Main philosophical trends in

early 19th century

1. German idealism
2. Utilitarianism
3. Marxism
In course of time philosophy of
utilitarianism by British jurist Jeremy
Bentham dominated the process of law
making.
His principle based on ‘greatest happiness
principle’ or for good of people.
Books by Jeremy Bentham and James Mill

• For books by Jeremy Bentham:

https://www.google.com/search?q=jeremy+ben
tham+books&rlz=1C1GGRV_enIN825IN825&oq=
jerem&aqs=chrome.0.69i59j69i57j69i60j0l3.979
6j1j8&sourceid=chrome&ie=UTF-8
• For books by James Mill:

https://www.google.com/search?q=james+mil
l+books&rlz=1C1GGRV_enIN825IN825&oq=ja
mes+mill+books&aqs=chrome..69i57.11218j1j
8&sourceid=
 Books by John Stuart Mill
• https://www.google.com/search?q=john+sstu
art+mill+books&rlz=1C1GGRV_enIN825IN825
&oq=john+sstuart+mill+books&aqs=chrome..6
9i57j0l5.17170j1j7&sourceid=
chrome&ie=UTF-8
 Legal history
Purpose: Aims to explore history of intellectual
developments in law making in last two millenniums.
Objectives:
1. Deals with changes that took place in the colonial
times in India’s economy in general and legal system
in particular.
2. What changes in law and courts and how they
impacted Indians and their old system.
3. Emergence of nationalism and concerns of
constitution makers.
 East India Company
• Charter by Queen Elizabeth on 31.12.1600.
• “ The Governor and Company of Merchants of London
Trading into the East Indies”.
• Exclusive right of trading in all parts of Asia, Africa and
America.
• The company authorised to issue license for trading to
others.
• Managed by Court of Directors. Annual meeting called
Court to elect a Governor and 24 Directors.
 Powers of the company
• Could make laws, constitutions, orders, ordinances
for good government of company and its employees.
• Could impose fines, punishments and fines.
• Ilbert: the powers of the company ‘ the germ out of
which Anglo-Indian Codes’ ultimately developed.
Note: A Second Company incorporated in 1698.
Both Companies united in 1709 and called EIC.
 Strengthening of EIC
Royal Commissions: Issued by Crown authorising Company
officials to deal with lawlessness and disobedience (1601).
• Conferred power to punish.
• In 1615 and 1623 such powers granted to high functionaries
of company to issue commissions to their subordinates.
• By Charter of 1661 Company could appoint Governor and
Council at its factories.
• This charter opened doors of introduction of British laws in
India and also conferred judicial power on the executive i.e.
Governor and Council.
 Settlement at Surat
• First Factory at Surat 1612-reign of Mughal King
Jahangir.
• King James I Ambassador Sir Thomas Roe.
• Factory Administration by President and Council-power
to administer law and justice.
• English Law for English people and Native Law for cases
between natives and English people.
• Judicial system in Mughal time eroded. Paved way for
English law and courts in India.
• Transfer of President and Council to Bombay in 1617.
 Settlement in Madras
• Founded by Francis Bay in 1639.
• Black town-Patnam and white town=Madras
Three legal systems in Madras upto 1726
First Stage: 1639-1665
Subordinate to Surat initially. Chief officer called Agent.
Agent and his Council for white people.
Choultry Court presided by village headman called Adigar for
Black Town.
Later Adigar removed and two EEC servants appointed in his
place.
Serious cases sent to London as Agent and Council lacked power.
 Madras continued
• Second Stage: 1665-1686
• Charter of 1661 used to appoint Governor and
Council and status raised to Presidency.
• Governor and Council since 1678 sat 2 days a
week to decide criminal (with jury) and civil
cases.
• Their court called the High Court of Judicature.
• They also heard appeal from Choultry Court.
 Madras continued
• Third stage: 1686-1726
• Admiralty Court established by Charles II for mercantile
and maritime cases.
• Three members out of which one learned in civil law.
• Sir Briggs appointed Judge Advocate.
• Governor and Council stopped holding court and civil and
criminal cases also transferred to Admiralty Court.
• Governor himself became Judge Advocate after the death
of Sir Briggs. Then it lost its importance.
• In 1704 it ceased to work.
 Establishment of Corporation and Mayor’s
Court
• Charter of 1687: a Corporation to be
established in Madras:
• To provide local self government, impose local
taxes and decide small controversies/
• First Corporation in 1688. It had one Mayor, 12
Aldermen and 60-120 Burgesses.
• Corporation, Mayor and members under
Governor and Council who could remove them.
 Mayor’s court continued
• Mayor’s Court: Mayor and all Aldermen.
Quorum was three.
• A lawyer member called Recorder appointed.
• Dealt with all civil and criminal cases.
• Appeal to Admiralty Court.
• Procedure: equity, justice and good conscience.
• Mayor and council were also members of
Governor’s council so could not impart justice.
 Conclusions
• Choultry Court lost importance after Mayor’s Court
came up.
• Thus three courts in the last phase; Mayor’s court,
Choultry Court and Admiralty Court.
• Absence of proper judicial system.
• Uncertainty of laws.
• Severe punishment often disproportionate.
• Lack of facilities in Jail.
• Unfair trial-no natural justice. Benefit to English Clergy.
 Settlement in Bombay
• The King gave the Island of Bombay on lease to
EIC. The King had got it from Portuguese as dowry.
• Bombay first under Dy. Governor and Council
under Surat.
Judicial system of Bombay in three phases like
Madras.
First Stage: 1668-1683 Bombay divided into 2
divisions each having 5 judges. Custom officer was
the presiding officer.
 Continued
• Jurisdiction to petty criminal cases.
• Dy. Governor and Council held superior court
which had original and appellate powers over
Divisional Court.
• Later lawyer member Wilcox joined
• By a Proclamation in 1672 Portuguese law
replaced by English law and three types of
courts created.
 Three types of courts
1. Court of Judicature: A court with Wilcox as
judge-all civil, criminal, probate and
testamentary cases.
Bombay divided into 4 sections each headed
by Justice of Peace who worked as committing
magistrate.
2. Court of Conscience: Also presided over by
Wilcox, only petty cases, summary procedure.
 continued
3. Court of Appeal: Dy. Governor and Council
as Court of Appeal.
• Justice dispensed was quick, inexpensive and
efficient.
• Judges not well paid.
• Island captured in 1683 in a rebellion.
• Recaptured in 1684.
• New judicial system introduced.
 Second Stage 1684-1693
• Admiralty Court established on the lines of Madras for
admiralty, and maritime cases.
• Later civil and criminal cases were also given to it.
• Later dispute with Governor and Council and Judge
Advocate of Admiralty Court, civil and criminal cases
stopped.
• And to handle civil and criminal cases a Court of
Judicature established. Differences again arose.
• Mughal King captured it in 1690. Recaptured in 1718
and new judicial system established.
 Continued
Third Stage: 1718-1726
• A Chief Justice with 9 judges-4 Indians called
Black judges.
• Civil, criminal, probate and testamentary cases.
• No specific law, equity, justice and good
conscience. Criminal cases-all major and minor.
• Punishments severe. Perpetual detention.
• No jury trial.
 Conclusions
• An improvement over previous system due to
presence of Indian judges.
• Confidence of Indians won.
• Members of Council and Governor heard appeal
in cases decided by lower court.
• No principle of natural justice.
• Judges were prosecutors and dispenser of justice.
• Unfair adjudication.
 Settlement in Calcutta
• Job Charnok, a servant of the company founded Calcutta in
1690.
• Fort William built at Calcutta.
• In 1698, the EIC secured Zamindari of three villages named
Calcutta, Sutanati and Govindpur from the Mughals.
• As Zamindar the EIC had all the privileges of Zamindars.
• They administered justice including death sentences and
collected revenue.
• No control on the EIC.
• Bad condition of Bengal when EIC became Zamindar.
 Judicial system under the EIC
• The Company appointed Collector to collect
revenue.
• He was also given civil and criminal powers.
• No specific direction to Collector to apply law.
• He used his discretion.
• Appeal went to Governor and Council.
• Death sentence to be confirmed by Governor and
Council. He did not attend to serious cases
pertaining to the English.
 Continued
• Cases decided by Zamindars-Appeal went to Nawab
• Cases decided by Collector-Appeal went to
Governor and Council
• Conclusions:
1. Judicial system elementary.
2. No procedure laid down.
3. Canons of law and justice not followed.
CHARTER OF 1726 ESTABLISHED UNIFORMITY IN
ALL THREE PRESIDENCIES.
 Establishment of Crown’s Court-
the Mayor’s Court
Charter of 1726
• Charter of 1726 marked the beginning of Crown Court
in India.
• Necessitated by expanded and enlarged
establishments.
• Need of the Company by all three Presidencies to deal
with civil and criminal cases including capital
punishment.
• Lack of jurisdiction to grant probates and Letters of
Administration.
 Mayor’s Court
• Each presidency to have a corporation headed by a
Mayor at Bombay, Calcutta and Madras.
• Court: 1 Mayor and 9 Aldermen.
• Aldermen elected from leading inhabitants and to hold
office for life.
• Election of Mayor by Aldermen.
• Appeal to King-in-Council.
• Mayor and Aldermen could be removed by Governor and
Council.
• It was declared a Court of Record.
 Continued
• Could hear all civil suits in Presidencies and
factories subordinate to them.
• Could grant probates and Letters of
Administration.
• Applicable laws not specified.
• Thus laws of England and their procedure to be
followed.
• First Appeal to Governor and Council.
• Second Appeal to King-in-Council.
 Court of Governor and Council
• The Charter of 1726 also constituted Court of
Record in each Presidency with Governor and
Council to hear appeals in civil cases decided by
Mayor’s Court and
• To decide criminal cases.
• Governor and 5 members of the Council
appointed as Justices of Peace and constituted
a Criminal Court of Oyer and Terminer-Quarter
sessions for all cases except high treason.
 Legislative Powers
The Charter of 1726 authorised Governor and
Council to make rules, regulations and bye-
laws for good governance in Presidencies.
Limitations:
1. The legal instruments must be to reason.
2. Must not be contrary to laws of England
3. Ineffective until confirmed by Company’s
Board of Director (BOD) in London.
 Main features of the Charter of 1726
• Mayor’s Court was a Crown Court in India having
full recognition in England.
• Earlier courts were having their origin in EIC.
• Created uniform judicial machinery in all 3
presidencies.
• First time jurisdiction of King-in-Council extended
to India. Paved way for British laws in India.
• It created legislature in each presidency.
 Continued
• Statutory laws of England passed after its issue
not applicable in India.
• It introduced English statutory and common
laws in the Presidency towns.
 Mayor’s Court under
Charter 1687 and 1726
• Apart from similarity of names, they were vastly
different.
• Charter 1687 applied to Madras while 1726
Charter to all three presidencies.
• 1726-Mayor’s Court had only civil jurisdiction
including testamentary and probates while under
1687-criminal jurisdiction also.
• Appeal to Admiralty Court in 1687 while under
1726 it was to King-in-Council.
 Continued
• Mayor’s Court under 1687 an EIC Court while it
was a Crown court under 1726.
• In 1687-a lawyer member called Recorder but
none like this in Mayor’s Court of 1726.
• 1687-The Court to evolve its own procedure
while under 1726 it was guided by the procedure
of English courts.
• Under 1687-Representation of Indians but none
under the Mayor’s Court of 1726
 continued
• Criminal Jurisdiction under 1726 to the Governor and
Council but under 1687 it was assigned to Mayor’s and
Admiralty Court.
Working of Charter of 1726
• That was an era of dispute and clashes between
Governor and Council and Mayor’s Court.
• Mayor’s Court being a Crown Court claimed
superiority.
• Appointment of Mayor and Aldermen taken away from
Governor and Council in 1726-a sore point.
 Continued
• Mayor’s Court in 1726 given judicial independence not
liked by Governor and Council.
• Governor and Council started interfering with Mayor’s
Court due to their judicial power-Strained relations.
• In 1726 Mayor’s Court’s jurisdiction for natives not
specified.
• First appeal from Mayor’s Court in 1726 to Governor
and Council-often reversed.
• Application of English laws to Indians in 1726 created
difficulties.
Examples of clashes between the Governor and Council
and Mayor’s Court-case law

• Release of Hindu Son from the custody of

father.
• The Oath case.
• Arab Merchant’s case
• Bombay Oath case
 Charter of 1753
Following changes made in Charter of 1726
• Mayor’s brought under Governor and Council.
• Election of Aldermen abolished and in turn to
be appointed by Governor and Council.
• Election of Mayor abolished. To be appointed
by Governor and Council from 2 names of
Aldermen suggested by Corporation.
• Power of Mayor’s Court reduced to 5 Pagodas.
 Continued
• Suits between natives excluded from Jurisdiction of
Mayor’s Court until both the parties consented.
• System of Oath scrapped for natives.
• A Court of Request (civil cases upto 5 Pagodas)
constituted.
• It was a three member Court manned by Company
employees.
• It also decided cases of natives.
• Sitting once a week.
 Defects in Charter of 1753
Charter of 1726 and 1753 made far-reaching
changes but certain defects had crept in.
• Mayor’s Court under Governor and Council-loss
of judicial independence.
• Dispute between an Indian and EIC employee no
fairness as the latter manned the court.
• No difference between executive and judiciary in
criminal matters as all judges of criminal court
were also members of the Governor’s Council.
 continued
• Judiciary suffered from legal knowledge-neither
understood English laws nor natives’ traditions.
• King-in-Council’s jurisdiction in namesake only. No
supervision.
• Supervision by Governor and Council amounted to
interference only.
• Jurisdiction limited to Presidency town-Britishers
committing offence outside could not be brought to justice.
• English laws applied on natives living in Presidency towns-
difficulties created.
 Continued
• No lawyer in the Courts only Attorneys.
• Non-representation of Indian in Court caused
resentment from natives.
The Fallout
– The House of Commons appointed a committee of
Secrecy in 1772 to scrutinise affairs of the EIC, evaluate
administration of justice and relations between
executive and judiciary.
– On adverse report, judicial system overhauled and
Supreme Court established in Calcutta in 1774.
 Court for Natives
• Courts were meant for the British and
Europeans. But some courts were given
jurisdiction to natives:
• Madras: Choultry Court and Recorder Court
• Calcutta: Zamindar’s Court-for deciding cases for
Hindus and Muslims.
• Bombay: No separate court for natives as the
British claimed full sovereignty over the Island of
Bombay.
 Beginning of Adalat System
Due to Warren Hastings
• Civil and revenue matters decided by courts and
executive while criminal cases decided by Nawab.
• Though actual power vested in EIC. This was an
era of dual government.
• Warren Hastings modified the existing system.
• A Committee of Circuit under Hastings prepared
Judicial Plan of 1772.
 Judicial Plan of 1772
• Three provinces of Bengal, Bihar and Orissa divided into districts
each headed by Collector.
• Collector responsible for collection of revenue
• For judicial administration following courts established:
• Courts of original jurisdiction:
1. Muffossil Fauzdari Adalat: criminal court established in each
district presided over by Qazi and Mufti and assisted by two
Maulvies who expounded law.
Collector to oversee.
In capital cases, confirmation by Sadar Nizamat Adalat and approval
by Nawab for sentence.
 Continued
2. Muffossil Diwani Adalat:
• A court of civil jurisdiction in each district.
• Cases handled included inheritance, marriage,
caste and religious issues.
• Laws of Koran for Muslims and those of
Shastras for Hindus.
• Pandits and Maulvies appointed to assist.
 Continued
3. Small Causes Court:
• A civil Court of Head farmer of the Purganah.
• Power in suits limited to Rs. 10/-
Appellate Courts
1. Sadar Nizamat Adalat:
• Was a criminal Court of Appeal presided by Daroga-i-
Adalat assisted by Chief Kazi, Chief Mufti and three
Maulvies.
• Governor and Council exercised general supervision
over this court.
 Continued
2. Sadar Diwani Adalat:
• Composed of Governor and Council, heard
appeals from Muffossil Diwani Adalat for suit
value exceeding Rs. 500/-
• Proceedings in open court.
• District Courts to send records of their
proceedings to this Court.
• Rules of procedure and limitation established for
this court.
 Continued
• Plan of 1772 was a great achievement for Warren Hastings.
• Confidence of people restored.
• Limitations:
• Courts of Small Causes few in number. People had to travel to
districts those days in the time of bad communication.
• Too much authority given to Collector.
• So the Directors of the EIC directed Governor and Council to
withdraw those collectors who had monopolised trade in
their districts.
• Thus came new Judicial Plan of 1774.
 Judicial Plan of 1774
• Collectors were recalled from districts and in his
place an Indian officer called Diwan or Amil
appointed.
• Diwan acted as the judge of Muffossil Diwani Adalat
and collected land revenue.
• Entire Muffossil area in Bengal, Bihar and Orissa
divided into 6 divisions with each having a Provincial
Council.
• The Provincial Council had 4-5 British servants of EIC.
 Continued
• The Council supervised collection of land
revenue, heard appeals against Muffossil
Diwani Adalat and administered original civil
jurisdiction.
• Their appeals went to Sadar Diwani Adalat if
value more than Rs. 1000/-
• Defects: The Provincial Council supplanted
Collectors and monopolised trade more than it
was done by Collector.
 Judicial Plan of 1780
• The Council had revenue and executive work besides
judicial functions.
• They ignored judicial work and left them to law officers.
• This difficulty was addressed in this Judicial Plan.
• Main plan was separation of revenue and judicial
functions.
• The Council collected revenue and attended to revenue
disputes.
• Judicial functions taken away from them.
 Continued

• Diwani Adalat: For judicial functions this court

was established in each of 6 divisions of
Calcutta, Murshidabad, Burdwan, Dacca,
Dinajpur and Patna.
• This court was headed by an English servant of
the EEC.
• The Judge known as Superintendent of Diwani
Adalat.
 Continued
• He was assisted by native law officers related to
Hindus or Muslims.
• Independent of Provincial Council.
• Thus independent civil judiciary established in all 6
divisions.
• Small cases referred to Zamindars or Public
Officers.
• Jurisdiction extended to all civil cases.
• Appeal went to Sadar Diwani Adalat.
 Working of Plan of 1780
• It separated revenue and judicial functions. But
following defects crept in:
• Diwani Adalats spread in 6 divisions of Bengal, Bihar
and Orissa not sufficient. Huge pile up of cases.
• Referring cases to Zamindars and Local officers not
useful as they were bribed.
• Superintendent of Diwani Adalat not qualified in law.
So no judicious view taken by him.
• Provincial Courts given revenue functions and to
decide revenue disputes. No natural justice.
 Appointment of
Sir Impey as the Sole Judge and reforms

• To improve the situation, Sir Impey appointed as the sole

Judge of Sadar Diwani Adalat.
• He was also CJ of Supreme Court at Calcutta.
His reforms included the following
• Law officers divested of power to decide facts or hear parties
or examine witnesses.
• No of Diwani Adalat increased from 6 to 18.
• Code of Civil Procedure compiled for the first time and made
binding on all courts. Binding on all courts.
• Sadar Diwani Adalat could hear appeal in suits exceeding Rs.
1000/-
 Recall of Sir Impey
• Director in London not happy with Sir Impey holding Sadar
Diwani Adalat and as CJ of Supreme Court at Calcutta.

• Directors of EIC felt he accepted subordination of company

as Judge of Sadar Diwani Adalat from which it was freed.
• So he was recalled.
• Sadar Diwani Adalat reverted back to Governor General
and Council.
Note: The Regulating Act 1773 had changed name of
Governor and Council to Governor General and Council.
 Administration of criminal justice
• Looked after by Muslim Law officers after the
Plan of 1772.
• Collector or Governor General had no time to
oversee their working.
• So criminal courts could not fare well.
• Warren Hastings new about this and he made
some more reforms.
 Reforms in criminal justice
• For apprehending criminals, Judges of Muffossil Diwani
Adalat authorised to work as magistrates.
• Their functions were to arrest criminals, charge sheet
them and then send them to criminal courts for further
trial.
• A department in the name of Remembrancer of
Criminal Courts. This department controlled Sadar
Nizamat Adalat through a system of reporting.
• Lord Cornwallis in 1790 through some changes brought
criminal courts from control of Nawab to the Company.
 Supreme Court at Calcutta, Madras and
Bombay

Will be given in second comprehensive PPT.