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House of Courts
Contents Page Nos

1, Choultry Courts 4
2. Moffusil Diwani Adalat 4 -- 6
3. Rule of Law 6 - 8
4. Privy Council 8 - 9
5. Dyarchy 9 - 10
6. Vakils 10 - 11
7. Mayor’s Courts 11 - 12
8. Abolition of Sati 13 - 14
9.Cossijurah case 14 --16

10. Sadar Nizamat Adalat 16 - 17

11.Lord Cornvallis. 17 - 18
12. Writ of Habeas Corpus. 19 - 26
13. Law reforms in British India. 26 - 28
14. Enrolment of Advocates. 29 -- 30
15. Judicial System under charter of 1753 3 1 - 32
16.Muffasil Fouzdari Adalat 32 - 33
17. Act of settlement 1781. 33 - 34
18. The Courts of Municiff 34 - 35
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19. Justice , equity,and good conscience 35 - 36

20. First Law Commission 36 - 38
21. Admiralty court 38 - 39
22. Second Law Commission: 39 - 41
23.Seperation of powers 41 -42
24. Independence of Judiciary 42 - 43
25. Indian council ACT 1861 43 - 45

26. Principles of Ancient Indian sytem 45 - 47

Part---B
1. Explain the Administration of Justice in Madras Presidency
48-- 50
2. Explain the important features of the Government of India Act ,
1935 and its impact on the constitution of India. 50 -53
3. Criticaly comment on the legislative authority under the rule of East
India Company. 53 -- 55
4. Discuss the role of the Law commission in law reforms in India.
55 - 56
5. Describe the Adalat system introduced by Warren Hastings.
56 - 57
6. Explain the conflicts that arose due to the dual judicial system prior
to 1861. 57 - 59
7. Explain about Indian High Court Act 1861 59 - 60
8. Comment on Raja Nand Kumar’s case. 60 -- 63
9. Write note on Judicial reforms introduced by Lord Warn Hastings.
63 --65
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10.Trace the legal history of the growth of High Courts in various

provinces of India 65 – 68
11. Examine the salient features of Government of India Act 1919.
68 - 70
12.Discuss the merits and demirits of of legal Llegal profession in
India. 70 - 72
13.Discuss the salient features of the Regulating Act 1773. 72 - 74
14.Explain the provisions of Advocates under the legal Practioner’s
Act.,1853. 74 - 75
15.What are the main features of administration of Justice before
1726? 75 - 80
16. How Article 14 of constitution embodies the rule of law ? 80 - 81

17. What is the Admirality jurisdiction according to Charter 1774 ?

81 - 83
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Part----A Answers

1. Choultry Courts
Ans. From 1639 to 1661, two separate bodies were administering
justice at Madraspatanam. The agent and council were the judicial
authority for the English people residing in Madras and the
indigenous people were under the jurisdiction of the Choultry court.
Choultry court was an indigenous court under a village headman
known as Adigar, i.e. Adhikari, who was responsible for the
maintenance of law and order. He administered justice to the natives
at the Choultry Court according to long-established usages. After the
Mayor’s Court came into existence, the Choultry Court lost its
importance and functioned as a court of petty jurisdiction trying
offences and civil cases up to 2 pagodas.
The choultry could hear the petty civil cases upto the value of 2
pagodas. But , subsequently its power also declined in 1800.
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2. Moffusil Diwani Adalat

Ans. Judicial system in Mofussils

After the Diwani rights were attained by the colonial giant, the role of
proper implementation had fell on the then governor of Bengal
presidency- Warren Hastings, as his predecessors starting right from
the times of Lord Clive had condoned the oppressions of Ryots by
Zamindars and petty tyrants which was proving to be detrimental to
the colonial administration in these areas. Keeping into mind such a
corrupted set up, Warren Hastings went on to introduce reformative
judicial measures because of the following reasons:-

 Connection between Revenue and judicial administration:

 No centralized judicial set up:
 Corruption in the courts:
 Atrocities of Englishmen:

Under the prevailing circumstances mentioned above, Warren

Hastings went on to introduce a scheme of judicial administration in
1772 .

Under this plan the territory of Bengal, Bihar and Orissa

was divided into multiple districts and in each district, an English
servant of company was appointed as the collector who was to be
responsible for collection of revenue alongside having judicial
powers.

Different courts in Adalat System: (in order of the hierarchy .)

1. Small Cause Courts
2. Mofussil or district courts:
 Mofussil Diwani Adalat
 .Mofussil Nizamat Adalat
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3. Sadar or Provincial courts:

 Sadar Diwani Adalat

 Sadar Nizamat Adalat

Mofussil Diwani Adalat- These courts used to be present in

each district and had jurisdiction over the revenue and civil
cases including the disputes related to marriages, inheritance,
castes, debts, contracts, disputed accounts, personal
properties, partnership and demand on rent.
Jurisdiction : It used to have pecuniary jurisdiction of up to
Rs 500 such that decisions of this court up to this amount was
final. Collector of the district use to act as the judge of this
court who use to work in assistance with the native law
officers such as the Kazis and Pundits.
law officers : These law officers used to assist the judge as
the collector did not has the knowledge about the personal
laws of the Hindus and the Muslims which was to be applied
to different disputes which were presented before the court.

3. Rule of Law
Ans. The rule of law is the concept that no one is above the law – it is
pplied equally and fairly to both the government and citizens. This
means that all people, regardless of their status, race, culture, religion,
or any other attribute, should be ruled equally by just laws.

Meaning of the Rule of Law

The three meanings as given by Professor Dicey of the Rule Of Law

are:
1. Supremacy of the law or the absence of arbitrary power:
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This means that absolute supremacy of law prevails contrary to the

Government’s arbitrary power.
A man can only be punished due to a breach of law and nothing else.
2. Equality before law:In the eyes of law, all are equal before law
and no one is above law.
3. Absence of individual liberty: A variety of constitution grants
individual freedom but does not provide a method.The source of
individuals’ rights in the constitution is neither written nor
mentioned.Provision for individual liberty is not in the U.K.

Rule of Law In India

Supremacy of Law: It means a person can be punished for an

infringement of the law but can not be held responsible and punished for
anything else.In accordance with the ordinary procedure, an alleged
offence needs to be proven in front of the court.

Equality before Law: Under Article 14, every person has equal
protection and is equal before law.
Exception to Rule of Law : The above mentioned rule of equality is
not an absolute rule and contains a lot many exceptions to it and they
are:
 A certain class of people being subject to some special rules are
not prevented by the rule of law.
Example- Armed forces members are controlled by their
military rules; the medical council of India controls the medical
practitioners.
 Special rules in the professions govern those specific members
of society. These people are treated differently from other
citizens.
Example- Doctors, police, lawyers, nurses, members of the
armed forces, etc.
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The importance of Rule of Law :

The rule of law is important because a country that adheres to
the rule of law results in a society in which:
 All persons and organisations including the government are
subject to and accountable to the law
 The law is known and accessible
 The Court system is independent and resolves disputes in an
open and impartial manner
 All persons are presumed innocent until proven otherwise by a
Court
 All persons have the right to a fair and prompt trial
 No person should be arbitrarily arrested, imprisoned, or
deprived of their property
 Punishment is determined by a Court and people can only be
punished in accordance with the law.
As a result, it can be said that the Rule of Law is more than
simply the government and citizens knowing and obeying the
law.

4. Privy Council

Ans. The Privy Council is an advisory body to the Monarch; its

members are known as Privy Counsellors. It is one of the oldest parts
of the UK’s constitutional arrangements, with its origins dating back
to at least the thirteenth century.

The UK Privy Council advises the Queen on the carrying out of

her duties, including the exercise of the Royal Prerogative and other
functions assigned to the Sovereign by Acts of Parliament. Although
some of the Privy Council’s powers are ceremonial in nature, many
relate to matters of constitutional importance.
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Functions of the Privy Council:

 Extending legislation to British Overseas Territories

 Ratifying legislation from Crown Dependencies, such as the Channel
Islands.
 Issuing Proclamations – for example, announcing the dates of Bank
Holidays
 Granting Royal Charters
 Appointing lay members to certain professional bodies and approving
the rules of these bodies

Powers of the Privy Council :

 Government decisions, Which are drawn up by Ministers and

Civil Servants,duely approved by the queen in Her will be
recorded and expressed through orders.by Privy Council

 The Privy Council can also issue Proclamations, such as the

announcement of the dates of bank holidays or to determine the
specifications of new coinage.

Appointment of a member of the Privy Council :

 Members of the Privy Council are appointed by the Queen on

the advice of the Prime Minister. Membership of the Privy
Council is for life, and members are entitled to be addressed as
‘Right Honourable’. There are currently around 650 Privy
Counsellors.

5. Dyarchy
Ans. The Government of India Act 1919 was an of the Parliament
of the United Kingdom. It was passed to expand participation of
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Indians in the government of India. The Act embodied the reforms

recommended in the report of the Secretary of State for India, Edwin
Montagu, and the Viceroy, Lord Chelmsford.

Act of 1919 provided a dual form of government (a "diarchy")

for the major provinces. Diarchy means a dual set of governments;
one is accountable, the other is not accountable. Subjects of the
provincial government were divided into two groups.
 One group was reserved, and
 The other group was transferred.
The reserved subjects were controlled by the British
Governor of the province; the transferred subjects were given to the
Indian ministers of the province.
The "transferred list", were given to Government of ministers
answerable to the Provincial Council. The 'transferred list' included
agriculture, supervision of local government, health, and education.
At the same time, all other areas of government
(the 'reserved list') remained under the control of the Viceroy. The
'reserved list' included defence (the military), foreign affairs, and
communications.

6. Vakils
Ans. vakil or a lawyer or an advocate mainly a representative in the
court of law and a vakil can be a representative, especially of a
political figure; an official or ambassador. The Vakil of Mughal
empire was an exalted office in Mughal administration, first in
ministerial hierarchy and only next to Mughal Emperor.
Vakil is an Arabic word which means lawyer.The Vakil
was considered as the Emperor's lieutenant in all matters connected
with the realm and household. From the reign
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of Emperor Babur to Emperor Shah Jahan, the title of grand

vizier was also given to the Vakil. But afterwards it remained only as
dignitary post.
The degree of powers of the Vakil's office varied
from era to era. However the Vakil required Emperor's approval in
each and every decision. During the era of Babur and Humayun, he
had the powers of prime minister while early in the reign
of Akbar, Vakil Bairam Khan acted as regent (a person who governs
a kingdom in the minority,) and ruled on the behalf of Emperor.
Bairam Khan had his own Vakil-i-Mutlaq, who in this
case was a general manager. This position was held by Pir
Muhammad Khan Shirwani and when he was temporarily dismissed,
given to Haji Muhammad Sistani.In 1564, Akbar revived the office of
Vakil and didn't give him the responsibilities of finance
department. In the reign of Jahangir, the office of Imperial Diwan
gained prominence and ultimately during Shah Jahan's regime, the
title of grand vizier was transferred from Vakil's office to Imperial
Diwan.

7. Mayor’s Courts
Ans. In Madras, mayors court was established under the charter of
1687 by the English East India company.

Composition :

 The mayor’s court consisted of a Mayor, 12 aldermen and sixty

or more burgesses.
 The first mayor and aldermen were nominated by the charter
and the mayor holds the office for 1 year and he was by the
aldermen every year.
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 The burgesses were chosen by the mayor and aldermen which

should not exceed more than 120.
 Among them, the mayor and the three aldermen were to be
English servants of the company and others were to be from an
nation.
 John Viges, a Judge advocate of admiralty court became the
recorder of this court. A man who learnt law was appointed as
the recorder and attached to the mayors court i.e. court of
record.

The Mayors court’s Jurisdiction

 They deal with all the civil cases upto the value of 3 pagodas
 They also dealt with the criminal cases with the help of jury
and punished the offenders by imprisonment or fine.

Appeals:

 The appeals from this court were decided by the court of

Admiralty.
 In civil matters, the admiralty court had decided more than the
value of 3 pagodas and in criminal cases they decided only
when the punishment is lose of life or limbs.
 But , the governor in council decided both the appeals from
admiralty court and mayors court.

Demerits :

 There was no separation of power between executive and

judiciary.
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 The judges of the mayor court were laymen and they didn’t have
even a piece of knowledge of English law. The judges were
mostly impartial/ biased and dishonest.
 There was no uniformity and consistency in the decisions of the
court.
 Though the recorder was expert in the course of law they were
given less importance and his opinion was not considered much.

8. Abolition of Sati
Ans. Sati was an ancient Hindu custom, according to which a wife
immolate herself at the funeral pyre of husband
The Bengal Sati Regulation which banned the Sati practice in all
jurisdictions of British India was passed on December 4, 1829 by the
then Governor-General Lord William Bentinck. The regulation
described the practice of Sati as revolting to the feelings of human
nature. In 1811 Roy witnessed his brother’s widow being burned alive
on her husband’s funeral pyre.
Three years later he retired and concentrated on complaining
against the practice of woman dying as Sati. Raja Ram Mohan Roy
was the first Indian to protest from against this custom. Raja Ram
Mohan Roy was strictly opposed this system of Sati. He advocated
that this was completely against the women's right to live in the
society as a human being8 (Basham, 1975) . Thus he challenged the
age old evil practice of Sati.
During those days Raja Ram Mohan Roy tried his level
best to stop and banned this custom of sati. He tried a lot to make
people enlighten against Sati system. Thus at last im the year 1829
lord William Bentick banned Sati by law. Thus Raja Ram Mohan
Roy's effort was full filled. Tremendous changes took place in the
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Indian society and Hindu religion is being considered. It can be

considered as a turning point in Social history of India. Raja Ram
Mohan Roy's effort behind this rightly made him able to assume the
title as the father of Indian Reissuance.
In spite to protest from orthodox Hindu, he carried on his
propaganda against the custom. Finally he won the cause when Lord
William Bentick, the governor general of India passed a law in 1829
abolishing the custom of Sati. According to this low the custom of
Sati become illegal and punishable as culpable homicide (Majumdhar,
1984). Raja Ram Mohan Roy also opposed child marriage and
supported widow remarriage. The abolition of Sati is one of the most
significant turning point is the social History of modern India

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

The Cossijurah Case (1779-80)

Facts of the case

Raja Sundernarain, zamindar of Cossijurah (Kasijora), owed

Cossinaut Babu a huge sum of money (Kashinath). Despite Cossinaut
Babu’s best efforts, the money was not recovered from the Raja. As a
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result, he launched a civil suit at the Supreme Court of Calcutta

against the Raja of Cossijurah. Raja was arrested when the Supreme
Court issued a writ of Capias.

Raja went into hiding in order to avoid serving the writ

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

The conflict of jurisdiction in the case

On the 12th of November 1779, the SC issued another writ of

Sequestration to seize the property of Raja’s house in order to compel
him to appear in court. The Raja was imprisoned by the British, who
are reported to have violated the sacredness of the family idol by
entering the Zenana. Meanwhile, the Governor-General and Council
directed Colonel Ahmuty, the commander of the armed forces, to
deploy a strong force to intercept and arrest Sheriff and his party and
further release Raja.

The sheriff and his party were arrested on December 3rd,

1779, and held in confinement for three days. They were then
deported to Calcutta as prisoners, but the Sheriff’s party was released
by the Council, who also directed Colonel Ahmuty to release any
additional writs issued by the Supreme Court.
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Later Developments

Cossinaut Babu filed a lawsuit against the Governor-General and the

council members individually. The Governor-General and councilors
refused to appear in court because the act was committed while they
were acting in their official capacities. The Council announced that
those living outside of Calcutta in Bengal do not have to submit to the
court and that they will preserve the locals’ interests even if they have
to use armed forces.

Army officers refused to let the SC’s officials serve the

writ on the Council members. The SC judges and members became
enraged and felt humiliated. The SC took proceedings against North
Naylor, the Company’s Attorney General because the members of the
council were not served with the writ. Since this sentence was deemed
“exemplary,” he was committed to prison and no bail was granted.

The members of the council were not exempt from the

civil action, despite the fact that no action was taken against them. “If
they believed themselves not amenable to the court, they ought to
plead to the jurisdiction or demur to the plaint; and if they were
dissatisfied with our Judgements, the Charter had given them a
remedy via appeal,” Justice Impey said when hearing the matter. The
SC would not allow the Councilors to withdraw their appearances,
even though it had no legal authority to do so. The conflicts between
the council and the court grew. No one was prepared to make a
compromise. The plaintiff, Cossinaut Babu, dropped his lawsuit
against the Governor-General and his council, as well as the Raja of
Cossijurah, on March 12, 1780.

10. Sadar Nizamat Adalat–

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Ans. This was the apex court for criminal cases in the province.
Similar to Sadar Diwani Adalat, it also used to have both original as
well as appellate jurisdiction. As mentioned above, it used to have
specific jurisdiction to decide over matter of death sentence and
forfeiture of property. In cases of death sentence, the death warrant was
prepared by this Adalat and was to be signed by the Nawab as the head
of the Nizamat. This court was presided over by Daroga-I-Adalat who
used to act as the judge of this court. He was assisted by a Chief Kazi, a
Chief Mufti and three Moulvies.

Similar to Mofussil Nizamat Adalat, there used to be a

supervisory authority in the form of Governor-in-Council who used to
keep a check over the functioning of this court. It was earlier located in
Calcutta but was later shifted to Murshidabad, where the Nawab
resided, in order to reduce the effort which used to be there to get his
signature in cases of death sentences. Another development which was
seen later was the development of the office of Naib Nazim in which
Mohd. Reza Khan was appointed, who was to work and give assent on
behalf of Nawab.

11.Lord Cornvallis.

Ans. Cornwallis was born in Grosvenor Square in London, though his

family's estates were in Kent. He was the eldest son of Charles
Cornwallis, . His mother, Elizabeth. Cornwallis was educated at Eton
College and Clare College, Cambridge. While playing hockey at Eton,
his eye was injured by an accidental blow from Shute Barrington

Lord Cornwallis was a British army officer,

administrator and diplomat who had previously served his
country during the War of American IndependenceHe founded a
Sanskrit College at Benaras for Hindus and this is today the
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Government Sanskrit College in Benares. He also established a

mint at Calcutta.

Major Reforms Introduced by Lord Cornwallis

Permanent Settlement

1. Cornwallis introduced the Permanent Settlement of land

revenue in Bengal and other parts of India.
2. Under this system, Zamindars or landlords were made the owners
of the land, and the farmers were reduced to the status of tenants.
The Zamindars had the right to evict the farmers at any time.
3. The Zamindars had to pay 89% of the land revenue to the British
and the remaining was for him.
4. Under this system, land revenue was fixed for a term of ten years.
5. This system accelerated the drain of wealth from India to Britain.

Service Reforms

1. He established rules which allowed only qualified persons to get

into the services irrespective of their connections with higher
authorities.
2. Top posts were reserved for the Europeans whereas Indians
were offered lower grade posts such as Peons and clerks.
3. Private trade of the company was abolished completely

Judiciary Reforms

1. Cornwallis established courts in the districts, provinces and

states. The highest court was the Supreme Court of Calcutta.
2. There were separate courts for civil and criminal cases.
3. Cornwallis abolished court fees and then lawyers were to
prescribe their fees.
4. Government servants could be sued by people for their mistakes.
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5. He also banned torturous punishments like the chopping off of

limbs, nose and ears.

Police Reforms

1. He took the control of the police from the hands of the landlords
to the District Superintendent of Police.
2. He established thanas to maintain law and order.
3. In 1789, he proclaimed that people practising slavery would be
prosecuted by law.

Lord Cornwallis died of an illness at Ghazipur in 1805 and was

buried there.

12. Writ of Habeas corpus.

Ans. Writs are a written order from the Supreme Court or High Court
that commands constitutional remedies for Indian Citizens against the
violation of their fundamental rights. 32 and Article 226 in the
Indian Constitution deals with constitutional remedies that an Indian
citizen can seek from the Supreme Court of India and High Courts
respectively against the violation of his/her fundamental rights.
The Indian Constitution provides 5 types of writs which can be issued
by the Courts. They are:

1. Habeas Corpus
2. Mandamus
3. Certiorari
4. Quo Warranto
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5. Prohibition

The Writ of Habeas Corpus is issued by the Courts in those cases

where a person is illegally detained. Habeas Corpus means ‘to have
the body’ and it is one of the most effective remedies available to a
person detained.

By this Writ, the Court commands the person or authority who has
detained or restrained another person to present such person before
the Court. The Court requires the detaining person to provide the
grounds on which the person has been detained and if he fails to
provide a valid ground, the person who has been detained will be
released by the Court immediately.

Illustration: A is wrongfully detained by B, a police officer. A writes

to the High Court regarding the same. The High Court summons B
with A and asks the grounds for detaining A. If B fails to provide a
valid ground or justification for A’s detention, A will be free to go.

This Writ is very important for the personal liberty of the citizens
because if this Writ is not provided by the Constitution a person can
be unlawfully restrained or detained by any authority and it will be a
clear violation of the personal liberty of the citizens.

The Writ of Habeas Corpus is issued by the Courts in those cases

where a person is illegally detained. Habeas Corpus means ‘to have
the body’ and it is one of the most effective remedies available to a
person detained.

By this Writ, the Court commands the person or authority who has
detained or restrained another person to present such person before
the Court. The Court requires the detaining person to provide the
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grounds on which the person has been detained and if he fails to

provide a valid ground, the person who has been detained will be
released by the Court immediately.

Illustration: A is wrongfully detained by B, a police officer. A writes

to the High Court regarding the same. The High Court summons B
with A and asks the grounds for detaining A. If B fails to provide a
valid ground or justification for A’s detention, A will be free to go.
This Writ is very important for the personal liberty of the citizens

Habeas Corpus can be issued in following example cases:

 When the person is detained and not produced before the magistrate
within 24 hours
 When the person is arrested without any violation of a law.
 When a person is arrested under a law which is unconstitutional
 When detention is done to harm the person or is malafide.

A general rule of filing the petition is that a person whose right has
been infringed must file a petition. But Habeas corpus is an exception
and anybody on behalf of the detainee can file a petition. Habeas
corpus writ is applicable to preventive detention also. This writ can be
issued against both public authorities as well as individuals.

Case law Sunil Batra v. Delhi Administration:

In this case the Supreme Court had accepted the application made
through a letter by a co-convict (a stranger) due to the inhuman
treatment of prisoners. In this case, the letter was accepted as an
application and the writ of Habeas Corpus was issued.

Mandamus
Ans. Mandamus means “we command”. This writ is a command
issued by court to a public official, public body, corporation, inferior
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court, tribunal or government asking them to perform their duties

which they have refused to perform. Due to this, Mandamus is called
a “wakening call” and it awakes the sleeping authorities to perform
their duty. Mandamus thus demands an activity and sets the authority
in action.
Case law : Bhopal Sugar Industries Ltd. v. Income Tax Officer,
Bhopal
In this case the Income Tax Appellate Tribunal had given clear
directions to the respondent Income Tax Officer by its final order.
The Income Tax Officer had still refused to carry out the directions
given by the Tribunal. It was held by the Supreme Court that the
Income Tax officer had a mandatory duty to fulfill the directions
given by the Tribunal and non-performance of which amounted to
grave injustice. Thus, the Writ of Mandamus was issued to direct the
officer to carry out the directions of the Tribunal.
Mandamus cannot be issued against the following:
 a private individual or private body.
 if the duty in question is discretionary and not mandatory.
 against president or governors of state
 against a working chief justice
 to enforce some kind of private contract.
A petition for writ of mandamus can be filed by any
person who seeks a legal duty to be performed by a person or a body.
Such a filing person must have real or special interest in the subject
matter and must have legal right to do so.

Certiorari
Ans.Certiorari is a different type of writ when compared with other
Writs. This Writ is corrective in nature which means the purpose of
this Writ is to correct an error which is apparent on the records.
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Certiorari is a Writ which is issued by a superior court to

an inferior court. This can be issued when the superior court wants to
decide a matter in the case itself or if there is an excess of jurisdiction
by the inferior court. This Writ can also be issued when there is a
fundamental error in the procedure followed by the inferior court or if
there is a violation of the principles of natural justice.

If the superior court finds out that there has been a violation
of natural justice or a fundamental error on the procedure adopted, it
can quash the order of that inferior court.

Illustration: There is a case in the District Court and the court has no
jurisdiction to decide such cases. Still, the District Court Judge tries
the case and gives his decision and an application is made by A (the
aggrieved party by such decision) to the High Court. Hereby the
power of issuing Writs, the High Court will issue a Writ of Certiorari
on the order of the District Court, as a result, the order of the District
Court will be quashed.

Important Conditions for Certiorari

1. The body or person has legal authority.

2. Such authority is related to determining those questions which
affect the rights of the people.
3. Such a body or person has a duty to act judicially in doing its
functions.
4. Such a person or body has acted in excess of their jurisdiction
or legal authority.

The Writ of Certiorari lies against those bodies which are

judicial or quasi-judicial in nature. Thus, when anybody or a
person is performing a judicial act, their acts can be subjected
to the Writ of Certiorari.
24

The Writ of Certiorari lies against those bodies which are

judicial or quasi-judicial in nature. Thus, when anybody or a
person is performing a judicial act, their acts can be subjected
to the Writ of Certiorari.

Quo warranto
Ans.The Writ of Quo Warranto is issued by the courts against a
private person when he assumes an office on which he has no right.
Quo Warranto literally means ‘by what authority’ and it is an
effective measure to prevent people from taking over public offices.

Illustration: A who is a private citizen and has no qualifications for

the post of sub-inspector assumes such office. Here a Writ of Quo
Warranto can be issued against A to call into question his authority on
which he has taken the control of the office of sub-inspector.

The power to issue this Writ is discretionary on the courts and

therefore nobody can demand that the court is bound to issue this writ.

Conditions for issuing Quo Warranto

The Writ can be issued only when these conditions are fulfilled:

1. The office which has been wrongfully assumed by the private

person is a public office.
2. The office was created by the Constitution or by any other
statute.
3. The nature of the duties which arises from this office is
public.
4. The term of the office must be of a permanent nature and it
should not be terminable at any person or authority’s
pleasure.
25

5. The person against whom the Writ is sought to be issued is in

actual possession of the office and is using such office.
6. This Writ can also be issued in those cases where a person
was entitled to hold the office earlier but after getting
disqualified he is still in possession of the office.
7. Thus in cases where the office is of private nature, this Writ
cannot be issued by the Court. This view was held by the
court in the case of Niranjan Kumar Goenka v. The
University of Bihar, Muzzfarpur, in which the court observed
that the Writ of Quo Warranto cannot be issued against a
person who is not holding a public office.

Prohibition

Ans.The last Writ which can be issued under the Constitution is the
Writ of Prohibition. This Writ is not issued often and is an
extraordinary remedy which a Superior Court issues to an inferior
court or tribunal for stopping them from deciding a case because these
courts do not have the jurisdiction.

If the court or tribunals does not have jurisdiction and it

still decides the case, it will be an invalid judgement because for an
act to be legal it should have the sanction of law.

For e.g., if a District Court is hearing an appeal against the

judgement of the High Court, such an act is bound to be prohibited
because the District Court does not have the power to hear such an
appeal. So, a Writ of Prohibition will be issued against such an act of
District Court.

Rules of Writ of Prohibition

The Writ can be issued only when:

26

1. The inferior court or tribunal has overstepped its jurisdiction

2. The court or tribunal is acting against the provisions of law
3. In cases where the court is partly acting within its jurisdiction
and partly outside it, the Writ will be issued against the act
which is partly outside its jurisdiction.
4. The fact that the applicant has a right to appeal against the
order of the inferior court will not be a bar to issue this Writ.
5. This Writ can be issued only when the proceedings are
pending in the inferior court and not when an order has
already been passed by that court..
6. The Writ of Prohibition can be issued only against a judicial
or a quasi-judicial body and it cannot be issued against any
administrative body.

Difference between Prohibition and Certiorari

Both the Writs Certiorari and Prohibition appear to be the same but
there is one major difference between the two. In the Writ of
Prohibition, the superior court issues the writ before the final order is
passed by the inferior court and therefore this is a preventive remedy,
while in Writ of Certiorari the superior court issues the Writ after the
inferior court has made the final order. Thus the Writ of Certiorari is a
corrective remedy by which the order of the inferior court is quashed.

13.PIL ( Public Interest Litigation )

Ans. PIL is different from the usual method of litigation. Locus standi
is mandatory in traditional litigation, but a genuine interest or
legitimate concern about the issues of the public will act as a
substitute for local standi in a PIL.
27

Locus Standi means the legal capacity to sue or approach courts.

In usual method of litigation, the parties approaching the courts must
have been aggrieved or deprived of their rights. Thus, in any legal
process, the existence of locus standi is necessary.

` Locus standi is relaxed and made flexible in a

Public Interest Litigation to expand the scope of litigation by
considering the rights and issues of the marginalized and
underprivileged.

Constitutional provisions
A citizen can avail of Article 32 only if there is a violation
of a fundamental right. However, Article 226 is available not only for
the enforcement of fundamental rights but also for other purposes.
Therefore, the power under Article 32 is more restricted than the
powers under Article 226.

So, citizens can file a PIL before the Supreme Court under
Article 32 or before the High Court under Article 226. The aggrieved
party need not appear before the court to enforce the right under
Article 32. The court has the power to suo motu take cognizance in
any matter and proceed with it. Moreover, the courts also have the
power to treat any case with private interest as a publicly interesting
case.

Important cases relating to PIL in India

 Vishaka v State of Rajasthan

This case played a crucial role in influencing the Parliament to enact

the Sexual Harassment at Workplace Ac, 2013. In this case, a social
activist was gang-raped for vengeance. All the accused were acquitted
by the trial court. The state applied for a petition to the Supreme court
28

under the name Vishaka. The court laid down the guidelines to follow
in workplaces to prevent sexual harassment.

.Hussainara Khatoon v State of Bihar

This case dealt with the harsh conditions of prisons and under trial
prisoners. An advocate filed a petition under Article 32 describing the
poor condition of undertrial prisoners and their inability to safeguard
their personal liberties. The court held that the right to a speedy trial is
a part of the right to life under Article 21.

13. Law reforms in British India.

Ans. Law reform or legal reform is the process of analysing current
laws and advocating and carrying out changes in a legal system,
usually with the aim of enhancing justice or efficiency.
The common law system means a system of law based on
recorded judicial precedents- came to India with the British East India
Company. The company was granted charter by King George I in
1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta .

Following the First War of Independence in 1857, the

control of company territories in India passed to the British Crown.
Being part of the empire saw the next big shift in the Indian legal
system. Supreme courts were established replacing the existing
mayoral courts. These courts were converted to the first High Courts
through letters of patents authorized by the Indian High Courts Act
passed by the British parliament in 1862.

During the Raj, the Privy Council acted as the highest court of
appeal. Cases before the council were adjudicated by the law lords of
the House of Lords. The state sued and was sued in the name of the
British sovereign in her capacity as Empress of India.
29

. The doors of the newly created Supreme Courts were

barred to Indian practitioners as right of audience was limited to
members of English, Irish and Scottish professional bodies.
Coding of law also began in earnest with the forming of
the first Law Commission. Under the stewardship of its chairman,
Thomas Babington Macaulay, the Indian Penal Code was drafted,
enacted and brought into force by 1862. The Code of Criminal
Procedure was also drafted by the same commission. Host of other
statutes and codes like Evidence Act (1872) and Contracts Act (1872).

14. Enrolment of Advocates.

Ans. Enrolment of advocates means eligible persons are admitted
as advocates on the rolls of the State Bar Councils. The Advocates
Act, 1961 empowers State Bar Councils to frame their own rules
regarding enrolment of advocates

 . Qualification required:

The person must be a citizen of India. Any other nationals can

be appointed as an advocate on a State basis if the following
grounds are fulfilled:

 Has to be an Indian citizen.

 Should be qualified as per requirement.
 Has been granted permission to carry on legal practice in any
other country.
 Should be subjected to necessary restrictions that are required
and as provided.
 The person should be more or equal to the age of twenty-one
years but should not be less than that.
 A degree in law has been obtained from any university
recognised under the Bar Council of India. If the national hails
30

from some other country then a degree in law in the foreign

university will suffice provided the degree is recognised in India
under the Act by the Bar Council of India.

.Advocates Enrolment

Currently, any individual can be enrolled as an advocate under the

State Bar Council if he or she has necessarily appeared in the
examination held by the Bar Council of India and have thereby
cleared the same. As the Advocates Act, 1961 have mentioned, the
States are provided with the flexibility to frame their own regulations
for the enrolment of an advocate in the council. The committee that is
formed to look after the procedure of enrolment is provided with the
authority to carry out scrutiny of the applications submitted by the
candidates those have applied for the examination.

An enrolment fee needs to be paid according to the

provision of Section 24(1)(f) of the Advocates Act, 1961 of an amount
of Rs.600 to the respective State Bar Council and an amount of Rs
150 is to be deposited to the Bar Council of India. Separate demand
drafts are to be used for the mode of payment of these amounts to the
different councils. Although different states have been provided with
the freedom to set their own rules, the majority of the States ask the
candidate to provide with certain requirements which are:

 Application along with the showcasing of the law degree

obtained from a university which follows the parameters
laid down by the council.
 Marksheets of the degree need to be provided as well.
 Judicial Stamp papers.
 Fees as having been mentioned to be provided with.
31

The candidates who are eligible are appointed as advocates

of State Bar Councils on its role

15. Judicial System under Charter of 1753

Ans. The judicial system of 1753 was too much executive ridden. The
judges of the mayor’s court were the nominees of the Government
and also most of them used to be junior servants of the Company who
began their Indian career without any special training. The court could
not adopt an impartial attitude since the governor and the council
were constantly attached to the court.
Moreover the company’s servants themselves carried on their
own private trade and a number of cases thus arose between them and
the Indians with whom they entered into various transactions. There
existed a professional brotherhood between the judges and the
company’s servants. The criminal judicature also suffered from a
similar weakness.
. Another weakness arose from the lack of adequate
knowledge on the part of the judges. Their knowledge of the English
law was confined to the legal materials which the company had sent
along with the charter, and the remarks made by the company’s
lawyers from time to time after perusing their records. The
arrangements made of administering civil justice to the Indians were
poor and inefficient.
A major defect of the English law at the time was its
emphasis on capital sentences. It treated a large number of offences as
felonies and hence capital punishments.. Neither the Hindu law nor
the Muslim law was as severe as the English law at the time.
32

Being immune from any judicial process, the

Englishmen in the interior of Bengal, beyond Calcutta, felt free to
indulge in all NOTES BY VAIJAYANTI BANERJEE kinds of
objectionable activities . In 1772 House of Commons appointed a
committee of secrecy to check the affairs of the east India Company.
The committee in its 7th report gave adverse report regarding Calcutta
Judicial system. The reportr stated that Mayors court behaved as they
wish in all the cases without following English law. As a result of
criticism, Supreme Court was established at the Calcutta in the year
1774

16.Muffasil Fouzdari Adalat

Ans. The common law, i.e., unwritten legal doctrines embodying
English customs and English traditions developed over the centuries
by English courts was in the beginning applied to the areas which
later became the Presidency towns of Calcutta and Bombay.
Common Law In Mufassil : Then the common law trickled down to
Mufassil.
Between 1686 and 1694 the Company purchased certain villages in
Bengal with the consent of Nawab of Bengal and acquired the status
of a Zamindar in regard to those villages. As the Zamindar the
Company held Zamindar's courts exercising both civil and criminal
jurisdiction.
These courts derive their authority from the Mughals, as
the Company held this Zamindari from them. The law administered
and the procedure followed in these courts were similar to those in the
courts where other Zamindars exercised the jurisdiction. There was a
rise of the factories at Bombay, Madras and Calcutta, which in course
of
33

Under the Judicial Plan of 1774, the supervision of the

Collector on the working of the Mofussil Fouzdari Adalats and that of
the Governor and Council over the Sadar Fouzdari Adalat, came to an
end. Now Sadar Fouzdari Adalat was shifted from Calcutta to
Murshidabad and placed under the supervision and control of the
Nawab. A new office of Haib Nazim was created who controlled the
working of the Sadar Nizamat Adalat on behalf of the Nawab.
Mohammad Raza Khan was appointed as Naib-Nazim.
17. Act of settlement 1781.
Ans..The basic and fundamental aim of this Act was to establish a
new system of Courts to remove the grievances against the Supreme
Court and the failure of the Regulating Act’s aim of controlling
administration through Judiciary
Reasons for passing of Act of Settlement 1781:-
 Some issues arose with the Administration of Warren Hastings ,

which led to a lot of discontent and criticisms amongst people.

Some of the examples of such issues are :- Patna

Case , Cossijurah Case , Nand Kumar Case and so on

There was a huge rift between the Supreme Court and

Governor-General in Council which imbalanced the
Administration to a certain extent.
 Agitation by the people since there was an interference by the
Government in personal laws of the communities.

Features of the Act of Settlement 1781

 The Governor-General and Council were exempted from the

Jurisdiction of the Supreme Court for the acts done in official

way.
34

 It excluded the matters related to revenue from the Jurisdiction

of the Supreme Court.
 It even exempted the servants of the company from the

Jurisdiction of the Supreme Court for their Official actions.

 It provided that the Supreme Court should have the Jurisdiction

over all the Inhabitants. It also asked the Court to administer the
personal law of the “Defendants”.
 It laid down that the appeals from the Provincial Courts could be

taken to the Governor-General-In Council but not to the

Supreme Court.
 It basically empowered the Governor-General-In-Council to

frame Rules and Regulations for the Provincial Courts and

Councils.
The above saying proves , that the “Act of settlement 1781” was the
first attempt in India towards the Separation of the Executive from
the Judiciary by defining the respective areas of Jurisdiction.

18. The Courts of Munisif

Ans. District Munisif Court (alternate spelling District Munsif Court)
is the court of the lowest order handling matters pertaining to civil
matters in the district. Usually, it is controlled by the District Courts
of the respective district.
The District Munsif Court is authorised to try matters
pertaining to certain pecuniary limits. The State Government notifies
the pecuniary limits for the District Munsiff Courts. It is under the
charge of a munsiff magistrate/judicial collector.
The appeal against these courts lies before the Subordinate
Courts which are one rank superior to the District Munsiff Courts but
are inferior to the District court. The State Government prescribes the
territorial jurisdiction of the District Munsiff Court. What is the
pecuniary Jurisdiction of munsiff court;
35

These Courts exercised civil jurisdiction within its territorial

limits. The pecuniary jurisdiction of the District Courts was upto the
value of Rs. 10,000/-.
The district is further divided into subdivisions; each
subdivision has an in-charge tax inspector and Registrar magistrate.
The munsiff magistrate is the judge and presiding officer of the
District who keep charge of all tax inspectors (tehsildars).
Enforcement is of the law of 1982 CrPc.

19. Justice , equity,and good conscience

Ans. Justice, equity and good conscience have generally been
interpreted as English laws and rules that are applied when any
written law is not applicable to a legal matter. The court also uses
'Justice, Equity and Good Conscience' in the absence of Hindu law in
matters relating to personal laws.
In India, the doctrine of ‘justice, equity and good conscience’ dates
back to the late eighteenth century when introduced, for the first time,
in the presidencies of Bengal, Bombay and Madras. The general idea
behind this doctrine was that on a particular point of dispute before
the Court if there was no express law, then the Court was to decide
the matter according to ‘justice, equity and good conscience.’
The doctrine owes its existence to the reason that in the 18th and
19th century’s law could not be found on each and every matter, as
the history itself reveals. So there was a huge vacuum in the legal
system and the Courts were to act according to ‘justice, equity and
good conscience.’ he doctrine was later on introduced in the other
territories of India also.
However in applying the English law, the touchstone which
always remained there was whether it was applicable to the Indian
36

situation. We can also say that this doctrine, in a way, acted as a

means to incorporate the English law.
In India we do not have, nor did we ever had separate courts (as
in England) administering ‘equity’. But the equitable principles of
law, i.e., justice, equity and good conscience, are the guiding force
behind most of the statutes in our country and the decisions of the
courts.
However the importance of the concept has somewhat
diminished than what it was in the 19th century. The diminishing
effect owes its reason to the fact that the bulk of Indian law is now
codified. That most of the law which came prievously under the
doctrine of ‘justice, equity and good conscience’ has been codified by
the India.

20. First Law Commission

Ans. Law Commission of India is neither a constitutional body
nor a statutory body, it is an executive body established by an
order of the Government of India. Its major function is to work
for legal reforms.
The Commission is established for a fixed tenure and
works as an advisory body to the Ministry of Law and Justice.Its
membership primarily comprises of legal experts.
History of Law Commission in India

The first such Commission was established in 1834 under

the Charter Act of 1833 under the Chairmanship of Lord
Macaulay which recommended codification of the Penal
Code and the Criminal Procedure Code.
Thereafter, the second, third and fourth Law
Commissions were constituted in 1853, 1861 and 1879
37

respectively . The Indian Code of Civil Procedure, the Indian

Contract Act, the Indian Evidence Act, the Transfer of
Property Act. etc. are products of the first four Law
Commissions.
Post-Independence Developments

After independence, the Government of India established the First

Law Commission of Independent India in 1955 with the then
Attorney-General of India, Mr M. C. Setalvad, as its Chairman.
Since then twenty one more Law Commissions have been
appointed, each with a three-year term.
The Functions of Law commission

o The Law Commission, on a reference made to it by the

Central Government or suo-motu, undertakes research in law
and review of existing laws in India for making reforms
therein and enacting new legislations., speedy disposal of
cases, reduction in the cost of litigation etc.
The other functions of the Law Commission include:
 Review/Repeal of obsolete laws: Identification of laws
which are no longer relevant and recommending for the
repeal of obsolete and unnecessary enactments.
 Law and Poverty: Examines the Laws which affect the
poor and carries out post-audit for socio-economic
legislations.
 Research: Considering the requests for providing research
to any foreign countries as may be referred to it by the
Government through the Ministry of Law & Justice
(Department of Legal Affairs).
 Examine the existing laws with a view of promoting gender
equality and suggesting amendments thereto.
38

 Examine the impact of globalization on food security,

unemployment and recommend measures for the protection
of the interests of the marginalized.
 Performing such other functions as may be assigned to it by
the Central Government from time to time.
The recommendations of the commission are not binding
on the government. They may be accepted or rejected. Action on
the said recommendations depends on the ministries/departments,
which are concerned with the subject matter of the
recommendations.

21. Admiralty court

Ans An admiralty court is a tribunal with jurisdiction over maritime
law, including cases regarding shipping, ocean, and sea laws.
Historically, admiralty courts were a separate part of the court system.
To deal with the increase in Crime of piracy on the high seas
they required a court of admiralty.
Functions of the Admiralty court:

In 1686, this court was established in madras by the charter of 1683

headed by the judge advocate. It consisted of one person learned in
civil law and two merchants appointed by the company. The court
decided,

 All cases of merchantile or maritime nature

 Trespass, injuries and wrongs committed on the high seas
 Forfeiture and seizure of ships or goods.
39

This court applied the rules of equity, good conscience and

the laws and customs of merchants. When it was established , John
grey was appointed as judge of the court.
In 1687, Sir John Biggs, a professional lawyer was
appointed as judge advocate( chief justice). This court became the
general court of the city for all practical purposes in setting all civil
and criminal cases.

In certain cases, the appeals from Mayors court were also

heard by the admiralty court. This court functioned till 1704.

Merits:
Here, the executive functions were carried out by the governor in
council and judicial functions by the court of Admiralty. So, the
separation of executive and judiciary was maintained.

Before the establishment of this court the judges were mostly

laymen and decided cases based on their common sense but after the
establishment of admiralty court, the judges and lawyers were mostly
professionals.

22. Second Law Commission:

Ans.Under the provisions of the Charter Act of 1853, the second Law
commission was appointed in England on 29th Nov. 1853. The
second Law commission was composed of the following persons - Sir
Edward Rayan, Robert Lowe, Lord Sherbooke, V.H. Cameron, J.M.
MacLeod and T.F. Ellis.

Task Assigned to second Law commission: The task entrusted to the

commission was to examine and consider the recommendations of the
first Law commission and enactments proposed by it, for the reform
40

of the judicial establishment's, judicial procedure and laws of India.

The life of the second Law commission was fixed for three years,
which was to expire in 1856. Section 28 of the Charter Act, 1853
authorised Her Majesty to direct the commission to submit reports on
these Matters and every such report was to be submitted within a
period of three years after the passing of this Act.

Reports: The second Law commission submitted four reports to the

Indian Government.

The first report was submitted in 1855, second, third and fourth
reports were submitted in 1856.

First Report: In the first report, the commission submitted a plan for
reforms in judiciary and in courts procedure.

Second Report: In its Second report the commission agreed with the
lex-loci report of the first Law commission. It suggested that there
must be a substantive civil law for persons in the mofussil who had no
law of their own.

The second Law commission expressed the firm view that

no attempt should be made to codify the personal laws of the Hindus
and Mohammedans - because any such attempt “might tend to
obstruct rather than promote the gradual process of improvement in
the state of population”.

Third and Fourth Report: In these two reports, the commission

submitted a plan for the amalgamation of the Supreme Court and
Sadar courts and a uniform civil code of civil and criminal procedure
applicable both to the High Court's to be formed by that
amalgamation.
 41

Achievements of the second Law commission: The

recommendations of the commission resulted in important
legislation’s e.g.

 The penal code proposed by Macaulay was taken up, revised 0and
finally passed in the year, 1860;

 ii. Codes of civil procedure and criminal procedure were passed in

the year 1859 and 1861 respectively;

 The draft on the law of Limitation as submitted by the first Law

commission was also taken up and passed into law in 1859;

23. Seperation powers

Ans. . Separation of powers is a doctrine of constitutional law

under which the three branches of government (executive, legislative,
and judicial) are kept separate. This is also known as the system
of checks and balances, because each branch is given certain powers
so as to check and balance the other branches.
Each branch has separate powers, and generally each branch is not
allowed to exercise the powers of the other branches.
, f
Features of Seperation powers

1. Each organ should have different persons in capacity, i.e., a

person with a function in one organ should not be a part of
another organ.
2. One organ should not interfere in the functioning of the other
organs.
3. One organ should not exercise a function of another organ (they
should stick to their mandate only).
42

Purpose of this doctrine :

Whenever there is a concentration of power in one
centre/authority, there is bound to be greater chances of
maladministration, corruption, nepotism and abuse of power.
This principle ensures that autocracy does not creep into a
democratic system. It protects citizens from arbitrary rule.
Merits of this doctrine :

1. Keeps away autocracy

2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or
unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of
the Constitution, although not specifically mentioned. The legislature
cannot pass a law violating this principle. The functions of the three
organs are specifically mentioned in the Constitution.

24. Independence of judiciary

Ans. Judicial independence is the concept that the judiciary

should be independent from the other branches of
government. That is, courts should not be subject to improper
influence from the other branches of government or from private
or partisan interests.

An independent and impartial judiciary can establish a stable

rule of law. Independence of judiciary means, the power of
upholding the rule of law, without any fear or external influence,
43

and maintaining effective control over the actions of the

government. The independence of the judiciary is part of the
basic structure of the Constitution. The independence of the
judiciary ensures that the powers of the Parliament, the State
legislature, and the Executive, are properly distributed and there
is a balance between the demands of the individuals and norms of
the society. The legal system does not have any ideology and
political interests and is often rendered neutral.

Few case laws which explain the concept of independence of the

Indian Judiciary

In the case of S.P Gupta v Union of India (1982), the court held
that the judges should be fearless and should uphold the principle
of rule of law. This is the basis of the concept of independence of
the judiciary.

In the case of Supreme Court Advocates-on-Record Association

& Anr. Vs Union of India (1993), the court observed that the
independence of the judiciary is necessary for democracy to
function effectively. The court further concluded by stating the
powers and rights can never be hampered as long as the judiciary
remains independent from the executive and the legislature.

25.Indian council ACT 1861

Ans. The Indian Councils Act of 1861 was passed by the British
Parliament on August 1, 1861. It changed the composition of the
Governor General's council for administrative and legislative
purposes. The most remarkable component of this Act was Indian
participation in the legislative process
44

The Indian Councils Act (1861) - Historical Background

 After the great revolt of 1857, the British Empire felt the urgent
need of seeking the cooperation of its Indian subjects in the
administration of India.

The Indian Councils Act (1861) - Reasons For Enactment

 The Government of India Act of 1858 made important changes

in the manner of governance from England, but it made no
significant changes to the Indian government system.
 Following the 1857 Mutiny, there was a widespread belief in
England that establishing a government in India without the
participation of Indians in the administration would be
extremely impossible.etc

The Indian Councils Act (1861) - Provisions

 The trend of decentralization was initiated by this act, which

restored the legislative powers of the Bombay and Madras
presidencies.
 Thus, the centralising trends that began with the Regulating Act
of 1773 and culminated with the Charter Act of 1833 were
reversed.
 By associating Indians with the law-making process, a new
beginning was made for representative institutions.
 Providing for the provision of the Viceroy nominating some
Indian members to his extended council.
 Subsequently, three Indians were included in this 1862
Legislative Council - the Raja of Benaras, the Maharaja of
Patiala and Sir Dinkar Rao.
 It provided for the establishment of the legislative councils for
Bengal, North-Western Frontier Province and Punjab.
 45

 It empowered the Viceroy to make rules and orders for a better

and more convenient transaction of business in the council. etc

The Indian Councils Act (1861) - Defects

 The Legislative Council had a limited role. It was mainly

advisory. No financial decisions were allowed.
 Although the Indians were elected, there were no official
conditions for the inclusion of Indians in them.
 The Governor-General had absolute power.

Conclusion
The Indian Councils Act 1861 is an important landmark in the
constitutional and political history of India. It altered the composition
of the Governor General's council for executive and legislative
purposes. The involvement of Indians in the legislative process was
the most notable feature of this Act.

26.Principles OF Ancient Indian sytem

Ans. In India during the earlier period, people live in small groups. The
heads of these groups or tribes delivered justice under open sky before all
the members. Open arguments were made. There were no specialist like a
lawyer during those days.

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
46

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.

Judicial Procedure – In ancient times, judicial procedure was

very elaborate, much like today.
According to Brihaspati, suit on trial consisted of 4 stages

 Filing of plaint
 Reply to the plaint

 Trial & investigation

 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.

Institution of lawyers – We don’t have direct reference from any

ancient text that whether any institution of lawyers was present or not.
But some Scholars wrote there were legal experts .
47

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.

7. Punishment – Punishment was sort of expiation which removed

impurities from a man of sinful promptness and reformed his
character such as

 Gentle admonition
 Severe reprove
 Fine
 Corporeal punishment

Conclusion
The Constitution of India has sought to create a more equal and just
rule of law between individuals and groups than what existed under
traditional authorities in ancient India.
48

Part---B
1.Explain the Administration of Justice in Madras Presidency
Ans. Under the provisions of the Charter of 1683 a new court was
established in Madras on 10 July 1686. It was called the admiralty
court. The company sent the qualified lawyer in July 1687.
The charter of 1726 provided for the establishment of
uniform judicial institutions for the first time in the three
presidencies. The charter established similar civil and criminal
courts in all the three presidency towns. They derived their
authority not from the company but from the king, the fountain of
Engish justice.
In Madras the charter of 1726 was put into operation
on 17 August 1727. In terms of the charter, the Mayor’s court was
re-constituted. The Mayor and nine Aldermen were to be a curt of
record by the name of the Mayor’s court of Madraspatnam. or
within any of the factories subject or subordinate into Fort
49

St.George.16 The charter of 1753 also created a new curt called the
court of requests, at each presidency town. It was to decide
cheaply, summarily and quickly the claims of value less than five
pagodas (Rs.15) to help the poor litigants who were mostly
Indians.
The charters of 1726 and 1753 introduced technicalities
of English law and procedure and forms of English judicature in
the presidency towns. But the system of 1753 was not without
defects. Recorder’s Court at Madras is an attempt to remedy to this
defect, atleast partially, the British parliament enacted an Act in
1797. It authorized the crown to issue charters to establish a
recorders’ court at Madras and Bombay. King Geroge III issued a
charter on 20 February 1798 authorizing the company to establish
recorder’s court at Madras. The recorder’s court at Madras started
functioning in November 1798.
It consisted of the Mayor, three Aldermen and a
recorder. The recorder was to be appointed by the king. He was
required to be a Barrister of England or Ireland of not less than five
years standing. He was to be the president of the court. The
jurisdiction of the court was extended to civil, criminal,
ecclesiastical and admiralty cases. All British subjects-residents
within the British territories as well as those residing in the
territories of native princes in alliance with the government were
brought under the jurisdiction of the court.
The recorder’s court absorbed into itself the Mayor’s court
existing under the charter of 1753. The fist recorder at Madras was
Thomas Andrew strange. The position of the recorder was next to
the governor. The British parliament entertained a view that the
judiciary should be separated from the executive in India. It also
wanted to extend the judicial system of Bengal to Madras and
Bombay with the Supreme court as the central court.
50

The parliament still held the view that judicial administration

in India should be served for the British crown. Under these
circumstances, the Recorder’s court had a very brief period of
existence. The British Parliament passed the Government of India
Act (39 and 40 Geo III 79) in 1800 empowering the King to
establish, by the issue of a charter, a supreme court at Fort
St.George.
The king, by letters patent issued on the 26th December
1800, abolished the recorder’s court and authorized the erection of
the supreme court at Madras. It came into being on the 4th
September 1801. Sir Thomas Andre Strange, who was already
working previously as the recorder, was appointed its first Chief
Justice. The two other puisne ( ordinay judge or judge of lower
rank ) judges were Sir Henry Gwillim and Bejamin Sullivan.

2.Explain the important features of the Government of India

Act , 1935 and its impact on the constitution of India.
Or
Discuss the provisions regarding All India Federation under
Govt .of Inida Act 1935
Ans. Government of India Act 1935 was passed and Government of
Burma Act 1935.
The Government of India Act 1935 derived
material from four key sources viz. Report of the Simon Commission,
discussions at the Third Round Table Conference, the White Paper of
1933 and the reports of the Joint select committees.

Features of the Act :

51

Provincial autonomy : The Act gave more autonomy to the by

British Parliament in August 1935. With 321 sections and 10
schedules, this was the longest act passed by British Parliament so far
and was later split into two parts viz. Government of India Act 1935
provinces.

 Diarchy was abolished at the provincial levels.

 The Governor was the head of the executive.
 There was a Council of Ministers to advise him. The ministers
were responsible to the provincial legislatures who controlled
them. The legislature could also remove the ministers.
 However, the governors still retained special reserve powers.
 The British authorities could still suspend a provincial
government.

Diarchy at the centre

 The subjects under the Federal List were divided into two:
Reserved and Transferred.
 The reserved subjects were controlled by the Governor-General
who administered them with the help of three counsellors
appointed by him. They were not responsible to the legislature.
These subjects included defence, ecclesiastical affairs (church-
related), external affairs, press, police, taxation, justice, power
resources and tribal affairs.
 The transferred subjects were administered by the Governor-
General with his Council of Ministers (not more than 10). The
Council had to act in confidence with the legislature. The
subjects in this list included local government, forests,
education, health, etc.
 However, the Governor-General had ‘special powers’ to
interfere in the transferred subjects also.
52

Bicameral legislature

 A bicameral federal legislature would be established.

 The two houses were the Federal Assembly (lower house) and
the Council of States (upper house).
 The federal assembly had a term of five years.
 Both houses had representatives from the princely states also.
The representatives of the princely states were to be nominated
by the rulers and not elected. The representatives of British
India were to be elected. Some were to be nominated by the
Governor-General.
 There were to be separate electorates for the minority
communities, women and the depressed classes.

 Bicameral legislatures were introduced in some provinces also

like Bengal, Madras, Bombay, Bihar, Assam and the United
Provinces.

Federal court

 A federal court was established at Delhi for the resolution of

disputes between provinces and also between the centre and the
provinces.
 It was to have 1 Chief Justice and not more than 6 judges.

Indian Council

 The Indian Council was abolished.

 The Secretary of State for India would instead have a team of
advisors.

Franchise

 This Act introduced direct elections in India for the first time.
53

Reorganisation

 Sindh was carved out of Bombay Presidency.

 Bihar and Orissa were split.
 Burma was severed off from India.
 Aden was also separated from India and made into a Crown
colony.

Other points

 The British Parliament retained its supremacy over the Indian

legislatures both provincial and federal.
 A Federal Railway Authority was set up to control Indian
railways.
 The act provided for the establishment of Reserve Bank of
India.
 The Act also provided for the establishment of federal,
provincial and joint Public Service Commissions.
 The Act was a milestone in the development of a responsible
constitutional government in India.
 The Government of India Act 1935 was replaced by the
Constitution of India after independence.
 The Indian leaders were not enthusiastic about the Act since
despite granting provincial autonomy the governors and the
viceroy had considerable ‘special powers’.
 Separate communal electorates were a measure through which
the British wanted to ensure the Congress Party could never rule
on its own. It was also a way to keep the people divided

Conclusion : This act ended the system of dyarchy introduced by

GOI Act 1919 and provided for establishment of a Federation of
India to be made up of provinces of British India and some or all of
 54

the Princely states. However, the federation never came into being as
the required number of princely states did not join

3.Criticaly comment on the legislative authority under the rule of

East India Company.
Ans. The origins of the British Empire in India lie in the East India
Company, which in the 17th century established successful trading
posts on the Indian coast at Surat, Bombay, Madras and Calcutta.
Parliament had to determine its relationship with this private trading
company once it became a territorial and political power in India,
arising from its military victories at Plassey (1757) and Buxar (1764),
which gave it control of the revenue of the Indian states of Bengal,
Bihar and Orissa.

Financial crisis

The Company was badly administered, with corruption among its

officials in Britain and India.

In 1772 it was engulfed by a financial crisis, and the British

government was forced to intervene. Parliament had already
established a number of committees charged with examining the state
of the Company's affairs and the activities of its servants in India.

The committees' reports severely criticised the East India Company

and in 1773 its affairs were debated in Parliament. The Prime
Minister, Lord North, maintained that Company territory would be
"better administered by the Crown that is so ill-administered by
Directors incapable of governing it".
 55

Parliament steps in

The resulting new laws - the East India Company Loan Act and the
East India Company Regulating Act - made it possible for the
government to extend a loan to the Company in exchange for
recognition of the British state's ultimate authority over the Indian
territories.

It leased to the Company continued political control of its Indian

territory in exchange for a payment of £40,000 every two years.

It also established the post of governor-general who, with a council of

four members, was to have overall authority over the Company's
territories.

More government control

More government control came with the India Act of 1784, under
Prime Minister William Pitt. This created a committee of six
government appointees, known as the Board of Control, who were to
monitor and direct the Company's policies.

The government was also to have the final decision on the Company's
nominations for its officials in India. This and a further new law
passed in 1786 greatly increased the authority of the governor-general
over other Company officials

4.Discuss the role of the Law commission in law reforms in India.

Ans. Law Commission of India is a prominent advisory body to
study, research and report on legal matters specified in their terms of
reference.
The Government of India established the First Law Commission of
Independent India in 1955 with the then Attorney-General of India,
 56

Mr. M.C. Setalvad, as its Chairman. Since then twenty one more Law
Commissions have been appointed, each with a three-year term and
with different terms of reference.
 The Law Commission of India — the oldest amongst the national-
level parastatal ( a state-owned organization) bodies — remains an
odd one even in its 65th year. Unlike its sister organisations, it has no
fixed composition, no defined eligibility criteria for its chair and
members, and no set functions — everything rests on the
government’s will.
 The terms of reference are specified afresh each time it is
reconstituted as if it were an ad hoc body.
Role of Law Commission in Legal reforms

 It plays a crucial role—from suggesting new laws to changing

outdated colonial laws and updating them to present times.
 It has worked to ensure the statutory obligations of India under many
international treaties of which India is a signatory.
 Occasionally, the Commission also takes up matters suo motu. For
example, the 20th Commission worked on leprosy affected persons
and their treatment in society, which it recognised as a human rights
issue.
 The various Law Commissions have been able to make important
contributions towards the progressive development and codification
of the laws of the country. The law commissions so far have
submitted 277 reports on diverse range of topics.

5.Describe the Adalat system introduced by Warren Hastings.

Ans. Warren Hastings was appointed as a Governor of Bengal in 1772.
Due to unsatisfactory performance of the administrative body, he
decided to make changes in the fields of civil and criminal. He
 57

appointed the collector in every district to collect the revenue from the
public. He made the stringent laws regarding the revenue collection.
The collected amount was used to repay the loan. Warren Hastings has
also done the reforms for the public welfare. Different rules for the
different fields, civil and criminal fields were governed by the different
people. The collector was appointed as a judge for the civil matters.
The court was also differentiated

in accordance with the value of matters. Two different courts

came into existence,

 one for civil matters- mofussil diwani adalat,

 second for criminal matter- mofussil nizamat adalat.

Both of the courts have their power guaranteed by the

crown. Followings are the courts established at the time of Warren
Hastings:

1. MOFUSSIL DIWANI ADALAT:- Basically, this adalat system deals

with the civil matters. New revenue policies were made by him. All the
civil matters relate to the marriage, intestate, business etc, are
included in it. Again, this was classified into different categories:- Small
causes case:- deals with the cases which had the value of Rs. 10.
Headed by the head farmer of the district. Sadar diwani adalat:- this
court deals with the cases which exceeds the value of Rs.500 and
comprise of Governor. It also includes the appeal cases of mofussil
diwani adalat.

2. MOFUSSIL NIJAMAT ADALAT:- this court system was

established specially for the criminal matters. Where the cases like
murder, robbery etc was dealt by the Governor with the council.
Mofussil faujdari adalat was governed by the Nawab. His main work is
to validate the capital punishment. Without his permission no one
 58

would be punished with the capital punishment.4 The best things done
by the Warren Hastings was that the person was punished aor
administered according to his personal law. The hindu was governed
under the hindu law, where the priest was the head of such
department. Similarly, the muslim governed under the muslim law and
headed by the Qazi with a hindu officer.

6.Explain the conflicts that arose due to the dual judicial system
prior to 1861.
Ans. Just before the passing of the Indian High Court Act 1861
there were two types of courts
1) The Crown Courts
2) Company’s Court.
The Supreme Court established in Calcutta, Bombay and
Madras were the courts of the British Crown where the Adalats
established in the Mufassil were the courts of the east india company.
These two sets of the courts formed the dual system of courts. These
courts had two different set of organization, jurisdiction and powers.
The dual system of courts came into existence, the relation
between the crowns court and the company’s courts was very tense
and conflicting. The main cause of the conflict was the uncertain
jurisdiction of the supreme court and the company’s court. Then after
realized that the merger of the company’s court and the supreme
courts was the only remedy to avoid the confusion and conflict. But
there were many difficulties in their merger on account of disparities
between the two sets of the courts in respect of law and procedure. It
was realized that necessary changes must be introduced in the
administration of justice to create an Uniformity of law between
these two courts .
59

Steps taken to bring uniformity

 For the unification, in 1833 an all India Legislature was created
by The charter Act of 1833. The laws made by it were binding
on all courts whether the crowns court or the company’s court.
Thus in the matter of law uniformity was maintained between
the company courts & crowns courts.
 The another step was the introduction of the provision in the
charter Act of 1833. For the appointment of law commission for
the codification of India Law.
In 1858 the East India Company was dissolved and the
government of India was taken over by the British crown and
consequently distinction between the company’s court and crowns
court came to end.

7.Explain about Indian High Court Act 1861 :

Ans.The Indian High Courts Act was passed by the British Parliament
on the 6th August, 1861 and was titled as an act for establishing high
courts of judicature in India.
Its main features:

 Toabolish the supreme courts and the Sadar Adalats in the three
Presidencies and to establish the high courts in their place.
 The records and document of the various courts became the
records and documents of the High Court concerned.
 It gave power authority in Her Majesty to issue letters patent
under the great seal of the United Kingdom, to erect and
establish High courts of judicature at Calcutta, Madras and
Bombay.
 Each High court was to consist of a chief justice and as many
puisne judges not exceeding fifteen as her majesty might think
60

to fit to appoint. Who became the high court judge or who was
eligible to become the high court judge.
Judges were selected out of the following categories of persons.

 Barrister must have 5 years or more experience.

 Member of covenanted evil service of not less than 10 years
standing who should have served as Zillah judges for at least 3
years.
 Person who shall have held judicial office
Each high court was to have and exercise all such civil and criminal
admiralty and vice-admiralty, testamentary, intestate and matrimonial
jurisdiction and original and appellate

The High Court was to have superintendence over all courts subject to
its appellate jurisdiction. It got power, authority to call for return, to
transfer any suit or appeal from one court to another and to make and
issue general rules for regulating the practice and proceedings of such
courts.

The charter for the Calcutta High Court was issued on May 14, 1862
and was published in Calcutta on the 1st July 1862 establishing the
high court from the next day. The charter for the High Courts of
Bombay and Madras were issued on June 26, 1862 and these courts
were inaugurated on the 14th and 15th August 1862.

8.Coment on Raja Nand Kumar’s case.

Ans. Raja Nand Kumar, also known as Maharajah Nuncomar, was a
Hindu Brahmin of the highest rank. He was given the title ‘Maharaja’
by Shah Alam II in the year 1764. He was a big zamindar. He worked
for the Nawab of Bengal in a variety of capacities, mostly as a
61

revenue collector. He was made the Governor of Hugli under Nawab

Siraj-Ud-Daulah once in 1756.

He had earned the confidence of the Murshidabad Durbar. After

holding a succession of posts under native governments of Bengal,
owing to his loyalty pledged towards the English East India Company
during 1757, he was awarded the name “Black Colonel” during
Governor General Robert Clive’s period. In 1758, he was even
recommended to Lord Robert Clive for appointment as an agent to
collect revenues for the districts of Burdwan, Hooghly, and Nadia. He
was a very influential person in Bengal.

First-person of India to get executed by hanging

Raja Nand Kumar brought several charges against then Governor-

General Warren Hastings. The charges were related to the offenses of
bribery and corruption, after which he himself was accused and
convicted of forgery and became the first person of India to be
executed by hanging.

Facts of the case

 At Warren Hastings and his favorite council member

Barnwell’s instance, Raja Nand Kumar, Fawkes, and
Radhacharan were arrested. Both of them clearly declared
their intention before the Supreme Court judges to prosecute
all three persons for conspiracy.
 Hastings wanted to take revenge from Raja Nand Kumar in
furtherance of which he demanded Mohan Prasad to humiliate
Nandkumar by filing a case of forgery against him. The
charges of forgery against him were in connection to a deed or
bond which was executed by Raja Nand Kumar in 1765 and
was claimed as an acclamation and ratification of a debt from
62

a banker, Bulaki Das. The judgment was reserved for Nand

Kumar whereas Fawkes was fined.
 The trial against Raja Nand Kumar for forgery and conspiracy
ran concurrently. Warren Hastings anticipated that involving
Nand Kumar directly in any way possible as far as charges for
the conspiracy were concerned, would be laboriously difficult,
so he implicated and scapegoated Raja Nand Kumar in
another case of forgery.
What happened during the trial ?
The trial went on continuously for eight days without any
adjournment, starting from 8th June and ending at the midnight of
15th June 1775. The judges, in red robes and heavy ‘full bottomed’
wigs, heard the case at length and used to change linens twice a day.
From 8 am every day till late night, they used to probe and
contemplate the evidence on behalf of the prosecution, and witnesses
used to be cross-examined till late at night.

Meanwhile, a plea was filed according to which the King’s

Counsel was not proficient in doing the cross-examination of
witnesses fastidiously. After this, the defence witnesses were
critically and exhaustively cross-examined by the judges. This raised
questions on the probity and righteousness of the judges.

After careful consideration, they refuted the evidence provided

by the prosecution witnesses and then ordered the sheriff, Alexander
Macrabie, and keeper of His Majesty’s Prison in Kolkata to detain
Raja Nand Kumar in safe custody until his release per the legal
provisions.
63

Issues raised

1. Whether the Supreme Court had jurisdiction to hear the

matter in the first place?
The question raised was whether the Supreme Court had jurisdiction
to hear the matter in the first place. Raja Nand Kumar’s advocate
advanced a plea relating to this matter in front of the Supreme Court
at the beginning of the trial but it was rejected.

But in actuality, it is observed that the offense was committed before

the Regulating Act 1773 came into force and subsequently, before the
establishment of the Supreme Court. Before this establishment, the
Indians residing in Bengal were tried by local Faujdari Adalats. Thus,
the Court had no prima facie jurisdiction to decide on the matter.

2. Whether the English Act of 1729, according to which

forgery was a capital offense, was applicable to India?
Under the English Act of 1729, the offense of forgery attracted capital
punishment. Questions were raised on the applicability of this Act to
India and there was a divided opinion even among the sitting judges
at that time but ultimately, the view of the majority of the judges
along with that of Chief Justice Impey prevailed.

Steps that were taken to save Raja Nand Kumar:

 Raja Nand Kumar’s advocate forwarded an appeal to the King-in-

Council. He also filed a petition in the court for holding the
verdict till the time the Council’s decision was not established but
it was rejected by the court.
 Efforts to seek the aid and support of the members of rebuffed
also did not help.
 The letter of suggestion from the Nawab to the Council to defer
the sentence till His Majesty’s pleasure was known proved to be
64

nugatory as well because the Supreme Court took no cognizant

undertaking on it after it was delivered by the Council.

( For your clear understandin i gave full story of the case )

9.Write note on Judicial reforms introduced by Lord Warn

Hastings.
Ans. Warren Hasting’s Judicial Plan of 1772:
 Warren Hasting’s Judicial Plan of 1772 involved
restructuring of The Justice System.

 The following were his reforms -

He divided Bengal, Bihar and Orissa into small units-District
with The Servant of the Company categorized as the collector of
that particular district for collection or Revenue. There was a
Basic Small Cause Adalat, set up to deal with petty cases
/disputes up to the value of Rupees Ten. At each district, the
head farmer (the eldest farmer of the district) was given the duty
of adjudicating and delivering justice for these disputes.

 Above this Small causes Adalat a court known as the Mofussil

Diwani Adalat was established in each of the above districts,
which was presided over by the collector. The decisions of the
court up to the monetary value of Rupees Five Hundred was
final and binding. This court had the responsibility of handling
all civil cases. It handled matters such as property, marriage
disputes, inheritance related disputes, debts, contracts and
settling accounts. However, Cases of Succession related to
Zamindari and Talukdar property were dealt with by
the Governor-General and Council.
65

 Along these lines, The Mofussil Fozdari Adalat and

The Mofussil Nizamat Adalat was set up. These courts were to
deal with the administration of Criminal Justice. The Collector
was expected to supervise, see that justice was administered,
sessions of the court were held and the given judgements were
impartial and not unfair. But over and above this, the Muslim
law officers were to interpret and apply Mohammedan Law to
the Cases. They were to pronounce the Proclamation/Fatwa and
give the judgement.

 Above these courts were The Sadar Diwani Adalat and

The Sadar Nizamat Adalat. The Sadar Diwani Adalat heard
appeals from The Mofussil Diwani Adalat of cases valuing over
Rupees Five Hundred. It was presided over by the Governor and
the members of the council. The appeal had to be made within
two months of the decision being given by The Mofussil Diwani
Adalat.

 The Sadar Nizamat Adalat’s main function was to:

1. Approve the death sentences and property forfeiture.

2. Re-look and if need be revising decisions of The Mofussil
Nizamat Adalat and, for a death sentence, the warrant for such a
sentence was prepared here and given to the Nizam, who was
the head of the court, for his signature.

 With regards to what law would be followed, it was decided that

Muslim law would be followed for the Muslims,
 Hindu law for the Hindus.
 It was also stated the Quran would be followed for Muslims and
the Shastras would follow for the Hindus.
 66

To assist the Englishmen who acted as the collectors in

administering the respective laws (as they were traders by profession)
there were the local law officers instituted to aid them. These law
officers were the Kazis and the Pundits.

10.Trace the legal history of the growth of High Courts in various

provinces of India.
Ans. The Indian High Courts Act 1861 was an act of the
Parliament of the United Kingdom to authorize the Crown to create
High Courts in the Indian colony. Queen Victoria created the High
Courts in Calcutta, Madras, and Bombay by Letters Patent in 1862.
These High Courts would become the precursors (thing that comes
before another of the same kind; ). to the High Courts in the
modern day India, Pakistan, and Bangladesh. The Act was passed
after the First War of Independence of 1857 and consolidated the
parallel legal systems of the Crown and the East India Company
Abolishing existing courts :
The Act abolished the Supreme courts at Calcutta, Madras,
and Bombay; the Sadar Diwani Adalat and the Sadar Faujdari
Adalat at Calcutta; Sadar Diwani Adalat and Sadar Faujdari Adalat
at Madras; Sadar Diwani Adalat and Faujdari Adalat at Bombay .

Composition:
In every High Court, there is a Chief Justice and many other judges
whose number is defined by the President of India.
Appointment of the Judges: The Chief Justice of a High Court is
appointed by the President with the consultation of the Chief Justice
of the Supreme Court and the Governor of the State. The other judges
are appointed by the will of President, Governor and the Chief Justice
of High Court.
67

Powers and Functions

Original Jurisdiction:
The original jurisdiction of the High Court is restricted.
 Every High Court under Article 226 is empowered to issue
writs, orders, directions including writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari or
any of them to any person or authority with in its territory for
the enforcement of the Fundamental Rights and for any other
purpose.
 The original jurisdiction of High Court extends to matters of
admiralty, matrimonial, contempt of court and cases ordered to
be transferred to High Court by lower court.
 The High Courts of Mumbai, Kolkata and Chennai have original
jurisdiction on hearing straightway cases involving the
Christians and Parsies.
 The High Courts of Mumbai, Kolkata and Chennai exercise
original civil jurisdiction when the amount involved is more
than two thousand rupees.
Appellate Jurisdiction:

 The High Court can hear appeals in civil cases if the amount
involved in the case is at least Rs. 5000.
 The High Court in criminal cases hears the appeal in which the
accused has been sentenced to four years imprisonment by the
Sessions Judge. v
 The death sentence awarded by Sessions Judge is subject to
approval by the High Court.
 The High Court hear the cases involving interpretation of the
Constitution or Law.
68

 The High Court hears the cases on income tax, sales tax etc.

Power of Judicial Review:

The States High Courts like the Supreme Court has the power of
Judicial Review. A High Court has the power to strike down any law
of the State or any order of the executive if it violates any provision of
the constitution or curtails or takes any of the Fundamental Rights of
the people.

Administrative and Supervisory Power:

The State High Court performs many administrative functions within
its Territorial Jurisdiction. It exercises the power of superintendence
and control over all courts and tribunals throughout the territory
except the military tribunals.

11.Examine the salient features of Government of India Act 1919.

Ans. The Government of India Act 1919 was an act of the British
Parliament that sought to increase the participation of Indians in the
administration of their country. The act was based on the
recommendations of a report by Edwin Montagu, the then Secretary
of State for India, and Lord Chelmsford, India’s Viceroy between
1916 and 1921. Hence the constitutional reforms set forth by this act
are known as Montagu-Chelmsford reforms or Montford reforms.

Principle Features of Government of India Act 1919

 Executive:
 Dyarchy was introduced, i.e., there were two classes of
administrators – Executive councillors and ministers.
 The Governor was the executive head of the province.
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 The subjects were divided into two lists – reserved and

transferred.
 The governor was in charge of the reserved list along with his
executive councillors. The subjects under this list were law and
order, irrigation, finance, land revenue, etc.
 The ministers were in charge of subjects under the transferred
list. The subjects included were education, local government,
health, excise, industry, public works, religious endowments,
etc.
 The ministers were responsible to the people who elected them
through the legislature.
 These ministers were nominated from among the elected
members of the legislative council.
 The executive councillors were not responsible to the
legislature, unlike the ministers.
 The Secretary of State and the Governor-General could interfere
in matters under the reserved list but this interference was
restricted for the transferred list.
Legislature:
 The size of the provincial legislative assemblies was increased. Now
about 70% of the members were elected.
 There were communal and class electorates.
 Some women could also vote.
 The governor’s assent was required to pass any bill. He also had veto
power and could issue ordinances also.

Merits of the Government of India Act 1919

 Dyarchy introduced the concept of responsible government.

 It introduced the concept of federal structure with a unitary bias.
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 There was the increased participation of Indians in the

administration. They held some portfolios like labour, health, etc.
 For the first time, elections were known to the people and it created
political consciousness among the people.
 Some Indian women also had the right to vote for the first time.

Limitations of the Government of India Act 1919

 This act extended consolidated and communal representation.

 The franchise was very limited. It did not extend to the common
man.
 The governor-general and the governors had a lot of power to
undermine the legislatures at the centre and the provinces
respectively.
 Allocation of the seats for the central legislature was not based on
population but the ‘importance’ of the province in the eyes of the
British.
 The Rowlatt Acts were passed in 1919 which severely restricted
press and movement. Despite the unanimous opposition of Indian
members of the legislative council, those bills were passed. Several
Indian members resigned in protest.

12.Discuss the merits and demerits of legal profession in

India.
Ans. Legal professionals ( lawyers ) help in preserving the
Grundnorm, the basic or fundamental part, of law, that is the
Constitution. They also help in maintaining a balance between the
legislature, executive and judiciary. Thus, the Legal Profession is
fundamentally important for the Administration of Justice in the
country through various means.
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The profession of lawyer carries with it great power and

rewards, but at the same time, it also carries several
responsibilities. This career is one of the most respectful,
rewarding, and interesting careers. There are times when a lawyer
has to suffer from stress overflowing from the case he handles and
at times is applauded by the society for the work he did. Like in
every profession, there are some major pros and cons of being a
lawyer.

Merits of Being a Lawyer

1. Learning new things- A lawyer handles several cases from

various backgrounds each of them having different facts and
circumstances. Therefore, he has to apply his mind and law
carefully. In this process, he learns new things at every step of
conducting the case. No other means could be as informative as
pursuing this profession.
2. Knowing your legal rights- A lawyer is well aware of all his
legal rights and he can take steps to escape when he is exploited
by people
3. Several career options- When you become a lawyer, you
open doors for yourself to choose from a wide number of
careers. You may either enter the public sector or carry on your
private firm. You may also choose to enter in Governmental
jobs which are considered highly respectful and prestigious jobs
in India..
4. Working for others- A lawyer works hard for the rights of his
client. He is respected and trusted by his client. Therefore, a
lawyer feels good about the work he does.
5. Wide range of contacts- A lawyer needs help from several
persons and help many people while dealing with a particular
case. In this process, they form a wide range of contacts by
knowing new people, organizations, law firms, etc. every day.
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Demerits of being a Lawyer

1. Stress- A lawyer has a lot of responsibilities; therefore, it

becomes stressful for him. As a lawyer deals with many cases in
a day, he has to be up to date with every law concerning the
cases he deals with regarding the amendments, insertion of new
laws, deletion of old laws, etc. This becomes very hectic and
stressful for him. He takes new cases every day; therefore, the
stress never ends and goes on till he is in the profession.
2. Competition- In today’s world, competition is everywhere, and
the profession of lawyer is no exception. Every lawyer will not
get cases and good fees from their clients. The profession is full
of competition. Therefore, wide knowledge and exceptional
personality is needed.
3. Bad reputation-. Generally people don’t want to enter courts.
They think that if once they enter a court, a lawyer would never
let them out from that case to earn more and more money by the
pending hearing of the case. Therefore, lawyers don’t enjoy a
good reputation in India.
4. Underestimation of lawyers- Knowing the law is of great
importance. People remain far away from this reality and
underestimate the knowledge and power of lawyers.
5. Changing scenario- Many legal procedures are made online
now, like document reviewing, presentation, billing software,
etc. As a result, lawyers need to learn to work on a wide range
of legal platforms.

Conclusion
Lawyers work towards the upliftment of the society and fighting for
the rights of the citizens. Therefore they should be applauded. This
will help in removing the setbacks that the lawyers suffer.
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13. Discuss the salient features of the Regulating Act 1773.

Ans. Regulating Act of 1773 was of great constitutional importance
as it was the first step taken by the British Government to control and
regulate the affairs of East India Company in India and also
recognised the political and administrative functions of the Company
for the first time. In 1773, legislation known as the Regulating
Act was passed by the British Parliament. It was passed for the
regulation of Indian territories governed by the British East India
Company, mainly in Bengal.

One of the main provisions of the Act was the setting up of a Supreme
Court having four English judges in Kolkata. As a result of this Act
coming into force, the Supreme Court of Judicature at Fort William in
Kolkata was founded in 1774 under Section 13.

1. Election for directors : directors of the company were elected

for a period of 4 years. ¼ of them were to retire every year and
retired directors were not too entitled to be elected again.
2. Control over the correspondence : directors were required to
place regularly all their correspondence regarding civil and
military affairs.
3. Appointment of governor general and council : governor
General and four councillors Villa von dedenbach residencia
fort Williams in Bengal. He was designated governor general of
Bengal.
4. Decisions by majorities present : first governor general of
Bengal was Warren Hastings appointed for the term of 5 years.
5. Bombay and Madras under control of governor general :
presidencies of Bombay and Madras were placed under control
of governor general and council while exercising their powers to
make war and Peace.
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6. Establishment of supreme court of judicature : Sec 13 of

regulating and empowered the ground to establish by charter.
Supreme court of judicature Fort William in Kolkata to remove
the defective state of judiciary which existed.
7. Extend of governor general power :
He has given all power to govern companies territorial
acquisition in India Today venue of Bengal Bihar and Orissa
and also to supervise control over the general civil and military
government.
8. Bombay and Madras under the control of governor general :
The presidencies of Bombay and Madras were placed under the
control of Superintendent governor General of council. While
exercising their powers to make war and Peace.

Legislative power under Regulating Act 1773

This act granted legislative powers to companies executive authority
in India. To make and issue rules, ordinances and regulations for the
good order of civil government of company settlement at Fort
William and other subordinate factories and places.

`
14.Explain the provisions of Advocates under the legal
Practioner’s Act.,1853.
Ans. The Legal Practitioners Act, 1853 – This Act authorized the
Barristers and Attorneys of the Supreme Court to plead in any of the
companies courts subordinate to Sadar court subject to rules in force
in the said subordinate courts as regards language or otherwise.

 Section 5 of the Legal Practitioners Act connotes that any person

who enters the High Court as an Attorney can practice in any Court
of India which is Subordinate to it in its stature or any Revenue
Court which is of lower stature.
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 Section 6 of the Act empowered the High Court to make rules

consistent with the Act as to Suspension and dismissal of Pleaders
and Mukhtars.
 Section 8 empowered the Pleader to practice in Courts and Revenue
Offices after enrolment.
 Section 9 empowered the Mukhtar to practice in the courts after
enrolment.
 According to Section 12, the High Court can Suspend or dismiss
any pleader or Mukhtar if he was convicted of any criminal offence
and according to Section 13, the High Court can suspend or dismiss
pleader or Mukhtar guilty of Professional misconduct
 Section 14 of the Act made provisions in respect of the procedure
when the charge of Professional misconduct was brought in
subordinate Court or Revenue Office.
 Section 17 of the Act deals with the Power of the chief controlling
revenue authority to make rules consistent with this act as to
qualification, suspension, dismissal etc. of the revenue agent.

15.What are the main features of administration of Justice before

1726?

Ans. In India, the administration of justice and development of courts

began from 1639 to 1726 in the presidency towns of Madras,
Bombay and Calcutta. In Madras, these judicial administration by the
britishers developed in three stages. They are
 Stage I : 1639-1665

 Stage II: 1665-1683

 Stage III: 1683-1726

Stage I: 1639-1665
In 1639, for the purpose of English East India company, Francis day
acquired a piece of land from Hindu raja of Chandragiri which was
also known as Madraspatnam. In 1640, the English East India
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company constructed a factory in and it was called as Fort St. George.

This fort was came to be called as the white town and the people
residing in other places where called as the black town. Thus, the
whole people comprising of white town and black town was called as
the Madras.

Agent and council : For the purpose of governance and judicial

administration, the agent and council was authorized to decide both
the civil and criminal cases of people residing in the white town. But,
they referred most of the cases to the England since the judiciary was
vague.
These agent and council who were appointed for the administration of
justice were merchants and they didn’t have the knowledge of law. So
they the cases based upon their knowledge and common sense.

Choultry court:
In the black town, the native judicial officer for the administration of
justice and he was known as Adigari. They tried only simple cases but
not the serious offences like murder and the appeals from the court
was decided by the agent and council and they were vested with the
appellate jurisdiction.
An Indian native officer called Kanappa who was
appointed as the adigar was dismissed from the office and the
Englishmen was appointed to the office of the choultry court since
kanappa misused his power. By the charter of 1661,the company was
empowered to appoint governor and council to decide both the civil
and criminal cases of all the persons of company.

Stage II:1665-1683

High court of Judicature:

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In 1665, they reorganized the whole judicial system and with the help
of 12 juries they sat twice a week and decided both the civil and
criminal cases. They also empowered to decide the appeals from the
choultry court.

Reconstituted Choultry court :

The old choultry court was reconstituted and the three Englishmen
were appointed in the place of adikari to decide the cases. They sat
twice a week and empowered to decide only civil cases up to the
value of 50 pagodas. The appeals from this court was also heard by
the Governor in council.

Stage III: 1665-1726

During this stage two important courts were established i.e. In
1686,Admiralty court was established with the headship of judge
advocate under the charter of 1683 and Mayors court under the
charter of 1687 which was issued by East India company.

Admiralty court:
Reason behind need of this court:

In Asia , Arica and America the company was given a monopoly trade
and if any British subjects wanted to do trading, they supposed to get
a license from the East India company. But the rights of the company
were being infringes b the other British traders and on account of it a
court having jurisdiction to punish such traders was felt.
To deal with the increase in Crime of piracy on the high
seas they required a court of admiralty.

Functions of the Admiralty court:

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In 1686, this court was established in madras by the charter of 1683

headed by the judge advocate. It consisted of one person learned in
civil law and two merchants appointed by the company. The court
decided,

 All cases of merchantile or maritime nature

 Trespass, injuries and wrongs committed on the high seas
 Forfeiture and seizure of ships or goods.

This court applied the rules of equity, good conscience and

the laws and customs of merchants. When it was established , John
grey was appointed as judge of the court.
In 1687, Sir John Biggs, a professional lawyer was appointed as
judge advocate( chief justice). This court becomes the general court of
the city for all practical purposes in setting all civil and criminal
cases.

In certain cases, the appeals from Mayors court were also

heard by the admiralty court. This court functioned till 1704.

Merits:

Here, the executive functions were carried out by the governor in

council and judicial functions by the court of Admiralty. So, the
separation of executive and judiciary was maintained. Before the
establishment of this court the judges were mostly laymen and
decided cases based on their common sense but after the
establishment of admiralty court, the judges and lawyers were mostly
professionals. But the above features didn’t continuein Madras for a
long time
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Mayor’s court:
In Madras, mayors court was established under the charter of 1687 by
the English East India company.

Composition :

 The mayor’s court consisted of a Mayor, 12 alderman and sixty

or more burgesses. (a citizens of a British borough.) Borough
means a town as distinct from a city with a corporation and
privileges granted by a royal charter.
 The first mayor and aldermen were nominated by the charter
and the mayor holds the office for 1 year and he was by the
aldermen every year.
 The burgesses were chosen by the mayor and aldermen which
should not exceed more than 120.
 Among them, the mayor and the three aldermen were to be
English servants of the company and others were to be from
another nation .
 John Viges, a Judge advocate of admiralty court became the
recorder of this court. A man who learnt law was appointed as
the recorder and attached to the mayors court i.e. court of
record.

The Mayors court’s jurisdiction

 All the civil cases upto the value of 3 pagodas

 Also dealt the criminal cases with the help of jury and punished
the offenders by imprisonment or fine.

Appeals:
 The appeals from this court were decided by the court of

Admiralty.
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 In civil matters, the admiralty court had decided more than the
value of 3 pagodas and in criminal cases they decided only
when the punishment is lose of life or limbs.
 But , the governor in council decided both the appeals from
admiralty court and mayors court.

Demerits :
 There was no separation of powers between executive and

judiciary.
 The judges of the mayor court were laymen and they didn’t have

even a piece of knowledge of English law. The judges were

mostly impartial and dishonest.
 There was no uniformity and consistency in the decisions of the

court.
 Though the recorder was expert in the course of law they were

given less importance and his opinion was not considered much.

( Knowingly I repeated all courts topic because the question is such .

I gave so because you need not turn the pages to read about courts.)

16.How Article 14 of constitution embodies the rule of law ?

Ans. Article 14 embodies the idea of equality expressed in preamble.

Article 14 declares that 'the State shall not deny to any person
equality before the law or equal protection of law within the
territory of India. '. thus article 14 uses the two expressions
“equality before law” and “equal protection of law”.

As per this principle of Dicey, the rule of law denotes lack of

arbitrariness or wide discretionary powers. Every act should be
governed and controlled by law. According to Dicey “Wherever
there is discretion, there is a room for arbitrariness and that in a
republic no less than under a monarchy discretionary authority on
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the part of Government must mean insecurity for legal freedom on

the part of its subjects.”

. Further it emphasizes that everyone, irrespective of position

and rank, shall be subject to same principles of law. This principle of
Dicey faced bundle of criticism. In fact, in order to maintain law and
order in society, there is a requirement of certain exceptions such as
Crown, Police, and Members of Parliament. The crown by virtue
may exercise such powers which may be in contradiction with the
individual’s right. The Police have powers above the citizens and
Members of Parliament have certain immunities .

Rule of law is embodied in the article 14 of the Indian

constitution

Article 329-A was inserted in the Indian Constitution by the

th
39 Amendment which imposed certain limitations on the power of
judiciary to intervene in the election matters of the Prime Minister. In
the case of Indira Nehru Gandhi v. Raj Narain, the Supreme Court
held that the Rule of Law is enshrined in the Article 14 of Indian
Constitution, and it is the basic feature which cannot be amended
even by the act of the Parliament.

17.What is the Admirality jurisdiction according to Charter 1774 ?

Ans. By a 41 Charter on 26th March, 1774, a ‘Court of Record’ known

Supreme Court of Judicature at Fort William was established. It
began to exercise admiralty jurisdiction. Clause 26 of Charter (dated
26th March, 1774) declared Supreme Court of Judicature at F
Composition of Supreme court :
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Sir Elijah Impey was named as the first Chief Justice while
Stephen C. LeMaistre, Robert Chambers and John Hyde were
named as three puisne Judges.
For the subsequent appointment of a judge the Charter stated
the qualifications as
 At least five years' standing as a Barrister of England and
Ireland.
 The judges were to hold office at the pleasure of the King.
 Each judge of the Supreme Court was to be a Justice of the
Peace and was to have authority and jurisdiction as the Judges
of the King's Bench in England had under the Common Law.

Powers given to Supreme Court :

 The Supreme Court was vested with four distinct jurisdictions,

namely, civil, criminal, and ecclesiastical and admiralty

 The Court was authorized to establish rules of practice and

process. It had the power to appoint the necessary subordinate
staff and regulate the court-fees with the consent of the
Governor-General.
 The Charter granted civil jurisdiction to the Supreme Court.
Where the cause of action exceeded Rs. 500, the Supreme Court
was authorised to hear in the first instance.
 It could also hear the matter by way of appeal from the decision
of a Mofussil Court, a Company's Court. Where the valuation of
a suit exceeded 1000 Pagodas
 an appeal could lie to the King-in-Council within six months
from the decision of the Supreme Court.
 All offences of which the Supreme Court had cognizance were
to be tried by a Jury of British subject’s resident in Calcutta.
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 The Supreme Court was empowered to superintend the Court of

Collector, Quarter Sessions, and the Court of Requests and was
empowered to issue to these Courts the writs of certiorari,
mandamus, error or procedendo.
 The powers of a Court of Equity and those of a Court of
Admiralty for Bengal, Bihar and Orissa and the other adjacent
territories and islands under the jurisdiction of the Company,
were also given to it.
 The judges of the Supreme Court were authorised to admit
attorneys and advocates and they nominated three persons for
the office of sheriff when selection was made by the Governor-
General and Council.
.
 The Governor-General and the Council were exempted from the
criminal jurisdiction of the Supreme Court except in cases of
treason and felony and they were not liable to be arrested or
imprisoned
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