L-2nd Sem (Eng Notes) Indian Legal History

KRISHNA INSTITUTE OF LAW
(Approved by BCI affiliated to CCSU, Meerut)

NH-24, Jindal Nagar, Ghaziabad-201002
Phone no- +9643031960, 9643028427
LL.B. 2nd Sem

History of Courts and Legislature
Charter of 1600: Establishment of East India Company
1- Britishers came to India in 1601 as a “Body of trading merchants”. On 31St
December, 1600 Queen Elizabeth I granted a Charter to the Company
which incorporated the London East India Company to trade into and
from the East Indies for a period of fifteen years.
2- Company becomes a Juristic person with the exclusive privilege of trade
with the East Indies.
3- This Chapter also granted legislative powers to the company to make bye-
laws, ordinances, etc. for the good government of the company and its
servants and to punish offences against them by fine or imprisonment.
4- The provisions of the Chapter of 1600 were only in connection with the
trade and were not intended for acquisition of dominion in India.
5- The legislative authority was given to the Company in order to enable it
to regulate its own business and maintain discipline amongst it servants.
6- Due to subsequent interpretation of these provisions to meet the
requirement of controlling and administering territorial expansion of the
Company in India.
Character of 1609
On 31st May, 1609, James I granted a fresh Charter to the Company which
continued its privilege in perpetuity, subject to the proviso that they could be
withdrawn after three year’s notice.
1. It also authorized to continue the enjoyment of all its privilege ,powers
and rights which were earlier granted to it under the Charter of 1600
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2. In order to enable the Company secured the first Royal Commission in

1601. The company was given this power in order to maintain discipline
on the board during the voyages .Some additional powers were given to
the Company for enforcing martial law by the Charter of 1623.
3. With a view to strengthening their power and to secure advantages, the
Directors of the Company tried to contact the Mughal Emperor.
4. English Company secured various privileges from the Mughal Emperor
.These privileges were as under :
 the English people will enjoy their own religion and laws in the
administration of the Company.
 the Mughal Governor of Kazi of the relevant place will protect the
English people from all sorts of oppression and injury.
 the disputes amongst the Company’s servants will be regulated by
their own tribunals.
 the local native authorities will settle such disputes cases in which
Englishmen and Hindus or Muslims were the parties.
Charter of 1657
1. In 1657, Oliver Cromwell granted a new Charter which amalgamated the
various joint –stocks .
2. The charter also ended the old rivalry between the Courten’s Association
and the old company by uniting them into one.
3. In fact the Chapter of 1657 changed very character of the Company.
Charter of 1661
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1. After 1660, the year which proved another turning point in the history of
the Company, the Company regained its prosperity and it changed its
character from a purely trading –concern into a territorial power .On 3rd
April, 1661, Charles ii granted a new Charter to the company.
2. The Charter of 1661 reorganized the Company on a joint-stock principle
and each member who had a share capital of 500 was given the right to
one vote in the General Court of the Company
3. In order to meet the existing circumstances more effectively, the
Company was authorized to appoint Governors and other officers for
proper administration.
4. The Company’s power to govern its employee and to punish their
disobedience was enhanced .
5. The charter further authorized the Company to empower the Governor
and Council of each one of its factories or trading centres at Madras,
Bombay and Calcutta to administer, with respect to the persons
employed under them, both civil and criminal justice according to English
law.
British Settlement of Surat and Administration of Justice (1613-1687)

1. Surat was the first place where the English Company established its
factory in order to start its commercial activities
2. The English factories in various settlements were within the territorial
jurisdiction of the Mugul Emperor; therefore the permission of the latter
was necessary for the English Company to carry on its trade and business.
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3. Sir Thomas Roe succeeded in securing the following important

concessions for the English Company from the Mughuls:
(I) The disputes amongst the Englishmen inter-se were to be settled
by their own tribunals.
(II) All cases of complaints and controversies relating to Englishmen
were to be looked into by the Kazi of the place who was to
safeguard their interests and ensure justice to them.
(III) The Englishmen were allowed to live in accordance with their own
laws and religious.
(IV) They were allowed the privilege under the treaty settlement of
1618 with the Mughal Emperor.
(V) The Disputes between the Englishmen and the natives were to be
settled by the local native authorities
Administrative set –up of Surat Factory
As a result of these privileges the company established a factory at Surat in
1618 with a ‘Governor’ as its head .it was a principal trading station of
company having authority over other subordinate factories in this factory , the
company had its warehouses offices and residential quarters for its officers
and servants . The affairs of the company were regulated by majority vote in
the Council .The president had only right of one vote and he did not enjoy any
veto power.
Law and justice in Surat Factory
The Englishmen living In Surat factory owned double set of laws .In their
matters inter se, they were governed by their own English laws while in their
dealings with natives, they were subject to native tribunals.
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It is to be noted that no regular courts or tribunals existed for deciding dispute

arising between the Englishmen inter se .The president and Council of the
factory was empowered by the British Crown to administer justice in criminal
cases.
Development of administration of justice of Madras
In 1639 on 22nd July, an Englishman, Francis Day, acquired a piece of land from
a Hindu Raja of Chandragiri, for the East India Company .It was known as
Madraspatnam .The consequences of this grant of land was that francis Day
built the Fort St. George in 1640 for the Company’s factory and also for the
residence of English people employed in the service of the Company.
The administration of justice in Madras Presidency can be studied in the
following three phases
1. first Phase: 1639-1678
(i) The Charters and Courts: The Company’s factory at fort St. George
was under the administration of an Englishman, who was called
Agent. The Agent and the Council were authorized to decide both
civil and criminal cases of English people residing at Fort St.George
(ii) The Trial of Mrs. Dawes: - In 1665, the trial of Mrs. Ascentia Dawes
gained historical importance in the judicial history of Madras .it was
the first trial by jury in Madras during the Governorship of Foxcroft.
In this case, one Mrs. Ascentia Dawes murdered an Indian slave girl
named Chequa alias Francisca .She was charged with the
commission of a capital crime.
The Jury Found her guilty of the offence of murder of the slave girl,
but not in the manner and from as stated by the prosecution.
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The most surprising part of the whole trial was that the foreman of
the Jury, Mr. Reade gave the verdict not guilty, contraray to all
expectations. Due to this reason, the court acquitted Mrs. Ascentia
Dawes .It is not surprising to note that this typical situation arose
because the Court had no person well qualified in law to guide its
working
2. second Phase: 1678-1683
(i) Reorganisation of Judicial System :- With the appointment of
Streynsham Master as Governor in 1678,began the next phase
in the early judicial history of Madras . The whole judicial
system was recognized under his guidance
 The Court of Governor and Council was designated as the
High Court of Judicature ,
 Proper arrangements were made for regular meetings of
the court of Governor and Council .
 It was clearly stated that the Court will meet twice a
week
 It will be authorized to decided all civil and criminal
cases with the help of a jury of 12 men.
(ii) English as Court Language :- All sales and alienations of
house and grounds shall be written in English
(iii) Trial of Gilbert and De Lima :- William Gilbert was an
Englishmen .He was alleged to have committed murder of one
John Hartely .Manoell Brandon De Lima a Portuguese
inhabitant of Madras was alleged to have committed the
murder of a black Christian .The Connection with their trial
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was delayed and the accused had to remain in jail as under trial
for a long period.
Gilbert presented a petition to the Council indicating that he
acted in self- defence and he was in prison for 31 months
awaiting trial.
The plea of Gilbert that he killed Hartley in self defence was
accepted. De Lima was found guilty of the charge but on appeal
he was sent home.
3. Third Phase: 1683-1726
(i) Admiralty Court: - It empowered the company to established
Courts of Admiralty in India. Its main purpose was to try all
traders committing various crimes on high seas.
(ii) Establishment of Corporation of Madras: - The Mayor’s
Court –The Company issued a charter in December 1687 which
authorized it to create a Corporation of Madras and establish a
Mayor’s Court. It was empowered to carry out judicial
functions .
(iii) Drawbacks of the Court :- The Court had no reputation for
impartiality and incorruptibility
(iv) The Choultry Court: - As stated above, the creation of the
Mayor’s Court at Madras left only petty cases to be decided by
the Choultry Court. The Choutry court, therefore, decided only
petty criminal cases and civil cases amounting to two pagodas.
(v) Standard of Justice: - No principle of substantive or
procedural law governed the judicial proceedings. The
Governor could pardon death sentence .Pirates and interlopers
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were awarded death penalty. Robbery was punishable with

death .For stealing, punishment was slavery.
Development of Administration of Justice in Bombay before 1726
The Administration of Justice in Bombay during the period from 1668 to 1726
may be studied in the following three stages –
First phase from 1668 to 1683
1- Judicial Plan of 1670- It created following type of court.
Court of Custom Officer :- In 1670 the Island of Bombay was divided into two
parts ,(i) Mazagaon and (ii) Girgaon .
Each of these parts had a court .Each Court consisted of 5 judges ,one of them
being the English custom officer who was the presiding judges ,one of These
courts consisted of Indian Judges also.
The Court of Deputy Governor in Council: - The Court of Deputy Governor in
Council was a Court of Appeal and also a superior Court .It heard appeals from
the lower Courts and also tried cases which were beyond the jurisdiction of the
lower Court.
2- The Judicial Plan of 1672 – Aungier Introduced second judicial system
in Bombay in 1672. Under this system, following three types of courts
were created –
 Court of Judicature – A Court with Gerorge Wilcox as its judge, was
established to hear all civil and criminal cases. For civil matters the courts
sat once a week .All the cases were decided with the help of jury .For
deciding the criminal cases, the court used to sit once in a month .for the
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purpose of criminal administration of justice. Bombay was divided into

four sections.
 Courts of Conscience – This court was also presided over by Wilcox but
it was called as court Conscience in the sense that the justice was very
quick and summary.
 Court of Appeals – Deputy Governor and Council worked as Court of
Appeal. They heard appeals against the judgments of the court of
judicature in all matters.
Second Stage from 1684 to 1690
Under the new judicial system a Court of Admiralty was established in
Bombay. The court basically had jurisdiction in admiralty and maritime cases.
But due to the absence of any other court at that time in the presidency, even
civil and criminal matters went to this court.
Third stage from 1718 to 1726
After nearly 30 years, Court of Judicature, was established in Bombay. The
Indian judges did not enjoy equal status with the English judges. They played
more or less a subsidiary role similar to that of assessors.
Jurisdiction: - This court had jurisdiction to decide civil, criminal.
Civil Jurisdiction - The Court decided several matters of unimportant nature,
the matters that came before the Court did not involve any intricate question
of law and procedure as they were generally question of debt and partition.
Criminal Jurisdiction: - This court has exercised jurisdiction over all criminal
matters excepting those which were to result in capital punishment.
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Charter of 1726
The main provision of the Royal Charter of 1726 were as follows-
1. Establishment of a Corporation at Bombay and Calcutta :The Charter
provided for the establishment of Corporation at Bombay and Calcutta
like the one which already existed in Madras .Thus each of the presidency
towns was to have a Corporation consisting of a Mayor and nine
Aldermen.
2. Mayor’s Court in Presidency Towns: The Mayor and nine Aldermen of
each Corporation formed a Court of Record which was called the “Mayor’s
Court’. It was empowered to decide all the civil cases within the
Presidency town and the factories subordinate thereto. The Court was to
hold its sitting not more than three times a week
3. Crime and punishment: The Mayor’s Court had no criminal jurisdiction
.it was only a Court of civil and testamentary jurisdiction .The Governor
and five senior members of the Council were appointed as justice of peace
in each Presidency for the administration of Criminal justice.
4. Jury Trial in Criminal Cases: The chapter of 1726 provided that criminal
cases in Presidencies are decided with the help of Grand Jury and petty
Jury.
The Grand Jury examined both the parties, namely, the prosecution and
the accused and recorded evidence and sent it to the Court of Governor –
in –Council for trial.
5. Legislation powers under the Charter: Until 1726, the law making
powers were vested in the company which could be exercised only by the
Court of director of the company in England .But this was not very
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convenient because the directors hardly had any knowledge about the
local conditions in India.
The Charter of 1726 now empowered the Governor and Council of each
Presidency-town to make bye –laws, rules and ordinances for the regulation of
the Corporations and inhabitants of the Presidencies
Conflict between the Mayor’s Courts and the governor in council
Causes of the conflict
The causes of the conflict between the Mayor’s Court and the Governor and
Council may be summed up as follows;
1. The Judges of the Mayor’s Courts were not experts in law- they did
not have any training and they were not as disciplined as a Judge ought to
be .They often acted in a manner that was against the spirit of a judicial
institution.
2. The attitude of the Governor and Council was also responsible for
conflict: - They were having no respect for the Judiciary. They were not
interested in the establishment of independent judiciary.
3. The Judge of the Mayor’s Courts and the Governor-in- Council both
were suffering from the superiority complex: - The Judges thought
themselves independent of executives control because of being appointed
under the royal authority .They thought themselves as the superior type
of staff and Whose judgments were considered as authoritative as those
of the Courts in England.
4. Much jealousy was found between the servants of the Company and the
Judges of the Mayor’s Courts which led them to a conflict.
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5. The defects in the Charter of 1726 were also responsible for the
conflict: There was no specific mention in the Charter about the
Jurisdiction of the Mayor’s Courts. It was also not clear whether or not the
Mayor’s Courts were empowered under the Charter to hear the ceases of
the natives relating to caste or religion.
Merits of The Mayor’s Courts
1. They were to derive their authority from the British Crown and not from
the East Indian company and thus they were to be British Crown Courts
2. Their decisions were expected to be considered by the Englishmen and
Courts in England as authoritative as those of the Courts in England.
3. The Mayor’s Courts were to follow well- defined procedure, based on
English law and procedure
4. The Charter of 1726 introduced the system of appeals from the Mayor’s
Courts were to be heard by the Governor and Council and the appeals
from the Governor and Council were allowed to King-in-Council
Various type of Court Established under the Charter of 1753
The following Courts were to be established at each presidency Town:
1. The Court of request: it was to hear civil cases upto 5 Pagodas
2. The Mayor’s Court: - It was to hear civil cases involving a sum exceeding
5 Pagodas Thus, the civil cases of more than 5 Pagodas were to be heard
by the Mayor’s Court.
3. The Court of Governor and council: The Court of the Governor and
Council was to act as Justice of the peace and the Court of quarter session
to decided criminal cases .it was also empowered to hear appeals from
the Mayor’s Court.
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4. Privy Council or King-in- Council: The King –in- Council was

empowered to hear appeals from the Court of Governor and Council in all
civil cases involving a sum of 1000 pagodas or more.
Critical Appraisal of the charter of 1753
Merits: -
One of the important reasons for the conflict between Mayor’s Courts and the
Governor-in-council was the uncertainty of the provisions of the Charter of
1726 as to certain important issues. But The establishment of the Court of
Request was of great help to poor inhabitants.
Defects
1. Too much executives –Charter of 1753 made the judiciary subservient to
the executives. When the right of electing Aldermen was transferred from
their own body to Governor and Council who thereby had unconstitutional
power of making and unmaking of the Judge ,the Court lost its
independence.
2. Non-professional Judges: - The Judges of the Mayor’s Court’s were also
laymen and not expert in law. They were supposed to apply the English
procedure, they failed to do so.
3. Judges Independent of the Company and the Governor-in- Council: -
Most of the Judges of the Mayor’s Court were junior servants of the East
India Company and used to carry on their own trade. Thus, they were
depent on the company Besides the Governor and council were to appoint
them and also they could remove them.
Regulating Act 1773
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The causes which necessitated the passing of the Regulating Act by the British
Parliament were as follows:
1. Agitation for parliamentary control over Indian affairs: - Whatever
rights the company had acquired till 1694 were granted by the Crown
through Royal Charters .It enjoyed the exclusive right to trading with
India. The monopolistic rights of the company gave rise to jealousy and
public resentment in England.
2. Constitutional difficulties: The battles of Plassey and Buxar fought in
1757 and 1764 respectively, established the supremacy of the Company
over Bengal, Bihar and Orissa .A big chunk of Indian territory came under
the Company’s possession .The Company acquired the Diwani (The right
to collect revenue) and the Nizamat (the right to administer criminal
justice) and became a territorial power. Its quasi-sovereign position
created a constitutional difficulty. It’s quasi –sovereign position created a
constitutional difficulty .The English Constitution did not permit anybody
to possess territory except in the name of crown. Hence the British public
insisted on the taking over of the Company’s property.
3. Bride, private trade and gifts to the Company’s servants: - The
servants of the company began to abuse their privilege. They also began
to accept presents from Indian businessman and other civilians in return
for favour done to them.
4. The pitiable condition of the people of Bengal: The system of Double
Government in Bengal led to a reign of corruption and oppression in
the province .Nobody cared for the welfare of the people. The suffering of
the people were aggravated by the famine that broke out in 1770 The
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starving people migrated to other provinces ,which meant , a huge loss of

revenue to the company .
5. Defeat of the Company: In 1769, the company suffered an defeat at the
hands of Haider Ali, the Sultan of Mysore. When this news reached
England. England took this defeat as severe below to her prestite.
6. Apprehension about the failure of the company- When in 1765 the
company acquired the Diwani of Bengal ,Bihar and Orissa .Clive
speculated that Company’s gross income from the land alone would touch
the figure of 5000000 Directors raised the dividends from 6% to 10% and
soon after to 25.2% But as soon as the rumour went round that
Company was heading towards bankruptcy ,the shareholders began to
demand quick action by the parliament to safeguard their interests’
7. Evils of Dual System: The dual control of the three provinces of Bengal
,Bihar and Orissa wrecked the economic life of the people The unnatural
division of the administration into two halves produced confusion chaos
and corruption.
8. Non-Payment of an annuity of 40 lakhs as tribute by the East India
company to the British Exchequer: Since the day the Company
acquired the Diwani of three provinces in India, the British statement had
been anxious to share the huge profits of the company
Main provisions of the Regulation Act
The following are its main provisions-
1. Subordination of Bombay and Madras to Bengal: - Prior to enactment of
1773, the three Governments of the presidencies of Madras, Bombay and
Bengal have direct dealings with the Court of Directors. Then Regulating Act
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declared that the Governors of Madras and Bombay would be subordinate to

the Governor-General of Bengal.
2. Establishment of the Council of Governor-General - The Act made
provision for the Council of four members to assist the Governor-General
.Three councellors were to hold office for five years and could be removed
only by the British King on the recommendation of the Directors
3. Right to make laws: - The Governor-General–in-Council was authorized to
make laws and issue ordinances were to be just, reasonable
4. Establishment of a Supreme Court at fort William: - The Regulating Act
provided for the establishment of a Supreme Court at Fort William .It
consisted of one Chief Justice and three other judges .It enjoyed full civil,
criminal and ecclesiastical Jurisdiction
5. Prohibition of accepting presents and bride :- Since the Governor –
General his councilors and the judges of the Supreme Court drew handsome
salaries ,the Act warned them not to accept presents or bride from the
natives.
6. Right of the shareholders: - Prior to the enactment of 1773 all those
persons whose investment in the company’s capital amounted to 500 were
entitled to elect the Directors.
7. Tenure of the Directors: In order to ensure stability the tenure of the
Directors was extended from year to four years
8. Extension of the State control over the Company: - The Act required the
Directors to lay before the Treasury all papers from India dealing with the
revenues; and all correspondence dealing with the civil and military
administration of the Company
9. Salaries of Governor –General, the members of his Council and the
Judges : The salary of the Governor-General under the new Act was fixed as
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2500 per annum of each councilor as 10,000 of the Chief Justice as 8000 and
of other judges as 6000 per annum.
10. Special arrangements in English for the punishment of offences
committed in India: - The Act provided for the hearing of the cases and the
awarding of punishment in England for offences committed by Governor-
General, his councilors, any Judge of the Supreme Court or any other servant
of the Company in India.
Defect of Regulation Act, 1773
It suffered from the following defects:
1. Conflict between the Governor –General and the Supreme Court:-The
Governor-General and the Supreme Court were mostly as loggerheads
.The reason was that the Jurisdiction of the Supreme Court was not
defined clearly.
2. Vagueness of the provisions relating to the Jurisdiction of the
Supreme Court :- the act did not explain precisely as to who were the
British subject within the meaning of the Charter of the Supreme Court .
The Supreme court claimed it have the right to judge all cases brought to
it by any person living in the territory of the company
3. Conflict between the Supreme Court and the provincial Courts:- Since
the jurisdiction of the Supreme Court was not clearly defined ,it came in
conflict with the provincial Court’s which were subordinate to Governor-
General and his Council.
4. Conflict between the Governor-General and his Council: The Act made
it obligatory for the Governor-General to consult his councilor and stand
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by the opinion of the majority in the council .This provision made the
position of the Governor-General deplorable
5. Inadequate control of the Governor –General over the presidencies
of Bombay and Madras – The Governors of Bombay and Madras abused
this power and at times put the Company to great loss of men and money .
6. Inexperience of the members of the Council: the persons nominated
on the Council of Warren Hastings possessed no experience of Indian
affairs Moreover their relations with Warren Hastings possessed no
experience of Indian Affairs .Moreover their relations with Warren
Hastings were not cordial
7. Defective changes in the Constitutional of the Home Government of
the Company: - The Reagulating Act failed in its object of weeding out
the influence of the retired Company’s servants on the Home Government
of the Company.
8. Indequate of the Parliamentary control over the Company: Although
the Act made it necessary for the Directors to forward the copies of all
civil and military dispatches from India to one of the Secretaries of State
for scrutiny in practice this measure bore no effective results.
Supreme Court under the Crown’s Charter of 1774
The supreme Court was constituted to be a court of Record .Then it was to
consist of a Chief Justice and three puisne Judges to be appointed by the crown
to act during its pleasure .The Chief appointed Sir Elijan Impay as the Chief
Justice ,and the Rebort Chambers S.C .Le Maistre and John Hyde as the three
puise Judges they were Barristers of England of not less than five year’s
standing.
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They were to appoint necessary subordinate officers but their salaries were to
be approved by Governor-General –In – Council They were to admit and enroll
Advocates and Attorneys –at law and to settle the court fee subject to the
approval of the Council
Jurisdiction :
Original Jurisdiction : The Court was authorized to hear ,examine ,try and
determine all civil causes ,suits and actions against
(i) the Company
(ii) the Mayor and Aldermen of Calcutta
(iii) the Crown’s subjects who were residents within Bengal ,Bihar Orissa
or who should have resided there or who should have any debts
,effects or state real or personal within same
(iv) Any person who was employed by or was directly or indirectly in the
service of the Company ,or the Mayor and Aldremen or any of the
Crown’s subjects and
(v) any inhabitant of India residing in the provinces if he entered into an
agreement in writing with any of the Crown Subject that ,in case of
dispute between them .the matter should be determined in the
Supreme Court
As Court of Equity : The Supreme Court was to be a Court of Equity .it was
given to full power to administer justice in a summary manner as nearly as
might be according to the rule and proceedings of the High Court of Chancery
in Great Britain
As Criminal Court :- The Supreme Court was to be a Court of oyer and
Terminer for the town of Calcutta, the factory of fort Wiliam and subordinates
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factories . It has to administer criminal justice in all cases of grave offences in

such manner and form or as nearly as the conditions and circumstances of the
place and persons admitted.
As Ecclesiastical Court: - The Supreme Court was given ecclesiastical
jurisdiction over British Subjects residing in Bengal, Bihar and Orissa.
As Admiralty Court :- The Supreme Court was declared to be a Court of
Admiralty for Bengal ,Bihar and Orissa to hear and try all cases ,civil and
maritime, in the same manner as High Court of Admiralty did in England.
Supervision over inferior Courts
The Court of Requests as established in 1753,the Courts of the Quarter
Sessions to be held by the Justice of the peace ,Sheriffs and other Magistrates
were put under the Control and supervision of the Supreme Court
Appeals
A civil appeal might be taken to the King –in Council .it was to be filed within a
period of six months of the delivery of judgment and the matter in dispute was
to be over 1,000 pagodas in value
Immunity to Counciliors and Judges
The Governor –General the Councillors the Chief Justice and the Judges of the
Supreme Court were not liable to be arrested or imprisoned in any action suit
or proceeding except in cases of treason or felony.
Raja Nand Kumar Case
Background of the trail Of Raja Nand Kumar.
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Nand Kumar ,a Brahmin was a big Zamindar and very influential man in Bengal
.During the period of Clive ,he was considered to be a loyal Indian to the East
India Company and on account of his loyalty to the Company he was called “
Black Colonel”. Now there were two groups in the Governor- General –in –
Council. Governor General ,Warren Hastings and the Councilor ,Barwell,
constituted one group and the Councilors ,Francis .Clavering and Monson
constituted other group. Thus the majority was against the Governor-General,
Warren Hastings, Raja Nand Kumar was encouraged by the majority to bring
certain charges of bribery and corruption against Warren Hastings before the
Council In March 1775 Nand Kumar gave a letter to Francis a Councillor In the
letter ,Nand Kumar stated that in 1772, Warren Hastings accepted from him as
bribe more than one lakh rupees for appointing his son ,Gurusdas as Diwan
.The letter contained the another charge against Warren Hastings that he
accepted from Munni Begum as bribe one lakh and fifty thousand rupees for
appointing her guardian of the infant Nawab.
Warren Hastings (who was presding the meeting as the Governor-General)
opposed Monson’s motion that nand kumar should be could in the meeting and
stated that he would not sit in the meeting in the character of a criminal and
would not acknowledges the members of the Council to be his judges.
Nand Kumar was called before the Council to prove his charge against Warren
Hastings .Nand Kumar was briefly examined by the majority members of the
Council thereafter the majority members of the Council declared that the
charges leveled by Nand kumar against Warren Hastings were true and
directed Warren Hastings to deposit in the Treasury of the company Rs.
354105 which was accepted by him from Nand kumar and Munni Begum as
bribery.
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This event annoyed Warren Hastings and he began to hate Nand Kumar.
In May ,1775 the charge of forgery against Raja Nand Kumar was presented
before the Supreme Court by Mohan Prasad .The Charge against Nand Kumar
was that he had forged a bond five years before No doubt the charge of forgery
against Nand Kumar was brought before the Supreme Court by a native ,Mohan
Prasad but it was the opinion of everybody that the real mover in the case was
Warren Hastings. Thus ,Nand Kumar was tried by the Supreme Court with help
of a jury and found him guilty and sentenced him to death under an act passed
by the British parliament in 1728
Critical Appraisal – Was it a Judicial Murder? The legality, validity and
fairness of the trail has been a debatable issue .Some of the historians have
criticized the trial and expressed the opinion that there was some sort of
conspiracy between Governor General .Warren Hastings and chief justice
,impey, to put Nand Kumar to death and therefore it was judicial murder.
We will discussed the case in the following these headings-
A. Extension of Forgery Act, 1728 to Calcutta: - The chief Justice impey
expressed his opinion that the forgery Act of 1728 was applicable to
Calcutta and therefore Nand kumar would be tried and convicted under it
.In support of his opinion, impey extended the following grounds:
 The English law was introduced in India by the Charter of 1726 and
thereafter by the Charter of 1735 The Forgery Act of 1728 which was
enacted before 1753 was applicable to Calcutta.
 Even before the establishment of the Supreme court the English Criminal
Law including the Forgery Act of 1728 had been administered in India the
English Courts.
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 Calcutta was a British Colony and therefore the Forgery Act of 1728 was
applicable to it without any doubt and since Nand Kumar was a resident
of Calcutta, he was subject to the Forgery Act of 1728 and consequently
he could be tried and convicted under it.
However, on the followings grounds it is said that the Forgery Act of 1728 was
not applicable to India and Nand Kumar could not be tired and convicted under
it -
 Since the Forgery Act under which Nand Kumar was tried and convicted
was passed after 1726 (i.e., in 1728) and therefore it was not applicable
to Calcutta unless it was expressly made applicable to it.
 The Forgery Act of 1728 was not known to the native (including Nand
Kumar ) and therefore it was unfair and illegal to prosecute and punish
Nand Kumar under this Act.
 The Forgery Act of 1728 was enacted in England in special circumstances
for commercial development it was necessary to prevent forgery and
develop credibility among the business men and therefore the forgery Act
of 1728 was passed to make forgery a capital offence but Indian
circumstances did not require such an act.
 Nand Kumar was tired under an ex-post –facto law which was against the
spirit of t he English law and universally acknowledged principles.
B. Jurisdiction of Supreme Court over Nand Kumar :- The Supreme Court
had jurisdiction over all inhabitants of Calcutta whether they were
Englishmen or native .As regards its jurisdiction over the persons inhabiting
outside Calcutta ,it had jurisdiction over the British subject, his Majesty’s
subjects and also over those native who were servants of the Company or
any British Subject .Consequently if Raja Nand Kumar was inhabitant of
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Calcutta the Supreme Court had jurisdiction over him ,but if he was
inhabitant of any place out of Calcutta ,the Supreme Court did not have
jurisdiction over him because he was a native and he was neither a servant
of the company nor of any British subject .The chief Justice impey expressed
the view that Nand KUMAR WAS AN INHABITANT OF CALCUTTA AND SO HE WAS
WITHIN THE JURISDICTION OF SUPREME COURT. BUT THE VIEW of Chief justice
impey does not appear to be correct .At the time of the commission of the
offence of forgery he was not a resident of Calcutta ; he was brought and
detained in Calcutta as a prisoner .Consequently ,the Supreme Court had no
jurisdiction over him.
C. Fairness and impartialing of the Trial: - The fairness and impartiality of
the Supreme Court, particularly of the chief Justice impey has been doubted
on the grounds stated below –
 The witness of Raja Nand Kumar were crossed –examination by all the
judges of the Supreme Court .They used such language and procedure
which were unknown to the Indian witness appeared in defence of Nand
Kumar and they got confused and consequently the whole defence of
Nand Kumar collapsed This fact indicates that it was the desire of the
judges to breakdown Nand Kumar’s witnesses.
 On behalf of Raja Nand Kumar an application was presented before the
Supreme Court to Forward the case for mercy to the British Crown ,but
the Supreme Court refused to forward it The Supreme Court refused to
reprieve and suspend the execution of the death –sentence All these
created doubt as to impartial attitude of the judges of the Supreme Court.
Patna case
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Facts of the case: Shahbaz Beg Khan, a native of Kabul, came to Bengal and
served the Company for sometimes and retired ,after retirement he settled at
Patna and married Nederah Begum by whom he had no children ,his nephew
,Bahadur Beg came from Kabul to live with him and remained with Shahbaz
Beg Khan till his death , In other words Bhaudhar Beg was living with Shahabaz
Beg Khan till’s latter’s death which occurred in 1776.he left behind him
considerable property after his death. His nephew ,Bahadur Beg and his widow
,Naderah Begum both claimed the whole property of the deceased ,Shahbaz
Beg Khan and Naderah Begum both came into open conflict .
Bahadur Beg filed a petition against Naderah Begum in patna provincial
Council which was established as a Diwani Court. In the petition Bahadur Beg
stated that he was entailed to whole property of the deceased as his adopted
son he also stated that the widow of the deceased Naderah Begum had
embezzled some valuables of the deceased and that same should be recovered
from her for the petitioner. On the petition of provincial Council issued an
order to the Mohammedan Law Officers to prepare a inventory of the property.
Thereafter the Mohammedan law Officer went to the spot and began
investigation During the investigation they behaved with the widow Naderah
Begum very harshly and cruelly. On account of such behavoiur of Muslim Law
Officers she was very much afraid and fled from house with some title deeds
etc. and took shelter in a Dargah a holy place .
The Muslim Law Officers stated in the report that the deeds were forged and
therefore not genuine. The Patna provincial Council without making any
further investigation ordered that the persons responsible for forgery should
be put in confinement but she refused to hand over her title deeds and
appealed to the Sadar Diwani Adalat against the decision of the provincial
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Council but it remained pending for a long time without any action. The court
consequently, awarded damage of Rs. 3, 00,000 against the defendants for
personal injuries to the widow, Naderah Begum and taking away her property
.The defendants were not able to pay damages and therefore they were
ordered to be imprisoned The defendants were sent to Calcutta
The Supreme Council defended the suit .it was pleaded that the acts
complained of were done by the members of Patna provincial Council in their
official capacity .The Supreme Court tried the action and found the whole
proceedings of the Patna Provincial Council illegal ,irregular and corrupt and
the judgment was delivered against the defendants i.e the members of Panta
Provincial against the defendant and the widow was awarded Rs. 15,00 as
damages.
Issues involved in the case
1. Whether Supreme Court had jurisdiction over Bahadur Beg and the
Mohammedan Law officers ?- It was pleaded that Bahadur Beg and the
Mohammedan Law officers were not within the Jurisdiction of the
Supreme Court .Under the Regulation Act, 1773 the Supreme Court had
Jurisdiction over all the persons inhabiting in Calcutta, it had jurisdiction
over the British Subjects.
Thus, the Indian inhabiting outside Calcutta were under the jurisdiction
of the Supreme court only when they were directly or indirectly in the
service of the company.
2. Whether the Judicial Officers could be held liable for the act done in
their official capacity or in the discharge of their duties? - The Kazi
and Muftis ,the Mohammedan Law officers, pleaded that their acts in
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question were done in the discharge of their duties as the Mohammedan

Law officers and also in accordance with the established practice and
therefore they could be tired for those acts. They further stated that it
was a practice of the provincial Council to refer cases in which
Mohammedans were parties and to which Mohammedan Law was to be
applied, to the Mohammedan Law Officers (Kazi and Muftis) who were to
hear evidence on both sides and make their report to the provincial
Council.
3. Effect of the case :-
 State of Company’s Judicial system as exposed by the Patna
Case :- The Patna case exposed the weakness of the company ‘s
judicial system .The judge of the provincial Council had given up to
their powers to the Native Law Officers and the Native Law Officers
who were to interpret and expose law used to hear the case and
inquire into the facts of the case .They used to decided upon the
matters of fact and law it was their decree which was executed after
receiving the formal sanction of the Patna Council .In fact ,the
members of the Provincial Council had no interest in the Judicial
administration.
 Panic among farmers of land revenue: The Supreme Court in
Patna case held that a farmer of land revenue was in the service of
the company therefore under the Jurisdiction of the Supreme Court
This created panic among the farmers of land revenue.
 Cause of the Act of Settlement 1781 : The patna case was one of
cause for the passing of the Settlement Act, 1781 The patna case
brought into light many defects prevailing in the then existing
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administration of justice and made the British Parliament to realize

the need of an Act to remove out those defects.
Cossijurah Case
Facts of the case: In the early days every Zamindar or the farmer of the land
revenue was required to find a surety when the Zamindar or the farmer of land
revenue defaulted, The surety was held liable to pay revenue to the company
.In this case Raja Sundernarain was a Zamindar of Cossijurah ,situated in the
district of Midnapur in Orissa .He was engaged in collection of revenue for the
company . Kashinath was a principal merchant of Calcutta. Raja of Cossijurah
(Sundernarian ) was indebted to Kashinath upon two bonds which the Raja
had executed at Calcutta in favour of Kashinath .Kashinath tried to recover the
money through the Board of revenue at Calcutta but he failed to recover
.Ultimately he failed a debt suit in the Supreme Court on 13th August ,1779 on
the ground that Raja of Cossijurah ,being a Zamindar collecting revenue for the
Company ,was in the service of the Company and therefore he was under the
jurisdiction of the Supreme Court .The Supreme Court convicted and issued a
writ of capias for the arrest of Raja of Cossijurah Raja avoided service of the
writ by hiding himself When the Sheriff came again to serve the writ and arrest
him, his people drove away the Sheriff.
It was alleged by the Raja that the Sheriff’s men entered into his house and also
in the Zenana and committed outrages upon the place of religious worship .In
the meantime the Governor –General in Council (i.e, the Supreme Council)
directed Colonel Ahmity ,the Officer Commanding the troops at Midnapur to
detach a sufficient force ,intercept and arrest Sheriff’s men .Wrren Hastings
declared that “we are upon the eve of an open war with the Court. Shefiff and
his men, kept them in confinement for three days. Sheriff and his men were
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released by the Supreme Council but the Council directed Colonel Ahmity to
resist any further writ of the Supreme Court. Kashinath brought an action
against the Governor –General and members of the Council individually for
having assaulted ,the Sheriff and his men. At first the Councillors appeared in
the Court but they refused to submit to any process of the Supreme Court .The
Supreme Court issued writ against the member of the Council.
But the writ could not be served to the Councillors because the Army Officials
did not allow the officials of the Court to serve .The Supreme Court ,thus felt
insulted and punished North Naylor ,Attorney General of the Company on the
ground that being an attorney he advised the Government to deny the Court’s
processes.
Issues involved in the case
 Whether the Zamindars were subject to the jurisdiction of the
Supreme Court? – This issue could not be decided by the supreme court
because Zamindar ,Raja Sundernarain did not appear before the Court in
order to plead to its Jurisdiction .it was proper for the Zamindars to
appear before the Court and plead to its jurisdiction and in the case of its
judgment against him, to appeal to the King – in-council .This court could
have provided the Supreme court as well as the King –in- Council a
chance to decide the jurisdiction of the Supreme Court over the
Zamindars.
 Who was the competent authority to decide whether or not the
Zamindars were under the Jurisdiction of Supreme Court? : - The
Supreme Court held that it was the court and not Council which was the
competent authority to determine this issue.
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Passing of the Act of Settlement, 1781 was one of the consequences of the
Cossijurah Case: - The act of Settlement, 1781 was passed to settle many
controversial issues as to the Jurisdiction of the Supreme Court and as to
relation of the Supreme Court with the Supreme Council and the Company’s
Courts.
Judicial plan of 1787
1. Lord Cornwllis introduced his first judicial plan in 1787 to combine
revenue and the judicial functions in a single authority called the
‘Collector.
2. With a view to reorganization the revenue administration, the number of
districts in Bangal, Bihar and Orissa was reduced from 36 to 23
3. Servant of the Company was to be appointed as the Collector who was in-
charge of the district and was responsible for the collection of revenue
within the district.
4. The salaries of collectors were raised to endure purity and fairness in the
administration of justice.
5. Besides revenue collection, the collector was also to act as the Judge of
the Mofussil Diwan Adalat for deciding civil cases.
He could try petty offences himself, the punishment for which could not
exceed fifteen strokes or imprisonment for fifteen days.
Appeals
Appeals from the decisions of the Mal Adalat which was headed by the
Collector lay to the Board of Revenue at Calcutta and a further appeal from the
Board of the Revenue could be revenue preferred to the Governor-General and
Council .Thus there was provision for two appeals in cases.
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Office of Register
Under the Judicial Plan of 1787, a new office of the registrar was created in
each district .He was a subordinate officer who assisted the Collector in the
administration of civil justice.
Critical Appraisal to the Judicial Plan 1787-
1. It resulted into over-centralisation of powers in one single official, namely
the Collector.
2. The judicial arrangement under the plan of 1787 made justice
subservient to the needs of the revenue collection which by no means
was a progressive step.
3. The provision of appeal in revenue, civil and criminal cases from the
decisions of the collector to the board of revenue, Sadar Diwani Adalat
and Nizamat Adalat respectively ,was intended to keep the Collector
within bounds and to prevent likelihood of his mis-using the authority.
4. Therefore, the net result of the plan was that it annulled the separation
between judiciary and the executives which was introduced by the earlier
Act of 1781.
Judicial Plan of 1790
Lord Cornwallis focused his attention on the reorganization of the criminal
justice through his judicial Plan of 1790. The law administering criminal justice
was also uncertain.
The Law of evidence under the mohammedan criminal law was also most
unsatisfactory and irrational .For example A muslim murderer could not be
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convicted on the evidence of a non-muslim and one muslim witness was

equivalent to two Hindu witnesses.
A person could not be convicted for the offence of rape unless four eye-
witnesses actually testified the occurrence of the offence
The main changes introduced under the plan were as follows:
1. Reforms introduced in Mohammedan Law of Crimes –
 In awarding sentences in case of murder ,the intention of the
committing the offences was to be taken into consideration by the
judge Thus mens rea became the main guiding factor for deciding the
guilty
 Discriminatory provisions relating to religion and sex were abolished
and now all the witnesses were to be treated alike, whether they be
male or female; Hindu or Muslim.
2. Reorganization of the Criminal Courts:
Three distinct types of Courts were established ,namely ,the court of
District Magistrate ,the Court of Circuit and the Sadar ,namely ,the Court
of District Magistrate ,the Court of Circuit and the Sadar Nizamat Adalat
3. The Court of District Magistrate :-
 The Collector of every district was to act as District Magistrate .He was
to apprehend offenders and try those petty cases himself which were
punishable up to fifteen strokes or imprisonment not exceeding fifteen
days .He was also empowered to conduct preliminary enquiry in case
of murder ,thefts robberies and other offences.
 Courts of Circuit :- For the take of administrative convenience , the
entire territory of Bengal ,Bihar and Orissa was divided into four
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Divisions ,viz; Calcutta ,Patna ,Dacca and Murshidabad and a Court of

Circuit was established in each of these Divisions .Also the Mofussil
Fouzadari Adalats were abolished
 The Sadar Nizamat Adalat : The Nawab was divested of all the
powers of criminal adjudication and Mohammed Raza Khan who
controlled the Sadar Nizamat Adalat at Murshidabad was removed
from his office .The seat of Sadar Nizamat Adalat was transferred from
Murshidabad to Calcutta and it was now to consist of the Governor-
General and the Members of his Council
Judicial Plan of 1793
The main purpose of the judicial plan of 1793 was to remove the defects
existing in the administration of civil justice which had suffered a major
setback due to over-centralization of powers in a single authority of the
Collector in each district.
Lord Cornwallis brought about vital changes in the administration of civil
justice through his Judicial Plan of 1793.The reforms were introduced to
ensures the separation of executive actions of the Government The provisions
of the Cornwallis Code can be studied under the following heads ;
I. Separation of civil and revenue jurisdiction : Under the Judicial
plan of 1793 the collector was only to collect the revenue and his
power to decide revenue and civil cases was withdrawn and
transferred to the Mofussil Diwani Adalat.
II. Re-organization of Diwani Adalats :- The working of civil courts was
reorganized by Regulation iii of the Cornwallis Code so as to make
them more independent and efficient .A Mofussil Diwani Adalat was
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established in each district of Bengal, Bihar and Orissha and a civil

servant of the company was appointed as judge of the Adalat in place
of Collector.
III. Appeals from the Diwani Adalats :- The appeal in all civil cases
,irrespective of the value of the subject matter ,could be preffered to
the Provincial Court of Appeal which was created in each of the four
Divisions of Bengal ,Bihar and Orrisa ,namely ,patna ,Calcutta ,Dacca
and Murshidabad .This court consisted of three English judges of the
Company and it was appellate Court for the division.
IV. Creation of Subordinate Civil Court :- Besides the Mofussil Diwani
Adalat in each district ,a number of subordinate courts were created by
Regulation ix of the Cornowallis code with a view to ensuring
administration of civil justice to natives of interior parts of the district.
Following courts were made-
o Munsif’s Court :- In each district ,Sadar Amins and Commissioner’s
who were subsequently called the ‘munsifs’ were appointed to
decide cases upto Rs. 5/ The appointment of munisifs was made
from amongst the landlords,farmers and tehsilders etc.
o Registrar’s Courts: - There was yet another subordinate court
called the Register’s Court which functioned under the Mofussil
Diwani Adalat of the District
V. Abolition of Court –Fees- another significant change introduced by
Lord Cornwallis through his judicial Plan 1793 was the abolition of
Court –fees
VI. Administration of Criminal Justice: - The Collectors who also acted
as magistrates under the Scheme of 1790 were deprived of their
Magisterial powers.The magisterial power of the Collector was
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transferred to the judge of the Mofusil Diwani Adalat with the same
powers and functions
VII. Native Law Officers :- Regulation xii of the Code provided for the
appointment of native law officers ,namely ,pandit ,Kazis and Mufits in
the Sadar Diwani Adalat ,Sadar Nizamat Adalat These native law
officers were to expound the law and thus Played an important role in
the administration of justice
VIII. Leagal Profession: - In order to ensure efficiency in the
administration of Justice, Lord Cornwallis organized legal profession
for the benefit of the litigants
IX. Making of Laws and regulations:- Cornwallis made an attempt to
bring about uniformity in the pattern of Regulations .He provided that
every Regulation shall contain a preamble stating the reasons and
objects for its enactment
X. Reforms in the police System: - The police establishments were held
by landlord and farmers of land .This system was abolished and now
each district was divided into police jurisdiction of twenty miles each.
Judicial Reforms of Lord William Bentick
In july 1828, Lord Williams Bentinck succeeded Lord Amherst as Governor –
General. During his seven years stay in India i.e., from 1828 to 1835 he
introduced several reforms of great importance in various fields. A brief
account of his judicial reforms is given below:
1. Abolition of Circuit Courts: Lord Bentinck realized that the existing
system of Circuit Courts with very wide territorial jurisdiction was
responsible for many defects in the administration of justice in civil and
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criminal cases. Long delays in deciding the cases increased the arrears of
cases. As consequences of delay in criminal Justice, prisoners suffered in
jails without trial for a long time.
He abolished the system the Circuit Courts In place of the Circuit Courts
by Regulation I of 1829, he appointed Commissioners of Revenue and
Circuit to Control the working of the Magistracy ,police ,Collectors and
other revenue officers
2. Power of Sadar Ameens ,District and City Judges increased :- It was
found that the Commissioners of Revenue and Circuit were given too
much work Therefore ,the Governor-General –in –Council was
authorized by Regulation vii of 1831 to empower any Zila and city Judges
not being a Magistrate to hold criminal sessions whenever it was felt that
the pressure of work on the Commissioners was too much
3. Establishment of Sadar Nizamat Adalat and Sadar Diwani Adalat at
Allhabad :- In order to avoid unnecessary delay and improve the
administration of justice ,it was considered necessary to reduce the
territorial jurisdiction of the Calcutta Sadar Court .In 1831 ,therefore a
Sadar Nizamat Adalat was established with the same powers as were
given to the Calcutta Sadar court .
4. Practice of Sati declared an Offence: - In 1829 Lord Bentinck took a
very bold step to abolish the prevailing inhuman rite of the practice of
Sati. It was declared an offence and was punished like culpable homicide.
5. Indians appointed judicial Officers :- In 1832 the Commissioners of
Circuit amd Session Judges were authorized to take the assistance of
respectable natives in criminal trails either by referring some matter to
them as Panchayat for investigation or by calling them to the Court as
assessors or as jury.
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6. Abolition of Provincial Courts of Appeal : By Regulation viii of 1833 the

Governor-General was empowered to appoint any number of additional
judges in a district on t he recommendation of the Sadar Diwani Adalat.
Lord Bentinck intended to simplify the judicial process and reduce the
cost and time of the administration of civil justice.
7. Civil and revenue jurisdiction given to Collector: - Suits relating to
rent were transferred to the Collectors of revenue who were empowered
to decide summarily.
8. Charter Act of 1833: The charter allowed the company to retain its
territorial possessions in India for the next twenty years .The act of
1833 established an All India Legislature with general and wide
powers to legislate.
Federal Court And Privy Council
The Federal Court was a Court of Record .It was setup at Delhi and at such
other places as the chief Justice of India may declare and at such other places
as the Chief Justice of India declare ,with the approval of the Governor-General
of India ,from time to time
Appointment of Judges : The Federal Court was to consist of a Chief Justice
and not more than six puisne judges ,who were to be appointed by the King
.The King could increase the number of Judges. Every Judge of the Frderal
Court of India was appointed by His Majesty and was to hold office till the age
of sixty –five years.
Qualifications: - For appointment of a Judge in the Federal Court .The
qualification were:
(i) five year ‘experience as judge of a High Court, or
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(ii) a pleader in a High Court of ten year’ standing

As regards the appointment of chief justice, it was provided that a
person should have either fifteen years experience of standing in a
High Court as a barrister, advocate or pleader or have been one when
first appointed as a Judge
Salaries : The Judges of t he Federal of the federal Court were entitled to such
salaries and allowances and to such rights in respect of leave and pensions as
were laid down by His Majesty from time to time
Jurisdiction of the Federal Court
a. Original Jurisdiction: Section 204 of the Act of 1935 provided that the
original Jurisdiction of the Federal Court was confined to disputes
between Units of the Dominion or between the Dominion and any of the
Units.
b. Appellate Jurisdiction: The Federal Court exercised appellate
jurisdiction in constitutional cases under the Act of 1935, its appellate
jurisdiction was extended to civil and criminal cases from 1948
I. In constitutional cases: Section 205 of the Government of India
Act, 1935 made provision for an appeal to the Federal Court “from
any judgment, decree or final order of a High Court if the High Court
certifies to the effect laid down in the section.
II. In civil cases: - Since 1948 civil appeals, which formerly went to the
Privy Council were hard by faderal court.
III. In criminal matters: - The Federal Court (Enlargement of
Jurisdiction) Act 1947 enlarged the jurisdiction of the federal Court
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in India and in 1949 the system of appeals from India to the Privy
Council was totally abolished.
c. Advisory jurisdiction: - Section 213 of the Act .of 1935 (as amended)
empowered the Federal Court to give advisory opinion to the Governor-
General.
Privy Council
Privy Council was the last court or apex court of appeal for colonies and
cominions, but the decisions of the Council was always in the form of advise
and not as a final order as in case of other courts .it used to be in a form of
report tendering advice to his Majesty regarding the action to be taken in case
under appeal.
Composition of the Judicial Committee of Privy Council
A permanent Judicial Committee of Privy Council was set up under the
parliament Act of 1833 .The Committee Composed of the President of the Privy
Council, Lord High Chancellor and such other members of the privy Council as
from time to time held any of the following offices, namely.
1. The first Lord Commissioner of the Great Seal of Great Britain
2. Chief justice or the judge of the King’s Bench Court
3. Master of rolls
4. Vice Chancellor of England
5. Chief Judge or the Judge of the Court Of Common peas.
6. Chief Baron of the Court of Exchequer
7. Judge of Prerogative Court of Lord Arch Bishop of Canterbury.
8. Judge of the High Court of Admiralty ;and
9. Chief Judge of the Courts of Bankruptcy etc
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In addition, the king could also provide two other Privy Councilors, to be
the members of the judicial Committee.
Appeals to Privy Council
Appeals in civil matters - could be made with or without special leave of the
Privy Council .Appeal without leave regulated by order in Council or Imperial
Act or Local Act.
In criminal cases, - an appeal could be allowed by Crown in exercise of
prerogatives rights ,if advised by judicial Committee, Where:
 There had been violation of principles of natural justice,
 Violation of rules of procedure
 Substantial and grave injustice was caused tot eh appellant in any
manner.
Indian Appeals
The history of Indian appeals to the privy council may be as follow
Appeals from Crown’s Court:
Appeals from Mayor’s Court: - In 1726, the Royal Charter establishing the
Mayor’s Court at Presidency towns gave a right of appeal to the Privy Council
from these Courts.
Appeals from supreme Courts : In 1773 ,the Regulation Act Empowered the
Crown to establish by Charter a Supreme Court at Calcutta and enacted that
any person aggrieved by any judgment or determination of the Court should
and might appeal there from to the privy Council.
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Appeals from high Courts: The Indian High Courts Act 1861, empowered the
Crown to establish High courts by Charters.
The Charters establishing the High Court provided for the circumstances under
which an appeal will lie from the High Courts to the privy Council. Appeal was
allowed in all matters, except criminal cases and it was allowed when High
Courts certify that there was question of law and it was fit for appeal.
Appeals From Company’s Courts
An appeal from the decisions of the Court of the Company to the Privy Council
was first allowed in 1781 by the Act of settlement.
Abolition of the Jurisdiction of the Privy Council
After the Indian Independence in 1947 there was need to extend the
jurisdiction of the Federal Court by restricting Privy Council’s jurisdiction over
it. Therefore an Act called the Federal Court Act, 1948 was passed which
provided that an appeal would be allowed to the Federal Court from form any
judgment of The High Court.
The Jurisdiction of the Privy Council to hear appeals from India was
completely abolishment in 1949 by the Abolition of the Privy Council
Jurisdiction Act, 1949 which came into force on October 10, 1949. The pending
appeals were transferred to the Federal Court except those which the privy
Council could dispose of before the inauguration of the Indian Constitution.
Unit- 5
Charter of 1833
Factors leading to Reforms of 1833
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Though there weredefects in the existing system of Regulation Law. Therefore

were other factors also which compelled the British Government to introduce
reforms.
 Supreme Court’s power & Jurisdiction: It is interesting to note that the
demand for the reforms was not due to enlightened public opinion in
India but it was mostly from the Public servants. The Jurisdiction of the
Supreme Court was uncertain and anomalous.
 Economic Condition: The deteriorating economic condition of the
Company was also responsible for the reforms of 1833.Due to deficit
budgets Lord William Bentinck, the Governor –General ,was specially
directed by the Directors to reduce the expenditure of the subordinate
Presidencies.
 Public Opinion in England:- The trend of, public opinion in England also
influenced the Company’s policies in India. In order to satisfy English
Public opinion an English lawyer was appointed as a member of the
Governor-General’s Council.
 Favour to Christianity:-British Business man wanted a free field for
their investment in India and so it was considered essential for a
spreading the Christian religion in India, therefore it necessitated the
passing of a new charter.
 Travails through which it passed: - Before the final draft of the Charter
Act of 1833 was prepared it passed through various expert committee,
discussions, correspondence and spadework in India and England
Main Provisions of Act of 1833
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1. End of the commercial functions of the Company: The Act stated in

very clear words that the Company, Henceforth shall have no commercial
functions .it was to run the administration of India in trust for his Majesty
.
2. Restrictions of European immigrants removed: - It also permitted
Bruisers to buy land and settle down permanently in India .The Act also
empowered the Governor-General –in –Council to make laws and
ordinances for ensuring protection to Indian from insults to their person
or religion by the British subjects.
3. Increase in the powers of the Governor-General: The Act further
strengthened the hands of the Central Government over the Presidency
Governments .The designation of the Governor –General of Bengal
was changed to Governor-General of India. The authors of the Act
invested the Governor-General with full power.
4. Legislative powers vested in the Central Government: - The Act of
1833 also established the centralization of legislative powers in India.
Sometimes a presidency law conflicted with a central law resulting in
confusion for the people so in order to secure uniformity of legislation
the Act of 1833 empowered the Governor –General to make laws for all
persons whether British, the native, Foreigners or others.
5. The veto power of Governor-General and the Governors over their
Councils was well defined :- The Governor-General and the Governors
had been empowered by the Act of 1793 to disregard or override the
decision of their respective councils This Act further defined the veto
powers of the Governor-General. They had to explain the reason of their
doing so.
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6. Laws to improve the condition of Indian: - The Act empowered the

Governor –General to make laws and regulation for the welfare of Indians
.Armed with the power, the Governor-General went ahead with a
measure for the abolition of slavery in India.
7. Addition of Law member to the Council of the Governor General:
Provincial was made for the addition of a law member to Governor-
General’s Council. He was to be appointed by the Directors to advise the
Governor-Generals Council. He was to be appointed by the Directors to
advise the Governor-General on law –matters .He had no right to vote
except on matters pertaining to making laws and regulations.
8. All discrimination against Indians abolished: The Act laid down that
“No native of India nor any natural born subject of his Majesty would be
disabled from holding any place, office or employment only by reason of
his religion, place of birth, decent or colour.
9. Appointment of other Bishops: the Act suggests the number of
Bishopries to be increased from one to three .it made the Bishop of
Calcutta, Henceforth the Metropolitan Bishop of India.
10. Establishment of Central control over the forces of the
Presidencies: The Governments of Bombay and Madras were allowed to
retain separate military force under their respective Commannder –in –
chief but their overall and ultimate control was vested in the Governor-
General.
11. Payment of the Loan for the Company: The Act deprived the
Company of its monopolistic trade rights with India and china but
allowed it to retain its political and administration powers
Main Provisions of the Act of 1853
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1. The Act allowed the Company to govern its territories in India on behalf
of her majesty until the parliament should otherwise direct.
2. Influence of the Directors further curtailed: The Act reduced further
the patronage of the Directors. Their number was reduced from 24to18;
six out of which were to be the nominees of the Crown.
3. Indian Civil Service opened for all:- The Act took away from the
Director their privilege to nominate persons for civil services in India
.The competition was thrown open to all the British subjects irrespective
of race ,caste or religion.
4. Governor –General’s Legislative Council enlarged; - The Act of 1833
had provided for the addition of a law member to Governor-General’s
Council. His function was confined to advising the Governor-General
Council in matter relating to making laws and regulating.
5. Codification of Indian laws: - Macaulay had already done a lot of
spadework regarding the compilation of law but his labour had not been
given a final shape and approval .The new Act provided for the
appointment of a body of English Commissioners to give a final legal form
to the Codes prepared by the Indian Law Commission.
6. Separate Governor for Bengal and the Punjab: The Act in order to
relieve the Governor-General of some administrative burden provided for
a separate Governor for Bengal and a Lieutenant –Governor for the
Punjab
7. Creation of new Provinces: - in the exercise of the power conferred by
this Act, the Governor-General –In –Council gave shape to new provinces
of Assam, Central Provincess ,N.W.F.P., Burma ,British Ballchistan and
Delhi.
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8. The new Act fixed the Salary of each member of the Governor-General’s
Council of $500 per year .the presence of at least seven of the total
number of 12 members was made essential for any lawful meeting of the
Legislative Council of Governor-General
9. Procedure of the Legislative Council: - The Governor-General’s
Legislative Council put the British Parliamentary procedure as a model
for purpose of making laws.
10. Consent of the Governor-General:- The legislative Council under
the new Act was not to be a sovereign law – making body .Any Bill passed
by it could not go into the Statue Book unless assented to by the
Governor-General Any Bill passed by it could be voted by the Governor-
General –in –Council.
Circumstances leading to the Act of 1861
1. Need of associating Indians: - The great uprising of 1857 served as an
eye-opener to the British Government. It bought to British statemen that
no Government can be secure in its seat by antagonizing the people.
2. Defective system of Law-making in India: The Legislative Council of
the Governor General did not work satisfactory .it observed all the
formalities of a parliamentary procedure, hence caused delay in the
enactment of laws.
3. Difficulties in making laws for the provinces: - The Act of 1833 had
brought about the centralization of legislative powers .it failed to make
laws which could suit the local conditions of a provinces .Hence the need
was felt for allowing the presidencies to frame rule for themselves.
4. Question of defining the powers of the Legislative Council: - The
Legislative Council of the Governor- General in due course widened its
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scope of work and began to work as a parliament in miniature .it

sometimes embarrassed the Governor-General by asking him to supply
all information and correspondence with the Secretary of State.
5. Despatch of the Governor-General :- The new proposals made by the
Government of India in their Despatch of January 1861 were:
 the establishment of the Councils for Bengal ,North –Western
provinces and the Punjab ;
 the exclusion of judges from the Councils ;
 an increase in the number of non-official Member from three to five
in the Presidency Councils of Bombay and Madras.
Main provisions of the Act
1. Addition of fifth member of the Executives Council of Viceroy: - The
Act provided for the enlargement of Viceroy’s Council by adding one
ordinary member to it .The fifth member was to be a financial expert.
2. The Viceroy was empowered to make rules and regulations for the
convenient transaction of business.
3. Powers of the Legislative Council were curtailed: It empowered
Council to legislate on all subject concerning all persons and court in
British India.
4. Right of making new provinces: The Viceroy was empowered to alter
modify or adjust the limits of the provinces or create a new province for
administrative convenience.
5. Extension of the Legislative Council: in place of the representatives of
the provincial governments, provision was made for an addition of 6 to
12 member to the Central Executive for legislative purposes .At least half
of the additional members were to be non-officials.
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6. Provincial Councils were again empowered to make laws: The Act

provided for the enlargement of the Executive Councils of Madras and
Bombay by the addition of one Advocate –General and 4 to 8 members for
legislative purposes. The provincial Legislative Council could make laws
for the good government of the province.
7. Right to issue ordinances: - Under the new Act the Viceroy was
empowered to issue Ordinances during an emergency .The life of such an
Ordinances was six months .It could be suspended even earlier by the
Secretary of State-in-Council.
8. Previous sanction of the Governor-General in certain matters: - It
was laid down that the previous sanction of the Governor-General would
be necessary for the introduction of the Bills concerning vital matters like
Public Debt, the Army, the cinage and Currency
9. Alternation in the Provincial boundaries: - The Governor –General was
authorized to alter the boundaries of the Province if he deemed it
necessary. Establishment of the Councils for smaller Provinces: The Act
authorized the Governor-General to create Council for North Western
Provinces and the Punjab.
10. Establishment of the Councils for smaller Provinces: - The Act
authorized the Governor –General to create Council for North Western
Provinces and the Punjab
Act of 1892
A few important factors that contributed to the growth of nationalism in India
during this period were religious movements and the policy of repression
adopted by the Government of India.
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The fear of the imminent revolution in India and the anxiety to save the British
Empire from disruption induced the retired civil servant. Mr. hume, to lay the
foundation of Indian National Congress.
Viceroy Lord dufferin set up a committee to suggest the reforms of the
councils. The British Government moved slowly and passed an Act in 1890. It
become an Act of Parliament on June 20, 1892.
Main provisions of the Act of 1892
1. Enlargement of Central and Provincial Councils : The Act made
provision for an increase in the number of additional members in the
Councils .In the Central Council the minimum number of additional
members for legislative functions was raised from 8 to 10 and the
maximum limit from 12 to 16.
2. Rules :- The Act empowered the Governor –General –in –Council to make
rules regarding the nomination of members.
3. More rights were given to the members of the Councils: - The Act
proposed an appreciable increase in powers of the legislature .The
members could ask question on domestic matters. The members are also
authorized to discuss the Budget but without the right to vote on it or
demand a division of the House on any issue.
4. Governor-General Governors and Lieutenant–Governors
empowered to fill vacancies :- Technically all the members were to be
nominated by the Governor-General ,Governor or the Lieutenant
Governor if a member failed to attend the sitting of the Legislature for
two months or resigned his membership or died ,his seat was declared
vacant.
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5. Provincial Legislatures empowered to repeal or amend laws: - They

were empowered to make laws or repeal the old ones with the prior
permission of the Governor –General.
Act of 1909/ Criticism of Morley –Minto Reforms
Extremist propaganda and terrorist activities hammered into the minds of
British statesmen that the Indians could not be befooled. Morley, the secretary
of state for India put forth his proposal to give concession to Indians which
become Act of 1909.
Main Provisions of Indian Councils Act of 1909
1. Expansion of the Councils: - The Act provided for the enlargement of the
Councils both Central and provincial .The number of additional members for
legislative purposes in the Viceroy’s executives Council was raised from 16
to 60.
2. Official majority in the imperial Legislative Council retained :- The
Governor-General’s Legislative Council consisted of four categories of
members : (a) Ex-officio members (b) Nominated officials , (c) General and
his councilor enjoyed the membership of the Central legislature by virtue of
their being the members of the Highest Executives. They were called ex-
officio members.
3. Non-official majority in the Provincial Legislative Council: - The Act,
dispensed with the official majority, in the provincial legislatures. They
formed a solid pro-Government bloc to support all moves of the
Government ,Despite the official majority, there arose some difficulty in
carrying a legislation that was easily overcome by submitting the Bill to
Central Legislature for enactment.
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4. Introducing of Communal Electorate : The Act favoured the Muslims by

the giving them representation disproportionate to their population.
5. Enlargement of functions of the Legislature Councils: - The president of
the house was authorized to drop any resolution or a part thereof in the
name of the public interest without stating any sound reason .Besides it,
there were certain heads of revenue and expenditure which were not even
open to discussion.
6. Increase in the size of executives Council : Under this Act the number of
members of the Executives Council of Bombay and Madras was increased to
four .The Act empowered the Governor-General –in-Council to create with
the approval of the Secretary of State.
7. System of election: - The Act of 1909 for the first time gave recognition to
elective principle for the appointment of non-official members to the
Councils. The Governor-General was empowered to make detailed
regulations for giving effect to the proposal of elective principle
Criticism of Morley –Minto Reforms
1. Strong criticism by the Congress –Even Moderate disillusioned : The
Muslim were given the right of plural voting and direct elections .So even
the Moderates who had expressed great jot over these reforms at the initial
stage were soon disillusioned
2. It did not establish parliamentary form of Government: - The father of
the Act, Mr. Morley had no constitutional to give a representation
government to India for he considered the conditions in the Country highly
unsuitable to parliamentary form of Government.
3. The vicious system of communal electorate: Another ugly feature of the
Act was its recognition of communal basis of representation. A fixed number
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of seats were reserved for the Mulims in the Councils as well as in public
services ,Separate constitutioncies of Muslim electorate were created to
further widen the gulf between the Hindus and Muslims
4. Congress denounces strongly the system as Communal electorate: - The
opinion of communal electorate injected by the Morley –Minto Reforms was
deplored in the resolution of the Congress. The Congress resolution also
strongly criticized the unjust and humiliating distinctions made between the
non- Muslim (Hindus) and the Mohammdans in the matter for electorate
5. Indirect elections : Another serious defect in the new Act was that a large
number of the additional members for legislature purpose were to be
returned on the basis of Indirect elections
6. Domination of pro-Government bloc in the council: The reform
proposed by the Act of 1909 was mere eye-wash because these continued to
be the preponderance of official majority in the Central Legislature and of
the pro-Government bloc in the provincial Councils.
7. Strictly limited powers of the legislature Councils : with the increase in
size of the Councils the Act did not enlarge their functions and powers .The
members were allowed to discuss the budget but could not make any
substantial change in any item
8. Curtailment of the rights of the Members :- The rules and regulations
governing the proceedings of the Legislative Councils, were so framed that
the powers of its members were substantially restricted.
Provisions of the Indian Independence Act, 1947
Until a new Constitution was framed for each Dominion the Act made the
existing Constituent Assembly the Dominion Legislatures for the time being.
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Each Dominion was authorized to make modifications in the Government of

India Act, 1935 under the Indian Independence Act.
All treaties, agreement and functions exercisable by his Majesty with regard to
States and their Rulers were to lapse from August 15, 1947
The office of the Secretary of State for India was to be abolished and his work
was to taken over by the Secretary of state for Commonwealth
53

L-2nd Sem (Eng Notes) Indian Legal History

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KRISHNA INSTITUTE OF LAW

(Approved by BCI affiliated to CCSU, Meerut)

LL.B. 2nd Sem

2. In order to enable the Company secured the first Royal Commission in

British Settlement of Surat and Administration of Justice (1613-1687)

3. Sir Thomas Roe succeeded in securing the following important

It is to be noted that no regular courts or tribunals existed for deciding dispute

were awarded death penalty. Robbery was punishable with

purpose of criminal administration of justice. Bombay was divided into

4. Privy Council or King-in- Council: The King –in- Council was

starving people migrated to other provinces ,which meant , a huge loss of

declared that the Governors of Madras and Bombay would be subordinate to

factories . It has to administer criminal justice in all cases of grave offences in

question were done in the discharge of their duties as the Mohammedan

administration of justice and made the British Parliament to realize

convicted on the evidence of a non-muslim and one muslim witness was

Divisions ,viz; Calcutta ,Patna ,Dacca and Murshidabad and a Court of

established in each district of Bengal, Bihar and Orissha and a civil

6. Abolition of Provincial Courts of Appeal : By Regulation viii of 1833 the

(ii) a pleader in a High Court of ten year’ standing

Though there weredefects in the existing system of Regulation Law. Therefore

1. End of the commercial functions of the Company: The Act stated in

6. Laws to improve the condition of Indian: - The Act empowered the

scope of work and began to work as a parliament in miniature .it

6. Provincial Councils were again empowered to make laws: The Act

5. Provincial Legislatures empowered to repeal or amend laws: - They

4. Introducing of Communal Electorate : The Act favoured the Muslims by

Each Dominion was authorized to make modifications in the Government of

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