it clear that -

1. The judgment already delivered by the Privy Council or reported to his majesty;

2. Any Indian appeal or petition on which the Privy Council has reserved judgment;

3. Any Indian appeal entered into the list of business of the Privy Council before the said date

4. Any Indian appeal lodged before the said date in the register of the Privy Council would not be affected.
The last Indian case to be decided by the Privy Council was that of N.S Krishnaswamy Ayyangar v.
Perumal Goverdan from Madras which was decided on 15/12/1949. With this case, the two century old
relationship between India and Privy Council came to an end.

As the Supreme Court of India was established under the provisions of Article 124 of the Constitution of
India, it started functioning from 26th Jan 1950. It replaced the Federal Courts.

The Supreme Court is the highest court of the country. It has inherited the jurisdiction both of the
PrivyCouncil and of the Federal Courts.
 Dual System of Administration of Justice and Amalgamation of Courts

Prior to the passing of the Indian High Courts Act, 1861, there existed dual system of Courts
in India, namely the Crown’s courts and the Company’s courts. The Supreme Courts
established in the Presidency towns of Calcutta, Madras and Bombay were the Courts of
British Crown while the Adalats established in the moffusil areas were the courts of the East
India Company. They had two different sets of organizations jurisdiction and powers; which
created great confusion and uncertainty. They mainly differed in the following aspects :
1) The Supreme Courts consisted of professional lawyers who were Barristers, but the
Judges of the Company’s Adalats were mostly lay persons without any professional or legal
experience.
2) The Judges of Supreme Court held office during Crown’s pleasure whereas the
Judges of Company’s Adalats held office during Company’s pleasure.
3) There was no hierarchy of courts in Crown’s court but a regular hierarchy of courts
(Civil & Criminal) in company’s judicial arrangements. The Sadr DiwaniAdalat and Sadr
NizamatAdalat of the Company had only appellate jurisdiction but Supreme Courts had both
original and appellate jurisdiction.
4) Initially, Supreme Courts applied English Law. The Company’s courts applied native
laws in cases relating to inheritance, succession, contracts, etc. However, consequent to the
passing of the Charter Act of 1833, Supreme Court was also bound by the regulations passed
by the Governor-general-in-council.
5) The Supreme Court mostly followed English law of evidence whereas the Company’s
courts mostly followed the customary law of evidence as derived from Hedaya and applied
Anglo-Mohammedan law in deciding Criminal cases. The uncertainty about the jurisdiction
& the law applicable made Sir Charles E. Grey, the Chief Justice of the Supreme Court at
Calcutta to emphasize the need for fusion of these two rival courts.
The process of unification was however, completed in three distinct phases:
1) A central legislative council was established in India under the Charter Act of 1833.
The laws and regulations passed by the Council were especially binding on all the Courts
whether the Crown or Company. The Act of 1833 provided for a Law commission to
workouta uniform system of law and police for the Country.
2) The Law commission stressed on the need for a codified procedural law before such
fusion. Consequently a codified civil procedure was enacted in 1859 and Penal Code was
enacted in 1860.
3) The East India Company was dissolved by the Crown’s Act of 1858 and the
responsibility of the entire Government of India was passed on to the British Crown. Initially,
the Indian High Courts Act was passed by the British Parliament in 1861 – The Supreme
Court and Sadr Adalats were merged together to be known as High Court of Judicature at
Calcutta, Madras and Bombay.
 THE INDIAN HIGH COURTS ACT, 1861 :

The British Parliament passed the Indian High Courts Act in August 1861. This Act empowered
the crown to establish a High Court in each of the Presidency towns. Thereupon, the existing
Supreme Court and the Courts of Sadr Diwani Adalat and Sadr Nizamat Adaalt were abolished.
Constitution: Every High Court will be a Court of Record consisting of a Chief Justice and not
more than 15 puisne judges
a) of whom not less than 1/3rd were to be barristers of minimum 5 years standing and
b) 1/3rd were to be members of the Company’s Civil Service having not less than 10 years
standing including minimum experience of three years as a ZILA Judge .
c) the remaining judges could either be from the Bar or the Civil Service, i.e., the persons
who had practiced as Pleaders in the Sadr Adalat or the Supreme Court for atleast 10 years or
persons who held judicial office as a Judge of a Small Cause Court for not less than 5 years.
d) it was further provided that the Judges of the Supreme Court and the Saar Adalat
automatically became Judges of the newly created High Court.
e) the Chief Justice of the Supreme Court was to be the Chief Justice of the High Court of
Calcutta.
f) the Judges of the High Court were to hold office during Her Majesty’s pleasure.
Every High Court shall have superintendence over every subject to its appellate
jurisdiction and has power to
a. call for returns,
b. make Rules and prescribed forms for regulating the practice and proceedings of such courts
c. prescribed forms for keeping books, entires and accounts for the officers of such court
d. settle tables of fees for the Sheriffs, Attorneys, clerks and officers of courts subject to the
existing law and approval of the Governor.

As before no High Court shall have any original jurisdiction in any matter concerning the
revenue unless and until with the previous sanction of the Governor-General or Governor in his
discretion.
 Proceedings are to be in English. Expenses are charged on provincial revenues.
His majesty by letters patent constitutes or reconstitutes a High Court or amalgamate
two High Courts or extend the Jurisdiction of any High Court beyond the limits of the Province
where it is situated.

The powers, authority and jurisdiction of the High Courts were as per the letters patent.

I. CIVIL JURISDICTION
a) ORDINARY, ORIGINAL, CIVIL JUIRSDICTION
This extends only within the limits of the Presidency town. It was empowered to try and
determine suits in which the cause of action arose within the local limits of Calcutta or at the
time of commencement of the suit, the Defendant resided or worked for gain or doing business
within the limits of Calcutta. It could decide all civil suits excepting those in which the subject
matter involved was less than rupees 100 in value which were triable by the Small Cause Court.
b) EXTRAORDINARY, ORIGINAL CIVIL JURISDICTION

Whenever expediency or justice required or on the agreement of parties, the High Court could
transfer to itself any suit pending in any court under its superintendence.
c) APPELLATE CIVIL JURISDICTION
It was authorized to hear appeals from the inferior Civil Courts. The jurisdiction is as that of its
predecessor, Sadr Diwani Ad
alat.
d) High Court exercised the same power over the persons and estates of the infants, idiots
and lunatics as that of Supreme Court.
e) One of the Judges of the High Court was to function of insolvency Court for the insolvent
debtors.

II. CRIMINAL JURISDICTION:

a) ORDINARY, ORIGINAL CRIMINAL JURISDICTION:
It extended to the limits of the Presidency town, and European and British subjects.
b) EXTRAORDINARY, ORIGINAL CRIMINAL JURISDICTION:
To try and determine the offences committed by persons residing in places within the
jurisdiction of any court which was subject to its superintendence, and control.
c) APPELLATE JURISDICTION
It was a Court of Appeal from subordinate Criminal Courts. Also, a Court of Reference and
Revision from these courts. It could thus hear and determine all references made to it by the
sessions judge and revise proceedings of the lower criminal courts.
d) It applied the law found in the Indian Penal Code.

III. ADMIRALITY AND VICE ADMIRALITY JURISDICTION:

High Courts was vested with the power of the now abolished Supreme Court as Court of
Admirality (Civil, Criminal and Maritime Jurisdiction)
IV. MATRIMONIAL JURISDICTION OVER CHRISTIANS:
High courts were authorized to native rules and orders for regulating its proceedings in civil
cases but such rules and orders must not be contrary to the Provisions of the Code of Civil
Procedure of 1859. It was extended to her Majesty subjects professing the Christian Religion.
In criminal cases, same procedure as that of of its predecessor Supreme Court and to follow
the Code of Criminal Procedure, 1861.
V. High Court was to admit and enroll Advocates and vakils. It could also take disciplinary action
against them.
Appeals: The decision of the High Court was final in Criminal cases. However in civil cases,
appeal from High Court lay to the Privy Council provided pecuniary value was not less than Rs.
10000/- or the High Court certified the case as fit one to appeal to the Privy Council.

VI. TESTAMENTARY AND INTERSTATE JURISDICTION:

The High Court was vested with the power to grant probates of wills and letter of
administration relating to the property of deceased persons died without writing a will inte-
state. This jurisdiction was inherited from the Supreme Court.
RESULTS OF ESTABLISHMENT OF HIGH COURTS:
1) The distinction between law and equity was to be abolished and effort was made to
fuse law and equity.
2) The uniformity in the procedural law was achieved as one Code of Civil Procedure was
to followed.
3) On the original side each High Court had to apply the same law as the Supreme Court.
On original side, it was to apply English law on Civil appellate it was to apply the laws applied by
the Mofussil Adalats. However in the area of Criminal Administrative Substantive law,
uniformity was achieved as the IPC 1860 was to be applied.
 SIMON COMMISSION

The British Government appointed Simon commission in 1927 whose members numbering 7
were Englishmen to report about the constitutional progress in India, since the inauguration of
the Reforms of 1919.It’s chairman was Sir John Simon.

Simon Commission Boycotted

• Indians were outraged at their exclusion from the commission.

• So it was boycotted by all the parties in India.
• Congress party decided to boycott the commission at their session at Madras in 1927.
• The Muslim League led by M A Jinnah also boycotted it.A certain section of members led
by Mohammad shafi supported the Government.
• Hartals were observed and it was welcomed with black flags.
• People were chanting the slogan, ‘’Simon Go Back.’ ’
• Police resorted to brutal lathi-charge even senior leaders like Pandit Nehru were not
spared.
• In Lahore, Lala Lajpat Rai, who was leading the demonstration against the Simon
commission, was brutally lathi-charged. He died later that year due to injuries sustained
then.
• Inspite of all these, it completed its report in 1930 which was made the basis for
Government of India Act 1935.

Recommendations:

• There should be a constitutional reconstruction.

• It would be a federal constitution
• The provinces to be given full autonomy including law. It recommended abolition of
dyarchy.
• The Governor should have discretionary power related to internal security and
administrative powers to protect the different communities.
• The number of members of provincial legislative council should be increased.
• Governor General should have complete power to appoint members of the cabinet.
• The Government of India should have complete control over the High Court.
• It also recommended retention of separate communal electorates until the communal
tensions had died down.

Limitations of the Commission:

 • No universal franchise.
• Position of Governor General unaffected.
• To provision to abolish separate electorate.

IMPACT

• It led to the Government of India Act 1935 which acted as basis for many parts of the
current Indian Constitution,
• The first provincial elections were held in 1937 and it saw congress Government being
set up in almost all the provinces.
• The arrival of the commission gave an impetus to the Indian Independence Movement
by galvanizing leaders and masses.
 NEHRU REPORT 1928

When Indians rejected Simon Commission as it had no Indian members, Lord Birken head, the
secretary of state for India justified saying there was no unanimity of opinion among different
political parties. He challenged them to produce a constitution for India acceptable to all
political parties and submit it to British Parliament. Indian leaders accepted the challenge .All
party conference was held in Bombay in May 28 under the chairmanship of Motilal Nehru. The
report published by this conference was popularly known as Nehru Report. It was rectified by
Indian National Congress in Calcutta session in December 1928.

RECOMMENDATIONS
● Dominion status for India with the British Common Wealth (Bone of Contention with the
younger leaders Jawaharlal Nehru and S.C.Bose who favoured complete independence).
● 19 fundamental rights including the right to vote for men and women above 21 years of
age, unless disqualified.
● Equal rights for men and women.
● No state religion.
● No separate electorates for any community. It did not provide for reservation of
minority seats.
● It provided for reservations for seats for Muslims at the Centre and in provinces where
they were in a minority and in Bengal and Punjab.
● Similarly it provided for reservation for Non-Muslims in NWFP.
● A Federal form of Government with residual powers in the Centre. There would be
Bicameral Legislature at the Centre.
● Governor-General to be the constitutional head of India. He would be appointed by the
British Monarch.
● A proposal for the creation of a Supreme Court.
● The Provinces would be created along linguistic lines.
● The language of the country would be Indian written either in Devanagiri (Sanskrit,
Hindi), Telugu, Tamil, Kannada, Bengali, Marathi or Gujarati.usage of English to be
permitted.

Failure
● This report was opposed by the Muslims as the system of joint non-communal
electorates did not suit their interests.
● They opposed to the residuary powers being conferred on the Centre as it intended to
place the minority at the mercy of majority.
● Mr.Jinnah resolved that no scheme would be acceptable unless it incorporated the 14
points enumerated by Jinnah. So the report met with a tragic failure.
 Minto-Morley Reforms 1909

The Indian Councils Act 1892, failed to satisfy the Indian people. It left little scope
for the popular representation in the Councils.

The rules of elections gave more representation to some classes at the cost of other
classes.

The political situation in India led the British authorities to think of introducing
constitutional reforms with a view to secure the support of moderates in the Indian
National Congress. Mr. Gopal Krishna Gokhale, the chief leader of the moderate
section in the Congress went to England met the Secretary of State for India, Lord
John Morley and tried to convince him of the urgency of the constitutional
reforms. Lord Morley was sympathetic to the views of Gokhale. Lord Minto, the
Viceroy of India, was also in favor of introducing Constitutional reforms. The
Committee appointed by Lord Minto, submitted its report in October 1906.

A Bill was prepared on this basis of that report. In 1909, the British Parliament
passed it to become an Act. This Act, The Indian Councils Act, 1909 is the result
of the efforts of Lord Minto, the Viceroy of India and Lord Morley and
consequently, the reforms introduced are popularly known as Minto-Morley
Reforms.

The Main objects of the Act:

a) To increase the size of the Legislative Councils;

b) To enlarge the functions of the Legislative Councils.

c) To increase the proportion of elected members and

d) To secure the support of moderates in the Indian National Congress.

Provisions:

1) The enlargement in the size of the Supreme Legislative Council:

The Indian Councils Act, 1909 greatly increased the strength of the
Central Council. The number of additional members was increased from 16
(under 1892 Act) to 60. The total strength of the Supreme Council was thus
fixed at 69, including the Governor-General.
 The breakup of the total membership of the Council

Supreme Legislative Council

Total members 69

Official members (37) Non-Official members (32)

Ex officio Nominated Elected Nominated

(9) (28) (27) (5)

General Class Special Muslim

Electorate Electorate Electorate Electorate

(13) (6) (2) (6)

Governor Ordinary Members of Commander- in Governor of

General Governor –Generals Chief Province where

Council the meeting is

held.
 The Governor-General in Council, subject to the approval of the
Secretary of State was empowered to make regulations as to the conditions under
which and the manner in which persons residents in India might be nominated or
elected to the Supreme or Local Legislative Councils and qualifications for the
elected and nominated members.

2) Enlargement in the size of Provincial Legislative Council:

The number of Additional members of Bengal, Bihar, Orissa,

Madras, Bombay and United Provinces was raised to 50. Punjab, Burma and
Assam and Central Provinces to 30. Each Council had both Official and Non-
Official members. Other features are just as Central Legislative Council.

3) Introduction of the system of indirect election:

The Indian Councils Act, 1909 introduced an elective principle of

giving representation to all class was undoubtedly an outstanding feature.

But the election was however indirect. The people elected the
members of Municipalities, District Boards etc. who in turn elected the members
for the provincial Legislative Councils. The members so elected chose the
members of Supreme Legislative Council. So the election to Supreme Legislative
Council was by a double indirect method and people had no direct contact with
these members.

4) Appointment of Indians to the Executive Council:

Lord Sinha, the Advocate –General of Bengal was appointed by the

Secretary of State to the Governor General’s Council as a law member of the
Government.
 5) Introduction of communal representations:

The most unfortunate aspect of the Act of 1909 was that it

provided representation on communal basis. The Act favoured the Muslims by
giving them the right of separate representation and the excuse was political
expediency.

Vice-President: The Act empowered the Governor- General, Governors of

Presidencies, Lt. Governors to appoint Vice-Presidents to preside over the meeting
of the Executive councils in their absence.

Narrow Franchise:

a) The number of voters was disappointingly small.

b) Women were completely barred from voting.

c) The qualifications for the voters for Supreme Legislature Council were rigid.
Only Landlords with specified income or minimum land revenue payment of
Rs. 10,000/- or more or those with high titles or honors were given voting
right. The same was the case in Provincial Legislatures.

Qualifications for candidates contesting elections:

Persons not eligible to contest:

(a) Not a British subject

(b) Minor and below 25 years of age.

(c) With unsound mind.

(d) Bankrupt

(e) Debarred from legal practice

 (f) Dismissed from Government service

(g) Sentenced to imprisonment for a term exceeding six months or to

transportation.

Candidates of class constituencies should possess some special

qualification other than general qualifications.

Executive Council:

The number of members of Councils of Bombay and Madras

was raised from 2 to 4.

The Act empowered the Governor-General –in Council to

establish Executive Councils for Lieutenant Governor’s provinces and also for
Bengal by proclamation, with the approval of the Secretary-of-State-in-Council.

Functions of the Legislative Councils:

The Act authorized the members to discuss the budget, to

propose resolutions on it. They could ask questions and move resolutions relating
to loans, additional grants and new tax proposals. But they could not discuss
political and military affairs.

Merits;

1) The size and powers of all the Legislative Councils increased.

2) Non-official majority was provided in the Provincial Council.

3) Indians made eligible for appointment to the Executive Councils.

4) For the 1st time, the Act conceded to the principle of election as demanded
by the Congress.
 5) It gave sample opportunities to the Indian Politicians and Officials for good
training in the art of government.

Criticism:

1) The reforms gave a severe blow to the national solidarity by providing

separate representation to different classes of persons. The Act gave
communal representation thus dividing Hindus and Muslims further
apart.

2) The Act provided indirect election and narrow franchise. People had no
direct contact with the members of Supreme Legislative Council.

3) The Legislative Councils had no control over the executives and the real
power remained with the executives only.

4) The Act failed to establish responsible Government.

5) Though the official majority was done away with, the elected members
were in minority. The reforms of 1909 gave the people “The Shadow
rather than substance.”Majumdar called it a ‘mere moonshine’
Montague Chelmsford Reforms 1919:

1. The Indian Councils Act 1909, failed to satisfy the Indian leaders. Indirect election,
separate electorates for the Muslims, inequalities in the Franchise, lack of the power of
the Legislatives to control the executive were the main defects of the Act of 1909.
2. The Indian leaders realised that they would not get Self-Government and so the Act of
1909 aggravated the demand for it.
3. In 1916, Indian National Congress demanded the declaration of the British Government's
future policy regarding self-government in India. The Indian Press Act 1910 and the
Defence of India Act, Seditious Meetings Act were enacted to suppress these demands
but failed.

Passing of the Act:

Lord Montague, the Secretary of the State visited India and he along with the Viceroy Lord
Chelmsford submitted a report on Indian constitutional reforms commonly known as Montague
Chelmsford report. In accordance with these proposals the British Parliament passed the
Government of India Act 1919.

Salient features:

Object:

1) To provide for increasing for increasing association of Indians every branch of

administration.
2) To establish a responsible government in India by successive stages.
3) Gradual Development of self-governing institutions.
4) To provide to the provinces, the largest, the largest measures of independence in
provincial matters.

Home Government:
1) In 1858, the British Crown assumed direct responsibility for the administration of India.
A new office known as Secretary of State for India was created in England and all
functions and powers of the Court of Directors and the Board of Control were transferred
to him. A Council known as Indian Council was established to assistant Secretary of
State for India. The Secretary of State-in-Council was called the Home Government of
India and the Indian affairs were controlled through this body.
2) Till the passing of Act, the salary of the Secretary of the under Secretary and other
expenses of his department might be paid out of the British revenues.
 3) A High Commissioner for India was appointed to act as agent of the Central and
Provincial Governments. He was to be paid out of Indian revenues.
4)
a) The Indian Council was to consist of not less than 8 but not more than 12 members.
b) The number of Indian members increased from 2 to 3.
c) Their tenure reduced from 7 to 5 years.
d) The salary of the members 1200 pounds a year. An allowance of 600 pounds was given
to those members who were domiciled in India at the time of their appointment.

Central Government:

Governor-General-in-Council (Central Executive):

a. The executive powers were vested in the Governor-General-in-Council

b. The Governor-General and the members of Executive Council were appointed by
His Majesty.
c. At last 3 members of the Council were to be the person who had been for atleast
10 years in the service of the Crown in India and one of them-Barrister of
England or Ireland or a member of the faculty of advocates of Scotland or a
pleader of a High Court of not less than 10 years standing.
d. It was made clear that if any member of the Council other than the Commander-
in-Chief, was in military service at the time of appointment, he was not to hold
that post during his continuance of office as such member.
e. The number of Indian members of the Council was increased from one to three.
f. Civil and military Government of India was vested in the Governor-General-in-
Council as per provisions of the Act.

Powers of the Governor-General:

1) He was to carry out his functions with the advice of the Council but
could overrule its decision if he feels decision was harmful to the
preservation of peace in the Country.
2) Had direct contact with the Secretary of State.
3) As the Chairman of the Council, to distribute work to the members and
summon or prorogue meetings and make rules for the transaction of the
business in the Council.
4) He could stop the Bill if it would affect the peace and tranquillity of
India.
5) He could recommend placing the demands for grants before the
legislature and it was reduced or refused, and in his opinion it was
necessary or expedient, he could restore the grant so refused.
 6) His previous section was required to introduce Bills concerning
following subjects.
a. The public debt or public revenues of India.
b. Religion or religious rites the British subjects in India.
c. Discipline of His Majesty's military, naval or air force.
d. Foreign relations of Govt. of India.
e. Amending or repealing an Act of Provincial Legislature.
f. He had the power to promulgate ordinances in case of emergency. It lasted for 6
months.
7) The assent of the Governor General was essential for enactment of a law by the Legislature.
He got vetoing power also.

The Central Legislature:

The Act of 1919 introduced at Central, the Bicameral legislature consisting of 2 houses

1) Council of States (Upper House) and

2) Legislative Assembly (Lower House)

Council of State:

It was to consist not more than 60 members, of whom not more than 20 were officials.

Franchise:

The Act prescribed high property qualifications (paying income tax on an income of Rs. 30000/-
). The Franchisee was extended to the members of the University senate, President of district
boards and Chairman of Municipalities. So in a population of 25 crores, voters did not exceed
17000.

Direct election:

Government of India decide in favour of direct elections, for both houses of the Central
Legislature.

The Legislative Assembly:

It was to consist of 140 members but it was provided that by making rules the number of its
members could be increased. Actually Assembly consisted of 145 members.

Franchise:

Women were also entitled to vote provided they had the requisite property qualifications i.e.
payment of municipal taxes amounting to Rs. 15 to 20 a year or own a house which could yield
an annual rent of Rs. 180/- etc.

The first speaker of the Assembly was nominated by the Government, but the subsequent
speakers were elected by the members of the Assembly.

In case of disagreement between the two chambers regarding a Bill, the Governor-General might
at his discretion summon a joint session.

The Powers of the Central Legislature:

Generally, the Central Legislature could legislate on subjects which were classified as Central.

The functions of the government were divided into Central subjects and provincial subjects.

The Central list contained 47 subjects

1) Foreign affairs
2) Defence
3) Railways
4) Post and Telegraphs
5) Civil and Criminal Law
6) Commerce and Shipping
7) Currencies
8) Tariffs and Customs, etc.
The State List contained 51 subjects

1) Local self-government
2) Internal law and order
3) Police and Jail
4) Education
5) Water supply
6) Public works
7) Sanitation and Public Health
8) Medical
 9) Agriculture
10) Industries, etc.
The Governor-General could declare a provincial subject as subject of central interest and so
central legislature could make laws in respect of the subjects included from the Provincial List.

The Act gave extraordinary powers to the Governor General. He has the power to overrule
decisions, if the decisions are harmful and against the peace and tranquillity of the country.

Financial powers:

The budget was submitted to the Central Legislature. It could refuse the items and reject
thebudget. The Governor-General could restore the items cut by the Legislature, if he considered
that the expenditure was essential for the safety and tranquillity of British India or any part of it.

Other functions:

The Central Legislature could ask questions and could bring a motion of adjournment to discuss
any matter of urgency.

Provincial Government:

Provincial Executive (Dyarchy):

The Presidencies of Bengal, Bombay, Madras, United Provinces, Bihar and Orissa, the Central
Province and Assam were declared to be the ""Governor's Provinces". The Act introduced a
uniform system of administration in the major provinces of India (Dyarchy)-"One Government
was ruled by two independent authorities is called Dyarchy. Dyarchy- a compound of two words
di (two) and orchie(rule). It signifies double government."

A Provincial Government was to be headed by a Governor who was to run the administration
with the help of an Executive Council and a legislative consists of only one House-Legislative
Council.

The Subjects of administration was divided into 2 categories

1) Central and
2) Provincial subjects
Provincial subjects were further divided into
Transferred subjects:

1) Local self-government
2) Education
3) Public Health
4) Sanitation
5) Public works
6) Agriculture
7) Co-operative societies
8) Religious and Charitable endowments
9) Museums
10) Registration of Births and Deaths, etc.

Reserved Subjects:

1) Irrigation and canals

2) Administration of Justice
3) Development of Industries and Mineral Resources
4) Police
5) Water supplies
6) Land revenue and land acquisition
7) Famine relief
8) Control of newspapers, etc.
The Governor was given absolute power to decide as to whether a particular subject was a
transferred subject and his decision was final.

Administration of reserved subjects:

It was entrusted to the governor which he had to administer with his council. The number of
Executive Councillors was not to exceed 4. Atleast one of the member was to be an employee of
the Crown in India atleast 12 years of service and half the number of each Council were to be
Indians. They were to receive a fixed salary.

The Councillors were appointed by the British Crown for 5 years and they held the office at his
pleasure.

The Governor presided over the meeting of the Council where the decision was arrived of the
Council of opinion by a majority vote. In case of a tie, Governor had casting vote. The Governor
was empowered to override the decision of the majority, if the decision in his opinion was
fraught with grave danger to the safety, peace and interests of the Provinces.

Administration of Transferred subjects:

a. They were administered by Ministers who were nominated by the Governor from
among the elected members of the Provincial Council.
b. In the matter of administration of transferred subjects, the Governor was to be
guided by the advice of his Ministers.
c. The provincial Legislature could compel a minister to resign on the ground of
want of confidence. It could reduce the salary of the Ministers.
d. The Ministers were to please two masters, the Provincial Legislature and the
Governor. The Governor could dismiss them without assigning any reason.

Special responsibilities of the Governor:

1) He was the final authority in the reserved as well as in the transferred subjects.
2) He should prevent religious or social conflict.
3) Provide for the advancement and welfare of the people.
4) To see no order of his Government and no Act of his Legislative Council give undue
advantage or deprive privileges or advantages to people belonging to certain race,
religion, education, social condition, wealth or any other circumstances.
5) No monopoly, no special privilege, no unfair discrimination should be made in matters
affecting commercial interests.

Powers of the Governor of the Province:

1) Bill passed by the Provincial legislature required the assent of the Governor.
2) The Governor could extend the term of the Provincial Legislature or dissolve it before the
expiry of the full term.
3) The Governor could pass legislation connected to a reserved subject even when
legislature did not agree.
4) He could certify that such a law was essential for the discharge of his responsibility. But
such law or Act had no validity until His Majesty had given his consent.
5) He had the power to stop discussion on any Bill if it would affect the peace and
tranquillity of Province adversely.
6) If any grant relating to reserved subject was rejected by the Provincial Legislative
Council, the Governor could restore it if in his opinion it was necessary for the discharge
of his responsibility.
Defects of Dyarchy:

i) Water –tight division of subjects:

The Provincial departments were divided into Reserved and Transferred. This water-
tight division is not conducing to then smooth working of the Government.
ii) Division not scientific:
Agriculture, a transferred subject but irrigation a reserved subject. Education a
transferred subject but Education of the Anglo-Indians fell in the Reserved Sphere.
This unscientific bifurcation of departments contributed to the failure of the system.
Sir K.V. Reddi, a minister remarked “I was a Minister for Development without
Forest.”
iii) Non-Co-operation between two parts:
The Executive Councillors were members of bureaucracy. Ministers were
representatives of the people. They always criticised each other.
iv) Joint responsibility not encouraged:
Governors never held joint consultations of 2 branches. Executive Councillors and the
Ministers. He consulted even ministers individually.
v) Double Responsibility of Ministers:
The Ministers had to please two Masters-Governor and the Legislature whose
viewpoint always differ. Ministers became subservient to the Governors and did not
care much for the legislature as some ministers aspired to become Executive
Councillors after the expiry of their term of office.
vi) Ministers had no control over All India services:
They were under the Secretary of State and tried to put in to practice the wishes of the
Governors.
vii) Finance a Reserved Department:
Honourable Minister of Finance would give money to the needs of Transferred
subjects only after meeting the demands of the reserved subjects. Thus nation
building Transferred subjects were starved of finances.
viii) Introduction of Unfavourable Time:
The people became suspicious because of Jallianwala Bagh Tragedy and the attitude
of British Government towards Turkey. There was a slump in the market after 1st
world war. This politically and economically hampering atmosphere contributed to
the failure of Dyarchy.

Provincial Legislative Councils:

The Act provided Unicameral Legislative Council in every province. The provincial Legislative
Councils were largely increased. Some principle of responsible government was introduced.
The duration of the Council was three years subject to the power of the Governor to dissolve it at
any time and to extend it for one year in special circumstances.

Franchise:

a) Possession of certain property qualification.

b) Payment of land revenue, rent and income tax.
c) All officers of the Indian Army, retired or pensioned
d) Women having the above qualification
e) The minimum age to be a voter was 21.
f) No person was entitled to be registered on the electoral roll if not a British subject, of
unsound mind or declared guilty of certain offences.
g) The principle of communal representation was not only retained but even extended in its
application.

Functions:

Provision was made for annual contributions from the Provinces to the Centre. All government
revenue was to be paid into the Public account, of which the Governor-General-in-Council was
the custodian.

An Act assented to by the Governor required the assent of the Governor-General to take effect
only if approved by the Crown-in-Council.

The legislative powers were subject to several restrictions. Notwithstanding the use of the word
‘Provincial autonomy’ the Provincial Legislature was a subordinate legislature.

Financial power:

Each year a statement of estimated revenue and expenditure was to be submitted to the Council
and the government’s proposed expenditure was to be submitted in the form of demands for
grants.

The Governor-in-Council could restore any grant refused or reduced by the Council, if it related
to reserved subject and if he considered essential.

Parliamentary Functions:

1) To ask questions on various subjects.

 2) Move resolutions to give expression to popular grievance.
The Act marked a significant stage in the development of democratic institutions. It created a
large electorate, gave political education and trained a generation of parliamentary leaders.
 The Government of India Act, 1935
It was a very lengthy and complicated Statute. The Act aimed at establishing the Federal system of
Government in India for the first time. The Government of India Act 1919 established Dyarchy in the
Provinces whereas the process was reversed and the Act of 1935 established Dyarchy at the centre.

Dyarchy:

The Federal executive was to be constituted on the principle of Dyarchy.

The Federal Subjects were divided into Reserved Subjects and Transferred Subjects.

Reserved Subjects:

a) Defence, education, external affairs, administration of tribal affairs, and ecclesiastical affairs.

b) They were to be governed by the Governor General.

c) He was assisted by the executive Councilors appointed by him but their advice was not binding
on him.

Transferred Subjects:

To be administered by the Governor General with the aid and advice of the Council of Ministers who
were appointed and could be dismissed by the Governor General.

The Transferred Subjects include all other than what were treated as Reserved Subjects.

The Governor General remained overall in charge of both Reserve and Transferred Subjects.

All India Federation :

There were to be 2 sets of Government, the Federal and the State Government.

1) The Federation attempted to confer Autonomy on the Provinces and then bring them under the
federation.

2) Other units are the native States. They were to accede to the Federation by signing an
Instrument of Accession. But it was never contemplated to have a uniform system of Accession
for all the States, as some States are more powerful than the other. So each State could
surrender to the Federation different from those surrendered by the other States.

3) As a result, the constitutional document that accommodated the Federal form of Government
would not be one; there would be multiplicity of such documents.

4) The Governors of the Provinces were subject to control of the Governor General in all matters.
So the head of the Province was subordinate to the head of the federation.
5) The representatives of the British Indian Provinces were to be mostly elected directly but the
representatives of the State could be nominated by the rulers of the State.

6) The centre had vast powers to intervene in the affairs of the Province. But in the case of State
even the Federal law could be administered only by the rules of the State.

Division of Subjects between Federal and Provincial Governments:

A) Federal list: 59 Subjects which were of national importance i.e. Defence, external affairs, post
and telegraph, railways etc.

B) Provincial list: 54 Subjects of local interest, education, land revenue, public health, Law & order
(police) etc.

C) Concurrent list: 36 Subjects such as marriage, divorce, electricity, civil &criminal law etc. on
which both Federal and Provincial Legislatures could make laws.

In case of conflict between the centre and the Province regarding concurrent lists, the power of
the centre prevailed.

Federal Legislature:

It was a Bicameral body consisting of Council of States (Upper House) and the Federal Assembly. The
Council of States was a permanent body and the one third of its Members were to retire every 3
years. It represented the units of Federation. It consisted of 156 representatives of British India and
up to 104 representatives of Indian States and they were to be nominated by the ruler.

Federal Assembly:

Lower Chamber of Federal Legislature. It was to have 375 Members. Out of these 125 to represent
the native States who were nominated by their rulers. The remaining 250 were to represent British
India who was elected through indirect election.

Governor General and his powers:

He was appointed by His Majesty for a period of 5 years.

A) Powers in his discretion: It is to be reMembered that in the exercise of these powers, he was not
required even to consult his ministers.

1. Administration of defence

2. Foreign affairs

3. Ecclesiastical affairs

4. Appointment and dismissal of ministers.

 5. Presiding over meeting of Council of ministers

6. Appointing Executive Councilors, Financial adviser, Chief commissioners, Governor and

Deputy Governor of Reserve Bank, chairman and Members of public service commission,
Members of the railway tribunal and Directors and Deputy directors of Indian Railway
Company.

7. Legislative: a) Issuing ordinances, suspending of constitution, summoning and dissolving the

lower house and joint sessions of the two houses of the Federal Legislature.

b) Sanctioning introduction of certain Bills in the Legislature or refusing it.

c) Issuing directions to the Governors in case they Acted at their own discretion.

8. Financial: restoring any demand for grant rejected or reduced by the central Legislature and
recommending proposals for taxation and expenditure.

Exercise in individual Judgment:

In the exercise of these powers, he was required to consult his ministers, but he
was not bound by their advice.

1. Safeguarding financial stability of India.

2. Prevention of any grave menace to the peace and tranquility of India or any part of it.

3. Safeguarding the legitimate interest of minorities.

4. Prevention of discriminatory tax against the goods of British origin.

5. Safeguarding the rights of Indian States and the dignity of their rulers.

Powers of Federal Legislature:

1. Make laws for the Federation States on the

Subjects specified in the Instrument of Accession. As regards British India, on the Subjects
specified in the Federal and concurrent list.

1. In case of proclamation of emergency by the Governor General the Federal Legislature could
make laws on the subject specified in the Provincial list. However the Bill for the purpose could
be introduced only with the previous sanction of the Governor General.
2. A Bill passed by both the Chambers was to be presented to the Governor General for his
assent and could not become an Act without his assent.

3. The Governor General was to prepare “annual financial Statement” and to place it before
both the Chambers.

4. This Statement was about the sums required to meet the expenditures.

5. Bills other than Finance Bills might originate in any Chamber, the finance Bill could originate
only in Federal assembly

6. Federal Legislature could not alter amend or repeal the Government of India Act 1935. It
was empowered to make law on certain matters.

Federal court:

It was to consist of a Chief Justice and six other Judges. It was to have original
jurisdiction, in case of dispute between the Federal Government and the States and between
the States themselves. Its appellate jurisdiction was to extend to any case against the decision of
a high court, if high court concerned gave a certificate that the case involved interpretation of
some clause of the Act of 1935. Governor General could seek its advice on the point of law.
 Provincial Autonomy
Government of India Act 1935 abolished Dyarchy in the Provinces and introduced
Autonomy. The distinction between the Reserved and Transferred department were done away with. All
Subjects became Transferred heads and so no important department was beyond the control of the
Ministers.

But central interference was not ended. The Governor General could proclaim
emergency and authorize the Federal Legislature to make laws on Provincial Subjects.

Besides the Governor had certain powers (discretionary) i.e. he was not required to
consult his ministers.

a) These include power to take steps to prevent any attempt to overthrow the Government.

b) To safeguard the interest of minorities.

c) To protect the rights and prestige of Indian princes.

d) To call joint sessions of both the Houses to settle differences.

e) To promulgate ordinances.

f) To make rules that no Member of police force might reveal to unauthorized persons the
information relating to State Activities.

g) To appoint chairman and Members of the Provincial Public Service Commission and to fix their
salaries.

Sometimes Governor Acted in his individual judgment where he was required to

consult his ministers. But not bound to follow their advice.

1. Appointment and dismissal of ministers. If at time of appointment he was not a Member of

the Legislature, he was required to become a Member within six months.

2. Prevention of menace to the peace and tranquility.

3. Protection against discrimination.

4. Execution of orders from Governor General.

Generally under Provincial Autonomy, Governor would not interfere much in the
Ministerial field and would use special powers to the minimum. But contrary to this Governors and the
Governor General had extraordinary powers.
LEGISLATIVE POWERS:

Governor could summon and dissolve the Legislature.

He could stop any Bill if in his view it threatened peace and tranquility of the Province.

He could address both the houses jointly or separately.

CONSTITUTION SUSPENDING POWER:

Governor was armed with power to suspend the working of Constitution at any time.
He could issue a proclamation of emergency and assume to himself any or all the powers exercised by
any Provincial authority.

FINANCIAL POWER:

Expenses which were charged on the Provincial revenue could not be voted by the
Provincial Legislature. It was for the Governor to decide that.

If Provincial Legislature rejects or reduces any grant, the Governor was empowered to restore that item,
if he considered essential.

Governors even interfered in the matter of proposing taxes.

HINDRANCE TO THE PROVINCIAL AUTONOMY:

The special powers of the Governors were a great hindrance to the working of
Provincial Autonomy. To prevent grave menace to peace of the Province, Governor with the approval of
the Governor-General assumed all legislative and executive powers.

ATTITUDE OF CONGRESS:

Congress felt that these powers were used by the Governors to interfere in the affairs
of the ministers.

General elections were held and congress got majority in 6 Provinces (Bihar, Orissa,
U.P, C.P, Bombay and Madras). It asked the Governors to give assurance that they would not interfere in
the day to day affairs of the ministers. But when that assurance was not given, congress refused to form
ministries. So under instructions from the Governor General, Governors gave assurance and congress
form
WORKING OF PROVINCIAL AUTONOMY:

The congress was in office from 1937 to 1939 and the role of the Governors in the congress Provinces
may be set to be satisfactory. Difficulties in some Provinces were overcome.

1) KHARE CONTROVERSY IN C.P.

Dr. Khare, Chief Minister of C.P. asked his colleagues to resign so that he could reshuffle the cabinet.
Two of the ministers refused unless they got instructions from the congress High Command. The
Governor dismissed the ministers, thus helped the C.M. The congress felt it as an attempt on the
part of the Governor to create disunity in the congress and Took disciplinary Action against Khare.

Ravi Shankar Shukla was made the Chief Minister. Governor accepted him.

2. CONSTITUTIONAL CRISIS IN ORISSA (1938):

The Governor of Orissa was to go on leave and in his absence Chief secretary should officiate. The
Orissa ministry threatened to resign, as it did not like its subordinate official to rise above its head.
The Governor cancelled his leave and the crisis was averted.

Provincial Legislature:

It was Bicameral –the legislative Council and legislative assembly.

1. Powers of Legislature was to enact laws on Provincial and concurrent list.

2. Both Chambers can ask questions and supplementary questions to the ministers.

3. Assembly had power to remove these ministers by passing a vote of no confidence.

MERITS OF THE ACT OF 1935:

1) It extended franchise to more people to enable them to show more interest in national
affairs.

2) Provided considerable Autonomy to the Provinces.

3) Indians were given an opportunity to do some constructive work

4) Federal court at national level was established

5) The Indian constitution was designed more or less on the pattern introduced by the Act of
1935.

Demerits:
 1) The Governor-General and Governors were given extraordinary powers.

2) Dyarchy in Federal administration though it was abolished in Provinces.

3) It could not satisfy either the Muslims or Hindus.

4) Indians were not given full power and not allowed to administer the Government of India. So
Indians were not satisfied with his piecemeal scheme.

5) The Native States were given option to join or not to join the federation which led to its failure.

Pandit Nehru called this Act “a machine with strong brakes and no
engine.”

Jinnah called it “thoroughly rotten and totally unacceptable.”

 CRIPPS MOVEMENT 1942

The Cripps mission was an attempt in late 1942 by the British government to secure full Indian co-
operation and support for their efforts in world warII. The mission was headed by sir Stafford Cripps.

Cripps was sent to negotiate an agreement with the nationalist leaders Mahatma Gandhi representing
the Hindus and Mohammad Ali Jinnah representing the Muslim.

Importance of Cripps Mission

• A solid plan was made for framing the constituent assembly.

• Provinces were free to form separate unions and constitutions.
• For the first time sole responsibilities for framing the constitution was given to Indian hands.
• Indian union was free to either maintain the relationship or withdraw from the Cripps mission.
• Large numbers of Indians were given positions.

Proposal of Cripps Mission

• After war, sub-continent will be under the crown, but British government would avoid
interfering in internal and external affairs.
• The members of the provincial legislative assemblies will elect a central assembly for framing
constitution.
• After constitution is made it will be sent to provinces for confirmation.
• Appropriate steps will be taken for the security of minorities.
• British government would accept new constitution on two conditions
Any provinces not willing to join the union could have a separate constitution and form
separate union.
The new constitution making body and British government would negotiate a treaty to transfer
a power and safeguard racial and religious minorities.

Defects

Impacts

• Offer of dominion status instead of a provision for complete independence.

• Representation of princely states by nominees and not by elected representatives.
• The mission was rejected by INC (Indian National Congress) and ML (Muslim League)
and other groups.
• The depressed class objected because they were apprehensive about their status where they
are in minorities .So because of failure of the mission congress led by Gandhi started a
new campaign “The Quit India Movement ’’in August 1942.
CABINET PROPOSAL 1946

Introduction

The Cabinet Proposal 1946 was a statement made by the Cabinet Mission and the Viceroy,
Lord Wavell, on May 16, 1946, that contained proposals regarding the constitutional future of
India in the wake of Indian political parties and representatives not coming to an agreement.
The members of the Cabinet Mission were: Lord Penthick Lawrence- Secretary of State for
India, Sir Stafford Cripps- President of the Board of Trade, and A.V Alexander- First Lord of
Admiralty. The British Prime Minister, Lord Attlee, made a declaration on 15 March 1946, that
a Cabinet Mission would visit India to make recommendations regarding constitutional reforms
to be introduced in India. The mission envisaged the establishment of a Constituent Assembly
to frame the Constitution as well as an interim government.

Reason behind the formulation of Cabinet Proposal

• To obtain an agreement with the Indian leaders as to the framing of a constitution for India.

• To formulate a constitution-making body (the Constituent Assembly of India).

• To establish an Executive Council with the support of the major Indian parties.

About the Cabinet Proposal 1946

Provisions of the Cabinet Proposal 1946

The following are the provisions of the Cabinet Proposal 1946:

(1) The whole of India including the Princely States should form a Federation.

(2) The Central Government should be in charge of foreign affairs, defence and
communication.

(3) The provinces and the states should enjoy all other powers.

(4) The British Indian Provinces and the territories should be divided into three groups, the first
group should contain Punjab, North-West Frontier Province, Sind and Baluchistan. The second
group should contain Bengal and Assam. The third group should contain the rest of the
Provinces. These first two groups should contain the Muslim majority areas and the third group
the Hindu areas.

(5) A Constituent Assembly should be elected to frame a constitution for the Indian Union.

(6) The three groups of Provinces should also possess their separate constitution.

(7) A Province should have the right to leave the Union in future if it so liked after elections
under its new constitutions.

(8) There should be an Interim National Government with leaders of the Indian parties to take
charge of the administration. The Cabinet Mission thus upheld the unity of India and rejected
the idea of independent Pakistan. These provisions however provided much autonomy to the
Muslim Majority Provinces, to run their own affairs.

Reasons for the failure of the Cabinet Proposal 1946

• The Congress President felt delighted that the Cabinet Mission rejected the partition
proposal and accepted it initially. But the Congress as a whole was unhappy on the
formation of a Weak Central Government and thus rejected the ‘grouping’ part of the plan.
Moreover the right of the province to leave the union in future was considered a dangerous
proposal.
• The Muslim League while accepting the plan reasserted its goal of sovereign Pakistan and
urged on the Viceroy to proceed with the plan of an Interim Government.
• The Viceroy refused to do so in the absence of Congress participation in the Interim
Government and he insisted on the formation of the Interim Government with the
representation of both the Congress and the League.
• The Muslim League then withdrew its acceptance of the Cabinet Mission Plan. Jinnah felt
alarmed. As a desperate means of protest he appealed the Muslims throughout India to
observe 16th August 1946 as the “Direct Action Day”. The call of Jinnah opened path for
violent communal disturbances which influenced the political history of India in surprising
manner.

• This led to extreme communal violence in many places starting with Calcutta where the first
day saw 5000 deaths.

• Now the call for the country’s partition became more aggressive. Even those opposed to it
accepted that this could be the only solution to end the brutal riots in the country. The Partition
of India would become an inevitable reality.

Conclusion

The Cabinet Proposal 1946 was formulated so as to frame a Constitution for India. But as there
was a rift between the Congress and the Muslim League and as a result of the communal
violence by the Muslim League the proposal failed and the need for Partition of India became
more pertinent.
MOUNTBATTEN PLAN:

Mountbatten Plan Background

● Lord Mountbatten came to India as the last Viceroy and was assigned the
task of a speedy transfer of power by the then British Prime Minister
Clement Atlee.
● In May 1947, Mountbatten came up with a plan under which he proposed
that the provinces be declared independent successor states and then be
allowed to choose whether to join the constituent assembly or not. This
plan was called the ‘Dickie Bird Plan’.
●
● Jawaharlal Nehru (Born on November 14, 1889) when apprised of the
plan, vehemently opposed it saying it would lead to Balkanisation of the
country. Hence, this plan was also called Plan Balkan.
● Then, the viceroy came up with another plan called the June 3 Plan. This
plan was the last plan for Indian independence. It is also called the
Mountbatten Plan.
● The June 3 Plan included the principles of partition, autonomy,
sovereignty to both nations, right to make their own constitution.
● Above all, the Princely States such as Jammu and Kashmir were given a
choice to either join India or Pakistan. The consequences of these choices
would affect the new nations for decades to come.
● This plan was accepted by both the Congress and the Muslim League. By
then, the Congress had also accepted the inevitability of the partition.
● This plan was put into action by the Indian Independence Act
1947 which was passed in the British Parliament and received the royal
assent on 18 July 1947.

Provisions of the Mountbatten Plan

● British India was to be partitioned into two dominions – India and

Pakistan.
● The constitution framed by the Constituent Assembly would not be
applicable to the Muslim-majority areas (as these would become
Pakistan). The question of a separate constituent assembly for the
Muslim-majority areas would be decided by these provinces.
● As per the plan, the legislative assemblies of Bengal and Punjab met and
voted for the partition. Accordingly, it was decided to partition these two
provinces along religious lines.
 ● The legislative assembly of Sind would decide whether to join the Indian
constituent assembly or not. It decided to go to Pakistan.
● A referendum was to be held on NWFP (North-Western Frontier
Province) to decide which dominion to join. NWFP decided to join
Pakistan while Khan Abdul Gaffar Khan boycotted and rejected the
referendum.
● The date for the transfer of power was to be August 15, 1947.
● To fix the international boundaries between the two countries, the
Boundary Commission was established chaired by Sir Cyril Radcliffe.
The commission was to demarcate Bengal and Punjab into the two new
countries.
● The princely states were given the choice to either remain independent or
accede to India or Pakistan. The British suzerainty over these kingdoms
was terminated.
● The British monarch would no longer use the title ‘Emperor of India’.
● After the dominions were created, the British Parliament could not enact
any law in the territories of the new dominions.
● Until the time the new constitutions came into existence, the Governor-
General would assent any law passed by the constituent assemblies of the
dominions in His Majesty’s name. The Governor-General was made a
constitutional head.
On the midnight of 14th and 15th August 1947, the dominions of Pakistan and
India respectively came into existence. Lord Mountbatten was appointed the
first Governor-General of independent India and M .A. Jinnah became the
Governor-General of Pakistan.
INTERIM GOVERNMENT

Interim Government – Background

• The Interim Government was formed as a provisional government

between an imperial structure and a democratic structure.
• It lasted till 15th August 1947 when India became independent and was
partitioned into India and Pakistan.
• This Interim Government was formed from the Constituent Assembly
which was elected in August 1946.
• The election to the Constituent Assembly was not direct and
representatives were elected by the provincial assemblies.
• In these elections, the Indian National Congress (INC) won around 69%
of the seats and had a majority. The Congress Party won 208 seats and
the Muslim League won 73 seats.
• In the Interim Government, the Viceroy’s Executive Council was
equivalent to the position of Council of Ministers which acted as the
executive.
• Pundit Jawaharlal Nehru became its Vice President and served as the de-
facto Prime Minister.
• Even though the Muslim League refused to be a part of the Interim
Government, insisting on their demand for a separate nation, it eventually
became a part of it. In Muhammad Ali Jinnah’s words, the League was
“going into the Interim Government to get a foothold to fight for… the
cherished goal of Pakistan.”

Interim Government Formation

The formation of the Interim government is related to the Second World War.
The period post the second world war was a turning point as all the political
prisoners were released who were a part of the Quit India movement. The
Indian National Congress laid the foundation by declaring its participation in
the formation of Constituent Assembly. The newly formed government of
Clement Attlee dispatched the 1946 Cabinet Mission to India to formulate
proposals for the formation of a government that would lead to an independent
India.

Members of the Interim Government

The Cabinet of the Interim Government of India composed of the following
members:
 1. President of the Executive Council (Viceroy and Governor-General of
India): Viscount Wavell (till February 1947); Lord Mountbatten (from
February 1947)
2. Vice President, Also in charge of External Affairs and Commonwealth
Relations: Jawaharlal Nehru (INC)

OTHER MEMBERS:

Sardar Vallabhbhai Patel, Rajendra Prasad, Baldev Singh, Liaquat Ali

Khan, C Rajagopalachari, Jagjivan Ram, Jogendra Nath Mandal, and
others

The Cabinet Mission of 1946 was sent by the British Government from London
to help form the interim government. The Interim Government was in force till
15 August 1947 when a new government was formed. Nehru became the Prime
Minister of India.
Constituent Assembly in India

The idea of a constituent assembly was first proposed in 1934 by M.N. Roy. However, the actual constituent
assembly was formed in 1946 on the basis of the cabinet mission plan.
On the basis of the framework provided by the Cabinet Mission, a Constituent Assembly was constituted on
9th December, 1946. The Constitution making body was elected by the Provincial Legislative Assembly
constituting of 389 members who included 93 from Princely States and 296 from British India.
The seats to the British Indian provinces and princely states were allotted in proportion of their respective
population and were to be divided among Muslims, Sikhs and rest of the communities. All sections of the
Indian society got representation in the Constituent Assembly in spite of limited suffrage.

The first meeting of the Constituent Assembly took place on December 9, 1946 at New Delhi with Dr
Sachidanand being elected as the interim President of the Assembly. However, on December 11, 1946, Dr.
Rajendra Prasad was elected as the President and H.C. Mukherjee as the Vice-President of the Constituent
Assembly.
1. Framing the Constitution.

2. Enacting laws and involved in the decision making process.

3. It adopted the National flag on July 22, 1947.

4. It accepted and approved India's membership of the British Commonwealth in May 1949.

5. It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.

6. It adopted the National anthem on January 24, 1950.

7. It adopted the National song on January 24, 1950.

Objective Resolution
The Objective Resolution was moved on December 13, 1946 by Pandit Jawaharlal Nehru, which provided
the philosophy and guiding principles for framing the Constitution and later took the form of Preamble of the
Constitution of India. This Resolution was unanimously adopted by the Constituent Assembly on 22 January
1947.
The Resolution stated that the Constituent Assembly would firstly proclaim India as an Independent Sovereign
Republic which includes all the territories, retaining as autonomous units and possess residuary powers; all the
people of India shall be guaranteed justice, equality of status, freedom of thought, expression, belief, faith,
worship, vocation, association and subject to law and public morality; adequate safeguards shall be provided for
minorities, backward, depressed classes; the integrity of the territories of the Republic and its sovereign rights
on land, sea and air and thus India would contribute to the promotion of world peace and the welfare of
mankind.

Committees of the Constituent Assembly

The Constituent Assembly appointed eight major committees, which are mentioned below:

1. Constitution Making Union Powers Committee

2. Union Constitution Committee

3. Provincial Constitution Committee

4. Drafting Committee

5. Advisory Committee on Fundamental rights and Minorities

6. Rules of Procedure Committee

7. States Committee

8. Jawaharlal Nehru Steering Committee

Among these eight major committees, the most significant was the Drafting Committee. On 29th August 1947,
the Constituent Assembly set up a Drafting Committee under the chairmanship of Dr. B.R. Ambedkar to
prepare a Draft Constitution for India.
Criticism of the Constituent Assembly
The grounds on which the Constituent Assembly was criticized were as follows:

1. Not a Popular body: Critics argued that the members of the Constituent Assembly were not directly elected
by the people of India. The Preamble says that the Constitution has been adopted by the people of India,
whereas it was adopted by only few individuals who were not even elected by the people.

2. Not a Sovereign body: The critics stated that the Constituent Assembly was not a sovereign body as it was
not created by the people of India. It was created by the proposals of the British rulers by executive action
before India’s independence and its composition was determined by them.

3. Time consuming: The critics maintained that the time taken to prepare the Constitution was too much in
comparison to other nations. The framers of the US Constitution took only four months to prepare the
Constitution.

4. Dominated by Congress: The critics continued to argue that the Congress in the Constituent Assembly was
quite dominating and imposed its thinking on the people of the country through the Constitution drafted by it.

5. Dominated by one community: According to some critics, the Constituent Assembly lacked religious
heterogeneity and was dominated by the Hindus.

6. Dominated by Lawyers: Critics also argued that the Constitution became bulky and cumbersome due to
dominance of lawyers in the Constituent Assembly.
They have made the language of the Constitution difficult for a layman to understand. The other sections of the
society couldn't voice their concerns and were unable to participate in the decision making process during the
time of drafting of the Constitution.
Therefore, the Constituent Assembly became the Provisional Parliament of India and significantly contributed
to the drafting of the historic Constitution of India and later helped to construct the Indian political system.
 PARTITION OF INDIA INTO TWO DOMINIONS
The citizens of India and Pakistan will remember 1947 as momentous year of their simultaneous
birth. That year British quit their “jewel in the crown” and partitioned colonial India on the basis
of religion. There are various reasons for this partition.

1. Evolution of communal policies from the time of Sir Syed Ahmed Khan:
● Syed Ahmed Khan was a renowned Muslim reformer of the 19th century who was the
first Indian Muslim to contribute to the intellectual and institutional foundation of
Muslim modernization in south Asia.
● He was very much upset to observe the depressed condition of the Muslims
everywhere. He strove to remove the mistrust about the Muslims from the minds of
British rulers.
● He wrote an essay “Cause of the Indian Revolt” after 1857 mutiny in which he
proved that there where many causes and Muslims were not to be held responsible
for it.
● He thought congress a Hindu body and advised Muslims not to join it. He requested
Muslims to get modern education first and then come into the field of politics to
protect their rights.
● In 1867, a movement was started at Benaras to replace Urdu, the language cultivated
by the Muslims, with Hindi. It convinced Syed that the paths of Hindus and Muslims
must diverge.
● A Muslim school was established at Aligarh in May 1875
● His viewpoints guided the creation of All India Muslim League in 1906, as a political
party separate from the congress.
● His ideas encouraged both the liberal and Pro-British politicians of the Muslim
league. His support for Urdu made it the official language of Pakistan following the
Partition of India.
2. British divide and rule policy:
British were horrified during the revolt of 1857 to see Hindus and Muslims fighting
side by side against the foreign oppression. So they planned that the seeds of division
were sown to prevent a unified nationalized movement against them.
The colonial policy of “divide and rule’ developed religious antagonism to facilitate
their rule to continue and reached its culmination in 1947. This policy could succeed only
because of internal social and political conditions in India.
The partition of Bengal in 1905 was probably to create a Muslim majority province.
Indians felt it was done to weaken the solidarity of Bengal.
All India Muslim league (in 1906) was founded by H.H. Agha Khan. It was an
association of loyalist Muslims. Agha Khan requested the Governor General Minto for
separate communal representation for Muslims which was accepted by Minto to secure
their support.
 In 1916 Lucknow Pact was signed between congress and Muslim League. Both the
parties accepted separate electorates and reservation of seats for the minorities.
When congress ministries resigned in 1939, British appointed unelected Muslim
leaguers in their place which helped them to take advantage of this opportunity to
exercise influence and patronage.
3. Uncompromising attitude of Jinnah:
The nationalist leaders mainly directed their energies against the British and they
earnestly desired to find amicable settlement with the Muslim league but only in vain.
Mohammad Ali Jinnah was very much uncompromising. He wanted to exploit the
congress desire for a peaceful settlement of communal problem. He was not ready to
accept anything which did not promise him Pakistan of his own conception. Cabinet
Mission Plan also failed because of his uncompromising attitude. He talked of British
treachery and British-congress collusion against the Muslims. When every effort of
peaceful solution was exhausted, being compelled by the force of circumstance, partition
had to be accepted.
4. Communal riots:
In July 1946, Muslim league decided to observe “Direct action day”. It led to
numerous killings of Hindus in Calcutta mercilessly which filled the country with a thrill
of horror. Even Hindus retaliated and killed numerous Muslims. Now, congress leaders
drew the inference that partition was better than murder of innocent citizens.
5. Failure of interim Government:
In October 1946, Interim government was formed. Indian National Congress won
around 69% of seats. Immediately after its formation, it became another battle front
between the league and the congress. The chief trouble came from Liaqat Ali of league,
the finance minister of interim government. He rejected or delayed the proposals made by
the congress members. The congress realized now that they cannot create the post of even
a peon without the concurrence of Liaqat Ali. The government was totally paralyzed and
the congress was now convinced that they couldn’t work with the league, so partition was
necessary.
6. British attitude on transfer of power:
The British gave the threat that they would leave the country by June 1948 whether
in peace or in chaos. The nationalist were to make a choice between the two evils- either
civil war or partition. They chose the lesser evil i.e, partition of the country. Thus
partition became inevitable.
7. Enforced Unity was neither desirable nor advisable:
As the Muslims very much desired to succeed, the union achieved by force would not be
stable and permanent. Secondly, it was against the demographic procedure. Thirdly, it
would hamper the progress of India. Sardar Patel in All India Congress Committee
session in June 1947 expressed, “If one limb is poisoned, it must be removed quickly lest
 the entire organism suffer irreparably. So the nationalist leaders accepted the partition
was inevitable.
8. Impermanency of the partition:
Nationalists hoped that partition would prove short-lived soon, there would be re-union.
This hope was voiced by Acharya Kriplani.
9. Mount Batten plan and influence of Lord and Lady Mount Batten:
Lord Mount Batten was sent as Viceroy and Governor General in March 1947. He
announced his plan on 3rd of June popularly known as June 3rd plan or Mount Batten plan.
Its decisions:
1. India to be partitioned.
2. Bengal, Assam and Punjab to be partitioned
3. Referendum to be held in North West frontier provinces, whether that province would
like to join Pakistan or India.
4. Referendum if Sylhet in Assam to be a part of India or Pakistan.
5. Native states were free to join either of two dominions or to remain independent.
6. Power to be transferred by 15th of August 1947, accepted by the congress and the
Muslim League.

In convincing Nehru to the idea of partition, Lady Mount Batten played an important
role. She organized garden parties for this lonely man.

So, India was partitioned into two independent dominion states India and Pakistan.
The partition involved division of 2 provinces, Bengal and Punjab, based on non-Muslim
and Muslim majorities. Partition also saw the division of British-Indian army, royal
Indian navy, Indian civil service, railways and the Central treasury.

There was large scale violence which brought out hostility and suspicion between
India and Pakistan that plagues their relationship to the present. Muslim dominated West
Punjab became Pakistan’s Punjab province while East Punjab became India’s state.
Province of Bengal was also divided. East Bengal awarded to the dominion of Pakistan
and west to India. East Bengal was renamed East Pakistan in 1955 and became
independent nation of Bangladesh after the Bangladesh Liberation War (1971). Sindh
became Pakistan province.

The partition was a highly controversial arrangement. It remains a cause of much

tension on the Indian sub-continent even today.