Semester III, Year 2

SUBJECT: HISTORY-III

JUDICIAL REFORMS IN THE ERA OF PRE TO POST INDEPENDENCE

INTRODUCTION
In ancient Hindu period, Muslim period and British period, the issue of judicial independence
has been central. In Hindu and Muslim periods, one can see how Hindu kings and Muslim
emperors emphasised to ensure fair justice delivery mechanism. However, during initial years of
British rule in India, no substantive efforts had been made to separate the executive from the
judiciary. It was only in later years of British regime that efforts to ensure judicial independence
had been made by separating judiciary from the executive. The objective of the present paper is
therefore to discuss the history of independence of judiciary in India with reference to pre
independence period where judicial independence had been significant.

The British ruled India for a period of almost about 190 years. Yet, the English set up a poor
copy of the British judicial system as Indian judicial system.

The judges , in pre-independence India, were the symbol of imperial power. Hardly after 20
years of Ranjit Singh's death, the whole continent of India had passed into the hands of East
India Company. The motto of the English was not to provide justice to the local people but the
only motive behind these efforts was to replace the existing judicial system to mould the local
people according to their own desire of ruling them in the long run. The concept of jury was
anathema since it would have involved the local people in decision making process. All
nations,which came to India, tried to establish their monopoly on trade and started to take part in
local affairs. The Portuguese was the first country which came to India for trade. Yet, the English
only succeeded. Owing to luxuries and weak military position of the Mughal government, the
British won in the wars with fulcrum of local rulers. Even after Indians were appointed as judges,
any contact between judges and the common people was discouraged. The Europeans came to
India through Sea route as a trading nation, and ultimately gave a new turn to the Indian history.
Their commercial instinct led them to discover the sea route to India. They had no intention to
conquer the country; their objective was to establish commercial relations with India.

JUDICIAL SYSTEM PRE-BRITISH ERA

The Judicial System in India was neither adopted proper procedures nor had the proper
organisation of the law court from the ancient India to Mughal India. The process of litigation in
Hindu was served either by the caste elder or village Panchayats or zamindars whereas for
Muslim Qazi supervise the litigation issues. If there were a discrepancy, the Rajas and Badshahs
were considered as the fountainhead of the justice. At the capital seat in provinces, districts,
Parganas, and villages, a systematic classification and gradation of the courts existed. The
significant courts that operated during this period were as follows:

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.
IMPORTANT OFFICERS IN MUGHAL EMPIRE FOR THE ADMINISTRATION OF JUSTICE
The administration of justice was in the hands of a few officials who were held responsible for
any injustice and providing aid to all the residents of the empire.

Vakil

The Vakil’s office seems to have taken on prominence when Akbar was a minor and Bairam
Khan served as a deputy on his behalf. The office lost significance after that. Though the title
continued to exist, none were appointed to work for the emperor. It slowly lost its importance
and faded completely during Shah Jahan’s reign.

Mukhtasib

He was the public-moral censor. It was his duty to follow the Prophet’s orders and to suppress all
those un-Islamic activities. Also within the censor province lay the punishment of heretical
opinions, especially against the Prophet and the neglect by Muslims of the five daily prayers and
observance of Ramzan. They were granted the task during Aurangzeb ‘s period to demolish
newly-constructed temples. They were also asked to ensure the use of accurate weights and
measurements.

Chief Qazi

Chief Qazi was the top judicial officer and was responsible for conducting justice effectively and
efficiently. It was the Emperor’s duty as the khalifa of the age to give justice to the people, but
since he had no time, the work was given to the Qazi chief. He was the only Judge in religious
suits and tried them by Muslim statute. He named the Qazis of the Cities, Districts, and
Provinces. The muftis supported certain Qazis. The majority of the Qazis had been corrupt.
According to Sir Jadunath Sarkar, “All the Mughal era Qazis were infamous for taking bribes
with a few honourable exceptions.”

Kotwal

Kotwal’s duties are set forth in the book Ain-i-Akbari. He was essentially a city police officer,
but in some cases, he was responsible for maintaining law and order in the city, he enjoyed
magisterial powers. He kept watch at night and patrolled the city. He kept a housing register and
frequented buildings. He looked at weight and measurements and noticed robbers. He made a list
of those who had no successor, and of the person who was dead and missing. He was to see that
according to sati custom no woman was burned against her will.

COMING OF BRITISHERS
Since the establishment of East India Company was made to promote British interests in India,
the expansion of Company’s judicial jurisdiction and enactment of different judicial acts took
place simultaneously. Further after the battle of Plassey, the Company installed Mir Zafar as the
Nawab of Calcutta who ceded the Zamindari of the 24 Parganas to the Company which now
controlled 800 square miles of area called ‘moffussil’. The Company provided the adalat system
for the administration of justice in the moffussil. The 1772 plan provided for a moffussil Diwani
Adalat in each district with collector as judge to decide civil cases. For Muslims the court was to
apply the Quran while for Hindus it was applying Shaster. The Regulations of 1793 referred to
Hindu law and Mohammedan laws instead of Quran and Shaster. In case of Muslim cases the
collector was to be advised by the Qazi while in case of Hindus, by a Pandit. In an important
decision on December 3, 1790 the Criminal justice system was taken from the Muslim Qazis,
Muftis and Maulvis and was given in the hands of the Company’s English servants. The
Regulation Act of 1773 authorised the Supreme Court in Calcutta to enrol English, Irish and
Scottish attorney at law. Likewise in 1793 Cornwallis created a regular profession authorising
the Sadar Diwani Adalat to enrol pleaders or vakeels, for both Hindus and Muslims for all
Company’s courts. The 1857 war of independence changed the fate of India. The Bill of 1858
gave all territories in the possession or under the government of the East India Company to the
Crown. However, before the take-over by the Crown the East India Company had done the
groundwork for the colonisation of the subcontinent. The British rulers changed the whole
administration of the country, especially the law and justice. The British East India Company
established a system of courts in each of the three Presidencies. The types of courts and their
jurisdiction varied from Presidency to Presidency, until the Crown replaced the Company’s
administration and greater uniformity in the entire judicial structure became possible.

PRIVY COUNCIL OF THE UNITED KINGDOM

The Privy Council of the United Kingdom, officially Her Majesty's Most Honourable Privy
Council, or known simply as the Privy Council, is a formal body of advisers to the sovereign of
the United Kingdom. Its membership mainly comprises senior politicians who are current or
former members of either the House of Commons or the House of Lords.

The Privy Council formally advised the sovereign on the exercise of the royal prerogative, and as
a body corporate (as Queen-in-Council) it issues executive instruments known as Orders in
Council, which among other powers enact Acts of Parliament. The Council also holds the
delegated authority to issue Orders of Council, mostly used to regulate certain public institutions.
The Council advises the sovereign on the issuing of Royal Charters, which are used to grant
special status to incorporated bodies, and city or borough status to local authorities. Otherwise,
the Privy Council's powers have now been largely replaced by its executive committee, the
Cabinet of the United Kingdom.

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the
establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means
of a system of committees and sub-committees.

JUDICIAL REFORMS UNDER DIFFERENT VICEROYS

1. Reforms under Warren Hastings (1772-1785 AD)

Warren Hasting established, two court for resolving disputes –civil disputes for District Diwani
Adalat and criminal disputes for District Fauzdari Adalats.
District Diwani Adalat: It was established in districts to resolve the civil disputes which were
placed under the collector. In this court Hindu law was applicable for Hindus and Muslim law
for Muslim. If people seek more justice then they can move to Sadar Diwani Adalat which was
functioned under a president and two members of Supreme Council.

District Fauzdari Adalats: It was set up to resolve the criminal issues which were placed under
an Indian officers assisted by Qazi and Muftis. The entire functioning of this court was
administered by the collector. The Muslim law was administered in this court. But the approval
of capital punishment and for the acquisition was given by the Sadar Nizamat Adalat which
headed by a Deputy Nizam who was assisted by the chief Qazi and Chief Mufti.

The formation Supreme Court at Calcutta under the Regulating Act of 1773 AD had original and
appellate jurisdiction.

2. Reforms under Cornwallis (1786-1793 AD)

Under Cornwallis, the District Fauzadari Court was abolished, and Circuit Court was set at
Calcutta, Decca, Murshidabad and Patna. It acts as a court of appeal for civil as well as criminal
cases which was functioned under the European judges. He shifted Sadar Nizamat Adalat to
Calcutta and put it under the supervision of Governor-General and the members of Supreme
Council who were assisted by Chief Qazi and Chief Mufti. The District Diwani Adalat was
renamed as District, City or the Zila Court which was functioned under a district judge.

He also established gradation civil courts for both Hindu and Muslim such as Munsiff Court,
Registrar Court, District Court, Sadar Diwani Adalat and King-in-Council. He is known for the
establishment of sovereignty of law.

3. Reforms under William Bentinck

Under William Bentinck, the four Circuit Courts were abolished and transferred the functions of
the abolished court to the collectors under the supervision of the commissioner of revenue and
circuit. Sadar Diwani Adalat and Sadar Nizamat Adalat were established at Allahabad. He made
the Persian and a Vernacular language for the court proceeding in lower court and made English
language as official language for Supreme Court proceeding. During his reign, Law commission
was set up by Macaulay which codified the Indian laws. On the basis of this commission, a civil
Procedure Code of 1859, an Indian Penal Code of 1860, and a Criminal Procedure Code of 1861
were prepared.

CHANGES MADE AFTER 1773 - THE REGULATING ACT

The principle of separation of the executive and the judiciary was adopted and the District
Collectors were divested of their judicial duties.

The Regulating Act of 1773 created a Supreme Court at Calcutta which acted as a court of
appeal. This court was to try all ' British subjects'. Within Calcutta, it exercised jurisdiction over
all persons, Indian or European. Outside Calcutta, it could hear disputes between Indians only
upon their consent.
English law was administered in the Supreme Court. Since the jurisdiction of this court clashed
with others, a chief justice was appointed.

In the area of civil justice, instead of district courts, provincial and mofussil courts were created
which were to be presided only by the European covenanted officers of the Company who were
given the designation of 'Judges'.

Another important feature was the systematization or institutionalization of the civil judicial
system. The Code of 1781 prescribes specific rules and regulations to be followed in all the civil
courts down to the lowest level and all judicial orders were henceforth to be in writing.

To reduce the element of uncertainty, Hindu laws and Muslim laws were compiled and translated
into English.

The standardization of law necessitated professional expertise, creating the need for a specially
trained group of people known as lawyers.

CORNWALLIS CODE OF 1793

Based on the principle of Separation of Powers, it separated revenue collection from the
administration of civil justice as a safeguard for property rights against abuse of power by
revenue officials and their agents.

The Collector was divested of judicial functions and the office of District Judge was created to
preside over District courts. They also carried out magisterial and police functions.

The new system provided for a hierarchy of courts from the district and city courts to four
provincial courts and the Sadar Diwani Adalat with appellate jurisdiction.

All the courts were to be headed by European judges, with provision for appointment of 'native
commissioners'.

The Faujdari Adalats were abolished and were replaced by courts of the circuit, headed by
European judges. Appeals from here went to Provincial courts and from there to The Sadar
Nizamat Adalat (for criminal appeals), which was placed under the direct supervision of the
Governor-General-in-Council in Calcutta.
The jurisdiction of these criminal courts did not extend to the British-born subjects. They
remained under the jurisdiction of the Supreme Court at Calcutta.

Cornwallis Code is a manifestation of complete exclusion of Indians from the system which got
more authoritarian and racially superior in tone.

The Cornwallis Code was extended to Banaras in 1795 and to the Ceded and Conquered
Provinces in 1803 and 1805 respectively.

In Madras and Bombay, a different system was introduced because they were ryotwari settlement
areas where the Collector also functioned as a Settlement Officer. Greater Indianization of the
system took place at the lower levels (village panchayats, district and city courts) and there was a
concentration of magisterial, revenue collection and some judicial powers in the office of the
Collector.

CHARTERS AND ACTS IN PRE-INDEPENDENT INDIA

The Charter Act of 1833

This threw open judicial positions to Indians and provided for the appointment of a law
commission for the codification of laws. The Law Commission under Lord Macaulay had
codified the laws into - the Code of Civil Procedure (1859), the Indian Penal Code (1860) and
the Criminal Procedure Code (1862). The new codes sought to establish the universal principles
of jurisprudence.

Judicial Administration Under the Crown

After the revolt of 1857, the judicial organization was further modified. The Indian High Courts
Act of 1861 was passed which led to the establishment of high courts at Calcutta, Bombay, and
Madras in 1862 which replaced the Sadar Diwani and Sadar Nizamat Adalats as the courts of
appeal. Subsequently, High Courts were established at Allahabad (1869), Patna (1916), Lahore
(1919) etc. The High Courts were vested with the same powers over all the persons and estates.
This led to the ushering of the concept of 'Rule of Law' to a certain extent.

The Government of India Act of 1935

This legislation established the Federal Court. Appeals from the Federal Court would lie at the
Privy Council in London. The Crown had powers to hear appeals from India as a matter of right
or through a special leave. This function was exercised on behalf of the Crown by the Privy
Council.

IMPACT OF JUDICIAL POLICIES OF THE BRITISH ERA ON THE CURRENT JUDICIAL SYSTEM
IN INDIA
The Laws

The judicial system as we know it today, did not unexpectedly appear post independence from
the British regime. It evolved largely due to the impetus and working of the British
administration, whose motives for laying the foundation for our legal system were admittedly not
for our own management, but for their own ease where justice and law and order were
concerned. One of the primary concerns for the British rulers was that there were semantic and
cultural differences in this country that were far beyond their understanding. Each religion had
its own peculiar way for dealing with the same kind of offences, ranging from very severe to
very lenient. Women and children were rarely even protected by these ways. There was also no
standard per say for:

1. Evidence gathering/recording
2. Admissibility of Evidence
3. Procedures to be followed while meeting out justice
4. Qualifications as to who could arbitrate disputes
5. What parameters and laws would apply while resolving disputes
6. What, if any, were the exceptions to these laws and parameters

It became clear, very early on, that because of India’s religious and cultural diversity, the British
had a very complicated task where deciding which law to apply and to whom. They had to create
a system that would ensure justice, while ensuring that there is no offence is caused to the
customs and religious sentiments of the party to the dispute, or his/her community. Lord
Hastings’ plans were very successful in this regard as they maintained the societal equilibrium
desired by the British; it became easier to administer Hindu law to Hindus, and Muslim law to
Muslims, and thus ensured that India could be ruled smoothly without any major upset.
This was not enough to tackle the defects of our highly unorganised judicial system, where
justice was usually served by the King or the local village head or in most cases, the religious
leader. In the years 1780 and 1872, the doctrine of equity, good conscience and justice was
added to the Judicial systems of Bombay, Madras and Punjab respectively. Later, via the Central
Provinces Laws Act, 1875, as under Section 6, this doctrine was made the standard for
adjudication of disputes in all provinces of the British Indian empire, whereby Judges would use
their reasoning and logic and moral conscience along with the relevant personal law (Hindu or
Muslim or the like) in deciding the dispute. Where the cases in India were appealed and would
reach the English Courts, such as the Privy Council, they too were to pay heed to Indian customs
and traditions when deciding the issues.

There was no standard in the judgments passed and the concept of precedents (stare decisis) was
highly diluted because each court gave its own decision based on the advices of the religious
advisor, in order to maintain peace. More often than not, the judgments were unfair and some
were even patently arbitrary, being made according to the whims of the advisor. This is why the
British felt the need to create some standard. They did so by codifying existing practices and
customs into one document and then formally enacting it as a law.

These documents were prepared by a learned Law Commission, which was first created under
the Charter Act of 1833. The first Law Commission was duly created in 1835, with its control
under the Governor-General of India.[xx] Some of the contributions of the four pre-
independence law commissions of India were:

First Law Commission, though largely unsuccessful, managed to begin to codify what is the
Indian Penal Code today.

Second Law Commission completed the codification of the Penal Code, and went on to codify
the Civil Procedure Code, Law of Limitation, and the Criminal Procedure Codes, as we know
them today.

Third Law Commission started off by drafting a code for succession & inheritance for Indians
who were not Hindus or Muslims. They then moved on to revise the Criminal Procedure Code
suggested by the earlier commission. It then drafted the Contract Law, Negotiable instruments
law, Insurance Law, Evidence Law, and Property Law that we use today.

Fourth Law Commission made revisions to both the Civil Procedure and the Criminal Procedure
Codes, while also codifying the law on Negotiable Instruments and Transfer of Property &
Easements Laws. They also drafted a code on Trusts Law.

The Court Structure

The Court structure that we have today, in addition to the actual laws itself are greatly due to the
efforts of the British Government. Their motives for creating such a large system that has
continued to exist well after independence may not have been the most noble; it is however
impossible to deny or discount their presence in our legal system today. What existed prior to the
modifications and consolidations by the British hand, was a largely unorganised area which gave
decisions that were neither fair, nor could be brought to scrutiny via any standard. The very
enactments of the British legislature in India are to be credited for the setting up of a definite
court structure.

The High Courts Act, 1861: With this Act, the Supreme Courts were abolished and in their
place, High Courts were established at Calcutta, Madras and Bombay. They had the status of
being the Highest Courts in the respective Provinces.

The Federal Court of India: Under the Government of India Act, 1935, the High Courts
continued their existence. The only difference was that they were made subordinate to one main
Court – namely the Federal Court of India. This Court adjudicated and resolved conflicts
between the High Courts of different provinces and settled points of law that were in doubt. It
was also empowered to resolve disputes between the provinces itself.

Post-Independence the Constitution of India has a similar hierarchy, with the Supreme Court
on top (replacing the Federal Court of India) and the various state High Courts (replacing the
Provincial High Courts), with various other courts under the High Courts.

REMARKS ABOUT BRITISH JUDICIAL ADMINISTRATION

British instituted certain noteworthy reforms and principles such as codification of laws, rule of
law and Separation of powers. But its impact on Indian natives was counter-productive to a great
extent. An important consequence of the changes brought about by the British in the judicial
system was that justice became distant to the indigenous people, physically and psychologically.
There was a geographical distance between the district courts and the villages. Judiciary came
under the influence of complex procedures on which the common man had very little
understanding. This led to the domination of lawyers, on whom the common man had to depend,
in the system of justice delivery. As a result, justice also became expensive. The number of cases
in the district courts and the High Courts began to increase which started to pile up causing
inordinate delays in justice delivery, a practice which continues even today.

CONCLUSION
During British rule, it can be said that India went through a great deal of experimentation and
empirical learning. Many courts were created and then abolished and replaced with new
mechanisms to resolve disputes. The British rule in India, had some very positive impacts on our
legal system, and the manner in which we administer justice:

Rule of law along with the importance of an independent judiciary were introduced through the
British regime. The concept of separation of powers was enunciated and enhanced in India
through their laws and policies.

The federal form of governance, vis – a – vis the provinces, and the Provincial Courts with the
Federal Court as the final authority, was brought into India.

The administration of justice even at district level, was a concept introduced by the British. They
increased the access to justice, permeating its reach to the smallest parts of the country.

Through the Law Commissions India finally had a definite set of laws that could be applied
uniformly.

The real effect was felt post-independence through our Constitution laws. However, this idea of a
fair and impartial system where the judiciary was independent from the other organs of state,
came to India only via the British. The legal system that existed when the British came to India,
was in great need of reform and thus the British gave our legal system the much needed change.
Through their experimentation, the Constituent Assembly was able to see what new practices and
what old Ancient practices could be could be coupled to form our new legal system after
independence.

It is therefore concluded that the contributions of the British are so important that the very
existence of our judiciary and legal system can be credited to them. The true impact of the
British efforts can thus be summarized by saying that they revamped our legal system to make it
fairer and more accessible to all citizens.
 ACKNOWLEDGMENT AND DECLARATION

I humbly submit that all the references and links used to research for this topic has been duly
acknowledged and recognized under the column of ”Bibliography”. Furthermore, this project is
for no award or degree purpose in any other institution rather than Dr. Ram Manohar Lohiya
National Law University, Lucknow and has been created for the sole purpose of academic check
in the session of 2020-21. I thank and acknowledge Prof. (Dr.) Vandana Singh Ma’am
(Professor, Constitution Law I ) for giving me a chance to research on this topic and to all the
sources which turned out to be helpful and informative during project making. I would also like
to extend my gratitude towards the research websites and researchers, articulator and illustrators
who helped me in the formation of contention between the headings and content of this project.
 BIBILIOGRAPHY

WEB SOURCES
https://neostencil.com/evolution-of-judicial-organization-in-india
http://southasiajournal.net/judicial-system-of-mughal-and-british-india/
https://www.lawctopus.com/academike/understanding-the-creation-of-the-indian-judicial-
system/
https://blog.ipleaders.in/judicial-system-time-mughals-india/
https://www.jagranjosh.com/general-knowledge/development-of-judicial-system-during-british-
india-1518441346-1
JOURNALS
https://www.jstor.org/stable/pdf/785802.pdf (Jstor Journal)

Submitted By- Yash Bhatnagar 

Second Year (Semester 3) Student, Section B (BA LL.B) 

Dr. Ram Manohar Lohiya National Law University 

Lucknow, Uttar Pradesh 

Enrollment Number: 200101157

Submitted To- Prof. Vegesna Visalakshi

(Professor and Head of Department, Contacts Act II)

Dr. Ram Manohar Lohiya National Law University

Lucknow, Uttar Pradesh