Module 3: Developments of Judicial, Legislative and Administrative

Institutions and Their Powers

Charter of 1726
The judicial administration and the working of the courts, in the three Presidency towns of India was
unsatisfactory.
With the growth in Company's trade and commercial activities in India, the courts started getting more
cases for adjudication.
Subjecting the courts under some competent authority to give binding force to their decisions and to
achieve Uniformity in judicial administration.
Encouraged by the successful working of the Corporation at Madras, the Company wanted to establish
similar Corporations at Bombay and Calcutta also.
Important Features:
1. Establishment of Corporation at Bombay and Calcutta
2. Civil Administration and Establishment of Mayor's Court in Presidency Towns
3. Establishment of Crown’s Court
4. Jury Trial in Criminal Cases: Grand Jury and Petty Jury
 Charter of 1753
In the year 1746, The French got the control over the Madras Presidency. In1749 the British again got
the control of Madras and to establish Madras corporation again King George II again issued a new
charter in the year,1753.
The new charter of 1753 was made applicable to all the 3 Presidency Towns. New charter changed
the method of appointment of Mayor and Aldermen.
Mayor's court lost all the autonomy and independence, and became secondary in nature. The court
was allowed to hear the Indian cases only if both native Indian parties agreed and submitted the
case to the Mayors court.
Mayors court got the right to take action against the Mayor. No person was allowed to sit as a
Judge if he was interested in the matter in anyway.
Mayors court got the power to hear the cases against the Government. Suitors were required to
deposit money with the Government not to the Mayors Court.
The new charter also created the new court called as Court of Request at each presidency town to
decide petty cases.
This court was established to help poor Indian litigants who can not afford the expenses of the court.
Court of Governor and Council were designated as the court of appeal against the Mayors court
decision in civil cases. Privy Council in the England was the final authority in all the matters.
 Development of Adalat System

1. Grant of Diwani and Execution of Diwani functions

2. Judicial Plan of 1772 and Defects
3. Judicial Plan of 1774
4. Warren Hastings Judicial Plan 1772-1774-1780
5. Regulating Act 1773
6. Leading cases Raja Nand kumar, The Patna Case and The Cossijurah
Case
7. 1781 Act of Settlement and its Defects
 Development of Adalat System during the time of Warren
Hastings

Warren Hastings remained Governor of Bengal from 1772 to 1774; in 1774 he was promoted to the rank of
Governor-General.
The Administration of justice at the time Warren Hastings took over as Governor of Bengal was in a bad
shape. He made strenuous efforts to remove the evils in the existing judicial administration and revenue
collection.
For this purpose, he appointed a committee consisting of the Governor and four members of the Council
called the Committee of Circuit.
The Committee prepared a Judicial Plan on August 15, 1772 to regulate the administration of justice and
revenue collection. This plan was popularly known as the Hastings Plan of 1772.
Hastings's Judicial Plan of 1772
This Plan consisted of 37 regulations dealing with civil and criminal laws. He divided the Diwani area of
Bengal, Bihar and Orissa into several districts, each having an English officer called the 'Collector' as its
head.
Thus, district was the unit of administration for justice and revenue collection. The Collector was primarily
responsible for collection of revenue.
 Features of Judicial Plan of 1772
Reforms Made in Revenue Administration: The whole revenue system was re-organized. The Revenue Boards at
Murshidabad and Patna were abolished and a supreme authority called the Board of Revenue was set up in Calcutta which
consisted of the Governor and all the members of the Council.
Mofussil Diwani Adalat: In each district, a Mofussil Diwani Adalat was established which was presided over by the Collector
as the Judge.
The Court took cognizance of all civil cases including property, inheritance, succession, caste, marriage, contracts, accounts etc.
The cases relating to caste, religion, marriage and inheritance of the native were to be decided according to their usages and
customs of Hindu law for Hindus and Muslim law for Mohammedans respectively.
Appeals from these courts were to be heard by Sadar Diwani Adalat at Calcutta where the subject matter of the case exceeded
rupees five hundred rupees.
Small Causes Adalat: Head farmer of the Parganas were authorized to decide the petty disputes relating to property up to the
value of rupees ten.
Mofussil Nijamat/Faujdari Adalat: It was established in each district to deal with criminal matters. It tried serious offences
including murder, robbery, theft, fraud,perjury etc. and it was assisted by a Kazi or Mufti and two Moulvies.
Sadar Nizamat Adalat: A superior court called the Sadar Nizamat Adalat was established at Calcutta which exercised control
over Fauzdari Adalats. It was presided by an Indian judge known as the Daroga-i-Adalat who was to be assisted by the Chief
Kazi, Chief Mufti and three Moulvies. The Governor and Council exercised general supervision over the proceedings of Sadar
Nizamat Adalat.
Other Procedural Safeguards: Definite rule for the civil proceedings, punishment for delay in filing the reply, Hearing of the case
in an open court.
 Defects of Judicial Plan of 1772

The major defect of the Judicial Plan of 1772 was concentration of power in the
hands of collector: All the powers relating to administration, tax collection, judicial
were concentrated in the hands of collector.
The working of the judicial scheme under the Plan of 1772 resulted in to a
considerable loss of revenue earnings of the Company's Government.
In 1773 the Court of Directors directed the Governor and Council in Calcutta, to
withdraw Collectors from districts.
Obviously, this needed a fresh Plan which Warren Hastings prepared in 1773 and
implemented in 1774 which is known as the Judicial Plan of 1774
 Judicial Plan of 1774
Establishment of Provincial Council or Provincial Sadar Adalats for Civil Justice: Under the Judicial Plan
of 1774 the entire Diwani area of Bengal, Bihar and Orissa was divided into six divisions. Each division
consisted of several districts.
A Provincial Council consisting of five covenanted servants of the company and a Diwan was established in
each of these divisions except Calcutta where a 'Committee of Revenue' was set up.
These Councils supervised the revenue collection in the Division and heard appeals from the Mofussil Diwani
Adalats from the districts within its territorial jurisdiction.
The English Collectors were replaced by native superintendents of the revenue known as Naibs who were
conferred both the powers i.e. power to collect revenue and to decide the civil cases within its jurisdiction also.
The Provincial Council also had original jurisdiction to decide all cases arising at the headquarters of the
division, in the first instance.
Establishment of the Court of Naib Nazim for Criminal Justice Administration: The entire Criminal
Judicature was transferred from Governor-General-in- Council to the Nawab.
 Reorganisation of Adalat System
1. Separation of Revenue from Judiciary:
• Provincial Councils established at 6 different places under the Judicial
Plan of 1774 continued their existence for revenue collection only.
• Provincial Council of Diwani Adalat was established for disposal of
civil disputes.
2. Extension of the Jurisdiction of Provincial Council of Diwani
Adalat: All cases relating to property, Inheritance and Succession to
Zamindars and Talukdars.
3. Provisions for Appeal before Sadar Diwani Adalat consisting of
Governor General and his Council.
4. Court fee from 2% to 5% depending upon the valuation of the suit.
 Regulating Act, 1773

1. Election for Directors

2. Control over correspondence
3. Appointment of Governor General and council
4. Extent of Governor General is power
5. Bombay and Madras under control of Governor General
6. Establishment of Supreme Court
7. Immunity of Governor General and his Council
8. Legislative power under the Act of 1773
9. Justice of peace
10. Appeal against the judgment of supreme court
 Raja Nandkumar Case (Judicial Murder Case) 1775
Background of the case: Before filing of this case, three out of four members of the council were opponents of
Hastings, the Governor-General and thus the majority group comprising Francis, Clavering and Monson instigated
Nand Kumar to bring certain charges of bribery and corruption against warren Hastings before the council.
In march, 1775 Nand Kumar gave a latter to Francis, one of the members of the council complaining that in 1772,
Hastings accepted from him bribery of Rs. 104105/-for appointing his son Gurudas, as Diwan.
The letter also contained an allegation against Hastings that he accepted rupees two and a half lakh from Munni
Begum as bribe for appointing her as the guardian of the infant Nawab Mubarak-ud-Daulah.
Francis placed his letter before the council and Nand Kumar was summoned to appear before the Council. Warren
Hastings who was presiding the meeting in the capacity of Governor-General, opposed the motion on the ground that,
he shall not sit in the meeting to hear accusation against himself nor shall he acknowledge the members of his council
to be his judges.
But the motion was supported by the majority hence Hastings dissolved the meeting. Majority of the members objected
to this action of Hastings and Clavering was elected to preside over the meeting in place of Hastings. Nand Kumar was
called before the council to prove his charges against Hastings.
The majority Members of the council examined Nand Kumar briefly and declared that the charges levelled against
Hestings were proved and directed Hastings to deposit an amount of Rs.3, 54,105 in treasury of the company, which he
had accepted as a bribe from Nand Kumar and Munni Begum.
Hastings genuinely believed that the council had no authority to inquire into Nand Kumar's charges against him. This
event made Hastings a bitter enemy of NandKumar and he looked for an opportunity to show him down.
 Facts of Raja Nandkumar Case
Soon after the order of the council, Nand Kumar was charged and arrested for conspiracy along with Fawkes
and Radha Charan were at the instance of Hastings and barbell.
In order to bring further disgrace to Raja Nand Kumar, Hastings manipulated another case of forgery against
him at the instance of one Mohan Prasad in the conspiracy case.
The Supreme Court in its decision of July 1775 fined Fawkes but reserved its judgment against Nand Kumar on
the grounds of pending fraud case. The charge against Nand Kumar in the forgery case was that he had forged a
bond in 1770. The council protested against Nand Kumar's charge in the Supreme Court but the Supreme Court
proceeded with the case unheeded.
Finally, NandKumar was tried by the jury of twelve Englishmen who returned a verdict of 'guilty' and
consequently, the Supreme Court sentenced him to death under an act of the British parliament called the
Forgery Act which was passed as early as 1729.
Important Questions about the Trial:
1. Whether Raja NandKumar was under the Jurisdiction of the court as the offence was committed before the
advent of this court itself?
2. Whether the English Forgery Act of 1729 under which Raja Nandkumar was executed, extended to India?
 Critical Evaluation of Raja Nandkumar Case

Serious efforts were made to save the life of Nand Kumar and an application for granting leave to appeal to the
king-in-council was moved in the Supreme Court but the same was rejected.
Another petition for recommending the case for mercy to the British council was also turned down by the
Supreme Court.
The sentence passed by the Supreme Court was duly executed by hanging Nand Kumar to death on August 5,
1775.
Chief Justice Impey in this case acted unjustly in refusing to respite to Nand Kumar. No rational man can doubt
that he took this course in order to gratify the Governor-General.
The trial of NandKumar disclosed that the institution of Supreme Court hardly commanded any respect from the
natives as it wholly unsuited to their social conditions and customs.
The trial has been characterized as “judicial murder” of Raja Nand Kumar which rudely shocked the conscience
of mankind.
Raja Nand Kumar's trial was certainly a case of miscarriage of justice.
 Kamaluddin Case (1775)
In this case Kamaluddin was holding a salt farm in Hugli (Bengal) which originally belonged to another person
named Kanta Babu.
Kamaluddin was just an ostensible holder of the farm and was holding the farm on the behalf of Kanta Babu.
He was imprisoned without bail for the arrears of revenue which was against the prevailing customary practices
of that time.
Kamaluddin appealed in the supreme court for a writ of Habeas Corpus. Supreme court headed by chief justice
Elijah Impey gave its decision in the favour of Kamaluddin and he was set free by the court on bail.
The court, in its judgement, held that the defendant, in the cases of disputed accounts, should be granted bail till
the inquiry regarding his obligation to pay is completed and he is found liable.
Jurisdiction of the Supreme court: The Council stated that the supreme council had its jurisdiction over the
officers of Calcutta Revenue Council as the company was Diwan of the territories of Bengal, Orissa and Bihar
and the court was not empowered to judge a matter related to the revenue. Therefore, according to the
council, the court had no power to issue a writ of Habeas corpus to the defendant and grant him bail.
However, Elijah Impey, Chief Justice of the Court, opposed the view of the council and stated that the revenue
officers were also the servant of the company and therefore, on this ground, the jurisdiction over the revenue
officers can be claimed by the supreme court.
Again, the council expressed its dissatisfaction on the view of supreme court and 4 out of 5 members of the
supreme council decided to order the provincial Council to put the defendant again in the prison without paying
attention to any of the orders of the Supreme Court. But, Warren Hastings, the Governor General didn't pay any
heed to these decisions and hence, they couldn't be implemented.
 The Patna Case (1777-1779)
Shahbaz Beg Khan belonged to KABUL and came to India and joined a company Army and settled at Patna and married one Nadirah
Begum and then he got retired.
He called his nephew Bahadur Beg from Kabul to live with him. It is alleged that Shahbaz Beg Khan called Bahadur Beg with an
intention to adopt him but died in December, 1776 before completing his wish.
Shahbaz Beg left impressive property behind him which led to serious conflict between his wife and the nephew. Each one of them
claimed the whole property of the deceased.
Nadirah Begum, asserted her claim to the said property on the basis of three documents are: Dower Deed (Meharnama), Gift Deed
(Hibanama) and Acknowledgment (Ikrarnama). Bahadur Beg (the Nephew) filed a petition the Provincial Council at Patna, asserting
the property in the limit of being the adopted son the deceased. He also requested the court to protect the property from being abused
by the widow of the deceased. Nadirah Begum designates the Mohammedan Native Law officers i.e. Mufti and Kazi to find out his
claim in the property.
After inquiry, they submitted their report to the Patna Council (Provincial Council of Diwani Adalat Patna). on the basis of evidence,
the Kazi reported on January 20, 1777, that widow's agent (counsel) had neglected to deliver the dower deed and in this manner, there
was nothing invalidate the attestations of Bahadur Beg that the sum of Rs.1200/- as dower was already paid by the deceased to Nadirah
Begum during his life- time.
As respects the other two documents , namely, the gift-deed and acknowledgment-deed, the law-officers recommended that they were
invalid being forged and, therefore, the property of the deceased should be divided into four shares,out of which three should be given
to Bahadur Beg as illustrative of his dad in India and the fourth offer ought to be go Nadirah Begum in accordance with the
Mohammedan Law of succession.
The Patna Case Continued…..
The Provincial Council of Patna acknowledged the report of the Kazi and Mufti and requested the division of the property in like
manner. in any case, aggrieved by the decision of the Provincial Council, Nadirah Begum favored an interest to Sadar Diwani Adalat at
Calcutta which comprised Governor – General and Council.
She petitioned Warren Hastings for help directly. After receiving no reply, she turned to the Supreme Court and filed a suit claiming Rs.
600,000 in damages. Beg’s attorney argued that he was not under the Supreme Court’s jurisdiction because he was a revenue “farmer”
(contractor), not a revenue “collector” (salaried) and thus not “directly or indirectly” in the Company’s service.
The Court unanimously disagreed. Impey stated the Court’s opinion that simply changing the name of the officer from a “collector” to
a “farmer” still meant Beg was involved in tax collection and was “directly or indirectly” in the Company’s service and under the
Court’s jurisdiction. The Court also agreed the qazi and muftis were subject to their jurisdiction since they were the Patna Council’s
employees.
The Supreme Court found that the Patna Diwani Adalat had decided the case and seized the property on no evidence other than Beg’s
testimony. They suspected Beg had bribed the Council, the qazi and the muftis. Impey further suspected the Patna Council had
fabricated their entire proceedings, recording the events only after the Supreme Court took up Naderah’s case.
The Court ruled that the Patna Diwani Adalat had violated its duties by improperly deciding the case without due process and awarded
Naderah Rs. 300,000 in damages and Rs. 9,208 in costs in February 1779. This outcome was not acceptable to many Company
servants nor to the Supreme Council who viewed the Court as an unwelcome intruder on their tax collection system and their
provincial councils.
The Supreme Council moved to protect its provincial council and Beg. They attempted to sue Naderah for forging her husband’s
will, a charge that carried the death penalty. The Supreme Court along with Impey refused to issue the necessary warrants by
mentioning in the judgment that Naderah’s will was genuine, squashing the Supreme Council’s suit. The Court had won a major
victory, confronting both the Patna and Supreme Councils, thus proving that tax collectors were under their jurisdiction.
 The Cossijurah Case (1779-1780)
Raja Sundernarain, zamindar of Cossijurah (Kasijora) was under a heavy debt to Kashinath Babu. Though
Kashinath Babu tried to recover the money from the Raja, his efforts were in vain.
He therefore filed a civil suit against the Raja of Cossijurah in the Supreme Court at Calcutta. The SC issued a
writ of capias for the Raja’s arrest and subsequently the writ of sequestration to seize the properties of the
Raja's house. Being afraid Raja avoided service of the writ by hiding himself.
The council issued a notification informing all the landholders that they need not pay attention to the process of
the Supreme Court unless they were either servants of the company or had accepted the courts jurisdiction by
their own consent.
The Raja was also specially informed by the council and therefore his people drove away the sheriff of the
Supreme Court when that official came with a writ to arrest Raja of Cossijurah.
Warren Hastings also considered that the supremacy of the council more important than his friendship with
Impey. When Warren Hastings ordered the military to arrest the Sheriff of the court he declared “We are upon
the eve of an open war with the Court”.
Finally, a petition was signed in March 1779 by all the prominent British inhabitants of Bengal, Servants of the
company, zamindars and sent to British Parliament against the excesses of SC in Bengal.
As result of this a parliamentary Committee was appointed which presented a detailed report on the conflict
between the Supreme Court and the Council and the Act of settlement was passed by the Parliament in 1781.
 Act of Settlement 1781
The Act of Settlement was an Amending Act of 1781, which was passed by British
Parliament on 5th July 1781 to remove the defects of the Regulating Act 1773. This
Act brought following changes in the administration of justice:
Change in the powers of the Supreme Court: The servants of the company which
earlier came within the jurisdiction of the Supreme Court were now exempted from
the jurisdiction of the Supreme Court.
Jurisdiction in Revenue Matters: Limit of jurisdiction of supreme court in revenue
matters was expressly set under this Act.
Exemption of Jamindar: Supreme court would not have jurisdiction of any person be
position of land holder, farmer, employee of the company.
Recognition of the provisional court of the company:
Recognition of Sadar Diwani Adalat as chief court: The Act provides that Sadar
Diwani Adalat will be court of appeal in civil cases.
However, despite all these efforts, the Act failed to give a significant impact and to
remove all the flaws of the Regulating Act of 1773.
 Constitution of High Courts in India
Unification of separate sets of judicial institutions/courts laid down the foundation
of High Courts in India.
The Charter Act, 1833 empowered the Governor-General-in-Council to legislate
with the help of law members for all the provinces. This Act also declared about the
binding force of the laws made by Governor-General-in-Council over all the courts
of the country including the supreme courts as well.
This Act also laid emphasis on the enactment of uniform law in certain fields and to
carry out this function the law commissions were appointed for the first time under
this Act.
In 1858 the East India Company was abolished and to achieve the objective of
unification of separate sets of judicial institutions the Indian High Courts Act, 1861
was passed by the British Parliament.
With the passage of time the High Courts Act, 1865 and the High Courts Act, 1911
were also passed to make necessary changes in the jurisdictions of the existing High
Courts as well as to establish new High Courts.
 Indian High Courts Act, 1861
The Indian High Courts Act of 1861, was passed to establish High Courts in India and it created the
High Courts in Calcutta, Madras, and Bombay.
It consisted of a Chief justice and up to 15 judges and dissolved all the existing courts located at
Calcutta, Madras and Bombay.
These High Courts consisted of a Chief Justice and other puisne judges not exceeding 15 in number
or as determined by the crown from time to time.
Qualification of judges of High Court: A person could be appointed judge of High Court if he was
either:
1. A Barrister of not less than five years standing experience;
2. A member of the Covenanted Civil Service of at least 10 year’s standing who had served as Zila
judge for at least 3 years in that period;
3. A person having held judicial officer not inferior to that of principal Ameen or judge of a small
cause court for at least 5 years;
4. A person who had been a pleader of a Sadar Court or a High Court for at least 10 years.
One third of the judges of the High Court, including the Chief justice had to be Barristers and the
other one third of the judges had to be members of the Civil Service. The judges hold their office
during the pleasure of the crown.
 Jurisdiction of the High Courts
The jurisdiction of each high court depended on the letters Patent of the crown. They were conferred all civil,
criminal, intestate, testamentary, admiralty and matrimonial jurisdiction.
They had also original and appellate jurisdiction and all such powers and authority with respect to the
administration of justice in the presidency.
Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction extended to the town of Calcutta, Madras and
Bombay and such local limit as from time to time could be prescribed by law of a competent legislature in British
India. All suits of the value of Rs. 100 or more and which were not cognizable by the small court at Calcutta,
Madras and Bombay were cognizable under High Courts.
Extra Ordinary Civil Jurisdiction: Extra Ordinary Civil Jurisdiction provides that the High Court could call a
case pending in any lower court subject to its superintendence and could decide that case itself. This jurisdiction
could be exercised in a case where the parties agreed to such exercise or the High Court thought it proper to
impart justice.
On a similar line they had Ordinary criminal Jurisdiction and Extra Ordinary Criminal Jurisdiction in criminal
matters.
Appeals from High Court: An appeal to Privy Council lay from judgement of High Court in civil cases when the
amount involved is Rs. 10,000 or more or if the High Court certified that the case is fit one for appeal. And in
case of criminal cases from its original jurisdiction or if the High Court certified that the case is fit one for appeal.
 Expansion of High Courts in India
High Courts Act, 1865
This Act was authorized the Governor-General-in-Council to make necessary
changes in the territorial jurisdiction of the existing High Courts established under
the Indian High Courts Act, 1861.
High Courts Act, 1911
It increased the maximum number of judges in each High Court to 20 including the
chief Justice also.
Government of India Act, 1915
This Act also contained certain provisions regarding constitution, jurisdiction and
powers of the High Courts. Two High Courts namely, Patna High Court and
Lahore High Court were established under the provisions of this Act.
Government of India Act, 1935
This Act gave a new constitution to regulate the functions of executive, legislature
and judiciary in India. High Court of Nagpur was established as per the provisions
of this Act.