Legal History

MODULE 1

There are 5 categories under which legal history of India can be studied:
 Vedic age
 Hindu period
 Muslim period
 British period
 History of independent India
Further, according to period of time, entire history of India can be put under 3 heads:
1. Ancient India (2500 BC - 1206 AD)
 Indus Valley Civilization (2500 BC – 1500 BC)
 Vedic Age (1500 BC – 600 BC)
 Hindu Period (600 BC- 1206 AD)
2. Medieval India: Starts from 1206 AD with the establishment of Slave dynasty by Qutub-
ud-din Aibak and continued till (?). During this time they had their own Koranic laws
based on (?). This era is called as Muslim period.
3. Modern India:
 History before Independent India (pre 1947): Certain important laws have been
legislated:
1. IPC, 1860
2. CRPC, 1973
3. Indian Evidence Act, 1872
4. Indian Contract Act
5. Civil Procedure Code, 1908
6. Transfer of Property Act
 History of Independent India is important from the viewpoint of training and
enforcement of the Indian constitution. In any law, there is made a second provision
in the Constitution that any law can be declared unconstitutional.
Ancient India customs have been codified in Independent India in the form of certain
legislations keeping in conformity with the origins of the Constitution. Examples:
1. Hindu Marriage Act, 1955
2. Hindu Succession Act
3. Hindu Minority & Guardianship Act
4. Hindu Adoption & ________ Act
5. Competition Act, 2002
6. Right to Information Act, 2005
Concept of Dharma

In India, we have several sects, and each sect defines the concept of Dharma according to their
own parameters. In Hindus, the concept of Dharma has been taken from Sanskrit term, ‘dharm’
which signifies certain order by which society must function for the welfare of human beings and
make the functioning of society possible.
Buddhists refer to Dharma as ‘Dhamma’, based on the preaching and sayings of Lord Buddha
Jains refer to Dharma on the basis of the teachings of their Tirthankaras
In Islam, there are two important concepts dealing with Dharma:

i. Concept of universal brotherhood which dictates that all Muslims are brothers.
ii. Dogma of Touhid which says that the Lord is one and only one and Prophet Muhammad
was His messenger.
Max Muller defined Dharma as the Indian version of Natural Law.
Dharma essentially established:
1. A duty-based society: it was not only the duty of the individual towards the society but
also the duty of the ruler towards the individuals of the society.
2. Law of the land: the laws were the same for the whole of India irrespective of the size or
position of any kingdom. “king can do no wrong” principle – not applicable. King subject
to law. (Equality before law and equal protection of law).
3. Good of the greatest no. – no laissez-faire.
Four aims of human life
1. Religion and social law (Dharma)
2. Wealth and economic well-being (Artha)
3. Doing work (Karma)
4. Salvation of soul (Moksha)
Influence of Dharma on Fundamental Rights:
Art. 14 – Rule of law.
Art. 21 – Basic rights for sustenance of life.
DHARMA IS DIFFERENT FROM RELIGION:

Case- A.S. Narayana Deekshitulu v State of Andhra Pradesh & ors.

 Religion is enriched by visionary methodology and theology (study of god and
religious beliefs)
 Dharma is blooms in realm of direct experiences.
 Religion contributes to the changing phase of culture
 Dharma enhances the beauty of spirituality.
 Religion may inspire one to build fragile, mortal homes for god
 Dharma helps to recognize the immortal shrine in the heart.

The marriages which are been carried out under Special Marriage Act (inter-religion
marriages), succession issues are dealt with under Indian Succession Act
During Vedic Age, legal literature developed in the form of free text to regulate the society:
i. Sutras
ii. Dharamsutras
iii. Dharamshastras (Smriti)
Literal meaning of Sutra is ‘thread’. Sutras connected many things, just like threads. Sutras is a
literature which is a pithy statement which is unambiguous, substantial, universal and logically
sound. They did so by highlighting various aspects of human life:
i. Srautasutras
ii. Grihasutras (domestic affairs)
iii. Dharamsutras
Out of these 3, the Dharamsutras are regarded as the beginning phase of the development of civil
and criminal wrongs. They are the oldest sources of Hindu Law.
The Dharamsutras later came to be known as Dharamshastras.
On the basis of Dharamshastras, certain commentaries have been written by authors based on
their memory of these religious texts. Since they are based on memory, they are called Smritis.
There are 5 Smritis which are considered source of law in India:
i. Manusmriti: Authentic source of Hindu law. Oldest Smriti of India. It devotes three
chapters to discuss the role of legal developments and key features covered are:
 King and his subjects:
 Judiciary and the role of judges
 Sources of law
 Punishment
 Taxation
 Principles of Diplomacy
ii. Brihaspatismriti: Constitution of courts. The main concern of this Smriti was to make the
justice evident. We have provisional and administrative law that justice should not only
be done, it should be seen that it is implemented.
Witness system: Brihaspatismriti talks about number of witnesses. Minimum number of
witnesses as mentioned in this Smriti is 3. However, 2 witnesses are also acceptable if
they fulfill the requirement of being learned Brahmins. Single witness is not acceptable
under any circumstance.
Presently, in the Indian Evidence Act, 1872, we don’t have any such prescribed minimum
number for witnesses.
Section 134, Indian Evidence Act, 1872: No particular number of witnesses shall be
required at any place for the proof of any type.
Section 118, Indian Evidence Act, 1872: Says that every person is competent to testify(no
cast differentiation) unless the court considers him to be unable to understand the
questions put to him.
iii. Yagyavalakya Smriti: This Smriti is largely based upon the concept of Manusmriti. This
also talked about constitution of courts and described judicial procedures in a very
systematic manner. With regard to witness system he observed that there must be three-
fold evidence to prove any case:
 Documentary evidence
 Direct witness
 Possession (civil cases)
 In relation to documents, Yagyavalakya gave certain criteria that documents must be
precise, detailed and must be signed by at least 2 witnesses.Presently, we have the
concept of documents under Section 3 of the Indian Evidence Act. Regarding signatures,
we have process of attestation.
Regarding witnesses, this Smriti was strict. The witness must be rich/ speaker of truth/
etc. Presently, we don’t have any requisite qualifications regarding witnesses.
Regarding possession, Yagyavalakya gave the theory, “Title prevails over the possession
unless the latter is hereditary.” Here the term ‘title’ refers to ownership. Ownership
prevails over possession until possession is hereditary. Presently we have the concept of
adverse possession. Section 65, Limitation Act, 1963, makes it clear that to avail the
adverse possession of private property, it needs to be owned peacefully for 12 years and
30 years in case of government property. Also, there are certain exceptions under
Specific Relief Act:
The procedure is about declaratory suit. Regarding this proposition, there is an important
concept in law, i.e., possession is 9/10th of ownership.
Yagyavalakya also gave the rule of mortgages and also discussed about stridhana
(women’s property)
Presently, these concepts exist under Transfer of Property Act and Personal Law.

iv. Narada Smriti: First legal commentary which is not based on religious and moral
principles. The judicial procedure advocated by him is also a very complex one. In terms
of witness, this was very close to Brihaspatismriti. This also mentions about 11 types of
witnesses.
v. Katyayana Smriti: Dealt with detailed provisions regarding constitution of courts,
elaborate procedures for administration of justice. According to him, every remedy must
be sanctioned by the state.

Stages of administration of justice in ancient India:

1. Courts and constitution of courts: King was the fountainhead of justice. His court was the
highest court, having both original and appellate jurisdictions
For assisting him the king, there was also Court of Chief Justice and his court consisted
of board of judges.
In villages, there were Village Councils similar to modern times’ Panchayats. They
consisted of 5 villagers as members to dispense justice among them. These councils used
to deal with small civil & criminal cases. There was a cardinal principle regarding
administration of justice in ancient times that a single judge was not allowed to give
judgment in any case. Presently whatever concept of benches we have in the Supreme
Court is based on this ancient legal principle.
2. Judicial Procedure: In ancient times, judicial procedure was very elaborate, much like
today.
According to Brihaspati, suit on trial consisted of 4 stages
I. Filing of plaint
II. Reply to the plaint
III. Trial & investigation
IV. Verdict and decision
 Again in relation to evidence, it was based on all or any of the three sources, i.e.
documents, witnesses or possession.
Further, during the course of trial, each party to the case was required to prove one’s
content with the support of certain evidence.
3. Institution of lawyers: We don’t have direct reference from any ancient text that whether
any institution of lawyers was present or not.
PV Kain in his book, ‘History of Dharamshastras’, mentioned that the judicial procedure
highlighted in various Smritis refer to high level of technicalities therefore a body of legal
experts to understand them.
From this we can infer that institution of lawyers might have existed.
4. Appointment of judges and judicial standards: Caste system played a very important role
in the appointment of judges.
Mostly, judges were appointed amongst Brahmins. However, the standard for judges and
magistrates were very high.
Judges were required to take oath of impartiality whenever deciding any dispute between
the citizens. They were also expected to follow utmost integrity in the course of their
dealings.
Article 124 (6): Oaths of SC
Article: Oaths of HC
5. Trial by jury: It was very much prevalent in ancient India and continued in the modern
times even after the framing of the Indian Constitution and abolished after the famous
case of KM Nanavati vs. State of Maharashtra. In this case judges of District Court if
Greater Bombay sat a jury to decide the case.
6. Trial by ordeal: Ordeal was the method of determining the guilt or innocence of the
person. Under this system the person accused of any crime was subjected to certain tests
with the belief that the process is under supernatural control. Examples:
 Ordeal of Balance
 Ordeal by fire
 Ordeal by water
 Ordeal by poison
 Ordeal by lottery
 Ordeal by rice grain
 Ordeal by fountain cheese
7. Punishment: Punishment was sort of expiation which removed impurities from a man of
sinful promptness and reformed his character. According to Manu, Brihaspati and
Yagyavalakya, there were 4 modes of punishment:
 Gentle admonition
 Severe reprove
 Fine
 Corporeal punishment
Child below 16 yrs were to be given half punishments and below 5 yrs no punishments,
similar to the laws relating to minors in the contemporary India, where in criminal trial a
child below 18 is considered to be a minor and is entitled to a lesser punishments and a
child below 7 yrs no punishments.
In modern times we have different theories of punishment based on ancient texts:
 Deterrent theory
  Retributive
 Reformatory
 Preventive
 Compensatory
 Expiatory

Administration of justice in medieval India:

It can be classified under three categories:

1. Delhi Sultanate
2. Mughal Period
3. Sher Shah Suri’s Rule
In medieval India, the king was known as Sultan, and being the head of the state, he had supreme
authority to administer justice in his kingdom. During this period, King’s Court or Court of
Sultan used to administer justice in 3 different capacities:
 Diwan-e-Qaza (Arbitrator)
 Diwan-e-Muzalim (Head of Bureaucracy)
 Diwan-e-Siyashat (Commander-in-Chief)
The courts were required to take prior approval from Sultan before awarding the death sentence.

Chapter 28, Section 366 (1), Criminal Procedure Code, 1973: Submission of death sentences
for approval. Death sentence to be submitted for for confirmation by Sessions Courts.

Constitution of courts during Muslim Period

There were 6 types of courts during Muslim period:
1. Court of Sultan: Presided over by Sultan and had both original as well as appellate
jurisdiction in all matters.
2. Diwan-e-Muzalim: Situated in capital city, was the highest court of criminal appeal when
presided over by Sultan.
3. Diwan-e-Rishalaedct: Highest court of civil appeal if court was presided over by Sultan.
4. Qazi-ul-Quzat & Sadare Jehan’s Court: Qazi-ul-Quzat was the highest judicial officer
after the Sultan. From 1206-1248, in the absence of Sultan, Qazi-ul-Quzat presided over
these courts. In 1248, the Sultan, named Naseeruddin, became dissatisfied with the way
Qazi-ul-Quzat had created a superior court called Sadare Jehan Court. Later on Allaudin
Khilji amalgamated both of them.
5. Diwan-e-Siyashat: Established by Mohammed Bin Tughlaq to deal with the cases of
rebellion and high treason. High treason was to make the effort to overthrow the king, or
to help enemies of the state.
In modern times, we have the concept of sedition under Section124A of the IPC.

Judicial reforms under Sher Shah

Sher Shah established the Sur dynasty after defeating Humayun, son of Babur. They ruled only
for few years (1540-1555) but, during this time, they introduced some remarkable changes in the
administrative and judicial structure of their kingdom.
These reforms are:
 Separate courts of first instance for civil and criminal cases at pargana (district) level.
 At each pargana, a civil judge called ‘munsiff’ was posted to deal with civil disputes.
They were also assigned to take control of revenue matters and during his tenure, amils
and muqqadams were appointed for collection of revenue.
 Shiquahdars (Station House Officers) were given magisterial powers to deal with
criminal matters at pargana level.
 Muqqadams were Village Council heads who were given the task to prevent theft and
robbery. In case of such cases, they were made liable for compensation.
 Police regulations were prepared for the first time during this time.
 When a shiquahdar or a munsiff was appointed, their duties were specifically assigned.
 The judicial officer below the post of chief provincial Qazi was transferred after every
two or three years. This system is applied till date.
 The duties of governors and their deputies regarding preservation of law and order were
also emphasized.
 Qazi-ul-Quzat was made directly answerable to the Sultan. He was authorized to report
the conduct of governor to Sultan when the governor overwrites any provision of law.

THE MUGHAL PERIOD: JUDICIAL SYSTEM

A. ADMINISTRATIVE DIVISIONS:
IMPERIAL CAPITAL – PROVINCES (SUBAHS) – DISTRICTS (SARKARS) – PARGANAS – VILLAGES.
B. CONSTITUTION OF COURTS:
 Emperor considered as the “fountain of justice”
 Created a separate dept. if justice – Mahukma-e-adalat – to regulate and see whether
justice was administered properly.
(a) THE IMPERIAL CAPITAL: 3 courts established
1. The Emperor’s court:
 Jurisdiction- original civil and criminal cases
 Highest court of the empire
 Assistants – Darogha-e-Adalat, Mufti and Mir Adl., Mohtasib-e-
Mumalik (in criminal cases).
 Bench- Emperor, Chief Justice (Qazi-ul-Quzat) and Qazis.
 Allowed public to make appeal and representations.
2. The Chief Court:
 Presided by Chief Justice (Qazi-ul-Quzat)
 Jurisdiction: Org. civil and criminal and appeals from provincial courts
 Assistants: Darogha-e-Adalat, Mufti and Mir Adl. And Mohtasib
 Supervise the working of provincial courts.
3. The Chief Revenue Court:
 Highest court in revenue matters
 Presided by Diwan-e-Ala.
(b) THE PROVINCES (SUBAHS): 3 courts
1. The Governor’s Court (Adalat-e-Nazim-e-Subah)
 Presided by Governor himself ( Nazim-e-Subah)
 Original jurisdiction in the cases arising in a province
2. The Provincial Chief Appellate Court:
 Presided by Qazi-e-Subah
 Original civil and criminal jurisdiction
3. Provincial Chief Revenue Court:
 Presided by Diwan-e-Subah.
 Original and appellate jurisdiction in revenue cases.
(c) DISTRICTS (SARKARS): 4 COURTS
1. The Chief Civil and Criminal Court of the District:
 Presided by Qazi-e-Sarkar
 Org. and appellate jurisdiction in all civil and criminal cases and in
religious matters.
 Qazi-e-Surkar- principal judicial officer alson know as Shariyat Panah
 Officers: Darogha-e-Adalat, Mir Adl., Mufti, Pandit/Shastri. Mohtasib
and Vakil-e-Sharayat.
 Appeals – Qazi-e-Subah
2. Faujdari Adalat:
 Presided by Faujdar
 Riots and state security
 Appeal – Governor’s Court
3. Kotwali Court:
 Similar to those cases in the modern police act
 Presided by Kotwal-e-Shahar.
 Appeal – District Qazi.
4. The Amalguzari Kachehri:
 Revenue cases
 Presided by Amalguzar.
 Appeal – provincial diwan.
(d) PARGANAS: 3 COURTS
1. Adalat-e-Pargana:
 Presided by Qazi-e-Pargana
 Original jurisdiction over all civil and criminal cases.
 All villages under the pargana
 Officers – Mufti, Mohtasib-e-Pargana, Darogha-e-Adalat and Vakil-e-
Shara.
2. Court of Kotwali:
 Presided by Kotwal-e-Pargana
 Modern police act
  Appeal District Qazi
3. Kachehri:
 Presided by Amin
 Revenue cases
 Appeal – District Amalguzar.
(e) VILLAGES:
 Smallest administrative units
 Panchayats authorized to administer justice in petty civil and criminal cases
 Meetings held in public
 5 panchs – Sarpanch or the village headman president
 No appeal allowed
 Governed by customary laws
C. JUDICIAL PROCEDURE:
1. CIVIL CASES:
 Plaintiff or his agent filed the plaint in the court having jurisdiction
 The defendant called – accept or deny the claim
 If denied proceedings began – plaintiff required to produce evidences
 Defendant was allowd to produce witnesses and witnesses were cross-examined
 Presiding officer gave judgement.
2. CRIMINAL CASES:
 Complaint personally or representative
 Mohtasib (Public Prosecutor) instituted prosecutions against the accused
 Court could call the accused immediately
 Preferred to here the complaint of the complainant before calling
 Ordinarily judgement in open court
 Exceptions: state interest or dangerously influential accused.

Evidence recognized by HANAFI LAW:

1. TAWATUR (FULL CORROBORATION) – Preferred by the court over other evidences

2. IHAD (TESTIMONY OF A SINGLE WITNESS) – Those who believed in god were competent
witness, presumption that believers can not be taken as untruthful unless proven so.
Women competent but min two required in case of man single man was enough.
3. IQRAR – ADMISSION INCLUDING CONFESSION

The principles of ESTOPPEL AND RES JUDICATA recognized.

D. CRIMES AND PUNISHMENTS:

1. HADD:
 Fixed punishments for – theft, robbery, whoredom, apostasy, defamation, and
drunkenness.
 Equally applicable to muslims and non-muslims
  No compensation
2. TAZIR:
 Prohibition – applicable to all crimes not under HADD
 Crimes like – counterfeiting coins, gambling, causing injury, minor theft etc.
 Punishments on the discretion of the courts
 Free to invent new methods of punishments (cutting the tongue, impalement etc.)
3. QISAS:
 Blood-fine – in the cases of homicide
 Blood money paid by the man who is convicted but not sentenced to death
 “the right of the god’s creatures should prevail”
 Court intervenes at the desire of the aggrieved party
 Discretion to compound the homicide cases
 Similar to WERGILD of the contemporary English period
 Injured party could waive his private claim to compensation or redress

Treason considered to be a crime against the god and religion- death.

Contempt of court seriously punished.

MODULE 2
Development of Legislative Institutions

Beginning of Legislative Authority of EIC

 On 31st December 1600, Queen Elizabeth I granted charter to the company to incorporate
London EIC to carry on trade & commerce into certain other parts of the world.
 Initially this charter was granted only for 15 years, subject to the provision of
termination, by giving two years notice in advance, if the activity of the company was found
unprofitable.
 With the effect of this charter, the company became juristic person with exclusive
privilege to carry out trade and business through other parts of the world
 The same charter further granted legislative power to the company to make rules, by-laws
and ordinances for its good governance and to punish for offences against company or its
servants by fine or imprisonment according to the law, statutes or customs of the time.

Charter: Written grant issued by legislative authority or sovereign by which an institution is

created and their powers and functions are assigned and defined.
During British times, a lot of charters were issued, in the years
 1600: In the year 1601, first Royal Commission was created. Purpose behind this
commission was to confer power to the company so that in cases of murder and/or
mutiny, the offenders will be punished by a jury trial which will be conducted with 12
members of the company acting as members of the jury.
 1609: This charter was granted by James I, the then King of England. This charter was a
replica of the charter of 1600.
Charter of 1600 granted authority to EIC for limited period of 15 years, unlike this
charter, which granted the said authority for an indefinite period of time.
Further, 2 years prior notice for termination of company was extended to 3 years. For
maintaining discipline amongst the servants of the company, provision was made through
this charter by the Royal Commission. For trial of offenders, similar provision was made.
The Royal Commission under the charter of 1609 conducted the first jury trial on Indian
soil by EIC which was the trial of Gregory Lillington.
Trial of Gregory Lillington: Gregory Lillington killed Henary Barton, another
Englishman, near Surat. The trial was conducted on the basis of confession of Gregory
Lillington. Finally, he was sentenced to death by the jury.
For conducting this trial, certain members of the jury came to India from London and
tried to make contact with the Mughal emperor, Jahangir. The purpose was to get some
power from Jahangir. To facilitate this, they started negotiating with Jahangir and
contacted him several times. Finally, in the year 1618, Sir Thomas Roe, Ambassador of
James I, succeeded in this effort and the EIC entered into a treaty with Jahangir. As per
the treaty, Jahangir issued a farman which entrusted judicial functions in the hands of the
EIC.
There are 4 components of this farman:
1. The disputes amongst the company servants will be regulated by their own
tribunals.
2. The English people will enjoy their own religion and laws in the administration of
the EIC.
3. Local native authorities will settle such disputes in which both Englishmen and
Hindus/Muslims are parties.
4. The Mughal governor (Qazi) of the relevant place was entrusted the duty to
protect English people from all sorts of injury.
 1635
 1657
 1661: After the year 1660, the company entered into the phase of unprecedented
prosperity. The company was making huge profits and after that started acquiring
territory. In order to regulate these affairs of the company, Charles II issued this charter
of 1661. The purpose of this charter was to regulate the increasing territorial powers of
the company. This charter was issued on the basis of joint stock principle.
As per this principle, the member of the company who was having share capital of £500
or more was given voting rights in the constitution of company’s code.
Further, the company was authorized to appoint governors and other officers for the
proper administration of the company. This charter further authorized the company to
empower the Governor-Generals and Councils of each one of their factories and trading
 centers at their Indian settlements to administer civil and criminal justice according to
English law.
In the absence of Governor, Chief Director was authorized to administer justice at their
respective settlements.
Development of Legislative and Judicial Authority: Charter of 1600 authorized the
company to maintain discipline amongst its servants and punishment must be in
conformity with statutory or customary law. But, through the charter of 1661, role of
customary laws was totally ignored and English law was made applicable on Indian
territory.
As per the charter of 1600, the laws made by company were applicable on EIC’s
servants. Charter of 1661 authorized EIC to make laws for its factories, trading centers,
Indian settlements and certain Indian territories as well.
All the laws made till the charter of 1661 put the English people in upper hand and put
the Indians at a most disadvantageous position.
 1668: Charles II transferred the island of Bombay to EIC which he got as dowry from
Portugal for an annual rent of £10. This charter authorized EIC to make laws, ordinances
and constitution for governance of island of Bombay. Such law making power was
subject to certain restrictions that the laws made by the EIC for the governance of island
of Bombay must be in conformity with English law and under no circumstances can they
be contradictory. The same charter authorized the company to establish the Court of
Judicature similar to those established in England for proper administration of justice.
 1683: Admiralty Court in Bombay
 1686: Admiralty Court in Calcutta
 1698
 1726
 1753
Madras Settlement
Charter of 1661
22nd July, 1639: An Englishman named Francis Day acquired a piece of land from the Hindu
raja of Chandragiri. This piece of land was known as Madraaspatnam.
Francis Day, after acquiring this land, built a fort named St. George for the residents of the
EIC and the employees of the factory. Later on, this fort was known as White Town and a
place nearby Madraaspatnam, comprising of villages, was known as Black Town.

Constitution of Courts
After Madras Settlement in 1639, 3 courts were working under the settlement of Madras and
nearby areas:
1. Court of Agent & Council
2. Court of Local Nayak
3. Choultry Courts (for Black Town)
Here in relation to abovementioned courts, there approach on similar subjects was conflicting
and there was a lot of discrimination in trials and verdicts against Indians.
Examples:
 In the year 1641, an Indian woman was murdered by an Indian man. Trial was
conducted and the man was held guilty. English authorities immediately reported the
matter to the Court of Local Nayak.
The Court ordered that the justice should be awarded according to English law and
the accused was hanged.
 In 1642, a British soldier was murdered by a Portuguese named Antonio Mirando.
Further, the Court of Agent & Council was hesitating to punish Antonio as he was a
foreigner and this, subject to foreign law. In this case, Court of Local Nayak ordered
that Court of Agent & Council must not desist from their duty thus, the offender was
sentenced to death by shooting squad.
 In 1644, an English sergeant named Bradford caused the death of an Indian. The
matter was referred to Court of Local Nayak. Finally, it was decided by the jury that
the death of the Indian was the result of an “accident” and Bradford was cleared of all
charges.
Appointment of Foxcroft as Governor
Mr. Foxcroft was appointed as 1st Governor of Madras as per the charter of 1661.
After the appointment of Foxcroft, he appointed William Dawes as Magistrate, who
exercised the judicial functions. However, he also declared that if someone disagrees with
Dawes’s judgment, he would personally hear the case and make changes, if required.
Trial of Ascentia Dawes: This was the first jury trial in Madras settlement and during the
governorship of Foxcroft.
It was held in the year 1665/69. In this case, Ascentia Dawes was charged with the murder of
an Indian girl slave. Primarily the accusation was made up in the form and manner prescribed
by the EIC. But the members of the jury were summoned to reverse the indictment.
Indictment was given again but this time it wasn’t in proper form and manner. The jury
found her guilty of murder but not in the manner and terms stated by the prosecution.
Finally the most surprising part of this trial was that the foreman of the jury, Mr. Reade, gave
a verdict contrary to all expectations. He expressed the opinion that each member of the jury
is free and they can give their opinion without giving any reason. Ultimately he declared
Ascentia Dawes as not guilty of murder, which resulted in Ascentia Dawes being acquitted of
all charges.
To sum up the effect of charter of 1661:
 Judicial functions were entrusted in the hands of the Governor & Council and matters
were required to be disposed off according to English law.
 This charter abolished the Court of Local Nayak in Madras because entire Madras
came under the jurisdiction of Court of Governor & Council and Choultry Courts.
 Settlement of Bombay and Role of Charters
Administration of Justice in Bombay
Sir George Oxenden received company orders in 1668 to visit the island of Bombay to
establish executive govt under the control of Deputy Governor & Council. He visited
Bombay in January 1669 and gave draft of certain laws for administration of justice in
Bombay. These laws were enforced after his death in July 1669 and they were primarily
concentrated on the formation of a government in Bombay. These laws were revised by the
Court of Committees and the Solicitor General and finally the Governor of Surat, Gerald
Aungier brought these laws to Bombay in 1670. These laws were given by Aungier are
popularly known as the Judicial Reforms of 1670. These were one of the first important
legislative tasks undertaken by the EIC. As per these reforms, the entire judicial setup of
Bombay was to be overhauled and all the laws were classified into 6 sections:
1. Prohibition of use of contemptuous language towards another religion.
2. Impartial administration of justice: jury trials were started because of this.
Second section is elaborate: Establishment of Court of Judicature for criminal cases.
In relation to Court of Judicature, jury trials were carried out. Under this section, they
clearly mention that for the cases involving English people, members of the jury had
to be English too otherwise in cases where English are not involved in the case, 6
Englishmen and 6 Indians made up the jury.
3. Provision regarding registration of transactions concerning sale of property.
4. Miscellaneous provisions dealing with penalties for different crimes.
5. Military discipline and prevention of disorder and revolt: This section provided for
capital punishment for offences related to mutiny, sedition, insurrection and/or
rebellion.

Judicial Plan of 1670 & 1672

The Judicial Plan of 1670 had many drawbacks and was revised by Gerald Aungier. For
administration of justice in Bombay, the entire settlement of Bombay was divided into two parts
with two different courts having separate jurisdictions. Administration of justice by these courts
was not uniform.
Executive and judicial functions were entrusted in the hands of the same person. Judges of these
courts were traders of the EIC and had no knowledge about elementary principles of law.
Further, Gerald Aungier requested the EIC to provide certain persons who were legal experts for
the administration of justice in Bombay. Pursuant to that request, EIC ordered Gerald Aungier to
select certain employees of the EIC in the Indian settlements as legal experts. He selected George
Wilcox and with his advice, he prepared the new Judicial Plan of 1672 for administration of
justice in Bombay.
Achievements of Judicial Plan of 1672
The entire judicial machinery existing under the old judicial plan of 1670 was reorganized and
new Court of Judicature was established.
 This Court of Judicature was empowered to exercise jurisdiction over all civil, criminal
and testamentary cases.
 System was introduced to hear civil cases which prescribed the court to sit once every
week.
 Concept of court fee was also introduced for the first time and it was prescribed as 5% of
the evaluation of suit charged from the litigants. Indian Court Fees act, 1817 is still
applicable today.
 The judges were prohibited from carrying on any trade or business and they were given a
salary of Rs. 2000 every year for discharging their functions. Concept of jury was also
introduced for civil cases.
 Attorneys were allowed to practice.
 Procedure regarding arrest and imprisonment was properly prescribed.
 English substantive law, including a statutory law, began implementation on Indian soil
in Bombay.
 Poor persons were exempted from court fees in relation to bringing any suit. Today we
have a similar provision under the Civil Procedure Code regarding suits filed by indigent
persons.

The wave of judicial transformation started from charter of 1668 in Bombay and affected the
Madras settlement as well. Following in the footsteps of Bombay, judicial system of Madras was
also reorganized.

Reorganization of judiciary in Madras

With the appointment of Streynsham Master in the Government of Madras in 1678, the whole
judicial system was reorganized under his guidance. The important highlights of the reforms are
as follows:
 The Court of Governor & Council was enacted as the highest Court of Judicature.
 The Court of Governor & Council was prescribed to meet twice in a week and was
authorized to deal with all civil and criminal cases through a 12 member jury.
 Choultry Courts were also reorganized and were empowered to deal with only small
cases.
 The number of judges in Choultry Courts was increased to 3 out of which not less than
two were required to preside over the cases relating to registration of bills, sale of land
and other property.
 Till 1680, 3 languages were used in the Madras settlement courts: Portuguese, Tamil and
Malayalam. But on 9th December 1680, the then Governor, a Streynsham Master, passed
an order declaring English as the language of the court.
Revival of judicial machinery in Bombay
1718-1728
1. In the administration of justice in Bombay, Court of Judicature was properly established
under the Judicial Plan of 1672 by Gerald Aungier. This court was established by the
EIC’s order and the Governor & Council were the members of this court. Later on in
1718, this Court of Judicature was restructured again and consisted of 10 judges in total
and was authorized to work under the supervision of the Governor & Council.
2. Regarding constitution of Court of Judicature, the Chief Justice and 3 other judges were
to be Englishmen and rest 6 judges were to be from other communities.
3. The Court of Judicature of 1718 was given jurisdiction over civil, criminal and probate
cases
4. Indian customs and practices were given due importance under this revival and courts
were ordered to decide the cases according to law, equity and good conscience.
5. Appeal from the Court of Judicature was allowed to the Court of Governor & Council. In
the cases where the damages were equal to or more than Rs. 100. In case of appeal
against the judgment of Court of Judicature, a notice for appeal was required within 48
hours of the verdict given by the Chief Justice of Court of Judicature.
6. There is difference of opinion amongst the jurists regarding the success of this revival
plan. Some are of the view that this system was good, delivered to an impartial
judgment, promoting quick verdicts, etc.
Some others are not in favor of this system. They pointed out certain cases in which the
court applied English law and even international law which was being developed at that
time.
Efficacy of Grant of Zamindari Right
Some jurists are of the opinion that this Grant of the Zamindari Rights for the presidency town of
Calcutta was very important in the administration of justice because it promoted speedy justice,
impartiality of judges, proper judicial trials, etc. whereas some others are critical of it. They
simply opine that the laws which were applied by courts were not applied with the proper
analysis of cases. Principles of international law were also applied even though they hadn’t
developed at that time.
Thus, the Grant of Zamindari Right did not serve the purpose of administration of justice.

Admiralty Court and its conflict with the Court of Governor and Council
In the year 1683, Charles II issued charter in favor of EIC to establish Admiralty Court of
Bombay and in pursuance of that in 1684, the court was established. The main purpose of this
court was to deal with the crimes related to maritime and merchantile laws.
This charter specifically provided that the court will be guided by the laws and customs of
merchants and will decide the cases on the basis of equity and good conscience.
This provision was repeated by James II in the form of charter of 1686 and the establishment of
Admiralty Court in Calcutta.
Initially, all Admiralty Courts had their jurisdiction limited to only maritime disputes but later
on, their jurisdiction was extended to deal with all kinds of cases.
Professional lawyers were appointed as judges of these Admiralty Courts and finally in the year
1687 all the judicial concerns were separated from the Governor & Council and entrusted in the
hands of Admiralty Courts.
In the year 1687 itself, the judge of Admiralty Court succeeded in taking authority to act as Chief
Justice of Court of Judicature and propounded the doctrine of judicial independence in their
various judgments which was the main reason of conflict between the Admiralty Court and the
Governor & Council. Judgment propounded or judgment delivered by the Court of Judicature
was not permitted to be appealed by the Governor & Council. The conflict was finally resolved
in the year 1690 when all these matters came before the directors of EIC in London. Due to the
strong bias towards the Governor & Council, they won the conflict and Admiralty Court became
stopped operating in 1690 itself.

Mayor’s Court/ Court of Corporation of Madras

In the year 1687, company issued a charter for the construction of Mayor’s Court for Corporation
of Madras. Initially, members of Corporation of Madras were the members of Mayor’s Court.
Composition:
There were 3 types of members in the Corporation of Madras:
 1 Mayor
 12 Aldermen
 60 Burgesses
60 Burgesses amongst themselves nominated 12 Aldermen who nominated 1 Alderman as the
Mayor.
Quorum of Mayor’s Court
1 Mayor and 2 Aldermen were required to constitute the quorum for sitting of the Mayor’s Court
Mayor’s Court exercised jurisdiction in civil matters subject to certain pecuniary restrictions. It
was allowed to hear only those civil cases where the valuation of suit was 3 pagodas.
Mayor’s Court was allowed to hear criminal cases with the help of a jury.
Appeal
Appeal against the decision of the Mayor’s Court was allowed before Admiralty Court.

One of the major defects of this judicial system was that power of removal of Mayor and
Alderman was there in the hands of the Governor & Council and due to that this court gave most
of the judgments in their favor. This court was not having any reputation of impartiality due to
the large number of corrupt practices that were reported. Even after major legal developments,
this court wasn’t deciding cases on the basis of equity, justice and good conscience.

Difference between Mayor’s court under Charter of 1687 and 1726

  Scope: The Charter of 1687 applied to Madras only whereas the 1726 Charter applied to
all presidency towns
 Creation: The Mayor’s Court established in 1687 was a Company’s Court. Three
Mayor’s Courts established in 1726 were Royal Courts as they were created by King’s
Charter of 1726. Naturally, the status of these Courts was recognized by the Courts of
England.
 Jurisdiction: The old Mayor’s Court at Madras was empowered to exercise its jurisdiction
over all civil and criminal matters and an appeal was allowed to go to the Admiralty
Court. On the other hand, the Mayor’s Courts established in 1726 were entrusted with
civil jurisdiction only, and from their decision, first appeal was allowed to the Governor-
in-Council in the respective presidency town, and a further appeal was allowed to go to
the King-in-Council in all cases involving a sum of 1000 pagodas or more.
 Law & Procedure: No specific rules of law & procedure were laid down for the old
Mayor’s Court at Madras. The Mayor’s Courts. Established by the Charter of 1726, were
required to follow a well-defined procedure based on English law and practice. Thus, the
former can be said to be governed more by principles of equity whereas the latter was
governed by English law.
 Recorder: A lawyer known as Recorder was attached to the old Mayor’s Court at Madras
in order to advise the Court, while no such officer was attached to the new Mayor’s
Courts.
 Participation of Indians: In the old Mayor’s court at Madras, some Indians were
authorized to sit as judges together with the English Aldermen. The Charter of 1726
specifically provided for this purpose but it may be stated that the representation of
Indians was practically negligible; in fact no Indian was ever appointed.
 Position of Executive: The Charter Act 1726 entrusted judicial powers to the Governor-
in-Council who had all the executive powers. This was not so under the provisions of the
Charter if 1687. The old Charter is considered superior to the new one as the modern
progressive ideas of judicial independence from executive were deeply rooted in it.

Increase of Administrative and Legislative Authority of the EIC

In the year 1767, British crown imposed heavy rent on the EIC. The economic condition of the
company started deteriorating. The Crown took advantage of this and used it to exercise power
over the EIC.
After taking control, the British Crown appointed two committees:
 Select Committee: Appointed to give reports regarding financial matters of the company
 Secret Committee: Appointed to submit reports regarding judicial functioning.
The report submitted by the Secret Committee reported unsatisfactory results and was totally
against the EIC. In order to implement the recommendations of this committee, Regulating Act,
1773 was passed.
Regulating Act, 1773
Objectives:
 To reform the constitution of the EIC
 To reform the EIC’s government in India
 To provide remedy against the illegality and operation committed by the EIC’s servants
in India
Highlights:
 Appointment of Governor General & Council
 Appointment of Directors:
This Court of Directors became the highest court as per this Act
 Decision of court by way of majority
 Extent of Governor General’s powers defined.
 SC of Calcutta
Demerits
 Conflict between Governor General and the members of his Council.
 Undefined doctrine of imminent necessity
 Undefined position of the EIC
 Conflict between the executive and the judiciary
 Uncertain laws
 Conflict between the Council and SC.

Doctrine of Imminent Necessity

 In the hands of the Governor Generals of Bombay and Madras
 The power of superintendence which was there in the hands of Governor General of
Bengal was subject to certain limitations.
 Under certain situations the Governor Generals of Bombay and Madras were empowered
to give judgment or make laws without consultation with the Governor General of Bengal
 The tenure of Governor General & Council in relation to all 3 presidency towns was 5
years, but there was a provision for their removal before the expiry of their terms which
could be exercised on the recommendation of the Court of Directors.
Establishment of SC at Calcutta
Constitution of SC (Section 13)
Provision was made for appointment of 1 Chief Justice and 3 pusine judges.
Certain qualifications were also prescribed: the person must be a barrister having at least 5 years
of standing experience.
SC was also empowered to make certain rules or regulations for practice in the subordinate
courts which also played a role in the administration of justice.
Immunity of Governor General & Council
Appeal against the judgment of SC
King’s Court in London was there to hear appeals against the SC’s verdicts.
Justices of Peace (section 38)
New concept introduced by Regulating Act, 1773.
Governor General & Council and the judges of SC were entrusted the responsibility to act as
Justices of Peace and to hold certain sessions amongst the public.

SC’s Approach for Administration of Justice

 Rajanand Kumar Case (1775):
Significance: The SC applied principle of English law which was completely unknown to
Indians.
The trial was an integral part of the charge of impeachment proceedings against Warren
Hastings and Sir Elijah Empey
Background: Rajanand Kumar, Governor of Hoogly, brought charges of corruption and
bribery against Warren Hastings. He brought the charges by writing certain letters to
Councillors of Warren Hastings who gave opportunity to Rajanand Kumar to be heard by
them.
Warren Hastings was against that and even after strong opposition, members of Council
gave opportunity to RNK.
He also declared that he doesn’t acknowledge the authority of the Councillors’ meeting
and dissolved it. The Councillors by majority decided that such meeting could not be
dissolved by the Governor General when he himself was a party to the case.
Amongst themselves, they chose a presiding officer. The case was completely heard and
the matter was decided in favor of RNK. Hastings was found guilty and was ordered to
deposit the amount involved in the bribery and corruption indulged in by him, in the
EIC’s treasury.
Trial:
Few months after decision of Governor General's Council against Hastings, RNK
arrested along with others, co-accused for charge of conspiracy.
SC delivered the judgment against co-accused simply by imposing fines, while it
reserved the judgment against RNK.
After few months, another charge of forgery was brought against RNK, which was about
execution of a deed and acknowledgement of debts.
The SC judges cross examined the defense witnesses minutely, leading to their eventual
collapse.
All SC judges gave a unanimous decision and held RNK guilty for the offence of forgery
and he was given capital punishment as per the British Statute of 1729, which made
forgery a capital offence.
Demerits
o This trial started simply after few months when he brought the charges against
Warren Hastings.
 o The Chief Justice, Sir Elizah Empey, who decided the case, was a close friend of
Warren Hastings.
o Judges of SC personally cross-examined the defense witnesses in minute detail.
After the judgment when RNK applied for leave to file appeal before King-in-
Council, his leave application was rejected.
o After the leave application, he also filed a mercy petition to be decided by the
British Crown. SC of Calcutta was empowered to reprieve or suspend the capital
punishment. In this case, the sentence was neither suspended nor the mercy
petition was forwarded.
Issues
There were 2 important issues that emerged in the trial of RNK.
1. Whether the Statute of 1729 under which he was awarded capital punishment for
the offence of forgery was applicable in India or not.
2. Whether the SC was having jurisdiction to try the matter of RNK or not.
The answers to these issues can be answered by studying the Radha Charan Mitra
Case.
 Radha Charan Mitra Case (1765 & 1775)
1765
The trial of 1765 concerning RCM was also conducted for the offence of forgery. It was
conducted before the Court of Governor & Council. The Statute of 1729 was also applied
in this case and finally he was also awarded capital punishment. After this judgment,
certain leading citizens of Calcutta wrote petitions to the Governor that Statute of 1729
should not be applicable in India. Therefore, RCM should not be tried according to that.
Although, the issue was not decided by the Governor & Council, RCM was pardoned
solely on the basis of this petition by the leading citizens of Calcutta.
1775
RCM was arrested in the same case in which RNK was arrested. Here, regarding
jurisdiction of SC, certain points were raised. When RCM was arrested, he was acting as
representative of Nawab or Vakil of Nawab.
Regulating Act, 1773 granted sovereign immunity to the Governor General from the
jurisdiction of the SC.
If sovereign immunity principle could be extended to representative of Nawab and SC
was not in power to decide the RCM case, then clearly it was also not in power to hear
the case against RNK because he was the Governor of Hoogly.
The above said argument was accepted by the members of Governor General’s Council
and the matter was also referred in SC. Again, the Chief Justice, Sir Elijah Empey,
rejected all the contentions and clearly held that entire company territory of the EIC was
under the control of the Crown and SC has jurisdiction to try such cases.

 Kamaluddin Case (1775)

 This case was decided when Sir Elizah Empey was Chief Justice. This case was relating
to revenue matter and as per Regulating Act, 1773, SC did not have jurisdiction to judge
revenue matters.
Kamaluddin was a farmer. He was arrested and imprisoned by the revenue authorities,
i.e., Collector of Calcutta for the non payment of land revenue. Against the order of
imprisonment, Kamaluddin presented the writ of Habeas Corpus before the SC leading to
bail being granted to him till the final disposal of revenue matters.
One of his contentions was that he already paid the land revenue but had been charged
falsely.
Against this decision, conflict arose between Governor General and SC that since SC was
not having jurisdiction to deal with revenue matters and it exercises jurisdiction
improperly and granted the bail.
In this case, Sir Elizah Empey observed that the SC did not interfere with the revenue
matter in the case. The bail was granted due to the writ of Habeas Corpus.

 Patna Case (1777-1779)

This case was decided by Sir Elijah Empey, Chief Justice of SC of Calcutta.
It relates with an Afghan citizen who came to India and settled in Patna and married an
Indian Muslim girl.
After being settled in Patna, he bought huge property and finally died without any legal
heir.
During his last days he called his nephew who was residing with him at the time of his
death. After his death, conflict arose between his nephew and the widow regarding the
distribution of property.
The widow's claim was on the basis of 3 documents:
o Meher Nama (Dower Deed)
o Hiba Nama (Gift Deed)
o Ikrar Nama (Deed of Acknowledgement)
Whereas, the nephew put the claim on the basis of adopted son of the deceased without
any legal document.
In this case, the nephew approached the Provincial Council of Patna to settle the dispute.
He submitted before the Council that the matter is related with customary law. So,
Muslim legal officers must be appointed to hear that matter. On the basis of this request,
Provincial Council of Patna appointed two Muslim law officers, Qazi and Mufti, to hear
the dispute. The Muslim law officers submitted the report before the Council that out of
the 3 documents that were in the possession of widow, Hiba Nama and Ikrar Nama, were
not genuine.
Finally, on the basis of the report of the Muslim law officers, Council decided the matter.
Considering that Hiba Nama and Ikrar Nama as fake, the Council ordered for reducing
the amount of Mehr from the property of the deceased and remaining to be distributed
according to Muslim law of inheritance.
Islamic law of inheritance and share of wife and son:
There are rules of priority. The son takes over priority over the father who in turn takes
priority over the paternal uncles. The Quran doesn’t expressly state the share of the male
relatives as such although, it does enact that the share of the male is to be twice that of the
female.
If there are more than two daughters, then for the them, 2/3rd of the inheritance and if
there is only one, then it is ½.
Under the Shia law, a childless widow is entitled to get her share (1/4 th) in the inheritance
only from the movable property left to her by the deceased husband.
Islamic law on wife’s share:
The widow is entitled for 1/4th share from the property of the deceased, if he died without
leaving behind a legal heir, otherwise she is entitled to 1/8 th share.
In this case also, the wife was awarded 1/4th share while the remaining 3/4th was given to
the nephew on the basis of his claim as an adopted son.
After the judgment of Provincial Council of Patna, the widow was made to leave her
property and was forcibly made to reside in a Dargah for 1.5 years. Being dissatisfied
with the judgment of the Council, she approached Sadar Diwan-e-Adalat in appeal which
consisted of Governor General & Council. Warren Hastings was Governor General at
that time and he was not on good terms with the Council which lead to the matter not
being solved there.
Lastly, the widow filed a separate suit before the SC of Calcutta against the Muslim law
officers and the nephew. The report of the Muslim law officers was examined by the SC
and ultimately it was found that the reports were not genuine and the Ikrar Nama and
Hiba Nama were in fact not forged.
SC also found that the Qazi and the Mufti had not acted in good faith in submitting their
report.
Finally, case was decided in favor of the widow and order of imprisonment was passed
against the Qazi, the Mufti and the nephew.
SC also accepted her claim for compensation but it reduced the amount to 50% of the
original. Finally, compensation of 3 lakh was awarded to the widow and ordered to be
paid by the defendants which they were unable to pay, leading to the order for their
imprisonment being upheld. However, in this case, defendants were also given the right
to appeal to the Privy Council, where their appeal got dismissed.
There were 3 major issues in this case:
 Issue as to jurisdiction
 Issue in relation to application of law
 Matter should be decided by Muslim law or SC could decide the case separately
by judging the procedure.
 Cossijurah Case
Cossijurah is a place situated in Meidanapur. Raja of Cossijurah was under heavy debt to
one mr. Kasinath Babu. Kasinath Babu brought action against the Raja for the recovery
of debt through the Board of Revenue in Calcutta, which he failed to succeed in.
Further, he brought a separate suit before the SC of Calcutta after which the SC issued
writ of Capias (order of arrest) at the first instance of the case. Raja of Cossijurah did not
entertain the writ and escaped arrest. The matter was taken up by the Collector of
Meidanapur to the Governor General & Council, who issued an order stating that people
who have not submitted themselves to the SC’s jurisdiction are not bound to follow its
orders. This order was communicated to the Raja of Cossijurah as well.
Further, against non-compliance of the writ of Capias, SC issued second writ of
Sequestration (order for attachment of property and personal appearance of the person
until the realization of the debt) and in order to execute that writ, functions were entrusted
to a certain official named Sheriff of Calcutta. The order of the court was executed and
the Raja of Cossijurah was arrested. The matter was again taken up by the Collector of
Medinapur to the Governor General & Council. This time again members of Governor
General & Council issued order to Chief Commander of Armed Forces to stay the arrest
of the Raja of Cossijurah and to ensure his release from the custody of the Sheriff and
also arrest the Sheriff.
The Sheriff was arrested and presented before the Governor General & Council and was
later released by them. Subsequently, Kasinath Babu filed separate suit against Governor
General & Council.
The SC after entertaining the petition issued order against the Governor General &
Council. Although they appeared before SC, they took defense of sovereign immunity
that the duties discharged by them were in their official capacity and hence they were not
answerable to SC.
SC again issued a writ against Governor General & Council, excluding Governor General
Warren Hastings and Councillor Barwell, giving the reason that its orders must be
executed. The Army officials refused to execute this writ due to which the SC started
contempt of court proceedings against the Attorney General of the EIC. He was tried,
convicted and his bail application was also not accepted.
Under such a situation, when there was complete deadlock in between the Governor
General & Council and the SC of Calcutta, Mr. Kasinath Babu was put under pressure
and finally he had to withdraw the case against the defendants.

Impeachment of Warren Hastings

Warren Hastings came to India in the year 1750 as a clerk with the EIC. He was entrusted
various responsibilities. After Regulating Act, 1773, he was made Governor General of
 Bengal and was entrusted with the power of superintendence over the other two Governor
Generals of Bombay and Madras. Since he stayed for a long time in India he was
supposed to be aware of Indian customary laws. Finally, in the year of 1785, he resigned
from the post and returned back to London. In the year 1786, first impeachment process
was started against him that was held in the name of complete justice, and he was
acquitted.
In the second impeachment proceedings held in 1788, continued for 7 years and
concluded in 1795. There were ten grounds for the impeachment proceedings:
1. Arbitrary approach
2. Government of Warren Hastings wasn’t operating properly
3. Robbery of individuals
4. Suppression of the whole system of English government
5. High crimes and misdemeanor
6. Betraying the trust of British Parliament
7. Dishonoring the national character of Great Britain
8. Subverting the rights and liberties of the people of India
9. Violating the eternal laws of justice
10. Outraging the human nature of both the sexes

Highlights of Act of Settlement, 1781

 Granted complete immunity to the Governor General & Council from the jurisdiction of
SC of Calcutta.
 Revenue matters were completely taken out from the jurisdiction of SC of Calcutta.
 Indian land owners, farmers and persons engaged in land revenue collection were also
excluded from SC’s jurisdiction.
 Persons employed by the Governor General & Council or by any official of EIC were also
excluded from the SC’s jurisdiction unless they submitted themselves to it.
 SC was not given direct jurisdiction over corruption cases either. It could issue notices to
the persons concerned to appear before court and present their cases but it wasn’t
empowered to issue order of arrest or detention directly.
 This enactment also acknowledged the role of personal law of the natives. Personal
religious laws applied like Hindu law and Muslim law for cases where all parties belonged
to the same religion. If parties were from two different religions, the law was decided
according to the defendant’s religious law.
 Any judicial officers exercising judicial functions, including natives and Provincial
Council, were excluded from the SC’s jurisdiction.
 Sadr Diwani Adalat consisting of Governor General & Council was made the highest
court of civil appeal in India. It was not subordinate to the SC of Calcutta. Appeal against
the decision of Sadr Diwani Adalat could be entertained by the Privy Council without any
role of the SC of Calcutta.
Major Defect of Act of Settlement, 1781
 Almost all the judicial functions of the SC were taken down.
 To invalidate the SC’s decision in the Patna Case, clear provision was made in the Act to
release the persons held guilty in that case.
 To save the presiding officer of the Provincial Council of Patna, who gave the primary
decision in the Patna Case, his post was excluded from the SC’s jurisdiction.

Charter Acts
Before the first freedom struggle of Indian independence, 3 Charter Acts were passed by the
British Parliament
1. Charter Act of 1813:
a. This Charter is also called the East India Company Act, 1813. It ended the EIC’s
monopoly in India and put conditions on the profits earned by it.
b. This Act made the provision that the company should invest Rs. 1 lakh every year
on the education of Indians.
c. For the first time, this Act also empowered local governments to impose taxes on
persons and to punish those who did not pay them.
d. The taxing power residing with the local government of the natives was subject to
the jurisdiction of the SC of Calcutta.
2. Charter Act of 1833:
This is popularly known as Saint Helena Act, 1833 or Government of India Act, 1833. It
was passed to review the achievements of Charter Act of 1813 and to renew its
enactments.
Legal Highlights of Charter Act of 1833:
 By this Charter, EIC was deprived of commercial privileges and was
transformed into a purely administrative body.
 This Charter designated the Governor General of Bengal as the Governor
General of India and Lord William Bentick became the 1st Governor General
of India.
 Extended the power of Governor General & Council. They were empowered
to review, repeal or alter any laws or regulations passed by the British
Parliament. However the Court of Directors was given veto power against
such powers of the government i.e., repealing or altering the laws of British
Parliament for the administration of justice in India.
 Governor General of India was empowered by this Charter to take necessary
steps in the direction of codification of Indian law and for the codification
they were directed to constitute the Indian Law Commission.
3. Charter Act of 1853
 It was the last Charter passed during British occupation of India. After this Charter, it was
also realized that laws made by British Parliament is no longer going to continue in India
This Charter introduced many changes but majority of them were not implemented for
many years and that is why it is said about this Charter that it was identical to the
previous charter of 1833. No substantial changes arose from this Charter.
Highlights
 Presidency of Bengal: This Charter made provision for the appointment of
separate governor for the presidency of Bengal, the position that was
previously held by Governor General of India. Court of Directors was given
the power to appoint Governor General of Bengal. This Charter was passed in
1853 but no separate Governor General was appointed for Bengal.
 Power to constitute new presidency: Court of Directors was empowered to
form new presidencies along the lines of Bombay and Madras and to appoint
Lieutenant Governors for states. No new presidency was formed but a
Lieutenant Governor was appointed for Punjab.
 Extension of Governor General’s office: This Charter made provision for
increase in the number of members in the Governor General’s Council in each
British settlement in India.
 Exam of Indian Civil Services: It was introduced for the first time by this
Charter.
 Power to create new provinces: Governor General of India was entrusted the
power to create new provinces for greater administration of justice and in the
light of this, 3 new provinces were made – Assam, Central Provinces and
Burma.

Adalat System in India

The concept of Adalat system was introduced first in medieval Indian when Mughal emperors
started to decentralize their judicial functions into the hands of influential landlords, popularly
known as zamindars.
Initially people used to resolve the civil disputes by way of arbitration instead of involving the
jurisdiction of zamindars. Primarily they were functioning good but later corruption made the
system fail.
After the Battle of Plassey in 1757, the authority of the Nawab of Benal was passed over to the
EIC and finally in the Battle of Buxar in1764, EIC took control over the entire territory of India.
After the Battle of Buxar, the Mughal emperor granted Diwani rights to EIC in 1765, to exercise
civil jurisdiction over Bihar, Bengal and Odisha.
Finally in the year 1772, Warren Hastings was transferred from Madras to the governorship of
Bengal. He removed all obstacles in collection of revenue.
The Adalat system in India can be broadly discussed under the following points:
  Dual government in Bengal
 Diwani Rights with EIC
 Warren Hastings Plan of 1772
 Defects of Warren Hastings Plan of 1772
 New Plan of 1774
 Reorganization of Adaalat system
 Defects of reorganization
 Adaalat system & Lord Cornwallis
 Judicial Plan of 1787
 Plan of 1790
 Reorganization of courts

After Battle of Buxar in1764, EIC took control over entire Indian judicial system and started
exercising judicial functions

Dual Government in Bengal

The rights of the company after the Battle of Buxar were obtained through Robert Clive. The
EIC took entire judicial control over India but did not interfere with the criminal justice system
to ensure law and order situation doesn’t go out of hand. Thus, criminal justice system was left in
the hands of the Nawab. However, civil jurisdiction and collection of revenue was taken under
the control of company directly. Robert Clive appointed 2 prominent natives for the collection of
revenue. This type of government, i.e., the criminal justice system is in the jurisdiction of Nawab
and civil and revenue collection jurisdiction is with the EIC, became popular by the name of dual
government.
Analysis of Success of Dual Government System
This dual government system of Robert Clive is not reported to be successful. He had to leave
India 2 years after implementing dual government system, in 1767.
Diwani Rights of Company
The dual government of Robert Clive was not only unsuccessful; it also created complete
anarchy in Bihar, Bengal and Orissa. After his departure in 1767, the directors of EIC blamed
Indian officers appointed by Robert Clive for the anarchy caused by him. The directors reported
charges of corruption against the Indian officers and finally in the year 1771, the company
changed its policy and took direct control over collection and management of revenue. In order
to execute its objectives the company transferred Warren Hastings from Madras to Bengal,
making him Governor General of Bengal.

Warren Hastings’ Plan of 1772

Warren Hastings gave the 1772 plan to achieve some objectives of the EIC.
Highlights
  Collector for each unit: Under this plan the whole of Bengal, Bihar and Orissa were
divided into districts. The ‘district’ was selected as the unit for collection of revenue and
for the administration of civil and criminal justice. In each district an English officer
called Collector of the district was appointed. His primary duty was to control the
collection of revenue.
 Moffussil Diwani Adalat: Regarding the administration of civil justice in the districts, a
Moffussil Diwani Adalat was established in each one. District Collector presided over it.
It was empowered to decide all civil cases with real and personal property, inheritance,
caste, marriage, debts, disputed accounts, contracts partnerships and demands of rent. Its
decision was final in all case with a valuation of Rs.500 or less.
 Sadar Diwani Adalat (Court of Appeal): Existed at the state level. Governor & Council
were the members of this adalat. They were empowered to hear appeals against the
judgment of Moffusil Diwani Adalats with the pecuniary limit set at Rs. 500 minimum.
Along with this appellate jurisdiction, it had original jurisdiction as well.
 Small Cause Adalat: Besides these courts, the Head Farmers of Parganas were authorized
to decide petty disputes relating to property up to the value of Rs. 10.
 Moffussil Faujdari Adalat (District level criminal court):
o Warren Hastings did not interfere in the criminal justice system.
o Qazis & Muftis with the help of Maulvies were empowered to decide the criminal
matters. But the Collector was having supervisory role, over functioning of this
court.
 Sadar Nizamat Adalat: It was the appellate court situated at state level. This court was
entrusted with only criminal cases and was presided over by Darogha (Chief Officer)
appointed by the Nawab. It had a very important role regarding capital punishment.
Moffussil Faujdari Adalat had no power to pass a death sentence except with the approval
of Sadar Nizamat Adalat.
In modern times, we have Chapter 28, Section 366 of the Criminal Procedure Code, 1973
which mentions the mandatory confirmation of every death sentence passed by the
sessions courts by their state’s high courts.

Defects of Warren Hastings’ Plan of 1772

1. Less number of courts
2. Concentration of power in the hands of the Collector
3. This plan did not subscribe any honorarium for the judges of Small Causes Court, i.e., the
Head Farmers of Parganas. So after some time corruption entered into the system and this
ended up being the major defect of this plan.

New Plan of 1774

In order to remove the drawbacks of the previous plan, Warren Hastings came up with a new
plan in the year 1774. This plan is popularly known as the New Plan of 1774. This plan made
structural changes in the existing judicial system.
1. Depending upon the district, 6 Provincial Councils were established and they were
empowered to hear appeals against the judgements of Moffussil Diwani Adalat.
 2. A board was established at Calcutta and it was authorized to issue instructions to all the 6
Provincial Councils for proper discharge of their judicial functions.
3. English Collectors were replaced by native Superintendents of Revenue who were known
as Nayaks.
4. Nayaks were also entrusted with the judicial functions relating to civil matters. They also
presided over as judges of the Diwani Adalats.

New Judicial Plan of 1774

 The entire Bengal province was divided into 6 provinces and Courts of Provincial
Council were established.
 Constitution of Provincial Council of Diwani Adalat: The entire province of Bengal was
divided into the jurisdictions of 6 Provincial Councils. For each Provincial Council,
Provincial Court was established. This Provincial Council of Diwani Adalat was having
appellate jurisdiction against the judgements of Moffussil Diwani Adalat.
Post of English Collectors was replaced with native Superintendents which were called
Nayaks. These Nayaks were authorized to send reports to the Provincial Councils of
Diwani Adalats.
 Sadar Nizamat Adalat was placed under the direct control of Nawabs along with the
entire criminal justice system. However, just after this plan, Regulating Act, 1773 came
into force and this power of the Nawab was again vested in the hands of the Governor
General.
After Regulating Act, 1773, the administration of justice in Bengal, Madras and Bombay
continued according to the provisions of this Act. Although there were so many
drawbacks, it continued for a long time and finally considering all the drawbacks and
demerits of the Plan of 1772, New Plan of 1774 and the Regulating Act, 1773, Warren
Hastings gave the 3rd plan, Reorganization of Adalat System, 1780.

Reorganization of Adalat System, 1780

 Separation of revenue from judiciary.
 Extension of jurisdiction of provincial Diwani Adalats.
 Appellate power of Sadar Diwan Adalat, Calcutta against the judgements of Provincial
Diwani Adalats
 Court jurisdiction was fixed depending upon the valuation of the suit.
 Extension of pecuniary jurisdiction of Zamindars and public offers up to Rs. 200
 Provision for taking oath before entering into the judicial system was introduced.

Defects of Reorganization of Adalat System, 1780

 Less number of courts and litigants had to travel far for getting justice.
 Officers were also not trained properly and they were also not having any legal
jurisdiction to decide the issues properly.
 Judicial functions were entrusted in the hands of Zamindars and public officers but they
had to work on honorary basis which led to corruption.

Adalat System under Lord Cornwallis

After Warren Hastings, Lord Cornwallis was appointed as Governor General of India in the year
1786. He continued till 1793 and during his tenure he introduced many important changes in the
existing judicial system and most of them are relevant even today. He was in the favor of uniting
all the judicial functions in the hands of a single person and with this reason, he presented 2
important pre-conditions before the EIC for his appointment as Governor General of India.
1. The Governor General will have the power to override the decisions of his Council
2. The Commander-in-Chief of the Army and the post of Governor General should be given
to a single person.
Both these conditions were accepted by the EIC and finally he was appointed as Governor
General of India under the control of Court of Directors.

Concept of Permanent Settlement

Lord Cornwallis also achieved great success due to implementation of his famous concept of
permanent settlement in Bihar, Bengal and Orissa.
Permanent settlement was a very important reform regarding the fixation of land revenue. Lord
Cornwallis taking the prevalent land revenue of 1793 fixed that revenue permanently in relation
to the lands. Rates of land revenue were also fixed permanently. Due to this reason, this fixation
of land revenue is called permanent settlement.

Judicial Officers of Lord Cornwallis

Lord Cornwallis was appointed as Governor General with 3 important instructions:
1. To deal with the problem of land revenue
2. To improve the administrative machinery
3. To introduce reforms in the judicial system

In order to implement these 3 instructions, he gave the idea of unification of entire judicial
system in the year 1786 itself. Finally, he did not succeed and reunited the civil and revenue
jurisdiction in one hand and left the criminal justice system in the hands of the Muslim law
officers.
Finally, in order to implement the judicial reforms, Lord Cornwallis introduced all the reforms in
3 instalments:
1. Judicial Plan of 1787:
 Extension of the power of Collector: All the judicial functions were united in a
single post (revenue, civil and criminal) and was given to the Collector of each
district.
 Introduction of double stage appeal system: In revenue matters the Collector was
also presiding over Revenue Courts which were known as Mal Adalats and
against the decision of the Mal Adalats, 1st appeal could be made before Board of
Revenue, and 2nd appeal, against the Board’s decision, could be made before the
Governor General & Council.
In relation to civil matters, Collector was designated as the presiding officer or
civil judge of Moffussil Diwani Adalat. Appeal against the judgement of
Moffussil Diwani Adalat was allowed before the Sadar Diwani Adalat, presided
over by the Governor General & Council. Appeal was allowed only in those
matters where the valuation of the suit was Rs. 1000 or more. 2 nd appeal, against
the Sadar Diwani Adalat’s decision was allowed before the King-in-Council
situated in London. 2nd appeal was allowed only in cases where the valuation of
the suit was Rs. 5000 or more.
  Appointment of Registrar in District Court to assist the Collector to decide petty
cases with valuation of up to Rs. 200.
 This plan conferred certain magisterial powers in the hands of the Collector. He
was empowered to pass the order of arrest, conduct the trial and punish the
offenders in small criminal cases, where the punishment was expected up to 15
days and in cases which the punishment was supposed to be more than 15 days,
the Collector was authorized to send that matter to the nearest Moffussil Faujdari/
Nizamat Adalat.

Just after the Judicial Plan of 1787, it was analyzed that this plan was
concentrated in and around the civil and revenue jurisdictions. Lord Cornwallis
also studied the then judicial system of India and he came to two determinate
conclusions regarding the failure of criminal justice system in India:
 Mohammedan criminal law was ineffective.
 Constitution of trial courts was defective.
In order to remove these defects Lord Cornwallis came up with a new plan which
is known as the Judicial Reform of 1790.
2. Judicial Reform of 1790:
 Under this plan, authority of Nawab over criminal judicature was abolished and
that power and function was conferred to Governor General & Council under the
name of Sadar Nizamat Adalat.
 Moffussil Faujdari Adalat was also abolished under this plan. The whole Diwani
area of EIC was divided into 4 divisions which were called circuits and for each
circuit, a criminal court was established which was a moving and circulating
court, moving from one district to another in the respective circuit division. These
courts were called Circuit Courts. Appeal against the Circuit Courts was allowed
before the Sadar Nizamat Adalat at Calcutta.
 Each circuit was divided into certain districts where Collector was authorized to
act as magistrate dealing with petty/small matters and against the judgement of
the Collector, appeal could be made before the Circuit Court.
3. Judicial Plan of 1793:
The judicial reforms of 1793 mainly dealt with the Cornwallis Court.
In 1793, Lord Cornwallis prepared a set of 48 regulations to introduce judicial reform in
Bihar, Bengal and Odisha. Under this codified regulation, demerits of earlier 2 judicial
plans were removed. Certain reformative changes were introduced and this plan
concentrated over almost all the areas of maintenance of law and order, i.e., civil
disputes, criminal justice system, land revenue, police administration, commercial
system, and maintenance of uniformity in every state’s regulations.
Concept of rule of law was firstly coined under this plan and attempt was made to codify
all these legal provisions.
Highlights
 Separation of revenue and judicial concerns: Regarding separation of revenue
functions and judicial functions of the Collector was taken under this plan. This
post was associated only with revenue functions.
 Mal Adalats introduced under the plan of 1787 were abolished and jurisdiction over
the suits were transferred to Moffussil Diwani Adalat.
  Appeal from Moffussil Diwani Adalat was allowed to be filed before the Board of
Revenue in civil matters.
 Reorganization of civil courts: Relating to civil justice system, Circuit Courts were
strengthened under this plan. Jurisdiction of Moffussil Diwani Adalat also
continued in the civil matters and appeal was allowed before the Circuit Courts.
 Native law officers: Native law officers were appointed by the Governor-General &
Council to assist the working of the court. They were supposed to be an expert in
personal law and were authorized to expand the principles of personal law before
the court. Matters relating to marriage, succession, inheritance, caste or religious
institutions were ordered to be decided by application of personal law, i.e., Hindu
and Muslim law with the help of native law officers.
 Courts took control over executive machinery: Not only the Collector but all other
executive officers of the government were made subject to the jurisdiction of the
courts and it was also provided that they will be personally liable for violation of
any of the regulations.
 The injured party was also given the right to oppose the court even in cases of
corruption and excess of jurisdiction by any authority. This provision is also called
basic fact of rule of law, introduced during Lord Cornwallis’s reign.
 Abolition of court fee
 Reforms in the criminal justice system: The reforms of 1790 made in the criminal
justice system by Lord Cornwallis was continued in this plan with some changes.
Magisterial power of the Collector was taken away in this plan and conferred all the
power to judges of Moffussil Diwani Adalats regarding criminal matters. By this
way, Moffussil Diwani Adalat was conferred all three jurisdictions, revenue, civil
and criminal.
Circuit Court and Provincial Court of Appeal were united together for having
criminal matters and by this way, 4 Provincial Courts of Appeal came into existence
for dealing criminal matters under appellate jurisdiction.

MODULE 3
Establishment & Development of Privy Council & High Courts
1. Establishment of Privy Council: The history of Privy Council can be traced back to the
Norman period of England.
Norman kings introduced concept of central government in the beginning of the 11 th
century in England to control all executive, legislative & judicial functions of that time.
There was a Supreme Feudal Council of Normans as a part of Central Government to
control the administration of England which was popularly known as ‘Curia’ during that
time. With the passage of time, this ‘Curia’ was divided into 2 distinct bodies:
a. Curia Regis: Smaller body of the two. Consisted of high officials of the state,
members of the royal household and certain important clerks chosen by the
Crown. It was entrusted only with judicial functions.
b. Magnum Concillium: Larger of the two bodies. It was empowered to deal with all
matters, including executive, except judicial matters.
Later on the Privy Council developed from the smaller body, i.e., Curia Regis.
 Members of Curia Regis
Curia Regis was a body entrusted mainly with the judicial functions so it consisted of 3
types of members:
a. High officials of the state.
b. Members of the Royal Household and persons nominated by the Crown.
c. Certain important clerks, chosen by the Crown, to assist the higher judicial bodies
The duty of these members of Curia Regis was to advise the king in matters relating to
law and order and to deliver justice but under the authority of the Crown.
By this way, the Curia Regis, acting under the authority of the Crown, became the highest
court of appeal. Further, with the passage of time, the role of Curia Regis increased.
Finally, during the regime of Henry II, there was tremendous increase in the judicial
functions of Curia Regis, Again, under his reign, the Curia Regis got divided into two
separate bodies
 Court of House of Lords/ King-in-Parliament/ King’s Bench: Highest court of
appeal for England.
 Court of Privy Council/ Court of Common Pleas: Highest court of appeal for all
British settlements.
With the passage of time, apart from these two, a third judicial body also came up, i.e.,
Court of Exchequer, to deal with fiscal and taxation issues. So, it is clear from the above
discussion that during medieval period mainly 3 courts were working in England:
a. Court of House of Lords
b. Court of Privy Council
c. Court of Exchequer
2. Role of Lord Brougham in the development of Privy Council: Privy Council was
established to hear appeals from the courts of British colonies. Initially, Privy Council
used to work with the help of certain committees and sub-committees. These were
temporary bodies. Members also did not have adequate legal qualifications to decide the
matters.
Before 1828, Lord Brougham pleaded a case before Privy Council and he was very
dissatisfied with its judgement. From 1828 to 1832, he published many writings
criticizing the role of Privy Council, highlighting the importance of appellate jurisdiction
of Privy Council. Finally, relying upon his writings, British Parliament enacted the
Judicial Committee Act, 1833 to reform the constitution of Privy Council. After this Act,
Privy Council became a statutory body of the British Parliament.
3. Composition of Privy Council: The Judicial Committee Act, 1833 empowered Privy
Council to hear appeal from the courts of British colonies. As per the provisions of this
Act, quoram for the Privy Council was fixed at 4, consisting of the following members:
a. President
b. Lord Counsellor
c. 2 counsellors who are also senior judicial officers
After 10 years of the Judicial Committee Act, 1833, the quoram for Privy Council was
reduced to 3 from 4. Again in this regard, Appellate Jurisdiction Act, 1908 was passed by
the British parliament which increased the quoram to 5 by making the provision for
 adding 2 members who were judges of High Courts of British India. By this way, the
Appellate Jurisdiction Act, 1908 for the first time made the provision that persons skilled
in Indian laws were introduced as members of the Privy Council.
4. Rules regarding appeal to the Privy Council: 3 important rules guided the appellate
jurisdiction of the Privy Council:
a. Crown’s prerogative was extended to both civil and criminal matters even after
the judgement of Privy Council.
b. Interference in criminal cases would not be done by the Privy Council unless the
forms of legal process are disregarded or there is violation of the principles of
natural justice.
c. Interference in any matter would not be done by the Privy Council unless there is
violation of some legal principle or procedure or there is miscarriage of justice.
5. Appeals from India to Privy Council: The Charter of 1726 for the first time made
provision for appeal before the Privy Council from India. This Charter established 3
Mayor Courts in 3 presidency towns and appeal against the Mayor Courts’ judgements
could be made before Court of Governor & Council. Second appeal was allowed before
Privy Council.
The next Charter of 1753 again reorganized the constitution of Mayors’ Courts and
provision regarding appeal before Privy Council was left untouched. That situation
continued till 1773. In the year 1773, with the passing of Regulating Act, Mayors’ Courts
were abolished and Supreme Court was established at Calcutta. And further, under the
Regulating Act, 1773, provision for appeal was made, but instead of the Privy Council,
the King’s Council, a part of Curia Regis, was given appellate jurisdiction. King’s
Council was having similar judicial functions to the Privy Council.
This power of appeal to the Privy Council (King’s Bench/King-in-Council) was npt
absolute. It was subject to certain restrictions:
a. The Privy Council was empowered to hear only those matters from India where
the valuation of the suit was at least 1000 pagodas.
b. Appeal was to be entertained only when it was filled within 6 months of the
judgement of Supreme Court of Calcutta.
Even after having such provisions of appeal, only few matters reached before the Privy
Council. The reason was that the Privy Council took a long time to decide even petty
cases.
6. High Courts and appellate power of Privy Council: Provision regarding establishment of
High Court in India came by Indian High Courts Act, 1861, amalgamated Supreme Court
of Calcutta, Sadar Diwani Adalat and Sadar Nizamat Adalat.
Right to appeal against the judgement of High Court was allowed under this Act. This
appeal was allowed in all matters but subject to a certificate issued by the High Court in
question that acknowledged that the matter can be appealed.
After passing of Civil Procedure Code, 1908, such provision regarding appellate
jurisdiction of Privy Council were contained Sections 109-112 of the Code.
7. Federal Court and appellate jurisdiction of Privy Council: Federal Court was established
under the provision of Government of India Act, 1935 as highest court in India. This
Federal Court was established in the year 1937 and Section 208 of this Act made
provision for appellate jurisdiction of Privy Council. The appellate jurisdiction was
subject to 2 conditions:
a. Matters related to constitutional matters and other matters of equal importance
were allowed to be appealed before the Privy Council without any pre-conditions.
b. In the civil matters, the appeal was allowed before the Privy Council against the
judgement of Federal Courts provided that the suit is valued more than Rs. 5000.
8. Abolition of Privy Council’s jurisdiction: After independence, 2 important enactments
came in India which abolished the jurisdiction of Privy Council from Indian courts.
a. The Federal Court Enlargement of Jurisdiction Act, 1948: Enlarged the
jurisdiction of Federal Court and took away the appellate jurisdiction of Privy
Council relating to most matters. Still this enactment was not clear regarding the
enlargement of criminal jurisdiction of Federal Court and appellate jurisdiction of
Privy Council, especially in those cases where the plaintiff is British and has
committed the alleged offence on Indian soil.
This Act was silent about the matters pending before the Privy Council, which
were dealt with in the next enactment.
b. Abolition of Privy Council Jurisdiction Act, 1949: Made the provision for transfer
of cases and petitions filed before the Privy Council.
9. Binding nature/precedential value of Privy Council judgements:
Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd.
AIR 1954 SC 245
As decided in this case, judgement of Privy Council has great respect before the
Supreme Court of India, but the SC is not bound by the judgements of Privy Council.
Pandurang Kolu Patil v. State of Maharashtra
(2002) 2 SC 490
Regarding High Courts, SC decided in this case that the Privy Council’s judgements shall
be binding on the Indian High Courts unless and until they are contradictory to SC’s
judgements.
10. History & development of High Courts: After the first war of independence in 1857,
British Parliament decided to restructure the judicial system of India again. The old
structure of SC of Calcutta and Sadar Diwani Adalat and Sadar Nizamat/Faujdari Adalat
was abolished and provision for establishment of High Courts in India was made. Certain
enactments were passed by the British Parliament for the constitution and development of
HCs in India:
a. Indian High Courts Act, 1861: This Act passed by Britain Parliament just after the
first freedom struggle to restructure judicial machinery of India. This enactment
amalgamated Supreme Court of Calcutta and Sadar Diwani Adalat and Sadar
Nizamat Adalat. Further, this enactment authorized the Crown to establish certain
High Courts through later patent.
Under this enactment, 3 High Courts, Calcutta, Bombay & Madras were firstly
established by the Crown. This enactment also contained the provision regarding
number of judges, power, functions and jurisdictions of the HCs. The appellate
 power of Privy Council also continued after this enactment and again it was
subject to two conditions:
i. In civil cases, the appeal was allowed before the Privy Council in those
cases where valuation of suit was more than 1000 pagodas.
ii. For all other matters, certificate was required to be issued by the
concerned HC which acknowledged the appealable nature of the matter
before the Privy Council.
b. High Courts Act, 1865: This enactment authorized the Governor General &
Council to make necessary changes in the jurisdiction of HCs established under
the Indian High Courts Act, 1861. However, this enactment did not authorize the
Governor General & Council to establish new HCs and the power of the Governor
General regarding making changes in the existing HCs was subject to the
approval of the Crown. Since, power to establish HC was not there in this Act, so
it was inferred that Allahabad HC was established as per the provisions of Indian
High Courts Act, 1861 and the Allahabad HC was the last HC to be constituted
under the 1861 Act. To remove the drawback regarding confusion of constitution
of new HCs under the 1865 Act, new Act was passed in 1911.
c. High Courts Act, 1911: The main achievement of this Act was that it conferred
powers in the hands of the Crown to establish new HCs in India and further it
increased the number of judges from 16 to 20 for each HC including the Chief
Justice.
Although this Act made the provision for the establishment of new HCs, but no
new HC was established as per the provisions of this Act. Further, after 4 years of
this Act, Government of India Act 1915 was passed by the British Parliament.
Apart from that, some other enactment came under the regime of the Indian National
Congress and those were also responsible for development of HC in India, i.e.,
Government of India Act, 1915 and 1935 and lastly all these provisions came in complete
form after the framing of Constitution of India.
11. Government of India Act 1915: GoI Act, 1915 was passed by British Parliament to
consolidate the provisions of the Indian High Courts Act, 1861 and the High Courts Act,
1911. The main achievement of this Act is that 2 new HCs were established, i.e., Patna
HC and Lahore HC as per the provision of this Act. This Act made detailed provision
regarding constitution and jurisdiction of the HC and qualification for the appointment of
judges for the HC. Regarding qualifications, provisions were adopted in Government of
India Act, 1935.
Regarding jurisdiction of the HC, the HC was conferred both original as well as appellate
jurisdiction in all civil, criminal and admiralty matters. This enactment also gave
emphasis on the application of local customary laws and personal law in matters relating
to family arrangement, succession, inheritance, etc.
Disputes related to property when both the parties follow different religions, dispute was
to be decided according to the applicable personal law for the defendant’s religion.
12. Government of India, 1935: This Act contained detailed provisions regarding constitution
and jurisdiction of new HCs and to regulate the mode of practice in the existing HCs.
Highlights
a. Number of judges and their age: The High Courts Act, 1911 made the provision
for maximum number of judges to be extended from 16 to 20. This Act dropped
 that provision and the King-in-Council and the Crown were empowered to fix the
number of judges from time to time depending upon the territorial jurisdiction of
the concerned HC.
The age of retirement for the HC judges was at 60 but simultaneously power of
removal was also conferred to the Crown on the grounds of proved misbehavior
or infirmity in the mind or body.
b. Qualification for the judges of HC and the Chief Justice: There were few
important qualifications for the appointment of judges of HC:
i. Any barrister/advocate who had at least 10 years of standing experience
was qualified to be appointed as a judge in a HC.
ii. Members of Indian Civil Service having 10 years of experience were also
qualified for appointment as judge in a HC.
iii. Chief Justice of a HC appointment required 3 years of experience as a
judge at a HC.
c. Appointment and removal of HC judges and appointment of additional HC judge:
Relating to permanent judge of HC and the Chief Justice, power of appointment
and removal was in the hands of the Crown or King-in-Council, as per the
provisions of this Act. In order to fill any vacancies created by the retirement of
removal of any HC judge, power to appoint any additional judges in the
concerned HC was conferred to the Governor General & Council.
Such power of removal vested in the hands of the Crown relating to HC judges
was prescribed to be exercised on the recommendation of Privy Council and this
was an important provision relating to the involvement of judiciary.
13. Jurisdiction of HCs: Some jurisdiction that was conferred to the HCs in the GoI Act,
1915 was left untouched in the GoI Act, 1935.
a. Salaries and allowances: The GoI Act, 1935 also made detailed provisions
regarding salaries and allowances of the HC judges which were also adopted in
the Constitution of India.
b. Administrative control of the HCs: The GoI Act, 1935 gave administrative control
of the HCs in the hands of provincial governments. Although recommendation
was made by the statutory conditions that administration of HCs should be with
the central government but, keeping in mind the principle of judicial
independence, Federal Court and HCs were not put under the control of the same
body. Thus, HC administration was not the responsibility of the central
government but the provincial governments.
c. Appeal against HCs’ decision: The GoI Act, 1935 made provision for 1st appeal
before the Federal Court and 2nd appeal before the Privy Council. Finally, in 1949,
the Privy Council Act was passed and abolished the jurisdiction of Privy Council.
Due to this, Federal Court became the apex court regarding all matters.
14. HCs under Constitution of India: The constitution of India gave recognition to all the
existing HCs and further also empowered the Parliament to establish new HCs for each
province. Constitution also empowered Parliament to establish common HCs for 2 or
more provinces and/or union territories if the need arises.
a. Appointment of HC judges and Chief Justices: The President of India in
consultation with the Chief Justice of India may appoint Chief Justice of any HC.
For other judges of HC, they can be appointed in consultation with the Governor
 of the concerned state/province, Chief Justice of the concerned HC and Chief
Justice of India.
b. Retirement: Previously age of retirement of HC judges was 62 years but, after
recommendation of constitutional bench of SC created by Justice JS Khehar, age
of retirement was increased to 65 years for all HC judges.
c. Constitutional jurisdiction of HCs: Detailed provision regarding this is dealt with
in Articles 217 to 228 of the Constitution of India. Some important articles are:
i. 226: Power of HC to issue writs
ii. 228: Transfer of certain cases from subordinate courts to the HCs
iii. 132: Appellate jurisdiction of the SC over appeals against the HC in
certain cases. To appeal against SC, certificate is required from the
concerned HC that the matte is related to a substantial question of law
Meaning of substantial question of law:
These are those questions regarding which the HCs are not having a
uniform opinion and the issue has also not been decided by the SC.
If the HC refuses to give certificate for appealing before the SC,
provisions of Article 136 of the Indian constitution can be used and the
petitioner can appeal to the SC directly through special leave petition
iv. 136: The Constitution of India under Article 136 vests the Supreme Court
of India, the apex court of the country, with a special power to grant
special leave, to appeal against any judgment or order or decree in any
matter or cause, passed or made by any Court/tribunal in the territory of
India. It is to be used in case any substantial constitutional question of law
is involved, or gross injustice has been done.
v. 133: Appellate jurisdiction of the SC in appeals regarding civil cases.
vi. 134: Appellate jurisdiction of the SC in appeals regarding criminal cases.

MODULE 4
Systems of Law:
1. Civil Law System: Civil law systems are those legal systems which are based on certain
statutes and enactments. Any legal system can be a combination of both civil as well as
common legal system. In modern times most of the countries follow a mixed legal
system, with certain aspects from civil legal system and certain aspects from common
legal system.
2. Common Law System: Common law systems are those legal systems which give
preference to judicial decisions, judicial precedent and are based on the principles of
judge made law. Afghanistan, Saudi Arabia, Malaysia follow this system in the form of
Muslim Sharia law.
Role of Law Commission:
It is very important regarding codification of laws in India.
4 law commissions were set up in India before independence:
1. 1st Law Commission in 1834: It was constituted as per the provision of Charter Act of
1833. This law commission came into existence in the year 1834. The Charter placed the
1st Law Commission under the control of Governor General & Council. Lord Macaulay
 was the Chairman of this Law Commission and there were other members to assist him.
This law commission was constituted with the following tasks:
i. Codification of penal law: The rough draft of the IPC was presented in the year
1837, but after that two members of the 1st Law Commission withdrew
themselves and finally with the effort of Chairman of 1st Law Commission, the
IPC was passed in 1860.
ii. The law applicable to non-Hindus and non-Muslims in respect to their various
rights: First recommendation was made by the 1st Law Commission regarding this
issue. Before this law commission non-Hindus & non-Muslims, like Christians
and Parsis were regulated by different systems of laws. Those non-Hindus & non-
Muslims who were residing in the residential towns were governed by the
principles of English law, whereas the same was not applicable to those who were
residing in the Moffussil areas or other parts of the country.
This law commission made the recommendation that non-Hindus & non-Muslims
must be governed by the substantive law of England by putting certain restrictions
on it, which were as follows:
a. All those laws must be suitable to the conditions prevailing in India.
b.The English law must not be opposed to any existing regulations in
presidency towns.
c. The dispute concerning marriage, divorce, adoption of persons other than
Christians must be decided by the rules of that state or community.
d.Rules of equity must be given overriding effect over the substantive law of
England.
iii. Codification of criminal law
Limitations
1st Law Commission suggested many changes such as codification of penal laws,
uniformity regarding lex loci laws applicable to non-Hindus & non-Muslims and
codification of civil & criminal procedural laws. But, in reality it did not achieve any
purpose and no law was made during its tenure
2. 2nd Law Commission in 1853: It was constituted through the Charter of 1853. The tenire
of 2nd Law Commission was very short, having existed for 3 years only.
The main task assigned to it was to examine and consider the recommendations of 1 st
Law Commission and the enactments suggested by it.
It submitted 4 reports. First report was submitted in 1855 and 2 nd, 3rd and 4th reports were
submitted in 1856.
The 3rd and 4th reports were very important as they suggested the amalgamation of SC
and Sadar Adalat and bringing uniformity in both civil and criminal procedural laws to be
applicable before the HCs.
Achievements:
i. Rough draft of IPC presented by Lord Macaulay in 1837 during the 1 st Law
Commission’s tenure was passed at the recommendation of this law commission
in 1860.
ii. Code of Civil Procedure, 1859 and Criminal Procedure Code, 1861 was passed at
the recommendation of this law commission.
iii. Law of Limitations as recommended by the 1st Law Commission was passed
during this law commission’s tenure in 1853.
 3. 3rd Law Commission in 1861: It was constituted in the year 1861 and its tenure was 3
years. The main task assigned to it was to propose a body of substantive law for India on
the basis of English law. This law commission submitted 6 reports regarding the passing
of 6 important laws:
i. Indian Succession Act, 1865
ii. Indian Contract Act, 1872
iii. Negotiable Instruments Act, 1881
iv. Evidence Act, 1872
v. Transfer of Property Act, 1882
vi. Revised draft of Criminal Procedure Code, 1861
The abovementioned laws were presented on the recommendation of the 3 rd Law
Commission. They are out of legislation. Certain enactments were merely discussed but
finally they were passed during the next law commission’s tenure.
4. 4th Law Commission in 1877: It was constituted without any earlier plan. The main
purpose for this commission was to complete the tasks left unfinished by earlier law
commissions. This was also the last law commission of British India. It mainly
concentrated on:
i. Private trust
ii. Easement
iii. Master servant relationship
iv. Negotiable Instruments Act
v. Transfer of Property Act.
Achievements:
i. Negotiable Instruments Act, 1881
ii. Indian Trust Act, 1882
iii. Transfer of Property Act, 1882
iv. Easement Act, 1882
Laws relating to master and servant were not codified although a bill was presented with
the name of Indian Civil Wrong Bill and till today it has not been passed and is studied
under uncodified Law of Torts.

MODULE 5
Government of India Act, 1919
 The Montague Declaration: The government passed certain legislations to suppress
uprisings in India:
o India Press Act, 1910
o Act of 1913
o Defence of India Act, 1915
In 1916 the Indian National Congress asked the British government to declare its future
policy regarding self-governance of India. E. D. Montague, as the Secretary of State for
India, announced before the House of Commons the future policy. In his speech, he
expressed the British government’s intention to increase participation of Indians in all
branches of government and the gradual development of self-governing institutions in
 India. He also made clear that the goal of self-governance in India will be achieved only
through gradual and successive stages.
With a view to prepare a scheme of reforms, Montague came to India and met with top-
ranking India leaders and studied the problems personally. In consultation with the
Viceroy, Lord Chelmsford, Montague drew up a report regarding Indian constitutional
reforms which are known as the ‘Montague-Chelmsford Reforms’. On the basis of this,
the British Parliament enacted the GoI Act, 1915 which was amended in 1916 and then in
1919.
 Highlights of the Act: In its preamble, this Act laid down certain principles on the basis
of which the reforms were introduced in India.
The provisions of this Act introduced vital changes in:
o The Home Government in England
o The Government of India
o The provincial governments
o Civil services
Changes in India Council:
o 8-12 members
o Tenure of 5 years with fixed salary
o 3 members will be Indians
o Some powers delegated from Secretary of State to Governor General & Council,
with his approval require in some rare cases.
o Relaxation of control over financial matters
o Appointment of High Commissioner for India
Changes in GoI:
o Central Legislature enlarged making it easier for it to influence the government.
o Representation given to members of the Indian Civil Service in the Executive
Council, a practice which continued till independence, after which ministers
replaced them.
o Number of Indians in Executive Council increased to 3.
o Members of Viceroy’s Council were to be appointed by the King on
recommendation of Secretary of State for a tenure of 5 years.
o Made the Central Legislature bicameral, with Council of State Upper House and
the Central Legislative Assembly (Lower House).
o Second Chamber introduced to act as a check upon lower house.
o Dyarchy: In executive branch, subjects of administration were divided into two
lists:
 Central List
 Provincial List:
 Reserved List  more important than Transferred.
 Transferred List
 The provincial council was divided amongst tow sets of members, the first
were the executive councilors appointed, by the crown and the second were
ministers who were elected by the people. Reserved list (justice, police, land
revenue and irrigation) lied in the hands of the former to legislate on and
Transferred list (local self-gov., education, health, public works and
agriculture, fisheries and forests) were give to the latter to legislate upon.
 o Changes in Governor General’s power:
 Power of Certification: Power to pass any Bill, even though rejected by
legislature, if Governor General feels that Bill is essential for British
interests in India.
 Empowered to issue ordinances
 Empowered to prevent either Chamber from passing, discussing or
permitting introduction of a Bill, clause or amendment, which in his
opinion would negatively affect British interests.
 Matters relating to public debt and revenues of India, religions, wage of
British employees, army, navy and foreign relations, etc. could not be
introduced in legislature without prior permission of Governor General,
preventing Indian legislature from altering GoI Act, 1919 or any other act
passed by the British Parliament for India.
 He was the final authority in Reserved and Transferred list subjects.
 Recommended names for appointment on Executive Council
 Appointed Indian ministers from among the elected members and was also
responsible for distribution of portfolios among them.
 Failure of Montford-Chelmsford Reforms: These reforms failed to satisfy the Indian
political leaders and they proved to be a failure due to various reasons, the most
prominent one being the inherent defects of the diarchy system.
Protests were made against it resulting in repressive measures by the government like:
o Rowlatt Act, 1919: Indefinite detention in the name of public safety.
o Jallianwalla Bagh massacre
o Enforcement of Martial Law in Punjab
Mahatma Gandhi, who had initially favored these reforms, began to feel that they were
aimed at extending British rule in India. Due to this, he introduced the satyagraha
technique for advancement of freedom struggle, and made demand for complete self-
governance.

The Simon Commission, 1927

Section 84, GoI Act, 1919 provided for the appointment of a statutory commission, 10 years after
the passing of the Act to review the implementation of the provisions of the Act and after review,
extend, modify or restrict the degree of responsible government as needed.
The Commission came to India in 1928 and submitted its report in 1930. It was condemned by
Indians, who expressed their disagreement through protests and strikes.
Recommendations:
 Diarchy should be abolished in provinces
 No interference of Centre in the administrative and legislative work of the provinces
 Communal electorate
 Federal Assembly:
o Central Assembly should be called ‘Federal Assembly’ and it must be constituted
on the basis of representation of the provinces and other areas in British India in
proportion to the population.
 o Official members should consist of such members of Governor General’s Council
who could sit in the Lower House with the nominated officials.
Although the Simon Commission’s reports were shelved at that time, its suggestions played a
major role in the GoI Act, 1935

Nehru Report, 1928

The Indian National Congress took up the challenge to draft a constitution that shall be
acceptable to all political parties of India. All Parties Conferences were held in Delhi and
Bombay and in 1928 a small committee chaired by Pandit Motilal Nehru was set up to draft a
constitution for India. The committee produced an impeccable report which was statesmanlike
and it served to advertise the high standard of learning in India. The Nehru Report was
unanimously accepted at the Lucknow All Parties Conference, although the AIML ratified the
report only after Gandhi’s intervention.
It accepted dominion status of India as the next step, and not an ultimate goal. The Constitution
was to be secular and the principle of communal electorate was to be done away with and a joint
electorate should be present in its place.
Other recommendations were regarding Central executive, provinces and Princes of India.

The National Movement

During the period 1930 to 1935, the ‘National Movement’ was gaining strength. Major events:
 First Round Table Conference
 Civil Disobedience Movement
 Gandhi-Irwin Pact
 Second Round Table Conference
 Third Round Table Conference

Government of India Act, 1935

After the Act of 1919, the GoI Act, 1935 was a very milestone in the constitutional history of
India and monumentally influenced the Constitution of India of 1950. Although, it kept the
supremacy of the British Parliament intact, there was a radical change in policy in two aspects:
i. It introduced a federal form of government in place of the unitary form of government
which had been the existing British policy for long.
ii. It envisaged a federation of India to which the native states would accede.

Highlights:
i. Option for the states to join: The Act provided for the formation of an All-India
Federation. All the provinces were to join the Federation automatically but the joining of
Indian states was on voluntary basis through an Instrument of Accession. All states and
provinces were allotted seats in the Federal Assembly and the Council of States.
ii. Division of power: The Act provided for the division of power between the Centre and
the provinces & states under three lists:
 Federal List
 Provincial List
 Concurrent List: Both federal and provincial legislatures could pass laws on these
subjects but federal legislature held a superior position.
 iii. Diarchy at the Centre: It established diarchy at the Centre and the provincial diarchy was
abolished. A part of the federal executive was declared Reserved while the remaining was
declared Transferred. Reserved part consisted of important subjects like defence, external
affairs, etc.
iv. Bicameral federal legislature:
 Federal legislature was divided into Federal Assembly and the Council of States.
 Tenure of the Federal Assembly was fixed at 5 years while Council of States’
1/3rd members would retire after every 3 years.
 Members from States would be nominated by the rulers, representatives from
British India would be elected.
 Communal representation in elections was retained.
v. Legislatures’ power restricted:
 Powers of both federal and provincial legislatures was restricted regarding issues
which affected the Sovereign, the Royal Family, etc.
 Many non-votable items in budget over which the federal legislature had no
control
 Governor General was empowered to interfere with the legislatures’ workings.
vi. Autonomy in name only: Autonomy was given to provinces as well in accordance with
the August Declaration of 1917. Diarchy was abolished in provinces and the different
treatments given to subjects under different lists was done away with.
Provincial administration was given to Ministers who were to be appointed by the
Governor; however, they were responsible to the legislature. The Governors were
empowered to remove the Ministers which was a major defect of this Act.
vii. Indian Council of Secretary of State: This Act abolished the Indian Council of the
Secretary of State.
viii. Establishment of Federal Court: Federal Court was established having both original and
appellate jurisdiction to
 Decide disputes between the federal units or between the federal government and
units.
 Answer questions regarding interpretation of the Constitution.
Privy Council remained the final court of appeal.
ix. Governor General’s power: The Governor General had vast administrative, legislative
and financial powers under this Act. Along with being the constitutional head regarding
administration of subjects in the Transferred list, he was given very wide discretionary
powers regarding legislation. He was also allowed to promulgate ordinances over the
head of legislature by exercising the provisions made by the Governor General’s Act.

Defects:
i. Diarchy at Centre: Indian participation was minimal and they were not given power to
amend the constitution either. Diarchy instead of being completely done away with at the
provincial level was instead applied at central level.
ii. Options for States: The inauguration of All India Federation was subject to a specified
number of states joining the federation. The Act gave Indian States a choice to join or
not.
iii. Privileged position of States: Indian States were given a privileged position in matters of
representation, etc. The nominated members remained loyal to the British.
 iv. Communal award: Indirect elections to the Federal Assembly were opposed. The seats in
legislatures were filled on the basis of community. Ill effects are felt till date due to the
influence of communalism on the Constitution of India from an early date.
v. Discretionary powers: Near unending power of the Governor General and Governors was
a major defect of this Act.
vi. Mistrust of Indians: Act was wholly based on the mistrust of Indians in the British.

Constitutional Developments 1937 to 1947

1. Resignation of Congress Ministries:
When World War 2 broke out, the British without any consultation with Indian political
parties declared India a belligerent country. The Working Committee of the Congress
decided the issue of war or peace should be decided by the Indian people and declined any
support in the war.
It asked for a clear statement from the British government about their vision for India post-
war. The British government assured, due to communal tensions in India, it could not think
of withdrawing itself from Indian soil, for the good of the Indian people. As a consequence of
this stand, Congress Ministries of 8 provinces resigned, leaving only Bengal, Punjab and
Sind governments the only functional provincial governments.

2. Two-nation theory:
Following the resignation of ministries, Jinnah began to preach the two-nation theory. He
gave rise to communal tension between Muslims and Hindus.
The INC won an absolute majority in Madras, the Central Provinces, Bihar, Orissa and the
United Provinces. AIML members in these areas hoped that the INC would invite them to
form a coalition government with them. However, the INC told the AIML to cease
functioning as a separate government and hence no coalition government was formed. This is
seen as one of the triggering reasons for the creation of Pakistan. AIML refused to cease
functioning, and Jinnah proclaimed that Muslims would not get justice as long as the INC is
in power.

3. The August Offer, 1940:

It was a declaration made by the Viceroy of India on behalf of the British government.
It stated that the constitutional issue facing the country could not be addressed at a time of
war and hence a representative Indian body shall be set up post-war to formulate a new
constitution and in the meantime the British government would gladly reach an agreement
regarding the form and operation of this constitution making body and the principles guiding
the constitution. In the intervening war time, the British government expected full support
from all parties of India for its war effort.
Although this was a much more open-minded and fresh approach from the British
government’s side regarding the problems faced by India, the INC refused to accept the offer.

4. The Cripps Mission

Indian policies were stuck in a deadlock due to the non-cooperation of the INC. With the
Axis powers gaining ground, Mr. Churchill sent Sir Stafford Cripps, the leader of House of
Commons, to India.
 The Cripps Mission came to India in March 1942 with a draft declaration of the British
government and to begin constitutional negotiations but returned empty handed in April
1942.

5. Quit India Resolution, 1942

The failure of the Cripps Mission worsened the existing situation in India. The All-India
Congress Committee passed the Quit India Resolution in 1942 which emphasized the need
for ending British rule in India. This movement was violently suppressed by the government.
The deadlock continued till Mahatma Gandhi’s release in 1944, post which he began
negotiations with Lord Wavell to ease the political situation. Mahatma Gandhi also had talks
with M. Jinnah with a proposal by Sri Rajagopalachari serving as a basis for those talks. The
proposal said that the AIML would cooperate with the INC in the independence struggle and
to cooperate in the establishment of an interim government for the transfer of power, subject
to certain terms, which M. Jinnah did not accept.

6. The Wavell Plan, 1945

The Wavell Plan provided for a conference of representatives chosen by the Viceroy for the
purpose of obtaining from the leaders of various parties a joint list or separate lists of worthy
persons in order to constitute a new Executive Council of Viceroy.

7. Simla Conference
The conference called at Simla in June 1945 was done so under the presidentship of Lord
Wavell. However, when it reassembled in July 1945, Lord Wavell declared the conference to
be a failure due to no fruitful conclusion being reached. It failed mainly due to the demands
made by Jinnah not being accepted by the INC and the Governor General was not prepared
to have an interim government without the cooperation of the AIML.

8. Cabinet Mission Plan, 1946

The British Cabinet Mission came to India in1946. Even after prolonged discussions between
the Mission, INC and AIML, the political parties could not come to any mutual
understanding. As a result, the Mission suggested its own formula for solving the
constitutional problem. Its recommendations were:
 It ruled out the possibility of Pakistan as desired by the AIML. It recommended that
there should be Union of India, consisting of both provinces and states.
 The Union should have an executive and legislature constituted from British Indian
and States’ representatives.
 Any question raising a major communal issue in the legislature should require the
decision of the majority of the representatives voting.
 Suggested a Constituent Assembly consisting of 389 members.
 The provincial representatives of British India were to be sent in the proportion of 1
representative for 1 million people.
 Seats allotted to every province were to be divided between its different communities
in proportion to their population.
 British government would implement the constitution drawn up by the Constituent
Assembly.
The effort of the Constituent Assembly almost succeeded but on 31 st Jan 1947, the AIML
declared the proceedings to be invalid and demanded the Constituent Assembly’s dissolution.
Thus, through Jinnah, the British were able to oppress the INC and divide India into two.