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07/02/2011 by navanavonmilita

Warren Hastings

Hastings House Calcutta

Judiciary On Trial
By Ranjit Devraj

NEW DELHI, Jan 5, 2011 (IPS) – Rights activists hope that a contempt
case before India’s Supreme Court will add impetus to calls for
greater accountability in the judiciary, the integrity of which has
been seriously questioned in recent years.

“It is important for the judiciary to do everything it can to earn and
retain the confidence of ordinary people who look up to the judiciary
as the first recourse and last hope in all the difficulties they
face,” Maja Daruwala, director of the Commonwealth Human Rights
Initiative, told IPS.

At the centre of the contempt case is well-known lawyer and convenor
of the Campaign for Judicial Accountability and Judicial Reform
(CJAR), Prashant Bhushan, who faces charges for stating that at least
half of India’s past 16-17 chief justices were either corrupt or of
doubtful integrity.

“In my view, out of the last 16 to 17 Chief Justices, half have been
corrupt. I can’t prove this, though we had evidence against [former
chief justices] Punchhi, Anand, and Sabharwal on the basis of which we
sought their impeachment,” Bhushan told the Tehelka newsmagazine.

Issued with a notice of criminal contempt proceedings against him,
Bhushan filed an affidavit standing by his view that “at least since
1991, and even prior to that… there has been considerable corruption
in the higher judiciary, the main reason for which has been the lack
of credible mechanisms for securing accountability”.

Bhushan pleaded that he, and his colleagues in the campaign, have been
demanding the creation of a National Judicial Commission to
transparently select and appoint judges of the higher judiciary, as
well as to investigate complaints against them.

The case is being closely watched by human rights activists concerned
by eroding standards of justice delivery in the country.

“It is important for the judiciary to do everything it can to earn and
retain the confidence of ordinary people who look up to the judiciary
as the first recourse and last hope in all the difficulties they
face,” Daruwala told IPS. “The whole process of appointments to the
judiciary needs to be reviewed as also how judges at the lower level
are supervised since that represents the first gateway for ordinary
people”.

She added that while it was important for the judiciary to retain its
independence from the legislature and executive it cannot see itself
as non- accountable.

In a Jan. 4 statement the Asian Legal Resource Centre (ALRC), an
independent regional rights watchdog, said that over the last 15 years
the Indian judiciary had faced a series of controversies “involving
allegations of corruption and nepotism” among senior judges.

“It is not a matter of mere unpleasant coincidence that some of the
suspected judges have served as chief justices, but on the contrary,
it exposes the built- in defects of the Indian justice institutions –
a fact that lawyers, a former law minister, experienced journalists
and many of the former senior judges in the country equally agree
upon,” the ALRC statement said.

ALRC described as “unfortunate” the contempt of court proceeding
brought against Bhushan for attempting to bring “long overdue
transparency and accountability into the judiciary, particularly
within the higher judiciary”.

The contempt case is coming up at a time when allegations of
corruption are being brought up against K.G. Balakrishnan, who retired
in May as India’s chief justice and went on to become chairman of the
National Human Rights Commission.

Balakrishnan’s tenure as chief justice was controversial because he
had opposed mandatory disclosure of judges’ assets, as well as
bringing of the judiciary under the Right to Information Act.

Even after the passage of the Right to Information Act, the Supreme
Court had refused to share any information with the public about the
manner in which judges had been selected for appointment and transfer.

While Balakrishnan presided over the judiciary, serious charges of
corruption were brought up against judges Soumitra Sen of the Calcutta
High Court and P.D. Dinakaran of the Karnataka High Court.

Sen, who was found guilty of misappropriating public funds by a
judicial committee appointed by Balakrishnan, now faces impeachment by
Parliament.

Dinakaran was to have been elevated to the Supreme Court by a
committee headed by Balakrishnan, but had to be dropped following
serious objections raised by the Bar Council of India.

According to the ALRC statement Balakrishnan’s chairing the NHRC has
implications for the “A” rating that India enjoys with the
International Coordinating Committee of National Institutions for the
Promotion and Protection of Human Rights at the United Nations.

Bhushan, in his defence, says that in order to build public opinion to
bring about constitutional and other legal changes to secure judicial
accountability it is necessary to frankly discuss existing corruption
in the judiciary.

Contempt laws, he said, have been used to deter and stifle exposure of
corruption in the judiciary and also to gag the media.

Besides resorting to contempt laws, the judiciary has, through various
rulings, armed itself against criticism or investigation. In 1992 the
Supreme Court ruled that police cannot move against the sitting judge
of any high court without its permission.

Considered the most powerful in the world, India’s judiciary can
declare a law duly passed by parliament as null and void if it is
interpreted to be in conflict with the basic principles of the
constitution. (END)

Judging the Judges’ Wealth
By Ranjit Devraj

NEW DELHI, Sep 1 , 2009 (IPS) – By agreeing to make public details of
their personal wealth, judges of India’s Supreme Court have conceded
ground that could lead to better accountability in a judicial system
set up under British colonial rule.

“Declaring assets by judges is but one step towards judicial
accountability and transparency,” said Prashant Bhushan, noted civil
liberties lawyer and convenor of the Campaign for Judicial
Accountability and Reform (CJAR), which has been campaigning for
changes in India’s higher judiciary that are compatible with
democracy.

Bhushan believes that the Aug. 26 decision, made at a meeting of 23
judges of the apex court, including Chief Justice K.G. Balakrishnan,
was prompted by the sheer weight of public opinion that judges should
be made accountable in the same way that the Supreme Court ordered
public declaration of assets of electoral candidates in 2002.

The decision came after considerable resistance from sections of the
judiciary, which held that disclosure of wealth could open the way to
mudslinging by litigants. But Bhushan said India’s judges were well
protected by contempt of court laws unlike legislators and other
public servants who enjoy no such privileges.

“What is still missing is a law to make annual public declarations of
assets and income mandatory for all public servants, including
judges,” Bhushan told IPS. “It is only when people can compare the
assets of public servants with their legal sources of income that one
can catch those who have acquired assets disproportionate to their
legal income.”

“So far as judges were concerned,” said Bhushan, “public disclosure is
not enough to tackle the serious problem of judicial accountability,
or the lack of it.”

The CJAR has been demanding the creation of an independent institution
capable of handling a growing number of complaints of misconduct,
investigate them and also take action against errant judges who now
shelter behind a wall of protective mechanisms.

What led to the Aug. 26 decision was a controversy over whether
India’s revolutionary Right to Information (RTI) Act, passed in 2005,
is applicable to the higher judiciary or not. When the Central
Information Commission (which implements the RTI Act), ruled that it
does apply to judges, the Supreme Court registry challenged it in the
Delhi High Court, where it is pending disposal.

As the controversy grew, several conscientious judges from among the
higher judiciary — that included some 600 judges serving in the
provincial high courts — declared publicly that they were prepared to
disclose their assets.

What also helped turn the tide was the public perception of rampant
corruption in India’s higher judiciary. A survey conducted by
Transparency International in 2007 suggested that 77 percent of
Indians thought that the judiciary was corrupt.

Former Supreme Court chief justice S. P. Bharucha declared at a public
function in 2002 that one in every five judges of the higher judiciary
was corrupt. Bhushan said the figure is conservative and could be as
high as 50 percent.

It has not helped that despite the allegations of corruption and
impeachment proceedings brought against several judges, the judiciary
has, through various rulings, managed to continually enhance its
already enormous powers.

For example, in 1992, the Supreme Court ruled that the police could
not accept or investigate a case against a sitting judge of any high
court even if there was good evidence of wrongdoing without the
permission of the Chief Justice of India, or the highest judge in the
Supreme Court.

To impeach an erring judge is nearly impossible even if provisions
exist. To move an impeachment motion, at least 100 legislators must
sign up and political interference can take care of the rest.

Sixteen years ago the first ever impeachment motion in India was
brought up against V. Ramaswamy, an apex court judge, after he was
found guilty of misconduct by a committee of three brother judges. But
the ruling party backed Ramaswamy by simply abstaining from voting.
Bringing up charges against a judge is a hazardous exercise for
ordinary citizens because it could invite contempt charges. In 2002,
writer and activist Arundhati Roy was sent to jail for a token one day
on charges of “scandalising or lowering the dignity of the court.”

“We need to amend the Contempt of Courts Act and do away with the
clause on ‘scandalising or lowering the authority of the Court’ from
the definition of criminal contempt,” said Bhushan.

“The judiciary has a lot of power which it exercises with both courage
and craft as well as to ambitiously enlarge the judicial power,”
writes Rajeev Dhavan, a senior advocate of the Supreme Court, in the
‘Indian Express’ newspaper on Aug. 28. “This has already made the
Indian judiciary the most powerful in the world.”

Apart from complete control over life, liberty and property, judges
have the power to declare illegal and void the public acts of
bureaucrats, ministers and governments on the grounds that they
violate the Constitution, the law or principles of natural justice.

Judges can even declare a law duly passed by Parliamentary majority as
null and void if it is interpreted to be in conflict with the basic
principles of the Constitution.

But what the CJAR is most exercised over is the method by which the
higher judiciary goes about making appointments into its own ranks.
After 1993 the judiciary ceased to be partially accountable to the
legislature and the executive on appointments and transfers.

“There is now not only no transparency in the process, there is also
no system or method followed for preparing shortlists or for choosing
among eligible candidates. The whole process is totally arbitrary and
ad hoc,” said Bhushan. “Unfortunately, the judges are equating the
independence of the judiciary with independence from accountability.”

A number of countries in Latin America, such as Brazil, Mexico, Panama
and Argentina have passed specific asset disclosure laws for public
officials as also have South Africa and Australia. Some expressly
state that judges, too, are subject to those laws.

On the positive side, the unseemly debate over whether judges should
declare their assets or not has generated a healthy debate which, in
the words of Anil Divan, a well-known advocate, is the “sign of a
vibrant democracy.”

(END)

Legal System in the Dock
By Praful Bidwai

NEW DELHI, May 31, 2007 (IPS) – The reputation of India’s judiciary,
considered overbearing and democratically unaccountable by many, has
taken a knock with the publication of a report by Transparency
International (TI) called the “Global Corruption Report 2007″.

The report, based on a 2005 countrywide survey of “public perceptions
and experiences of corruption in the lower judiciary,” conducted by
the Centre for Media Studies, finds that a very high 77 percent of
respondents believe the Indian judiciary is corrupt.

It says that ‘’bribes seem to be solicited as the price of getting
things done”. The estimated amount paid in bribes in a 12-month period
it found was around 580 million dollars. ‘’Money was paid to the
officials in the following proportions: 61 percent to lawyers; 29
percent to court officials; 5 percent to middlemen.”

“This is a wake-up call not just for India’s legal system, but for
society and the state itself”, says Upendra Baxi, a highly regarded
Indian jurist, former vice-chancellor of Delhi University, and
professor at the University of Warwick in Britain. “It confirms what
we have known for years and casts a shadow on the integrity of the
judiciary. It also calls for urgent, drastic remedial measures.”

“The report only covers the lower or subordinate judiciary and
excludes the judges of the High Courts (of Indian states) and the
(national) Supreme Court. There are credible reports that corruption
has permeated the higher judiciary too,” Baxi told IPS.

In January 2002, S.P. Bharucha, then India’s chief justice, said that
20 percent of the higher judiciary might be corrupt. In recent years,
several upper court judges have been accused of “irregularities”, for
instance, in the preferential allotment of valuable land by state
governments, and other favours.

The report of the Berlin-based TI should greatly embarrass India’s
judiciary, which always takes a sanctimonious stand on corruption.
This past March, two judges of the Supreme Court said: “Everywhere, we
have corruption. Everybody wants to loot this country. The only
solution for this menace is to hang some people (like you) on the
lamppost so that it acts as a deterrentà.”

However, no case of judicial corruption has ever been put on trial in
India. Under the Indian system, it is virtually impossible to charge
or impeach a judge.

“In India, impeachment is not feasible because it requires a huge (two-
thirds) majority in Parliament,” argues Colin Gonsalves, a public
interest lawyer with the Human Rights Law Network told IPS. “India’s
parliamentary elections have produced hung verdicts for years. And it
is virtually impossible to muster the numbers necessary for impeaching
a judge. In 1993, V. Ramaswamy, a Supreme Court judge, was found
culpable by a court committee. But he was politically well-connected
and could not be impeached.”

This “freedom” from prosecution and impeachment further compounds the
credibility crisis of the judiciary, in particular, the higher
judiciary, which in India is a self-appointing entity not answerable
to the legislature or executive.

The higher courts of India, shielded from public scrutiny, have
increasingly turned conservative. They have recently handed down
judgments which abridge or abolish labour rights, dilute environmental
regulations, promote Big Business interests, and uncritically support
globalisation and privatisation.

Judicial corruption in India is attributable to a number of factors,
including “delays in the disposal of cases, shortage of judges and
complex procedures, all of which are exacerbated by a preponderance of
new laws”, according to TI.

Says the TI report: “As of February 2006, 33,635 cases were pending in
the Supreme Court; … 3,341,040 cases in the High Courts; à and 25, ,
458 cases in the 13,204 subordinate courts. This vast backlog leads to
long adjournments and prompts people to pay to speed up the process.
In 1999, it was estimated: ‘At the current rate of disposal it would
take another 350 years for disposal of the pending cases even if no
other cases were added’.”

Another factor is the low ratio of judges per one million population.
This is as low as 12 to 13 in India, compared to 107 in the U.S., 75
in Canada and 51 in Britain. This high workload encourages delays and
adjournments on frivolous grounds. “The judicial system, including
judges and lawyers, has developed a vested interest in delays as well
as corruption; it promotes a collusive relationship between the
different players”, says Baxi. “This works against the public interest
and the citizen’s rights. But even more important is the assault on
rights that has occurred under the globalising neoliberal turn made by
India’s higher judiciary since the early 1990s.”

Baxi terms this the “Structural Adjustment of Judicial Activism”,
after the now-discredited “Washington Consensus” package of “free-
market” policies promoted by the World Bank and the International
Monetary Fund.

He argues that the Supreme Court and many High Courts have redefined
their roles: from defenders of human rights and Constitutional
freedoms, and guardians of the public interest, to conscious promoters
of neo-liberal globalisation, with unrestricted freedom for capital
and shrunken rights for the ordinary public.

“The tragedy in India”, adds Gonsalves, “is that it’s hard to put
checks on the judiciary even as it runs amok by appropriating
executive powers and interfering with legislative procedures even
though the Constitution explicitly bars the procedures’ judicial
scrutiny.”

In recent years, the Indian courts have practised “micro-management”
of functions which properly belong to the executive, including
specifying which fuel should be used in public buses, how cities
should be planned and run, whether or not certain books should be
censored, and whether street food should be sold.

The executive and legislature resent and chafe at this. Indeed, a
first-rate conflict is brewing between these arms of the state, and
the courts. There is a move to demand judicial accountability through
a National Judicial Council Bill, which would allow serious
investigation of corruption and other misconduct on the part of
judges.

However, the Bill remains mired in conflict. The judiciary wants the
Council to be manned entirely by judges, to the exclusion of members
of the government, and equally important, of civil society. The
executive does not.

“There are no easy solutions to the problem of making judges
accountable,” argues Baxi. “But some interim partial measures can be
tried. One is to appoint judicial ombudsmen from two highly-regarded
statutory bodies, the Election Commission and Comptroller and Auditor
General (CAG) of India. Nothing prevents the CAG from initiating an
independent review of the performance of the judiciary. The CAG could
produce highly credible and objective reports and help kickstart a
process of promoting transparency and accountability.”

It is unclear if India’s executive and Parliament are willing to
initiate such an exercise. But observers say that unless corrective
steps are taken, the judiciary will continue to defy democratic
accountability and intrude into areas outside its domain, even while
corruption and denial of justice remain the order of the day. (END)

India’s judiciary is not a holy cow
By Bijo Francis

Column: Incredible India
Published: June 09, 2008

Hong Kong, China — The Supreme Court of India is known for using its
constitutional mandate and authority to initiate actions in the public
interest. The court in the past has even taken note of newspaper
reports to initiate actions against suspected breach of law and misuse
of office by public servants.

This earnestness and enthusiasm have not been reflected in the Indian
courts’ approach in scrutinizing the activities of the courts and
their judges, however. On the contrary, the Indian courts have been
very parochial in facing criticism.

Earlier this year, the Supreme Court of India was found locked in a
battle with the legislature regarding the issue of transparency of the
judiciary. The court that once said the newly implemented right to
information law was a necessity in India to bring light into the dark
corners of administration, is becoming increasingly wary about the
same principles applied to the courts.

This attitude is an extension of the Supreme Court’s earlier “allergy”
toward bringing transparency into the Indian judiciary. In 2007 the
court forced Vijay Shekhar – a journalist with a television news
channel who exposed the caucus of a corrupt magistrate, his court
staff and some lawyers in Gujarat state in a “warrants for cash” scam
– to apologize to the court or face a term in jail for contempt of
court. The court staff and lawyers were caught on camera negotiating
and accepting bribes for the magistrate for issuing arrest warrants.

The Supreme Court took up the matter and directed the Gujarat High
Court to initiate an internal enquiry against the concerned judicial
officer and his staff. The Gujarat High Court absolved the judge,
however, without examining the complainants. Thereafter, the Supreme
Court of India condemned the journalist who had carried out this
operation and threatened to send him to jail for contempt unless he
apologized.

The conviction and sentencing of journalists in 2007 for publishing
information about the conduct of Justice Sabharwal, a Supreme Court
judge, had brought to the fore the issue of judicial accountability.
But the issue soon died a natural death, since no one wanted to get
into trouble with the court.

The Indian judiciary is one of the most powerful in the world. Its
conduct has a direct impact upon the life of ordinary people. A state
institution of such high powers must be transparent and accountable
for its actions.

The courts in India have however consistently avoided calls for
accountability despite many serious allegations of misconduct and
misdemeanor. At one time Justice S. P. Bharucha, the former chief
justice of India, admitted that about 20 percent of the higher
judiciary was corrupt. According to Justice Michael Saldahna of the
Karnataka High Court, it is 33 percent. Despite such admissions, no
enquiry has ever been initiated against any judge in the past 15
years.

Under the Constitution of India, the only way to remove a judge from
the High Court or the Supreme Court is by way of impeachment. This
constitutional provision has failed miserably. Its ineffectiveness was
clearly demonstrated in the case of Justice V. Ramaswami. At the same
time, despite verbal homilies, the courts and judges have been the
most reluctant to evolve even a self-monitoring mechanism for
accountability. Such a situation reflects enormous arrogance and abuse
of power.

This is reflected in the procedures for appointing judges to the
higher judiciary as well. Even though appointments are made by the
president of India, the selection is made by the collegium of judges.
The selection process is nontransparent and all attempts to make the
process transparent have been resisted by the judiciary.

Demanding judicial accountability has almost always caused the
initiation of contempt proceedings, thereby stifling free discussion
on the issues that plague the judiciary. Unwarranted use of contempt
of court proceedings in fact diminishes the public perception about
the judiciary’s openness and transparency.

There are judicial systems in Asia considered to have failed beyond
the point of recovery. Of these, the most glaring example is the Sri
Lankan judiciary, which is now facing criticism on all counts
including politicization of the judiciary to meet the ends of a
corrupt chief justice. The chief justice of Sri Lanka, an infamous
figure in the country, is feared for abusing contempt of court
proceedings against anyone who opposes his questionable actions.

The Supreme Court of Sri Lanka has now stooped to a level where public
perception about the impartiality of the court and its competency to
decide matters on their merits is at an all-time low. As a result the
general public views the courts in Sri Lanka as a failed state
apparatus which in fact adds to the decades-long ethnic conflict in
that country.

The term democracy implies the notion that the people are supreme. All
state institutions, whether it be the judiciary, legislature or the
executive, are merely servants of the people. The basic principle
behind the contempt of court proceedings is that the court must use
this authority only in circumstances where otherwise the functioning
of the court would be impossible or obstructed.

In India under the Contempt of Courts Act, 1971, the term “contempt”
is not defined. Therefore if any person makes adverse comments against
the court or a judge, the power to punish for “scandalizing the court”
is frequently invoked. This approach is considered obscure in most
established jurisdictions.

The contempt of court action must not be an attempt to protect the
dignity of the court, but to promote the administration of justice.
The dignity of the court is promoted by the court being humble enough
to face criticism, whereas promotion of justice is to be carried out
by removing all hindrances to the delivery of justice. By the
unrestrained use of contempt of court actions the courts in India are
in fact derogating from their duty to safeguard the Constitution of
the country, which also guarantees freedom of speech and expression in
Article 19 (1).

The honor of the judges and the judiciary – the state institution
through which the judges are supposed to serve the people – is
promoted and protected by the openness of the judges and the judiciary
to criticism. Intolerance to scrutiny and lack of openness equates the
judges and the judiciary with a dictatorship.

At this pace the Indian judiciary, once known for its eloquence and
its contribution to the advancement of free thought and expression,
will soon be reduced to an egotistical institution. Such a judiciary
is definitely not what modern India aspires to. India today requires a
transparent, accountable and sensitive judiciary.

The imperatives for the judiciary in India are obvious. It has a duty
to protect, promote and fulfill the Constitutional guarantees. The
judiciary must be open and transparent with a clear conscience that it
is not beyond criticism. For this, it must be accountable to the
people, which it is bound to serve. The judiciary in India is the last
hope of a fragmented society. When it fails to respect its
responsibilities, it will bring insurmountable peril to the country
and its people.

–

(Bijo Francis is a human rights lawyer currently working with the
Asian Legal Resource Center in Hong Kong. He is responsible for the
South Asia desk at the center. Mr. Francis has practiced law for more
than a decade and holds an advanced master’s degree in human rights
law.)

Liberty

Buddhadeb Halder

Is holding a people’s tribunal a crime in India?

The voice behind bars: Kirity Roy in the court lock up on April 7,
2010.
London, England, April 22 — Well known Indian human rights defender
Kirity Roy, secretary of Banglar Manabadhikar Suraksha Mancha or
MASUM, was arrested from his residence at Serampore, Hooghly in the
Indian state of West Bengal in connection with Taltala PS case No.134
of 2008 dated 09/06/2008 and GR 1487/08 u/s 120B/170/229 IPC by the
Kolkata Police Anti Terrorist Cell on April 7, 2010.

Later, on the day, around 1:45 p.m. he was brought to the chief
metropolitan magistrate, Bankshall Court, Kolkata court lock-up.
Despite pleading repeatedly, Roy was not allowed to contact a lawyer
of his choice. The police to the court detained him in the lock-up
purposefully without forwarding the required documents, which delayed
his bail petition.

It was only around 4:35 p.m. that advocates brought the matter to the
attention of the CMM. Then, after a few minutes, the prosecution
produced records and documents connected to the case before the CMM.
The public prosecutor vehemently objected to the granting of bail to
Roy. Notwithstanding his objections, the court heard at length the
submissions made by the defending advocates and granted Roy ad-interim
bail. Roy, however, was never produced physically before the CMM,
which is a sheer violation of rights as per the Indian Constitution.

The case was initiated for holding a “people’s tribunal” on torture,
under a project called “National Project on Preventing Torture in
India” on June 9 and June 10, 2008 at Moulali, Kolkata. Nearly 1,200
victims and their families were present and 82 victims of torture
narrated their plight before panel members, consisting of illustrious
persons of national repute.

People’s tribunals are known all over the world for the past half a
century for bringing human rights and other social issues to the
attention of larger audiences. Interestingly, MASUM has been framed
for questioning the legality of doing the same, which is quite an
unknown incident by the Kolkata police.

There are six different charges against Roy and seven of his
colleagues. The charges are under sections 120B (criminal conspiracy),
170 (personating a public servant), 229 (personating a juror), 467
(forgery of a valuable security or receiving money), 468 (forgery for
the purpose of cheating) and 420 (cheating) of the Indian Penal Code.
Although the police initially began proceedings, as mentioned in the
First Information Report, with the first three mentioned sections
(120B, 170, 229), the Kolkata police added the other three penal
provisions (467, 468 and 420) later in the charge sheet.

The allegations are ridiculous and there is no base for such type of
charges leveled against human rights defenders like Roy, Henri
Tiphagne and six others. The real fact is very clear and it is not
difficult to understand that the government wanted to harass the human
rights defenders. The government is not keen to uphold social justice
enshrined by the Indian Constitution. On the other hand, human rights
defenders are trying to protect rights of common people by
highlighting state-sponsored human rights violations.

The court took the fact into judicial observation that the police
added three penal sections in the charge sheet without the prior
knowledge and permission of the court. It is to be mentioned that the
said NPPTI was implemented by MASUM in West Bengal during 2006-2008.
Now the question is what is the motive of the police behind harassing
human rights activists?

The motive is very clear. The government does not want to make public
human rights violations on its own citizens by the police and other
armed forces. It wants to stop the voice of civil society
organizations. The government is trying to bury the truth and that is
why the West Bengal government is more interested in harassing human
rights defenders. Thus, it seems, in West Bengal, raising voices
against human rights violations is a crime in itself.

However, the absurd allegations against human rights defenders have
been criticized by different civil society organizations, local and
national human rights organizations, and International human rights
organizations as well.

The government should drop charges against all human rights defenders
in West Bengal immediately to ensure the right to freedom of opinion
and expression and the right to freedom of peaceful assembly and
association.

Keywords
Human Rights Defenders Kirity Roy MASUM People’s Tribunal West Bengal

I am a Bangla-speaking blogger,now working in an international human
rights organisation based in London. This is my personal blog and I am
here to share and explore my personal views and observations.

India Bleeding Through Illegal Transfers
By Ranjit Devraj

NEW DELHI, Nov 29, 2010 (IPS) – A new report suggesting that illegal
transfers of funds into accounts abroad by India’s corrupt
politicians, officials and businessmen average 19.3 billion dollars a
year could turn out to be a “gross underestimate”, watchdogs warn.

The latest estimate by the Global Financial Integrity (GFI) programme
of the Washington-based Centre for International Policy says more than
125 billion dollars were spirited out of the country in 2000-2008.

GFI, which tracks cross-border flow of illicit money that is
“generally the product of corruption, bribery, kickbacks, criminal
activities and efforts to shelter wealth from a country’s tax
authorities,” says India cannot afford to ignore such massive leakages
of funds.

“Had India managed to avoid this staggering loss of capital, the
country could have paid off its outstanding external debt of 230.6
billion dollars (at end 2008) and have another half left over for
poverty alleviation and economic development,” GFI said in the report
‘Drivers and Dynamics of Illicit Financial Flows from India:
1948-2008’ released Nov. 16.

Since independence from British colonial rule in 1947, India has lost
462 billion dollars in “conservative estimate”. If gaps in statistics
can be covered the estimate could well reach half-a-trillion dollars,
the report added.

Following a World Bank model the report measured the difference
between recorded sources of funds, such as borrowings and foreign
direct investment, and actual use of funds, like financing the current
account deficit.

Staggering as the GFI figures are, they only represent a small
fraction of the ‘black money’ (funds hidden from the tax man)
generated in the country, says Prof. Kamal Nayan Kabra, a leading
economist and consultant who specialises in India’s huge ‘parallel
economy’.

Kabra, who has taught at the prestigious Indian Institute of Public
Administration that trains senior bureaucrats, told IPS that there was
a “correspondence between the leakage of funds into safe havens abroad
and the rate of generation of black money through such activities as
property transactions, underreporting of contracts and the payment of
speed money.

“It is important to note that as the country liberalises and there is
more freedom to make external transactions, there will be greater
leakages of Indian funds into foreign markets,” said Kabra. “What we
are seeing is a trailer of what would happen once India goes in for
full convertibility of the rupee that the liberaliser-globalisers are
pushing.”

Kabra said one factor in transfer of money abroad was the removal of
restrictions on foreign travel – imposed on Indians for several
decades prior to the start of free market reforms in 1991- allowing
them to physically carry amounts abroad and set up the links for
stashing away unaccounted wealth.

Indians travelling abroad spent 392 million dollars in 1991, and 9.2
billion dollars in 2008.

According to Kabra, joint ventures abroad also provide opportunities
to move funds generated though bribes, kickbacks and commissions into
accounts held in tax havens. “You can see black money generated from
the recent scams surrounding the Commonwealth Games and the grossly
underpriced sale of telecom licenses.”

The GFI report, in line with Kabra’s views, admits that India’s vast
underground economy (estimated to be at least as big as the formal
one) is a significant driver of illicit financial flows.

In a preface to the report, GFI director Raymond W. Baker says that
deregulation and trade liberalisation have accelerated the outflow of
illicit money from the Indian economy. “The opportunities for trade
mispricing have grown, and expansion of the global shadow financial
system accommodates hot money, particularly in island tax havens.”

Vineet Narain, an investigative reporter and campaigner against
‘hawala’ (a system of illegal fund transfers through non-banking
channels), told IPS that despite pious promises made at election time
by political parties, the system has become so entrenched that there
is little hope of ever dismantling it.

Narain shot into prominence after he filed a public interest
litigation in the Supreme Court that resulted in several cabinet
ministers being charged in 1997 with involvement in hawala
transactions, and landmark rulings by the court on a system hushed up
by a “conspiracy of silence” orchestrated by powerful politicians,
bureaucrats and businessmen.

A ruling in Narain’s case laid down a three-month limit for the
government to respond to complaints of corruption. The Supreme Court,
earlier this month, reprimanded the government for failing to observe
it in dealing with complaints of losses worth 40 billion dollars in
the sale of telecom licences.

“The judgement in the Vineet Narain case has fixed a certain time-
limit for grant of sanction (to prosecute – in this case union telecom
minister Andimuthu Raja over vast corruption in granting of licences)
by the competent authority,” the court reminded government counsel
Nov. 16. Raja had resigned over the scam two days earlier, but it
continues to rock Parliament.

“It is not surprising that hawala transactions have grown in size
following liberalisation, or that it has become even more difficult to
eradicate because of the volume of the flows,” Narain told IPS.

Narain regards GFI figures for total transfers abroad since
independence in 1947 as “grossly understated”, and places them in the
neighbourhood of 1.5 trillion dollars.

In a statement released prior to the mid-2009 general elections, Lal
Krishna Advani, leader of the main opposition, the nationalist
Bharatiya Janata Party, citing “credible estimates” said the size of
money held by Indians in Swiss banks and other tax havens could be as
high as 1.4 trillion dollars.

Advani, who was among those charged in 1997 for involvement in hawala
transactions, promised to have the illegal funds tracked down and
repatriated. But the BJP lost the elections to the Congress-led United
Progressive Alliance under Prime Minister Manmohan Singh.

“No matter the outcome the elections or who is in power there is
little real intent among the political classes to stanch the
haemorrhage,” said Narain. “For a start, any disruption would cut into
the way political parties are funded.

“However, the BJP’s offer of getting the humungous funds residing
abroad repatriated and rechanneled into development refocused public
attention to a serious problem affecting this poor country with many
rich people,” Narain said. “India may be losing money faster now than
under colonial rule.” (END)

New Push to Chase Money in Swiss Banks
By Ranjit Devraj

New DELHI, Jan 21, 2011 (IPS) – After Prime Minister Manmohan Singh’s
refusal to divulge details of billions of dollars allegedly stashed
away abroad by Indians, anti-corruption crusaders are banking their
hopes on promised Wikileaks revelations.

At a press conference in London on Monday Wikileaks founder Julian
Assange was handed two CDs with details of secret accounts held by tax
evaders from several countries, including India, by former Swiss
banker Rudolf Elmer.

“Assange and Wikileaks are the best hope we have of getting at who and
how much is involved,” said Vineet Narain, one of India’s best known
campaigners against the country’s vast “black” or parallel economy,
which feeds into the international secret accounts system.

Narain said two decades of campaigning against the system, that
includes obtaining landmark rulings against corruption from the
Supreme Court, had taught him that none of the major political parties
is serious about a system which enables the elite to spirit away large
sums of money and stash them in tax havens.

In a report released in November 2010 the Washington-based Centre for
International Policy (CIP) estimated that an average of 19.3 billion
dollars leaves India each year. Since independence from British
colonial rule in 1947 India has lost 462 billion dollars by a
“conservative estimate”, the report said.

Singh is under pressure to act over numerous instances of corruption
surfacing in recent months, but he told media on Wednesday that
disclosing details of the secret accounts would violate international
treaties on double taxation. “The information will not be made public.
It will be a violation of the treaties.

“There are no instant solutions to bringing back what is called black
money. We have got some information and that has been provided to us
for use in the collection of taxes,” Singh added.

Singh’s plea of helplessness has cut no ice with the Supreme Court
which is hearing a public interest litigation on large nest eggs,
possibly running into trillions of dollars, illegally maintained
abroad by Indians.

At a session on Wednesday, Justice Sudarshan Reddy remarked: “People
are taking money out to avoid taxation. We are talking about pure and
simple theft of the national economy. We are talking mind-boggling
crime.”

India has signed independent treaties with several countries and
territories to share information on illegal transfers. These follow
guidelines laid down by the Organisation of Economic Cooperation and
Development (OECD).

The petition before the Supreme Court, filed by leading lawyer and
politician Ram Jethmalani, is based on the refusal of the government
to reveal the names of Indian clients that form part of data that a
former employee of Liechtenstein’s biggest bank sold to the German
secret service for five million euros.

Indian names are also said to figure in another list that officials in
the German state of North Rhine-Westphalia acquired recently on a CD
for 2.5 million euros.

Singh’s reluctance to reveal names has led the main opposition
Bharatiya Janata Party (BJP) to level charges that his government had
something to hide.

BJP leader Nitin Gadkari maintains in public speeches that several
trillion dollars have been secreted away in tax havens. “Any
hesitation will raise doubts about the integrity of the people now
ruling the country,” he said.

But Narain said the BJP did nothing to stem the flow of money abroad
during its six-year stint in national power between 1998 and 2004.
“The CIP report shows that more than 125 billion dollars were spirited
out of the country in 2000-2008 and the BJP has to take some of the
responsibility.”

The national secretary of the Communist Party of India, D. Raja, told
IPS that the funds lying abroad should be brought back and invested in
development activities. “The government can easily take up the issue
with the Swiss Banks Association and the Swiss government, but is
showing reluctance to do so – let us wait for Assange to come out with
the names.”

Raja said that the proceeds of corruption invariably found their way
into secret accounts abroad and the proportions were large enough to
represent a serious threat to the economy.

Singh’s government is currently fending off charges by its own
Comptroller and Auditor General that fraudulent tendering in the sale
of second generation mobile phone spectrum licenses had caused losses
worth 40 billion dollars.

The government also has to deal with embarrassing calls for two senior
constitutional functionaries, the chairman of the National Human
Rights commission, K.G. Balakrishnan, and the Central Vigilance
Commissioner, P.J. Thomas, to resign for alleged corruption before
they took up their current assignments.

Balakrishnan is under investigation for acts committed while he was
the chief justice of India while Thomas served as secretary or chief
official to the department of telecommunications during the sale of 2G
licenses in 2008.

Thomas continues in office while facing trial for his role in imports
that caused massive losses to the exchequer in 1991-92. (END)

30 January 2010
Know the Indian Legal History – Part One

Know the Indian Legal History – Part One
– East India Company Year 1600

A little knowledge, it is said, is a dangerous thing.

Legal history is not created or made by one person, it is a never
ending story.
Legal history is a mirror of society.

If someone wants to understand the nation and the problems faced by
the nation one has to look back at the past legal history, what
happened in the past?

Someone will say I should write the legal history of last 1000 or more
years, but it is not useful for me or anyone, as we do not follow any
of those laws.

That is one reason I have to choose one date from which to write the
history of Indian Legal system.

Today the present Indian legal system as well as laws which we are
using is the gift of East India Company and British king, the rulers
of India.

History is very vast, but I will try to cover in short all the
important events of Indian legal History, First I have decided to
write about the constitution of India, but then realized that if
someone does not know Legal History of India, he will not understand
the current situation and problems which India is facing .For all our
problems root cause is our laws.

Indian Region has a history of more than 5000 years, but for us
Indians real legal history started with the arrival of East India
Company in the year 1600.

Before arrival of British, the India was divided into different
countries , each king ruled and made laws which he liked and felt are
good and right.
As the king died or the king lost the war with neighbor king the rules
of that kingdom were changed

Our present judicial system and laws is a gift of British Kings.

Let’s start to understand and know the Legal History of India.

While writing this I will clarify many terms also.

East Indies – refer to nations – India, Pakistan, Bangladesh, Myanmar,
Nepal, Sri Lanka, the Maldives and also Thailand, Cambodia, Laos,
Brunei, Singapore, the Philippines, East Timor, Malaysia and
Indonesia.
Dutch-held colonies in the area were known as the Dutch East Indies
Spanish-held colonies were known as the Spanish East Indies
Caribbean is called the “West Indies

The east India Company was formed to do business with the East Indies.
East India Company is also known as East India Trading Company,
English East India Company then British East India Company.

The oldest among several similarly formed European East India
Companies, the Company was granted an English Royal Charter, under the
name Governor and Company of Merchants of London Trading into the East
Indies, by Elizabeth I on 31 December 1600

The charter awarded the newly formed company, for a period of fifteen
years, a monopoly of trade (known today as a patent) with all
countries to the east of the Cape of Good Hope and to the west of the
Straits of Magellan. Sir James Lancaster commanded the first East
India Company voyage in 1601

As per this charter no other company was allowed to do business with
this geographic area with out the permission and license from the
company.

The charter awarded the judicial powers to the company to make laws,
to punish servants etc so that the functioning of company does not
stop and company does not face losses.
The company was not allowed to make any laws which may go against the
English laws or customs. The company was supposed to work in
democratic manner.

During this time company aim was to do business and make profits,
charter does not mention about the war and controlling other nations
or lands.
This is the beginning, development of Indian legislative system.
For Indians this phase is very important as this is beginning of
formation of India as well as our legal system.

The charter gave the legislative power to the company; company found
that the limited powers were useless on the long voyages to control
servants and maintain law and order on ships. To solve this problem
company invoked the crowns prerogative and the commander in chief got
the power to give death punishment to servants by using the law of
martial.

On 24th January 1601 Queen Elizabeth gave first time this right to
commander in chief.
Using this power first time on 28th Feb. 1616 at Surat Port, person
named as Gregory killed an Englishman and commander in chief gave his
death sentence.

PREROGATIVE – meaning in English law. The royal prerogative is an
arbitrary power vested in the executive to do good and not evil.

With the charter of 1600 the company landed at the Surat Port during
the Jehangirs reign to do business of Import and Export between the
East Indies and England.

Before the arrival of East India Company in Surat, the Portuguese
already established their business at Surat.
After arrival of East India Company at Surat, the company and
Portuguese fought with each other and in the year 1612 the company won
and established their first factory at Surat with the permission of
the local Moghul Governor.

Factory was a place where company employees stayed, a big warehouse
for storage of goods and different offices.
The company was running its business democratic way and as per the
powers given to them by the charter.

Later company realized that to establish there business at Surat
permanently they need permanent trading facilities directly from the
Moghul Emperor, with this view in the year
1915, James I sent an ambassador, Sir Thomas Roe to the Moghul Emperor
and the Emperor issued the FARMAN OR FIRMAN , grating certain
facilities powers to the company, Englishmen. Like they were allowed
to hire a place and established the factory.

All the fights between Englishmen were solved by the company head the
head was known as Governor or President.
In the year 1687, the seat or office of the President was transferred
to Bombay, and slowly Surat lost its importance.

Later in future Madras, Calcutta and Bombay came to known as the
Presidency Towns and the territories around these towns were known as
Mofussil.

mofussil areas: – n. [Urdu] outlying districts, away from urban areas
or big city centres

Surat Factory and administration –
The factory got the administrative as well as judicial set up.

The president and counsil were appointed by the company who hold the
administrative power.
All decisions in the council meeting were taken by a majority of
votes.
The president got one vote only and no right to overrule the members.

Its very interesting to know that this time at Surat there was no
special law, or territory laws were present neither laws regarding
succession, marriage or divorce or inheritance, all the laws were
derived from religion , for Muslim their own laws ,for Hindus their
own laws, etc. Bur regarding criminal matters only Muslim law was
followed.

There was no uniform law among the people.

Englishmen got permission from the Moghul Emperor that they should be
allowed to follow their own laws inside their factory and on their own
people which they got.
This way from the beginning Englishmen here in East Indies, surat
followed their own british laws.

As per Moghul orders the fights between local people and English
people came under local jurisdiction, tribunals at Surat.
That time local justice system was corrupt and who got the more money
won the case. But Englishmen rarely went to local courts; they
themselves administered all justice at Surat.

07 February 2010
Know the Indian Legal History – Part Two

When Company started its business with East India, that time also in
Europe, British, Spanish, Dutch and Portugal all were fighting with
each other regarding the business, as well as to keep control over the
sea.
I am not going into those wars and those details.
Final result is only important, who won the war.
In early days company got only business factories or stations at
various places without territorial sovereignty.

Company first started business at Surat, Agra, Ahmadabad, and Broach,
and Surat factory become the main head office.
In the year 1639 first Time Company got the power and right to mint
money and govern Madras on condition that half the customs and
revenues of port should be paid to the grantor.
In the year 1658 company paid 380 pagodas as king’s shares. Later In
1672 the amount was increased to 1,200 pagodas and Company first time
got the full unrestricted power and control over Madras including
justice . Later company added more villages with the same rights.
In 1752, company got full control over Madras and that remaining India
was controlled by Muslim or Hindu kings.
In 1698 the Company purchased at the cost of 1,200 rupees a year the
right of zamindar over the three villages of Sutanati, Calcutta, and
Govindpur. The fortified factory was named Fort William in honor of
the King, and in 1700 became the seat of a presidency.
By giving Bribe, company got complete control over all three villages
including Hindu as well as Muslim people, indirectly company became
owner, ruler of those villages.
Like this company got full power at their 3 towns Madras, Bombay, and
Calcutta which were came to be known as Presidency Towns.
With Presidency Towns our Judicial History started to grow.

In the beginning at Presidency towns, the judicial system was their
only to administer the Englishmen, and as towns made progress
population of Hindu and Muslim people grew.
And company has to make the adjustments, changes to administer these
people in their English Legal System.

Presidency Town Madras Judiciary –

1. From 1639 to 1665 Judiciary Elementary State
2. From 1665 to 1686 – Court of Governor and Council was established
3. From 1686 to 1726 – Admiralty Court and Mayors Court was
established.

Period One – From 1639 to 1665 Judiciary Elementary State –

Madras was founded by Francis Day in 1639 who got grant from Hindu
Raja and company build first Fort, factory which is known as Fort
st.George.
Near the fort there was a village Madraspatnam on which also company
got full power and right .this town later became Black Town and Inside
factory town where British lived became white town and these both
towns came to be known as Madras.
Madras was subordinate to Surat that time.
Head of Madras Town was called as an Agent.
Madras is the first Presidency Town of company.
During this period company agent did not do anything to change the
justice system of black village, headman of black village did the
justice for the black village.

No formal procedure was their, very few cases are reported but very
interesting case happened in 1644 .
A sergeant Bradford Killed a native from Black town and company agent
did not try him and but they gave the case to the black town Head and
who found that death is caused by Accident .
That time normally Agent referred the cases as per importance to the
headman or the Raja or sent the report to the England regarding
criminal or serious crimes.

Period Two – From 1665 to 1686 – Court of Governor and Council was
established

Charter of 1661 gave judicial power to the Governor and Council not to
the Agent.
To try serious cases like murder agent was not entitled and he
referred those cases to England, but in the Year 1665 Company made
changes and the agent of Madras became the Governor of Madras.
So he can use all the powers given by the charter of 1661 which became
effective in black town as well as white town. That is Madras.
In the year 1665 first jury trial was held with the help of grand and
petty juries which involved six Englishmen and five Portuguese none of
them was studied in law.
So quality of law and justice and procedure was poor, the Madras
Governor informed the company head office in England regarding this
but company did not send any lawyer to Madras from England.
That time also in criminal trials , the accused has to wait long to
get their trial started as governor and Council was not aware about
English Law so they always waited ,consulted to the Company Head
office which was in the England .

On record there are cases –

One Englishman killed other Englishman and the accused has to stay in
jail for 31 months, without trial as Governor consulted the case to
England Head office.
The governor and council of Madras were afraid that they may commit
mistake regarding English law or trial and other reasons, the problems
started to grew in Madras Presidency and people started to think that
reform was needed .
In 1678 Governor decided to hold weekly two days court to try all the
cases as per English Law with the help of Jury of 12 men.
This court was designated as High Court of Judicature and was
inaugurated on March 27, 1678.
After this choultry Court was also reorganized, choultry court –
village head administered Justice.
After reorganization company servants took the charge, mint master,
customer or pay master and presence of two was compulsory they hold
the court 2 times weekly and tried matters upto 50 pagodas.
Pagoda was a gold coin valuing 3 rupees.

All the appeals went to Governor and Jury, this way first time a
hierarchy of court was established in Madras.

Third Period – 3. From 1686 to 1726 – Admiralty Court and Mayors Court
was established at Madras
On August 9 1683, Charlas II granted charter to the company to
establish the courts which was to consist of person learned in the
Civil law and two merchants appointed by the company.
The court got the power to hear and try the cases related with the
mercantile, maritime, trespass, injury and wrongs etc.
Again on April 12, 1686 Charlas II issued a new charter with same
provisions.
In 1683 mercantile law was not fixed but it was based on customs of
merchants and Roman law not common law of England.
The chief judge of the admiralty Court was known as the Judge –
Advocate.
After this charter on 10th July 1686 in Madras a Court of Admiralty
was started which was consisted of three civil servants.
In 1687 company sent from England Sir John Biggs a professional lawyer
learned in civil law to act as the judge advocate of Admiralty Court.
After this Governor and Council stopped to use their Judicial
Functions.
And admiralty Court started to give justice in all cases civil,
criminal as well as maritime. The court used Jury in criminal cases
and not in the civil cases.
Importance – First time in India a professional lawyer came who was
studied in civil law and most important thing is Executive gave up
Judicial Function.
Executive means Governor and his Council.

Sir Biggs Died in 1689. And Governor again took the charge of judicial
function.
Governor became the judge advocate.

And one Hindu and one Armenian were selected to assist the admiralty
court regarding respective communities.
In 1692 Company sent John Dolben as new judge advocate and in 1694 he
was dismissed on the charge of taking bribes.
Then willliam Fraser a civil servant became the Judge advocate .

In 1696 company directed that members of the council should in
succession serve as the judge advocate . After Fraser , a merchant was
appointed as judge advocate later he resigned and no one was ready to
become the judge advocate, so company made the court registrar , judge
advocate He left for England in 1704 and it was decided that office
should remain vacant . After 1704 admiralty court ceased to sit on
regular basis.

Interesting case –

In 1694 company brought a case suit against Elihu Yale the ex-
governor of Madras who extorted 50000 Rupees from merchants.
Beginning of Corruption by Executive.

So it is our tradition and religion to do corruption in India from
olden times.

21 February 2010
Indian Legal History Part 3 – 1688 – Madras Mayors Court –

At that time in England there they got London Corporation and they got
London mayors court, as per the British Law that time Municipal
corporations enjoyed the judicial powers also. Company issued the
charter and started Madras Corporation utilizing the powers given by
British Crown.
In the year 1687 company established Madras Corporation and Mayors
Court was the part of this corporation.

In the year 1686 Madras government levied a house tax on the Madras
city population to repair the city wall, but people of Madras, local
people did not pay the tax and company faced problems and difficulties
to collect the tax.
After this company decided that to make the tax collection easy, a
body should be formed consisting of English men as well as local
Indian population so it will become easy for the Company officials to
collect the tax.
The corporation came into existence on September, 29, 1968 which
consisted of a Mayor, 12 Aldermen and from 60 to 120 Burgesses.
It was decided that every year new Mayor will be elected from Aldermen
by aldermen and burgesses and retiring Mayor can be reelected by them.
The aldermen and Burgesses got the power to remove the Mayor if he is
unable to perform his duties.
Only Englishman can become the Mayor .

The Aldermen hold the office as long as they stayed in Madras city.
Indirectly they hold the office for lifelong.
Mayor and Burgesses hold the power to remove the Aldermen from office
also if he did not perform well.
Among the Aldermen minimum 3 were required to be British servants of
the company and other 9 can belong to any nationality or religion.
The first 12 Aldermen were as follows –

Englishmen – 3
Hindus – 3
Frenchman – 1
Portuguese – 2
Jews and Armenians – 3

The charter appointed 29 Burgesses and then remaining Burgesses were
appointed by the Mayor and Aldermen.
Among the first 60 Burgesses, the caste heads were selected as the
Burgesses.
This was the nature of First Corporation.

The Mayor and the 3 senior Aldermen were to be the Justices of the
peace.
The Mayor and Aldermen were to form a Court of record which was
authorized to try civil as well as criminal cases.
This court was known as Mayors Court.

The Mayors court was authorized to give following punishments.
Fine, amercement, imprisonment and corporal punishment.

The convicted persons got right to file appeal at the Admiralty court.
As Mayor and Aldermen did not have legal knowledge the provision was
made for the appointment of the Recorder of the court.
He helped the Mayor regarding the cases and he also got the power to
vote just like Aldermen.
The recorder of the court was required to be skillful in the law as
well as the servant of the company.
The charter appointed the Judge Advocate Sir Biggs as the first
Recorder.
Only in the year 1712 the court got power to give death sentence to
native people.
The Mayor Court did not follow uniform punishment for the same crime
it depend on the judges discretion for this the reason was that the
Mayor and his team did not have any legal knowledge.
Sir Biggs got the experience of working as a recorder in the London
but here in Madras the problem was that Sir Biggs sat in the Admiralty
Court as Judge Advocate where appeals from the Mayors Court were went.
But company ignored this fact.

After the death of Sir Biggs no Recorder was appointed.
Like this in the period of 1686 to 1726 in Madras city 3 Courts
functioned.
Mayors Court, Choultry Court and Admiralty Court.

After 1704, Governor and Council heard the appeals from the Mayors
court as Admiralty court stop to function.

In this period also the criminals were so long kept in jails that even
people forgot the crimes.
Justice system was very slow and no one bothered.
The capital punishment was given by Hanging.
Robbery was punished with Death.
Witchcraft was punished with fine and pillory.

Meaning of the words –

Alderman –

1. A member of the municipal legislative body in a town or city in
many jurisdictions.
2. A member of the higher branch of the municipal or borough council
in England and Ireland before 1974.
3. one of the senior members of a local council, elected by other
councilors

Burgesses –

A magistrate of a borough; generally, the chief officer of the
corporation, who performs, within the borough, the same kind of duties
which a mayor does in a city. In England, the word is sometimes
applied to all the inhabitants of a borough, who are called burgesses
sometimes it signifies the representatives of a borough in parliament.

01 March 2010
Administration of Bombay – Legal system of Bombay 1668 – 1726 – Part 4

1. In the year 1534 Portugal first time got the Island of Bombay by
cession from the King of Gujarat, Sultan Bahadur. Bombay was
controlled by them for more than a century.
2. When King Charles II of England began his reign, the Emperor
Aurungzebe was at the height of his power in India.
3. in Surat Company occupied merely the position of one of the big
trading houses of the city which was controlled by Aurungzebe.
4. In the year 1661 Portuguese King Alfonsus VI transferred the Island
of Bombay to Charles II as a gift on the marriage of his sister
Princess Catherine with the British King. That time Bombay was a poor
place and population of Bombay was just 10 000, Bombay was a just
small fishing, neglected Island town.
5. Later Charles II transferred Island of Bombay to the East India
Company in year 1668 for annual rent of Ten pounds.
6. Charles II gave charter to the company to administer the Island of
Bombay with full powers and jurisdiction.
7. The company was authorized to make the laws on the basis of Laws of
England.
8. Thus with the charter of 1668 , the status of East India company
started to change with this charter the trading company started its
journey towards becoming a territorial sovereign .
9. Thus Bombay came under the Surat Presidency; The Governor of Surat
factory was the ex-officio Governor of Bombay.
10. Gerald Aungier the Governor of Surat factory led the plans of
judicial system in Bombay, he was the founder of Bombay. With his
effort in the year 1670 in Bombay first judicial system was
established.
11. Bombay was divided into two divisions. First Division – comprised
Bombay, Mazagaon and Girgaon and 2nd division Mahim, Parel , Sion and
Worli and in each division a court consisting of five judges was
started with English person as the head of each Court and Indians were
also appointed as the judges .
12. Ten Thousand Population – 10 Judges
13. 1 Thousand Population – One Judge
14. Today what is situation in India ?
15. This courts quarterly submitted copies to the Deputy Governors
office which were to constitute a superior court.
16. From 1670 – 1672 legal system was very elementary. No one was
lawyer .
17. In the year 1672 legal system was reformed and George Wilcox
became judge . The court was to have jurisdiction in all
cases ,civil ,criminal .
18. The court sit once a week and tried all civil cases with the help
of Jury.
19. Provisions were made for the speedy trials and quick decisions by
the court .
20. A fee of 5 percent was charged on each case which court tried.
21. For administration of criminal justice .Bombay was divided into 4
divisions ,section

• Bombay
• Mahim
• Mazagaon
• Sion

22. In each section ,An English person was appointed as a justice of
peace . He held preliminary examination of the witnesses against an
accused and made a record which he sent to the Court which sat once a
month to try criminal cases with the help of Jury.
23. The judge was given salary of 2000 Rupees a year . But company did
not pay salary to the judge Wilcox and further company started to
reduce the salary of judges, so judges will never go against the
company top officials. Executives.
24. Reduced Salary – Reduces status
25. This time civil case was decided in 10 to 12 days
26. Justice was very cheap .
27. Debtors were kept in jail until they paid their debt.
28. The law was so strict that even dead body of debtor was kept in
jail until relatives paid the debt, this is the reported case of
company employee.
29. Jury would be consisted of 12 Englishmen
30. In one criminal case a person accused of witchcraft was sentenced
to death
31. In the year 1683 the company judicial system came to an end
because of Keigwins rebellion on the Bombay Island and in the year
1684 the Keigwins rebels surrendered the Island to the company .
32. Today it is not important for Indians to know the details of this
rebels and their story.

08 March 2010
Indian Legal History – Administration of Bombay 1684 to 1726 – Part 5

1. In the year 1684 the East India company sent Dr. John from England
to Bombay.
2. Dr.John was expert in civil law.
3. Under the charter of 1683, company established Admiralty Court in
Bombay which took cognizance of all civil as well as criminal matters.
4. That time Dr.St. John took the evidence against the Governor child
and this made Governor child upset and Governor did not believe the
theory of equality before the law .He felt offended and did not like
the judicial independence so in the year 1685, he reduced the powers
of this court and limited it to try only maritime and admiralty
matters.
5. And a new court was established in Bombay called as King’s Bench of
the common pleas. And person named as Vaux became judge who was not
aware about law.
6. With this new court, both courts started to fight with each other
regarding the jurisdiction of the court cases.
7. As Dr.St.John was very liberal person and believed in equality
before law, the executives who thought judiciary is under them did not
like Dr. John, so in the year 1687 Executives Governor, dismissed the
Dr.John from his job of judge.
8. This time the persons who were obedient to the Executive and the
governor were appointed as judge, and executives did not like persons
like Dr. John who thought of equality before the law.
9. In the 1688, Vaux became Judge advocate by breaking the charter of
1683 which said that Judge advocate should be learned in civil law and
Vaux never learned any kind of law, but he knew how to keep executives
happy.
10. In the year 1690 Bombay was attacked by the Moghul Admiral Siddi.
11. After this attack the judicial system of Bombay came to an end.
for the period of 1690 to 1718
12. After the gap of 30 years in the year 1718,March 25 again company
started the court in Bombay which consisted of chief justice and 9
judges , 5 were British and 4 Indian judges
13. The court handled all cases, followed laws of England and tried to
pay attention to the caste and customs of each religion also.
14. The court work as registration house also for the sale of
immoveable property and charged fees also
15. The court sat once a week and decided all cases.
16. British Judges enjoyed more powers and respect than the Indian
judges.
17. The courts work with speed, gave justice quickly and it was very
cheap for everyone to go to court.
18. Courts followed customs of Hindus as well as Muslims when tried
cases as well as considered international law and British law.
19. It was common practice to give lashes as punishment to criminals.
20. Robbers were whipped and branded with red hot iron.
21. Everyone feared to do crime, justice was deterrent.
22. That time one interesting case is that the officials falsely
charged innocent person and robed his property by proving him guilty
in court by producing fake papers and witnesses who were tortured. The
case is known as Rama Kamati case.

14 March 2010
Administration of Justice at Calcutta – 1660 To 1726 and Charter of
1726 – Part 6

1. In the year 1668, the grandson of Aurangzed, Azimush-shan, and the
Subahdar of Bengal gave Zamindari of villages, Calcutta, Sutanati and
Govindpur for annual revenue of 1195 Rupees to the East India Company
2. In the December 1699, Calcutta became Presidency Town and Governor
was appointed to administer the settlement.
3. As a zamindar company got all the powers just like other zamindars
of that time. Bengal zamindars.
4. In Moghul Empire, zamindars got judicial powers, but collected the
revenue and maintained law and order in the zamindari area or
villages.
5. For judicial purpose that time Kazis court were established in each
district, parganah and villages. They handled civil and criminal
matters.
6. Normally village Panchayat solved all problems, In Hindus , elders
or Brahmins solved the problems
7. The judicial system was simple, as everyone knew each other and
transactions of each other.
8. Moghul Kings never paid any attention to judicial system that time
nothing was organized.
9. The post of Kazi was sold many times , the highest bidder became
the Kazi
10. Justice was purchased , corruption was rampant
11. Kazi never got salary, so kazi court fined the criminal and earned
money, after this demanded money from the complainant for giving him
justice.
12. The other Zamindars when gave death sentence , the appeal went to
the Nawab but company never did this , the appeal from zamindar ,
collectors court went to the Governor and council
13. In Calcutta that time Collector enjoyed all the powers upto the
year 1727
14. With the charter of 1726 the new system was started in Calcutta
Presidency.
15. Before this charter the authority was given by company and
zamindar, but the charter of 1726 was a royal charter.
16. The importance of this charter is that this charter introduced
Uniformity of justice system in all 3-presidency towns.
17. The charter established civil and criminal courts in each
presidency towns.
18. The 2nd important point is that before 1726 the courts got
authority from the company but after this charter the courts got their
authority from the royal British king , The courts enjoyed same status
just like the courts which were present that time in England.
19. With the charter of 1726, the appeals from courts in India went to
the Privy Council in England.
20. This way English law system became accepted to Indians, Indians
did not find it foreign and Indians did not have any other judicial
system as such.
21. With this charter in each presidency town local legislature was
established.
22. Charter of 1726 is also known as judicial charter as this is the
beginning of development of Indian law system and judiciary.
23. Names of Presidency Towns – Madras, Bombay and Calcutta
24. All the courts established before the year 1726 got the power from
company but after this charter courts got their permit, authority from
the British King.

Following are the few provisions of charter of 1726

1. In each presidency Town establishment of corporation consisting of
Mayor and nine Aldermen.
2. Every year new mayor was chosen from the Aldermen
3. An aldermen hold office for life
4. Establishment of Mayors Court
5. The mayor and two council members gave justice and appeal went to
the Governor within 14 days. Further appeal could be made to the king
in council if matter involved more than 1000 pagodas This way first
time Indians got right to file appeal in the king in council.
6. A sheriff was appointed for each ten miles of area by the Governor
and council annually, in simple terms he was the police officer.
7. When complained was given to the court, the court issued the
summons in writing to the Sheriff and he brought the accused in the
court, he handed the summons to the concern party.
8. If party accused did not come on that day, the warrant was issued
and Sheriff brought them before the courts, bail was granted
sometimes.
9. For criminal jurisdiction , justice of peace was established same
like England
10. Criminal jurisdiction system followed all the British criminal
system and procedures.
11. Charter of 1726 empowered the governor and his council to make by
laws, rules and ordinances for the regulation of corporation.
12. In Madras charter became effective from the 17th August 1727
13. In Bombay 10th February 1728
14. In Calcutta December 1727 the implementation of charter started.
15. The company directed the courts to maintain records and send them
to England to know how they are working.
16. With these establishments common Indians also start to file the
more and more cases in the courts.
17. Mayors Court, Governor, and Council always got disputes regarding
jurisdiction in presidency towns. This fights resulted into the
weakening of Judiciary in the future and executive became powerful.
18. Company adopted policy not to get involved in the Indian customs
and disputes but if the matter went to the Mayors Court they adopted
English procedures.

21 March 2010
Part 7 – Indian Legal History – Charter of 1753

1. In the year 1746, The French got the control of Madras Presidency.

2. Because of this Madras Corporation which was created after the
charter of 1726 was ceased to function.

3. In the year 1749 Again British got the control of Madras.

4. To establish again Madras corporation King George II again issued a
new charter on the 8th January ,1753

5. The company officials utilized this chance and tried to remove all
the disadvantages of the charter of 1726.

6. The new charter of 1753 was made applicable to all the 3 Presidency
Towns.

7. New charter changed the method of appointment of Mayor and
Aldermen.

8. Governor and Council got the power to appoint the Aldermen.

9. Regarding selection of the Mayor, the corporation selected the
names of 2 people and Governor and Council selected one of them as the
Mayor every year.

10. This way Mayor became the puppet of the Governor and Council.

11. This way Mayor as well as Aldermen became the nominee of
Government.

12. And Government got the full control of Corporation

13. This way Government got the power to appoint the judge of the
Mayors Court and remove him also if he disobeyed the Government or
Governor.

14. Mayor’s court lost all the autonomy and independence, and became
secondary in nature.

15. The court was allowed to hear the Indian cases only if both native
Indian parties agreed and submitted the case to the Mayors court.

16. Mayors court got the right to take action against the Mayor

17. No person was allowed to sit as a Judge if he was interested in
the matter in anyway.

18. Mayors court got the power to hear the cases against the
Government and Government Defended them

19. Now suitors deposited money with the Government not to the Mayors
Court.

20. The new charter also created the new court called as Court of
Request at each presidency town to decide, cheaply and quickly cases
up to 5 pagodas. 1 Pagoda equals to 3 Rupees.

21. This court was established to help poor Indian litigants who can
not afford the expenses of the court.

22. The court weekly sat once , and was manned by commissioners
between 8 to 24 in number

23. The government appointed the commissioners and every year half of
the commissioners got retired and those places were filled by the
ballot method by remaining commissioners.

24. 3 Commissioners sat in each court on rotation

25. For small claims, cognizable by Requests court if people,
plaintiff went to the Mayors court, the rule was that Defendant was
awarded costs, this way it saved time and money also.

26. Requests court got the power to hear the Indian matters also.

27. Now there were 3 courts namely
28. a ] court of Request
29. b] Mayors Court – Civil court Jurisdiction
30. c] Court of Governor and Council – the court where appeal from the
Mayors court went
31. Criminal Cases – Justice of the Peace and court of quarter
sessions consisting of Governor and Council
32. Regarding civil cases Privy Council in the England was the final
authority

33. This charter introduced many changes but this charter took away
the Independence of Mayors Court , which was given to this court by
the charter of 1726

34. The East India Company with this charter also always followed the
policy not to break the customs of Hindus and Muslims.
35. When both Indian parties agreed that time only Mayors court
handled those cases.
36. As executive enjoyed more powers they appointed company servants
as the judges.
37. The executives handled the cases in such a way it does not harm
them or did not harm the company servants or friends.

38. In 1772 House of Commons appointed a committee of secrecy to check
the affairs of the east India Company. The committee in its 7th report
gave adverse report regarding Calcutta Judicial system.
39. The reported stated that Mayors court behaved as they wish in all
the cases without following English law.

40. As a result of criticism , Supreme Court was Established at the
Calcutta in the year 1774
41. The supreme court of Calcutta was Independent court and does not
work under company executive and consisted of professional lawyers who
knew English law in depth.

28 March 2010
Part 8 – Indian Legal History – East India Company Becomes Diwan of
Bengal

1. In the beginning we have see that East India Company started
judicial system in the three presidency towns namely Calcutta, madras,
and Bombay.

2. As company started its expansion in India, company started to take
control of surrounding areas of Presidency Towns and this surrounding
area was called as the Mofussil area.

3. East India Company started administrative system in the Mofussil
areas and that administrative system was called as Adalat system.

4. Adalat system was introduced by the company to administer justice
in the mofussil areas.

5. In the beginning company started adalat system in the year 1772 in
Bengal, Bihar, and Orissa. later it was introduced in the mofussil of
Bombay and Madras when company saw the good results in the
Bengal .First the experiment was made in the Bengal and when
successful it was introduced into the Bombay and Madras Mofussils

6. That time when Nawab Siraj –ud-daula saw the rising power of East
India company in the Bengal , he attacked the Calcutta and captured
the Calcutta in the year 1756

7. After this east India company under the leadership of Clive
attacked the Calcutta and recaptured Calcutta in the year 1757

8. Same year Battle of Plassey was fought and Nawab was defeated.

9. After this real power in Bengal went to the company but company
made the Mir Jafar the Nawab and gave him civil government.

10. When Calcutta council was dissatisfied with the performance of Mir
Jafar as Nawab they replaced him , and Mir Kasim became the Nawab in
the year 1760

11. In the year 1763, again Mir Jafar was made the Nawab.

12. In the year 1765 the minor son of Mir Jafar, Najam-ud-daula became
the Nawab.

13. This way slowly east India Company increased its power in the
Bengal.

14. Nawab of Bengal was just a puppet in the hands of East India
Company. When company wanted, company changed the Nawab.

15. As company was supreme, why it did not declare itself was the
ruler of Bengal?

16. There were few reasons. The first and most important reason was
that that time British Constitutional law if No British Person can
claim the sovereignty over any territory for himself, it must vest in
crown and this way crown and parliament got the authority to legislate
that area. The second reason that East India Company was afraid of
French as well as Portuguese as they would create international
problems for company as well as problems in the Bengal for company.
Therefore, company took the easy way out, used Nawab as the Puppet,
and controlled Bengal through him.

17. In the year 1765 Moghul Emperor Shah Alam granted to the company
the diwani of Bengal , Bihar and Orissa

18. The company agreed to pay annually 26 lakh rupees to the Moghul
Emperor and got right to keep the all-surplus amount of collected
revenue.

19. The grant of the Diwani gave to the company a de jure status of an
official of the Moghul Emperor.

20. The company was real controller but still company adopted this
policy of not becoming direct ruler.

21. During the time of Moghul administration, Moghul Emperor appointed
two persons in the province that is Subah; one was called as Nawab and
second was Diwani.

22. Nawab or Nizam controlled the criminal justice system as well as
military and maintained the law and order in the Province

23. Diwan or Diwani gave right to collect the revenue, and decide
civil and revenue cases. Diwan send the collected revenue to the
central authority or treasury

24. This way the power of divided between Nawab and Diwan and both
acted and controlled each other

25. Nawab got the military but no money

26. Diwan got the money but no military so this way Moghul Emperor
kept his control on both as none of them can become powerful than the
Moghul Emperor.

27. Regarding Bengal, we can see that Nawab of Bengal was the Puppet
of East India Company and Now East India Company became the Diwan of
the Bengal.

28. Now again company made the agreement with the Nawab that he will
not maintain the army and company will pay him an annual allowance of
53 lakh rupees for his expenditure and criminal judicature.

29. After this agreement, company became Supreme Authority regarding
Bengal.

30. The nawab of Bengal also agreed that a Deputy Nawab will be
appointed by the Calcutta government and Nawab will work as per his
advice and Nawab cannot remove him from his post.

31. Thus East India Company got the responsibility of maintaining
military, collecting revenue and civil justice, criminal justice was
seen by deputy Nawab, and expenses regarding criminal justice were
made through the allowance of Nawab.

32. After getting, the Diwani in the beginning company did not make
any changes in the procedure of collecting revenue or civil justice as
company was not aware how it functioned. Moreover, they were less in
numbers.

33. The company appointed Mohammed Reza Khan at Murshidabad and Raja
Shitab Roy at Patna to control the working of old system; they both
were supervised by two English officers situated at Murshidabad and
Patna.

34. Mohammed Reza khan was appointed as the Naib Nazim and he look
after the administration of criminal justice system on behalf of
Nawab.

35. As both these, two were reported to the East India Company they
knew who the real master was so they never went against the Company
servants.

36. Using them company officials made lot of money in a short period.

37. The east India company servants did the private business also and
made more money.

38. In the year 1765, Clive became the Governor of Bengal and he
himself described the situation of Bengal as follows. ‘I shall only
say that such a scene of anarchy, confusion, bribery and corruption
and extortion was never seen or heard of in any country but Bengal.

39. In this way Bengal was ruin by Bengal officials as well as East
India company officials, everyone became the criminal and robbed the
Bengal.

40. To improve these matters in the year 1769 Governor Verelst
appointed company servants as supervisors in the districts. The
supervisors were to collect information regarding condition of the
soil, collection of land Revenue and administration of justice .They
were to check the corruption and supervise the justice system. The
supervision extended to practically on all the functions of Diwani.

41. The governor and council described the justice system as , corrupt
bargain with the highest bidder

42. The proper procedure of maintaining records was started.

43. Kazis and Brahmins who administered the justice were given Sanads,
which were duly registered so that non-authorized persons cannot give
the justice.

44. However, the scheme of Supervisors failed as they were in less
numbers and has to look after more work.

45. Majority times they also became corrupt.

46. In the year 1771 Bengal face the acute Famine and in that one
fifth of the population was swept away. That time company saw
reduction in the revenue collection. In addition, company officers
blamed that Indian officers are doing more corruption. Therefore,
Company as a diwan decided to take full charge of collection of
revenue. The company officers just wanted to increase their corruption
share so they brought this idea.

47. After this, Governor and Council at Calcutta were to become
responsible for providing solutions for administrative problems.

48. This is the beginning of new judicial system in the Mofussil

49. That time judicial officers kazis were appointed not on the merit
but matter of official favor.

50. Zamindars were also corrupt and ruled the villages as they wished.

51. Judicial officers did not get the salary so they use this power
and did the corruption to make money.

52. There was no procedure established that time. Corruption was
everywhere and honesty was sold everywhere.

53. To reform this entire situation Warren Hastings was called to
formulate a scheme for the execution of functions of Diwani.

54. Warren Hastings Introduced new judicial administration system as
well as revenue collection system in the year 1772

55. It laid the Foundation of Adalat system.

04 April 2010
Part 9 – Indian Legal History – Judicial Plan of Warren Hastings 1772
and 1774

1.Warren Hastings Administrative plan divided territory of Bengal,
Bihar and Orissa into number of Districts.

2.In each District an English servant of the company was appointed as
collector who was to be responsible for the collection of land
revenue.

3.Establishment of Mofussil Diwani Adalat

4.As per Warren Hastings plan a Mofussil Diwani Adalat was established
in every district with collector as the Judge. The court was
authorized to decide all civil cases like disputes regarding
properties, inheritance, marriage, caste, debts, disputed accounts,
contracts, partnerships and demands of rent.

5.Where ever possible religious laws of Muslim as well as Hindus were
followed and applied .E.g. Caste, marriage, inheritance etc.

6.As English servant who was appointed as Collector did not understand
the religious laws , Kazis and Pundits were appointed to help him

7.The decisions of the Mofussil Diwani Adalat in cases up to Rs.500
were final.

8.Establishment of Small Cause Adalat –

9.As name says, this Adalat decided petty cases up to Rs. 10 .The Head
farmer of the Pergunnah became the judge. This system was designed to
save the traveling expenses of poor farmers, as they did not need to
travel to the district place for justice.

10.Establishment of Mofussil Fozdari Adalat –

11.In every district a mofussil nizamat or fozdari adalat was
established to try all criminal cases.

12.The adalat consisted of the Muslim kazi, mufti and moulvies.

13.The moulvies interpreted the Muslim law of crimes.

14.The Kazi and Mufti gave fatwa and render judgment.

15.In this adalat collector exercise general supervision over the
Adalat, and saw that no corruption was made in the case. The judgment
was given impartially.

16.This Fozdari adalat was not allowed to handle cases where
punishment was death sentence or forfeiture of property of the
accused. Such cases went to Sadar Nizamat Adalat for final orders.

17.Establishment of Sadar Adalats –

18. Firstly two courts were established namely Mofussil Diwani Adalat
and Mofussil Fozdari Adalat over them 2 superior courts were
established namely Sadar Diwani Adalat and Sadar Nizamat Adalat.

19.The sadar diwani adalat was consisted of Governor and members of
the council and was to hear appeals from the mofussil diwani adalat in
the cases over 500 Rs.

20.The first sitting of the Sadar Diwani adalat was held on the 17th
March, 1773.

21.On each appeal fee of 5 percent was charged.

22.The appeals were to be filed in the Adalat within 2 months from the
date of the judgment, decree given by the Mofussil Adalat.

23.Establishment of Sadar Nizamat Adalat –

24.Sadar Nizamat Adalat consisted of an Indian judge known as Daroga-i-
adalat who was to be assisted by the chief Kazi, chief mufti and 3
moulvies. Nawab appointed all these persons as per the advice of
Governor.

25.In case of death sentence, punishment death warrant was made by the
Adalat and signed by the Nawab as the Head of Nizamat.

26.The governor and council supervised this adalat to control and
reduce the corruption.

27.All cases were heard in the open court.

28.All courts were ordered to maintain registers and records.

29.Any case older than 12 years was not accepted.

30.District courts forwarded their records to the Sadar adalat

31.In civil cases when Plaintiff filed a case, defendant accused
person was given only limited time to give answer and then examine the
witness and give the decree, pass the final orders.

32.The plan tried to reduce the expenses of people.

33.With this plan law officers like kazis, muftis were given salaries.

34.Before this plan Judge charged the commission but this new plan
abolished this law and introduced the Court fee system where fees went
to Government.

35.After this plan and establishment of Courts for common Indians it
became easy to approach the Judiciary.

36.Warren Hastings was very intelligent person; he purposefully did
not take the full charge of Criminal justice system and kept the
puppet Nizam alive.

37.He did not change the forms and when possible tried to show case
that company respected the Nizam. Like Nizam got the power to sign the
death sentence.

38.The other clever intelligent system Warren Hastings kept alive was
that following Hindu laws for Hindus and Muslim laws for the Muslims.

39.In this plan collector got the many powers, collector was the
administrator, tax collector, civil judge and supervisor over the
criminal courts.

40.With this collectors got the unlimited powers and Warren Hastings
knew this that collectors will become corrupt and he already told the
company directors about this defect of this plan. The directors of the
company understood the fear and reality of this plan.

41.In the year 1773, Company directed the Calcutta council to withdraw
the collectors as they became very corrupt.

42.After this Calcutta Government introduced new plan for the
collection of revenue and administration of Justice on November 23,
1773 and put it into force in the year 1774.

43.Plan of 1774 –

44.With this plan collectors were recalled from every district.

45.In place of Collector an Indian officer was appointed called as
Diwan or amil.

46.Diwan got the power to collect the revenue as well as act as a
judge in the Mofussil diwani adalat.

47.The territory of Bengal , Bihar and Orissa was divided into six
divisions with their head quarters at Calcutta, Burdwan, Murshidabad ,
Dinajpore, Dacca and Patna

48.In each division many districts were created.

49.The complete Bihar came under the Patna Division

50.A provincial Council consisting of four or five English servants of
the company were appointed in each division to supervise the
collection of revenue and to hear appeals from the cases decided by
the amil , the Indian diwan.

51.The appeals from this Provincial council were allowed if the case
amount was more than Rs. 1000. The appeal went to Sadar Diwani Adalat.

52.This time also Warren Hastings new that the Provisional council
will do the more harm and more corruption than the Collectors. Warren
Hastings thought this plan as a temporary plan but Regulating act was
passed in this time and Warren Hasting could not change the plan until
year 1780

10 April 2010
Part 10 – Indian Legal History – Regulating act of 1773 and Creation
of Supreme Court at Calcutta.

1.The company servants made lot of money in India, when they went to
UK, they started to live lavishly and even they bought the seats of
House of Commons.

2.The population of UK started to doubt the working of East India
Company in India.

3.The shareholders of the company voted and started to get the big
dividends.

4.From the year 1767, it was the rule that company will pay to the
British exchequer, four lakh pounds every year to retain its
territorial acquisitions and revenues.

5.The company servants made money, started to become rich and company
was making losses, so company approach to the British Government for
loan.

6.After this, House of Commons appointed a select committee and a
secret committee to probe the affairs of company before giving company
the loan amount.

7.The reports suggested that Company should be brought under the
British parliament and reports mentioned the evils of company affairs.

8.After this parliament enacted the Regulating Act, 1773 to remove the
prevailing evils.

9.Parliament amended the constitution of company, brought company
under the parliament, with this era of parliamentary enactments
started.

10.Provisions of Regulating Act –

11.The term of the directors of east India Company was increased from
one year to 4 year and provision was made that every year one-fourth
directors were elected in rotation.

12.The voting power of shareholders was restricted.

13.The company directors were required to lay before the Treasury all
correspondence from India relating to revenue and before a Secretary
of state, everything dealing with the civil and military affairs of
the Government of in India.

14.The act appointed a Governor General and Council of 4 at Calcutta

15.They got all the powers, civil and military regarding all the
company acquisitions as well as revenue in the kingdoms of Bihar,
Bengal and Orissa.

16.Warren Hastings was appointed as the first Governor General and
other three came from England. All were to hold office for 5 years but
king can remove them if Court of directors recommend the removal

17.The Governor General got only one vote and casting vote in case of
tie

18.Governor General did not get the power to over rule the majority
vote. Because of this, other three council members always opposed the
policies of Warren Hasting and first six years Warren Hasting found it
very difficult to introduce new laws or policies.

19.In the year 1776, one member from the council died and Warren
Hasting became powerful because of casting vote. Only in the year
1786, governor general got the right of veto to over ride the decision
of council. Because of experience, they knew that without veto
Governor General fails to show the results and implement policies.

20.The Regulating act put the Madras and Bombay Presidency under the
supervision of Calcutta Presidency in matters of war and peace.

21.The subordinate presidencies were required to send regularly all
details of revenue and other important matters to the Governor
General.

22.Only in emergency situations, subordinate presidencies were allowed
to take decisions if required because of necessity. Because of this
Madras and Bombay presidency always took the decisions without fearing
governor general

23.Creation of Supreme Court at Calcutta, This act created the Supreme
Court at Calcutta by the royal charter.

24.King George III on 26 March 1774 issued a charter establishing the
Supreme Court at Calcutta.

25.The charter appointed Sir Elijah Impey as the chief justice and
Robert chambers , Stephen Caesar Lemaistre and john Hyde as puisne
judges.

26.Interesting story is that In India Supreme Court at Calcutta
enjoyed jurisdiction in all type of matters, where as same time in
England they got different courts for each, only after the passage of
100 years, after the passing of judicature act of 1873 in England all
the different courts came under one. In this way what happened in 18th
century at Calcutta , same thing happened in England in the 19th
century but we Indians were slave in the both the cases.

27.Supreme Court was to consist of chief justice and three puisne
judges who were appointed by the king and they were to hold the office
during its pleasure.

28.Only the barrister with the 5 years of minimum experience was
eligible to become the judge. The court was to be a court of record.

29. The court got the jurisdiction in following, civil, criminal,
admiralty and ecclesiastical jurisdiction.

30.In criminal cases, the court was to act as a court of Oyer and
terminer and gaol delivery for the town of Calcutta and the factories.

31.The jurisdiction of the court was not to extend to all the persons
of Bihar, Orissa and Bengal. It extended to the servants of majesty,
company servants etc.

32.Supreme Court was not allowed to hear the cases against the
Governor General and council and exception was crime of felony or
treason.

33.The appeals from the Supreme Court were made to the King in council
in England.

34.Governor General and council got the powers to make the laws and
rules but with the condition that all the rules and laws must be
registered in the Supreme Court and did not become effective until
they were registered and published in the Supreme Court .

35.Any person in India got the power to appeal against such rules
within sixty days in the King in council, which then set aside such a
rule or changed the law. The appeal was to be made in the Supreme
Court of Calcutta within stipulated period.

36.It was mandatory to send all the rules made by Governor General to
a secretary of state in England.

37.Any person in England got right to appeal against the rules within
sixty days after the rules were published in the England.

38.King in council got the suo motto power to change or disallow any
rule without appeal within the period of 2 years.

39.This provision of law and rule registration in the Supreme Court,
made it easy to introduce the new laws and rules, which saved the
time, as now it was not required to take the permissions from the
England head office of the company.

40.The best part of was that Supreme Court reviewed the law before it
became the law.

41. The governor general and council , supreme court judges and its
officers were not allowed to do any private trade in India , as well
as they were forbidden to accept any gifts and presents.

42.In the beginning one of the problem with the Regulating act was
that majority terms were not defined properly by the regulating act
and it lead to the conflict between the Supreme Court Judges and
Governor and general and council.

19 April 2010
Part 11 – Indian Legal History – Supreme Court Becomes Secondary at
Calcutta – 1781

The case of Nandkumar, a classic case
This is the case against Warren Hastings brought by majority council,
then Supreme Court against majority.
Nandkumar got the support and protection from the Majority council.

Nandkumar was influential man from Bengal, brought the corruption and
bribery charges against the Warren Hastings in the council.
When this charges were heard by the council Warren Hastings left the
room.
After few days Mohun Pershad filed a forgery case against Nandkumar in
the Supreme Court of Calcutta.
Supreme Court found Nandkumar guilty and gave him death punishment as
per the law.
And the sentence was duly executed.

Supreme Court judge was the friend of Warren Hastings, but the case
was tried with the help of 4 judges and 12 Englishmen.
Still many historians say that as judge was the friend of Warren, the
nandkumar got death punishment.

For me I feel that Nandkumar became Bakra between the fight of Council
and Warren Hastings.
In the year 1728 in England for the act of forgery, capital punishment
was given to the accused person when he was found guilty.

The Patna Case –

The Patna Case Happened in the years 1777, 1778, and 1779, this is
very interesting case.

Shahbaz beg khan came to Patna from the Kabul and joined the company
army; he made money and settled in Patna.

As he did not have any children, he called his nephew Bahadur Beg from
Kabul to stay with him and he expressed his desire to adopt him and
hand him his all property.
Before this Shahbaz died in the year 1776.

After this the fight started between the widow [of Shahbaz Beg,]
Nadirah begum and nephew Bahadur Beg regarding the property of Shahbaz
Beg.

Bahadur Beg filed a suit against the Begum in the Patna Provincial
Council which functioned as the Diwani court for the town under the
warren Hastings plan of 1774

As per the law English judges were helped by the Kazis and Pundits to
understand the customs and laws of community. Kazi and Pundits were
not supposed to decide the cases wholly.
But English law officers were not interested in the Indian customs
they were more busy in collection of revenue.

So English judges gave, allowed the local officers to hear the
evidence, decide the fact and expound the law. Patna council left the
entire matter in the hands of Muslim law officers.
Begum was not given any notice regarding this suit.

Muslim law officers rejected the Begums claim of gift of deed which
she said her husband made.
As Muslim law does not recognize adoption they rejected the claim of
the Bahadur Beg also.

They decided that the property of deceased’s property be divided as
per the Hanafi school of intestate succession,
One fourth property was allotted to the widow,
Three fourth go to shahbaz beg brother, father, but as he was at Kabul
and could not look after property it was entrusted to Bahadur Beg as
his son and representative in India.
The provisional council considered the report in the presence of the
vakeels of both the parties and confirmed the same and ordered the
Muslim law officers to divide the property.

Begum did not accept the fourth share and she left the house and took
shelter in the Muslim shrine for the 4 months.
To force her to return home a guard was posted at the shrine. She was
even denied food.
The guard was withdrawn after a month.

Then Begum appealed the Sadar diwani adalat but that time Sadar diwani
adalat was not functioning, Then Warren Hastings wrote a letter the
Patna chief council for explanation and Later Patna chief informed to
the Hastings about the matter. But nothing happened.

Then Begum filed a case in the Supreme Court against the Bahadur Beg ,
kazi and muftis for the assault, battery, false imprisonment ,
breaking and entering her house and taking away her property and
claimed damages amounting to Rs.6 lakh.

Then Supreme Court issued the bailable arrest warrant against the
Bahadur Beg, kazis and muftis.
They were arrested in the Patna and brought before the Supreme Court
at Calcutta the reason they all failed to furnish the bail of 400,000
Rupees. And they were kept in jail.
After few days government gave bail for the kazi and muftis.

Later Supreme Court heard the case and found that Patna council and
kazis and muftis did not function as per their duties and did not
function,perform their duties as per the procedure of law.

The court found the deed of gift original and true and valid.
The court awarded damages of Rs.3 lakh to the Begum for personal
injuries.
As defendants failed to pay the damages they were sent to the Jail.

This case is the excellent example which shows us to Indians the power
of Courts if they are easy to approach for the common people and
speedy trial.

The other famous case is Cassijurah case – In this case Supreme Court
forces came against the Forces of government regarding court case. The
case involves the contempt proceedings against the Governor General
and council who send forces to stop the Supreme Court forces. This
case is landmark case as Supreme court and Executive, government came
to fight with each other.

The government servants as well as English servants did not like the
powers of Supreme Court, on the other hand majority Indians like the
power of Supreme Court, which gave them justice against the Corrupt
Government Indian as well as white officers of the company.

In the year 1777, the company directors complained about the working
of courts in Calcutta in the England and demanded that the division of
powers is required so that Court will not interfere in the working of
government in India.

Consequently in the year 1780 House of Commons appointed a select
committee known as the Touchet Committee to hold a through inquiry
into the administration of justice in Bengal, Bihar and Orissa.

The committees report led to the passing of new act, the act of
settlement 1781, to remove the doubts of the regulating act, to
support the government and to safeguard the ancient laws and customs
of Hindus and Muslims.

House of commons knew that this law will empower the Executive and
this is what they wanted, because We As Indians should not forget that
the Company just started their business and control of India ,in this
case to increase that control over India , it was necessary that
Executive becomes strong and powerful .

This act clearly said that Governor General and Council is not under
Supreme Court.
No person will be liable to court if he acts on the order of Governor
General or council.

It was again decided that Hindu and Muslim laws should be used for the
communities.

Sadar Diwani Adalat got the status of court. – Revenue Matters, cases

Supreme Court was not allowed to hear any cases against the misconduct
of any government working or adalatas.

The Supreme Court was not allowed to hear the revenue cases and this
way Government as well as government employees got full freedom to rob
the Indians.
Government Employees were also Indians.

This way Government became more powerful than the Courts. And
Judiciary became secondary.

After the act of 1781 Supreme Court worked more for the next 8 years.

But that time Supreme Court was so successful that it was established
in the Bombay and Madras.

25 April 2010
Part 12 – Indian Legal History – Establishment of Supreme Court at
Bombay and Madras

1.Charter of 1753 established the judicial system in the Presidency
town of Bombay and Madras.

2.In 1791, Madras Presidency, Madras Council informed and ask the
company directors that they need professional lawyers for the civil
and criminal cases and also suggested that Appeals from Madras court
should go to the Supreme Court of Calcutta instead of England which
will save the time and which will help the complainants to get speedy
justice, appeals to England delayed the justice.

3.British Parliament enacted an act in 1797 permitting crown to issue
charters to establish Recorders Court at Bombay and Madras. Then On
February 1, 1798 King George III issued charters for the purpose of
creating Recorders Court at Bombay and Madras.

4.In Madras from November 1, 1798 Recorders Court started to function
and near about same time Bombay Recorders Court also started its
functioning.

5.On 26th December 1800 king George issued letter regarding the
establishment of Supreme Court at Madras which came into existence on
4th September 1801 and Sir Thomas Strange became the first chief
justice of court, Sir Thomas was the Recorders Court chief justice,
With the establishment of Supreme Court at Madras the all powers of
Recorders Court were given to the Supreme Court.

6.In 1823, with Royal charter in Bombay Presidency Supreme Court was
established. And Supreme Court started functioning from 8th may, 1824
and Sir E. West became the Chief Justice.

7.Bombay Supreme Court, judiciary also faced the conflicts with the
Executive and government.

8.In one case Chief Justice West found the one of the friends of
Governor and company servant Erskine guilty in a case of
misappropriation of money and he dismissed him.

9.In Bombay Government tried to limit the Press power and drafted new
law, but Chief Justice West rejected it saying Freedom of Press is
important. In this fight with the Government , Chief Justice
threatened the one news paper which took the side of Government ,chief
justice said that it’s a government paper

10.In one case Supreme Court demanded the records from the Government
but on last minute government did not show the records to the Supreme
Court on the name of Secrecy.

02 May 2010
Part 13 – Indian Legal History – Judicial Plan of 1780, First Indian
Civil Code Prepared

Warren Hastings knew that the judicial plan of 1774 was not perfect,
and when Warren Hastings again got the chance and He made changes to
the judicial plan of 1774, On April 11, 1780 new plan was introduced.

As per the plan of 1780 judicial and executive functions were
separated.
Adalats – Function to do civil justice, no revenue work
Provincial Council – No judicial work, only revenue related work,
collection and revenue cases.

But with this plan the problem was that, area was vast and adalats
were few to administer those large areas, because of this, cases were
more, time was limited with the judges and thus arrears piled up in
every adalat.
2nd problem was that witnesses have to travel lot to reach the adalats
There was only one Adalat in the whole of Bihar.

Because of this people thought it is better not to file the cases in
courts, as filing cases in court meant, delayed justice, physical
harassment, waste of time and money.

As per the judicial plan cases up to Rs.100 were referred to the
person who stayed near the place of litigant ,but before this it was
compulsory to file the case in the Adalat, and 2nd problem was that
the person who work as judge has to work as a honorary judge and he
did not get any salary . The Zamindar or public officer acted as an
honorary judge and they charged money for this and also zamindar got
the chance to do corruption as he became the honorary judge.

Warren Hasting was not satisfied with the plan of 1780 he always
thought about the improving judicial system in India. The judicial
system of East India Company.

On 29th September 1780 Warren Hastings proposed in the Council that
chief justice Sir Elijah Impey be requested to accept the charge of
the office of the Sadar Diwani Adalat.

Impey accepted this offer.
He remained in Sadar Adalat for a year but he introduced, made lot of
reforms in sadar adalat.
Impey Drafted many regulations to reform the adalats.

On November 3, 1780 first reform, regulation was passed to regulate
the procedure of the diwani adalats.
As per this rule , the Mofussil judge has to decide the facts , he was
allow to take the help of Hindu Pundits or Muslim Mulla if it was
necessary to understand the cause or case.
Impey Compiled a civil procedure code for the guidance of the Sadar
Adalat and mofussil diwani adalats It was the first code of civil
procedure to be prepared in India .
It was promulgated by the Council on July 5, 1781 in the form of a
Regulation.
It was the digest of the civil rules
The code consolidated at one place a detailed civil procedure.
The code contained 95 clauses and with it all the previous regulations
relating to civil procedure were repealed.
The code of 1781 clearly defined the functions, powers and
jurisdiction of Sadar Diwani Adalat.
This code was translated in Persian and Bengali language that time.

In India, Impey was doing great job, but in England People were not
happy with the Impey because of following reasons –
Impey was appointed as the Supreme Court judge to monitor the Company
affairs in India.
But in India Impey stated to work as a company servant when he
accepted to work as the Judge of Sadar Adalat. Accepting this violated
the Regulation act.
Because of other job, they believed that Impey would not do the
justice with the job of Supreme Court.

Because of all above reasons , on 3rd May 1782 in England House of
Commons adopted a resolution requesting the crown, king , to recall
Impey to answer the charge of having accepted an office and violating
the Regulating act.
After this Impey left India on 3rd December 1782
From the Impey appointment one should learn that what ever post or job
may be, the concern person must be studied in that profession.
EG.

Sports minister should be a sports man in his youth, Agriculture
Minister should be graduate from the agriculture collage.

Regarding criminal justice system Warren Hasting took following steps.
Machinery was created for the purpose of arresting criminals and
bringing them before the fozdari adalat for the trial. This system
never existed in India before this.
A new department, office of the Remembrancer was created at Calcutta
to keep watch on the functioning of criminal adalats.
The department was to work under the Governor General.

The head of the department was known as Remembrancer of criminal
courts.
All criminal courts were required to send periodical reports to this
department.
Everything was done as per the Muslim criminal law and Warren Hasting
was not happy with many things, and wanted to reform them, he tried
his best but company heads did not accept his views.
Because of this in criminal justice system, everyone made money using
the corrupt ways.

08 May 2010
Part 14 – Indian Legal History – Cornwallis and Plan of 1787

In Short about Warren Hastings (1732-1818) –

Warren Hastings came to India as a clerk aged 16 and later became the
Governor General of Bengal and British India.
Warren Hastings started reforming revenue administration and judicial
system and he resigned in 1784. Burke campaigned for his impeachment.
On corruption Charges Warren Hastings was tried in England for seven
years and he got acquitted in 1795, but financially he lost
everything.

Warren Hasting divided the functions of revenue and judiciary systems.
But many senior members of company did not like it and they thought
separation is costly for company.
When Warren Hastings left India, they openly started to criticize
this.
The court of directors on 12th April 1786 directed the Cornwallis to
vest in one person the revenue, judicial, and magisterial functions.

Cornwallis followed the ordered and introduced plan of 1787.
In this plan Cornwallis increased the salaries of collectors.

2nd He reduced the number of Diwani districts from 36 to 23 and this
made it possible to increase the salaries of collectors.
The scheme was introduced through 2 Regulations.

First Regulation dealt with Revenue Administration and it was
introduced on 8th June 1787.
Second Regulation dealt with administration of justice and it was
enacted on 27 June 1787.
In each district a company’s English covenanted servant was appointed
as collector who will collect revenue as well as will decide the all
cases relating to revenue. Collector also worked as Judge in the
district mofussil diwani adalat to decide civil cases, succession
cases and land related cases like boundaries etc.

Revenue Court was known as mal adalat

Appeals from mal adalat went to the Board of Revenue at Calcutta.
And finally to the Governor General
In Diwani adalat appeals in the cases where matters involving more
than one thousand rupees went to the Sadar Diwani Adalat, where
Governor General and council handled the cases.
Appeal from Sadar Diwani Adalats went to the King in Council.

In each adalat registrar was appointed as a subordinate officer to
help collectors.
Registrar was given power to handle decide cases up to rupees 200 and
orders passed by him became valid when it were signed by the judge of
mofussil adalat.
As a magistrate collector was authorized to try and arrest criminals
in petty offences.
The magistrate got power to hear the cases against the Englishmen who
committed crimes against Indians, in this case magistrate made inquiry
and he felt that there is ground for trial, he would send the
Englishman accused to the Calcutta for trial and if Indian complainant
was poor, the government paid all the expenses of traveling to
Calcutta.

Criminal Justice system –

In 1790 Cornwallis tried to reform the criminal justice system which
was following Muslim criminal law system and mofussil fozdari adalats
were controlled by Kazis, muftis and moulvies.
Everything was controlled by Naib Nawab Raza khan and who was not
answerable to anyone including Remembrancer.
The salaries of the criminal court judges were very low which
encouraged them to get involved in the corruption.
Low salaried kept honest and educated people away from this job and
every corrupt man wanted to become the criminal court judge.
Fozdari adalats did not give fast justice, it delayed the justice.
Delayed justice encourages criminals to do more crimes. As they do not
fear the law.
Cornwallis wanted to reform all this and introduced the new scheme on
3rd December 1790.

Main Featured of the scheme of 1790

Criminal justice system – transferred to English servants from Muslim
law officers.
Muslim law officers became advisors to the court.
And criminal cases should be decided quickly.

Districts got the magistrates, above them were Courts of Circuit and
above them was Sadar Nizamat Adalat.
Sadar Nizamat Adalat was shifted to Calcutta from Murshidabad and
Nawab was divested of his control over the adalat.
In Sadar Adalat Governor General and council members sat as judges and
Muslim law officers helped them to understand the Muslim law.
Mofussil Fozdari adalats were abolished and on their place four court
of circuits were established.
All districts in Bengal, Bihar and Orissa were arranged into four
divisions of Patna, Calcutta, Murshidabad and Dacca.
Court of circuit was a moving court and it traveled from district to
district in the given division.
Court of Circuit consisted of 2 companies covenanted servants and
Muslim law officers help them.
The new criminal judicial system was inaugurated on January 1, 1791
and office of remembrance was abolished which was created in the time
of Warren Hastings.

The salaries of the criminal court judges were increased and first
time Governor General took the complete control of criminal justice
system Bengal, Bihar and Orissa.
In 1792, company government sanctioned small sum as a payment to the
prosecutors and witnesses who spent the days in court of circuit for
their journey to attend the trials.
The criminals who completed the punishment, when came out of jail they
were paid money to maintain themselves for a month.

Defects of Scheme –

Lot of work for court of circuits
No provision to supervise the collectors, who got unlimited powers

Cornwallis understood the defects of the above schemes and He
introduced the plan of 1793

16 May 2010
Part 15 – Indian Legal History – The Plan of 1793

In short Important points -

Seperation of Judicial and exective functions
Format of Regulation writing fix
Vakeels started to get the Sunnuds

One of important point as per this plan was that no executive officer
was to exercise any judicial power in any shape or form except at the
higher lever.
The executive officers were to be placed under the jurisdiction of the
adalats.
Even if the government is party in a matters of property it should be
bound by court adjudication.

In this way for the first time in India the powers of Judiciary and
Executive were separated and executive was placed under the judiciary.
Lord Cornwallis wanted that courts should become the protectors of the
rights and property of individuals from corrupt officers as well as
government.
Plan of 1793 tried to protect the private rights of every person,
promote public advantage, general benefit.

The policy of separating the two functions judicial and executive was
put into practice by Regulation II of 1793 which abolished the mal
adalats and transferred the suits triable there to the mofussil diwani
adalats.

The power of the administration of civil justice was taken away from
the collectors and given the diwani adalats as well as collectors lost
the power of deciding revenue cases.
The collectors lost all the types of judicial powers, functions.

Section X of the Regulation III made collectors and all the executive
officers personally liable and could be required to pay damages to the
injured party for violations of regulations, laws.

Lord Cornwallis gave power to the Indians to bring, file cases against
the government if they felt their right was abused.

A diwani adalat was instituted in each district and in each of the
three cities of Patna, Murshidabad and Dacca.

Regulation IV enacted the rules of procedure to be observed by the
diwani adalats for receiving, trying and deciding cases.
The period of limitation was fixed at 12 years.

The system of appeal is necessary as a safeguard against wrong or
unjust, decisions.

To enable the speedy justice to the people it was necessary that poor
can approach to the judiciary.

Regulation V instituted four courts of appeal having seats at Patna,
Dacca, Calcutta and Murshidabad.

Each Court to consist of three Company’s English covenanted servants,
of whom two were to make a quorum.

These courts were to discharge the following functions.
To try civil suits send to them by government or sadar diwani adalat.
To receive the charges of corruption against the judges of the diwani
adalat
To hear appeal if filed within three months from all decisions of the
mofussil diwani adalat.
All people who were not satisfied with the District adalat decision
got the right to file an appeal in this court.

The highest court in the judicial hierarchy was the Sadar Diwani
Adalat in which Governor General and members of the council sat as
judges.
If matter was above 5000 the parties got the right to file an appeal
in the King in council

Munsiffs were appointed to try suits up to Rs. 50 in value.
Every ten miles one Munsiff was appointed so the complainant should
not travel more than ten miles to file a complainat or suit.

With this Plan Cornwallis abolished the court fees, so poor Indians
can also file the suits in judiciary.

Cornwallis to the steps towards development of Legal Profession
Regulation VII of 1793 took the first steps.

The Sadar Diwani adalat was to appoint pleaders to plead the cause of
the litigants in the various adalats by issuing Sunnuds to them.

A vakeel guilty of promoting and encouraging frauds was to be
suspended.
vakeel were to charge moderate fees and the chart of fees was laid
down in the Regulation.
They were forbidden to charge more fees.

Any Vakeel who for personal gains delayed the suits, was prosecuted
for damages, if found guilty he lost his professional job
Suitors could prosecute a vakeel in a court for any bad practice.
The court collected the fees of Vakeel and then paid it to the Vakeel.
Provision was made for appointment of government pleaders

Cornwallis introduced the Forms, style in which Regulation should be
written.
Regulation XLI introduced them.

Each Regulation must have title expressing subject matter.
A preamble which will contain the reasons for the enactment of law.
If any regulation was changed the reasons were to be mentioned why it
was changed.
Every Regulation should be divided in sections and sections in
clauses.
Sections and Clauses were to be numbered.

The subject of each section and clause was to be written in the
opposite margin in short.
All Regulation enacted in a year were to be recorded in the judicial
department and then they were numbered and published.

These Regulations were translated into the Persian and Bengali
languages so locals can understand them.

Regulation XLI started the process of compilation of a code of the
Regulations

In 1772 Warren Hastings Started the process of separation of judiciary
and executive and Cornwallis completed that process.

24 May 2010
Part 16 – Indian Legal History – Defects and Changes Made in 1793 Plan

Cornwallis left India after establishing the plan of 1793.
Cornwallis did not stay in India to see the actual implementation of
plan of 1793.
After Cornwallis left Shore took the charge and became the Governor
General

The Problems and Defects of Plan of 1793 –

Large volume of Cases and Pending Suits, which delayed the Justice.
Example – In 1795 the number of Pending suits in district Adalat in
Burdwan was 30 thousand.

But this shows that British People gave power and confidence that yes
Indians can also demand justice and in result increase of suits.

The good thing was that Collectors were aware about the problem that
numbers of pending suits are increasing and it will destroy the
purpose of Court and Justice System.
Same Was Happening in Bengal, Bihar and Orissa increase in filing of
cases and increase in number of Pending suits.

In Revenue cases delay meant collection of revenue was affected.
In three provinces of Bengal, Bihar and Orissa only 26 diwani adalats
were established.
The jurisdiction of registers and munsiffs was very small.
There was need to increase the number of courts and judges but Shore
did not increase, he and his team believed that already courts are
more and this is temporary phase, but shore was wrong, as the plan of
Cornwallis encouraged the more and more Indians to file the suits as
courts were became accessible to Indians.

Regulation VIII of 1794 –

To decrease the work load of diwani adalats Regulation VIII made the
decrees of the register final in all suits for money or personal
property valuing up to Rs.25. But Diwani adalat got the discretionary
power to revise the decision of registers.
An appeal had been provided to the provincial Courts of Appeal from
registers in all cases of real property and in cases for personal
property over Rs.25.

The Regulation XXXVI of 1795 lay down that appeals from the registers
were to go to the district diwani adalats and not to the provincial
courts of appeal.
The decisions of the district adalats were to be final in all such
cases and no further appeal was to be sufficient for purpose of
justice.

Only two appeals had been provided for from the decision of the
munsiffs who decided cased up to Rs. 50.
First appeal – District Diwani Adalat
2ND appeal – Provincial court of appeal
But again this resulted in delay and in 1795 decisions of the District
Diwani Adalats declared to be final in all such cases.

But after all these efforts the filing of suits and number of Pending
suits kept increasing.

Because of financial matter Shore did not increase number of the
courts and judges
Cornwallis had abolished Court fees so Poor can file cases and Appeals
in 1793.

Shore thought that as there was no court fee people filed wrong cases;
false suits .Thus government felt that imposition of court fees will
limit the filing of wrong cases.

Thus Regulation of XXXVIII of 1795 again imposed court fees.

One anna in the rupee was to be paid by a plaintiff for filing suits
before a munsiff.
Thus court fee was fixed according to the amount of suit.

Regulation of 1797 increased the court fees on suits, witnesses,
exhibits and appeals.
This regulation converted the institution of court fees into stamp
duties.

This again made justice costly for Indians, and kept poor Indians away
from demanding justice.
This is even noted and written by white judges.

Many Indians started to think that justice is costly so do not demand
justice.

On June 25, 1835 Lord Macaulay also criticized the levy of fees on
institution of suits and at various stages in their progress.

In 1856 the second law commission suggested abolition of court fees
but nothing changed and today in 2010 also we are following same.

In 1795 Company Government decided to introduce the same system of
administration in the Banaras province.
Thus series of Regulation were passed on 27th March 1795.

The Banaras city was formed into a district and rest of the Banaras
province was divided into three districts of Mirzapur, Gazipur and
Jaunpur.
In Banaras Company saw that Brahims were treated as Gods so it was
decided that no brahimin was to be punished with death penalty for any
crime.

30 May 2010
Part 17 – Indian Legal History – Separation of Executive and Judicial
Powers 1797 – 1813

In 1797, It was not allowed to file a apple to the Sadar Diwani Adalat
in cases of personal property , to reduce the work load of Sadar
Diwani Adalat .

But later it was realized that this is not helping to reduce the work
load of courts.
Therefore by Regulation V of 1798 [ Governor General Wellesley ] it
was decided that appeals could go to Sadar Diwani Adalat only when the
subject matter , case matter involved more than Rs.5000 in value
irrespective of whether real or personal property was involved.

Governor General Wellesley understood that for good governance ,good
justice system judiciary and executive powers should be divided . The
process was started by the Lord Cornwallis and GG Wellesley took it
further.

GG wrote the letter to Court of Directors regarding this , Wellesley
himself wrote about the reducing the power of the post which Governor
General enjoyed .
Wellesley demanded the separation of Sadar Adalat and Government .

I am reproducing few lines of Governor General Wellesley what he
wrote ,

It is equally necessary to the happiness of the people , to the
prosperity of the country [ India ] and to the stability of the
British Government , that such laws as the Governor General in council
may sanction in his legislature capacity ,should be administered with
ability , integrity , impartiality and expedition , all the provisions
made by the British Constitution for precluding the legislative and
the executive powers of the state from any interference in the
administration of the laws , are not only applicable to the government
of this country , but , if it were possible demand to be
strengthened .

All the powers , legislative ,executive and judicial were concentrated
in the hands of the Governor General in council and Lord Wellesley
realized that this is wrong and not good for any nation .

Lord Wellesley penned his Minute on the 12th March 1801 demanding and
advocating separation of the Sadar Adalats from the Governor General
and council.
He said that in current system Government, executive can abuse the
powers he got , this is one of the reason executive should not enjoy
this power.

After this By Regulation II of 1801 the Sadar Diwani Adalat and the
Sadar Nizamat Adalat were to presided over by three judges appointed
by the Governor General in council.
The chief judge was to be a member of the council but neither the
Governor General nor the commander in chief was to occupy this office.
In this change only problem or defect was that still chief justice was
a member of the Governor General Council .

In 1803 the jurisdiction of the Sadar Adalat was extended to the
Oudh .and in next 2 years to the Bundelkhand.

In 1805, 2nd Time Lord Cornwallis became Governor General who started
the process of separation of powers between the judiciary and
executive in 1793.

In 1805 by Regulation X, a complete separation between the sadar
adalats and the government was effected by Lord Cornwallis .

But again in 1807 during the period of Lord Minto , by regulation XV
enacted on 23 July 1807 modified the constitution of the adalat by
increasing the number of the judges from 3 to 4 and one judge should
be member of the governor general and council other than Governor
General or Commander in chief .

Regulation XII of 1811 provided for appointment of a chief judge and
such number of judges to the Sadar Adalats as the Governor General and
council deem fit as per the work load of sadar adalats . This
regulation does not mention that judge should be member of council .

Lord Minto realized the importance of separation of powers between the
executive and judiciary .

Regulation XXV of 1814 laid down the necessary qualification for the
appointment of judges of the sadar adalats .
The Regulation laid down that no person was to be deemed qualified to
be appointed as a judge of the sadar adalats unless he had previously
officiated as a judge of a provincial court of appeal or of a court of
circuit for a period of not less than three years and had been
employed in the judicial department or in offices requiring the
discharge of judicial functions whether of civil or criminal nature
for a period of not less than nine years .

This provision was rescinded in 1823 by Regulation IV as it was
proving difficult to find qualified persons to be appointed as
judges . The sadar adalats subsisted till 1862 when they were merged
in the newly constituted High Court at Calcutta .

Oudh was ceded to the company by the Nawab Vizier in perpetual
sovereignty by a treaty on November 20, 1801 .

The Province of Oudh was divided into seven districts namely
Moradabad, Bareilly, Etawah, Farrukhabad, kanpur , Allahabad and
Gorakhpur.

On March 24, 1803 Same Judicial system was introduced in the Oudh .

The number of Pending cases in various courts on the 1st January,1802
was as follows .

• Courts of Appeal – 882
• District diwani adalat – 12,262
• Registrars – 17,906
• Munsiffs – 131,929

In 1803 selection of Munsiff was made more easy . The judge of the
diwani adalat got the power to appoint the Munsiff with the approval
of the sadar diwani adalats . Not only zamindar but other qualified
Indians also got right to become Munsiff .

Till 1811 no distinction was made between revenue and judicial
services .

District judges were appointed without consideration of any judicial
experience as a result servants from the revenue, political , military
or postal department servants suddenly became the District Judge who
failed to do justice with their job because of lack of judicial
knowledge and experience.

In beginning servants got the initial training at the Fort William
college.
Lord minto decided that junior servants were to make a choice between
the judicial, revenue or postal service .Once an officer made his
choice , he was to stay and receive promotions in the department
only .
Thus it tried to stop the postal department servant suddenly becoming
the Judge .

On January 1, 1814, the total number of cases in all courts stood at
the 139,271.

See the thinking of British Rulers , what they said about this
situation ,

We should be very sorry , that from the accumulation of such arrears,
there should ever be room to raise a question , whether it were better
to leave the natives to their own arbitrary and precipitate tribunals,
than to harass their feelings and injure their property by an endless
procrastination of their suits , under the pretence of deliberate
justice .

Delay in Justice Resulted in –
Bribery , corruption and extortion , taking laws in own hand , no fear
of law.

In 1813 , the charter of company was renewed .

Today in India do we find such a thinking in Indian law makers and
politicians ?

More to follow...

...and I am Sid Harth

[cogitoergosum]

06 June 2010
Part 18 – Indian Legal History – Lord Hastings Plan 1814 –

As we have seen that increasing number of suits increased the work
load of courts and in result, increase in number of pending suits.

To reduce the accumulation of cases and suits a plan was introduced of
referring land disputes to arbitration.
Regulation VI of 1813 made provisions to this effect.

Land disputed parties were free to take their matters to private
arbitration and courts were to support and enforce the awards made by
the arbitration.

Lord Hastings – Plan of 1814 -

Increased the court fees, started to charge the fees on every process
undertaken and on every paper filed in the civil courts.
This way judiciary became the revenue and money making factory as on
every paper, judicial process the fee was charged.

The effect was that people started to keep away from the judiciary as
it became costly affair.

Regulation V increased the strength of each provincial court to four.

Regulation XXVI tried to restrict the number of appeals. Only one
appeal was allowed in every case.

This regulation laid down the qualification for the appointment of
registers and district judges.

The persons who wanted to became register have to obtain the
certificate from the Collage of Fort William.

From 1st February, 1815 no person was to be appointed a judge of
provincial court unless he had at least 3 years of experience as a
judge or magistrate in a district adalat.

Bengal Presidency 1814
The structure of Judiciary in Bengal Presidency 1814 –

We will start from the Bottom –

1. Munsiffs – jurisdiction up to Rs.64
2. Munsiff location – District
3. Appeals from munsiffs went to the district diwani adalat
4. Sadar ammens tried the cased up to Rs. 150
5. Sadar ammens located at district head quarters
6. Appeals went to Diwani adalat.
7. Registers tried cases up to Rs. 500
8. Appeals went to the District diwani adalat
9. Each Diwani adalat had one or two registers
10. One diwani adalat in each district
11. Diwani adalat tried cases up to Rs. 5000
12. Appeals went to the Provincial Court of appeal
13. Provincial court of appeal tried cases over Rs. 5000

In 1793 District Diwani adalat enjoyed unlimited power but in 1814
District diwani adalat got limited power , tried cases up to Rs. 5000
only .

13 June 2010
Part 19 – Indian Legal History – Criminal Court System 1790 – Defects
and Changes

Cornwallis introduced, made changes in criminal system in 1790

•Lower Level – Magistrate
•Middle Level – Courts of Circuit
•Top Level – Sadar Nizamat Adalat

The judges of the district diwani adalats acted as magistrates.
The main duty of the magistrate was to arrest the accused person; hold
inquiries into the commission of crime find the evidence, if evidence
was found against accused then commit them for trial to the Court of
Circuit which visited each district once in six months.
Cornwallis had instituted 4 Courts of Circuit to try criminal cases
arising in Bengal, Bihar and Orissa.
In 1802 court of circuit tried 2,820 cases, charges involving 5667
accused persons.

1790 – Types of Crimes People committed –

•Dacoity
•Burglary
•Gang robbery
•Murder
•Rape etc just named few

The main defect in this type of system was that accused was tried
after long time after the commission of crime.
In this period the accused was kept in a jail.
If accused was innocent then he suffered in justice.
Limited number of judges. – Only one magistrate in the district with
civil and criminal both functions.

Changes Introduced –
Regulation XIII Of 1796 – The assistants to the district magistrates
were authorized
To exercise the judicial powers vested in the magistrates.

Regulation XVI of 1810 provided for the appointment of magistrates
other than the district judges as well as of joint and assistant
magistrates.
The Governor General in council got power to appoint any person as a
magistrate in district.
The joint and assistant magistrates were to have the same powers as
the district magistrates but were to be subordinate to the district
magistrates.

Regulation XII Of 1818 enhanced the powers of the magistrate to give
sentence of 2 years imprisonment with hard labour and a corporal
punishment not exceeding thirty stripes.

Regulation IV of 1821 authorized the Governor General in Council to
appoint a collector or any other revenue officer to exercise the whole
or part of the powers and duties of magistrates.

21 June 2010
Part 20 – Indian Legal History – Lord William Bentinck period – July
1828 to March 1835

Governor General – Lord William Bentinck period – July 1828 to March
1835

2nd October 1815 Lord Hastings suggested the establishment of a
separate Sadar Adalat for the Western Territory –
The Reason – To get justice people have to travel 1000 miles many
times to reach the Sadar Adalat. Because of this Poor people did not
get opportunity to file appeals or get justice. 2nd Reason was Delay
in getting justice.
Eg. Agra to Calcutta travel for justice just thinks.
But no change was made, but he gave the thought.

Lord Bentinck like the thought and idea of the Lord Hastings to
establish another Sadar Adalat.
So Lord Bentinck again forcefully argued for this cause.
This time Lord Bentinck succeeded.

Governor General Bentinck government established through Regulation VI
of 1831, Sadar Diwani Adalat and Sadar Nizamat Adalat at Allahabad
from January 1, 1832.
Jurisdiction Area – Banaras Province, Districts of Meerut, Saharanpur,
Muza ffarnagar and Bulandshahar.

Bentinck Brought Changes in Criminal Judicature of 1793 which Lord
Cornwallis established.

Bentinck realized that the people are not getting speedy justice.
Bentinck said that these courts had become the resting place for those
members of the service who were deemed unfit for higher
responsibilities.
[He said this about the English People.]

Bentinck Brought Changes in Circuit Court –

Regulation I of 1829 appointed Commissioners of Revenue and circuit.
Power of Commissioners – To superintendence and control over the
magistrates. Police, collectors, and other executive revenue officers.
The got all the powers of Court of Circuit.

Each Commissioner controlled small area so people will get cheap and
fast justice.
Bengal Presidency was divided into 20 Divisions and for each division
one commissioner was appointed.
With this change Provincial Courts of Appeal stop to work as the
Circuit Courts.
The one of the object was that to make supervision and control of the
revenue authorities more effective.

Regulation II of 1829, any order or decision passed by a magistrate or
joint magistrate was made appealable to the commissioners. And the
order of the commissioner was made final.

The plan improved the justice system. But the work load of
Commissioner increased.
Again one person got revenue and judicial function which Cornwallis
changed in the past.

Regulation V of 1831 declared that magistrate may refer any criminal
case to a Sadar Ameen or a principal sadar Ameen for investigation
Ammen was an Indian servant of British Judiciary.
In 1832 the powers of Ammen and Indian law officers were increased.

Changes Made By Lord Bentinck in Civil Procedure –
Powers of Munsiff increased.
They used to get the fees from suits, it was cancelled and they
started to get the monthly allowance.
Any Indian can became Ammen no discrimination based on Religion.

Sadar Ammen and Munsiff – appeal went to district diwani adalat.
The order of district diwani adalat was final.
But special appeal was allowed to Sadar diwani adalat.

The judicial powers of registers were removed.
The munsiff was the poor mans justice provider , he was nearby them so
he got speedy justice.

Lord Bentinck Introduced Jury system –

Regulation VI of 1832 made provision for the governor general in
council to invest any European civil judge in a trial of civil suit
original or appellate with powers to avail himself of the assistance
of the Indians in one of the three ways.
First judge could refer the suit to panchayat and they will give him
report of investigation
Secondly judge could constitute 2 or more persons as assessors which
help the judge during the examination of witness and each assessor
gave separate report.
Thirdly judge can appoint any person as jury who will suggest the
judge points of investigation or inquiry.

Regulation XIV of 1834 power to try revenue cases was given to
collector.

In 1837 the act was passed which gave power to Principal sadar Ammen
to try suits of any amount referred to them by district diwani adalat.

Act X 1859 made all kinds of revenue cases cognizable by the
collectors.

In 1885 Bengal Tenancy Act was passed which authorized civil courts to
determine disputes between landlords and tenants

29 June 2010
Part 21 – Indian Legal History – Regulation and Non Regulation
Provinces

For many years British India was comprised of only three provinces of
Bomaby, Madras and Bengal and later added Bihar and Orissa.

In 17th century East India Company started as a trading company and
with intelligence, using tricks very slowly took the controlled of
India from the Muslim King of Delhi, who ruled the Land of Bharat.

We should not forget the fact that once there was a country of Bharat,
then Muslims from Arab world came here and won our land and kingdoms
Same way English people came and won the same land and kingdoms from
Muslim Kings.

Each presidency got the Provincial Government which got right and
power to make the laws for the territories under its control.
Thus each province came to have a separate code of Regulation and 3
provinces were known as the Regulation Provinces.

Act II of 1800 enacted that it should be lawful for the court of
Directors to declare what part or parts of the company’s territorial
acquisitions would be subject of the government of which Presidency.

As company was slowly expanding and acquiring the new territories
under its control, but it was not feasible, easy to implement the same
regulation laws of established provinces.
Thus the new territories were known as Non Regulation provinces.

New territories were not annexed to any Presidency but were formed
into distinct units of administration; Governor General in council
administered the new territories under the executive capacity.

Punjab, Assam, central provinces and Oudh were governed as Non-
Regulation Provinces.

Punjab was annexed by Lord Dalhousie in 1849.
And Board of administration, having a president and two members got
the power to control and supervise all departments
The Board also acted as Sadar court of Judicature.

In 1853 board was abolished and its powers and functions were vested
in chief commissioner assisted by a judicial commissioner and a
finance commissioner.
Sir John Lawrence was appointed as the chief commissioner and on 1
January 1859 as the Lieutenant Governor.
The district officer known as the deputy commissioner acted as the
collector, magistrate and civil judge.

Assam was annexed in 1826 and was added to Bengal. In 1874 it was
detached and placed under a chief commissioner.
Nagpur came under in 1854.
Oudh was annexed in 1856
In this provinces officers enjoyed unlimited powers.

The regulation system got the fixed rules and non regulation system
got discretion.
The non regulation system was based on the will of head or officer.
But using executive power, governor general and council passed many
rules and orders.
But few people doubted the validity of such rules and orders.

Thus in 1861, section 25 of the Indian Councils Act legitimized the
non regulation law
In 1861 All India Legislative council was established.

And it started to make the changes in judicial system of Non
regulation provinces.
In 1853 under administration of Lawrence the Punjab Civil Code was
compiled.
Punjab laws act was enacted in 1872 which declared that customs will
rule and decide nearly all civil matters like succession, property
etc.

The Indian Penal Code was enacted in 1860 and already civil procedure
and criminal procedure code were in operation.

04 July 2010
Part 22 – Indian Legal History – British Citizens and Company Courts
in India

In beginning when Company established the judicial system in their
Presidencies British citizens were exempt from the jurisdiction of the
company courts.

As per Regulating act British citizens were only subject to the
Supreme Court of Judicature at Calcutta.

But in 1793 Cornwallis started to reform this situation in Bengal.
Cornwallis was also a British Person.

Cornwallis Prohibited British citizens from residing beyond ten miles
of Calcutta unless they executed a bond placing themselves under the
jurisdiction of the mofussil diwani adalats in cases up to Rs.500.
Cases where amount was more than 500 Rs. were tried in the Supreme
Court of Calcutta.
Madras and Bengal adopted this same law in 1802 through Regulation
XVIII and Regulation III of 1799.

The section 107th of charter act of 1813 stated that British Citizens
staying, trading and holding immoveable property at a distance of more
than ten miles from the presidency town were subject to the company
courts brought against them by the native people.
But British citizens got special right regarding appeal to the
Majestys courts.
But that court also followed the same company rules.

Again in 1814 Lord Hastings reformed the civil law.
Munsiffs and sadar ameens were not allowed to take cognizance of cases
in which a British or European or American citizen were involved.
Only district court got the authority to take cognizance, try cases
against the British, European or American citizens.

Again law was changed.

Regulation IV of 1827 gave power to the Sadar Ameens to take
cognizance of cases in which Europeans were party. This was the law up
to 1831.

In 1831, Lord William Bentinck changed the law and munsiffs and sadar
ameens were forbidden to try cases involving British or European or
American citizens.

The charter act of 1833 gave British Citizens right to stay in India
and purchase property in India.

Section 85 of the charter act of 1833 said that it is the duty,
obligation on the government to protect Indians from insult and
outrage in their persons, properties, religion and opinions.

Macaulay the first law member of the government of India [1833] was of
the opinion that the judicial system should be uniform as far as
possible and that no distinction ought to be made between one class of
people and another.

In 1836 Legislative council of India passed the passed which took away
the right of British people to file appeal in the Majestys court which
they enjoyed as per the charter act of 1813.

In 1839 again law was passed act III declared that no person by reason
of place of birth or descent be exempt from the jurisdiction of the
revenue courts or munsiffs courts.

In 1843 English people were also brought under the munsiffs courts.
Munsiffs courts Indians were judges and in sadar ameens also Indians
were judges.

Regarding criminal justice also same type of reforms kept happening
but very slowly.

11 July 2010
Part 23 – Indian Legal History – Small Causes Court and City Civil
Court

Provincial small cause courts –

In 1753 Courts of Requests were created in the three Presidency towns.
In 1850 Legislature abolished the courts of requests and established
courts of small causes in their place.

These courts are the courts of minor jurisdiction and provide quick
justice in cases of small monetary value.
These courts were constituted by the Provincial small cause’s courts
act, XLII of 1860 which was amended by act of XI of 1865.
Again this act was replaced by new legislation, act IX of 1887.

The act gives power to state government to establish courts of small
causes and these courts can take cognizance of civil suits up to a
value of 500 rupees but state government may extend their jurisdiction
to one thousand rupees.
Following types of cases are excluded from the purview of these
courts.
• Suits regarding government acts
• Possession of immoveable property etc

A suit cognizable by a court of small causes is not to be tried by any
other court.
The decision of small cause courts are final but the High Court
exercises a power of revision.
A court of small causes is subject to the administrative control of
the district court and to the superintendence of the High Court.
Advantage of small cause court is that speedy justice in petty
litigation.
These courts follow summary procedure.
If civil judge is given this type of work, it loses all the merits and
in small cases also people do not get the speedy justice.

A civil court was established in the Madras under the Madras city
civil court act, VII of 1892.
In 1955 the state government took power under the act to extend its
jurisdiction up to rupees 50,000.
These courts try civil cases only and appeals from it lie to the High
court.
Bombay city civil court act, 1948 was passed by the Bombay legislature
which created civil court just like Madras civil court.
The main reason to establish this court is to reduce the workload of
High courts.
Calcutta civil court was established in 1957 under legislation passed
by the west Bengal Legislature in 1953.

Village Panchayat Courts –
Village Panchayat is very old traditional system of law in Hindu India
as well as Muslim India.
Art.40 Directive Principle in the Indian Constitution declares the
state shall take steps to organize village panchyats and give them
such powers and authority to enable them to function as units of self
government.
Every state in India has enacted legislation to regulate the
composition, constitution and powers of the village Panchyat.
Punjab Tenancy Act 1887
Punjab Gram Panchyat Act 1952

For me I think India does not need Panchayat system, India needs more
educated judges and courts, the number of courts should be increased
in India.
Only an educated person, layman, judge can give justice to any person.
Panchayat means it brings the ghost of caste and religion while giving
the justice.
Justice should be always given without consideration of caste and
religion.

19 July 2010
Part 24 – Indian Legal History – Indian High courts act 1861

Company kept judicial and executive functions separate since year
1793.
But this system was not perfect; the appointment procedure of judges
was faulty.
Executive became judge and judge became executive vice versa because
of lack of experience judiciary suffered as executive failed to do
justice to judiciary.

In 1868, company officers pointed out that native judges and pleaders
who had received a regular legal education at the Calcutta University
had a better knowledge than the civilian, executive judges.
Therefore Bengal officers proposed the establishment of a separate
judicial service.
Sir Henry Maine in 1868 condemned the [British] district judges as
shamefully inefficient.
In year 1872 Law member Stephen supported the idea of a separate
judicial service but nothing happened.
In 1924, the Rankin committee disfavored appointment of civilian as
district judges, saying that the subordinate judges got more knowledge
than civilian judges as subordinate judges got experience and legal
education.
But nothing happened.

The Indian High Courts Act 1861 –

The Indian High Courts Act was passed by the British Parliament on the
6th August, 1861 and was titled as an act for establishing high courts
of judicature in India.
This legislation contained only 19 sections only.
Its main function was to abolish the supreme courts and the Sadar
Adalats in the three Presidencies and to establish the high courts in
their place.
The records and document of the various courts became the records and
documents of the High Court concerned.
It gave power authority in Her Majesty to issue letters patent under
the great seal of the United Kingdom, to erect and establish High
courts of judicature at Calcutta, Madras and Bombay.

Each High court was to consist of a chief justice and as many puisne
judges not exceeding fifteen as her majesty might think to fit to
appoint.
Who became the high court judge or who was eligible to become the high
court judge?
Judges were selected out of the following categories of persons
1. Barrister must have 5 years or more experience
2. members of the covenanted civil service of not less than ten years
standing who should have served as Zillah judges for at least three
years of that period
3. Persons who shall have held judicial office not inferior to that of
principal sadar amen or judge of small cause court for a period of not
less than five years.
4. Person who have been pleaders of a Sadar court or high court for a
period of not less than ten years.
But the rule was made that, not less than one third of the judges in a
High court, including chief justice were to be barristers and not less
than one-third of the judges were to be members of the covenanted
civil service.
The judges of the High court were to be held office during her
majesty’s pleasure.

Each high court was to have and exercise all such civil and criminal
admiralty and vice-admiralty, testamentary, intestate and matrimonial
jurisdiction and original and appellate

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

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

26 July 2010
Part 25 – Indian Legal History – Charter of Calcutta High Court 1865

The Indian High Courts Act 1861 was a permissive legislation and gave
power to the crown to establish High Courts in India.
The charter for Calcutta high court was issued on May 14, 1862 and was
published in Calcutta on the 1st July, 1862 establishing the High
Court from the next day.

No law is perfect, as per this common natural rule, later it was found
that charter of 1862 got the defects, problems thus the new charter
was issued on 28th December 1865 with few modifications in the charter
of 1862.

The provisions of charter of Calcutta High Court –
1.The High court of Calcutta was constituted into a court of record.

2.The court was to have an ordinary original civil jurisdiction within
the local limits Calcutta or within such local limits as may from time
to time be declared and prescribed by any law by any competent
legislative authority in India.

3.High court took the place of Supreme Court which was abolished.

4.The High court even got the power to exercise try matrimonial causes
of the non Christians on the civil side.

5.The High court got power under extraordinary original civil
jurisdiction under which it was authorized to remove and try any suit
pending in any court subject to its superintendence whenever it
thought proper to do so, either on the agreement of the parties, or
for the purpose of justice. This way High court got power to try cases
of other courts when if High court felt that the lower court may not
be able to do justice in that particular case.

6.Where plaintiff had several causes of action against a defendant
such causes not being for immoveable property and if the High court
had original jurisdiction in respect of one of such causes, the court
could call on the defendant to show cause why the several causes of
action be not joined together in one suit and the court could make
such order for trial of such causes as it deemed fit.

7.The high court got power to hear appeals from civil courts
subordinate to it, which is appellate civil jurisdiction.

8.A new provision was added in this appellate power, it was that
whenever in a civil court judgment one of the judge or from division
bench whenever such judges were equally divided in opinion, these
types of appeals were known as letters patent appeals as they are
based not on any law but on the specific clause in the charter. Under
this provision the court could hear an appeal from its original civil
jurisdiction.

9.Appeals in other civil cases lay from the High court to the Privy
Council

10.The high court enjoyed extraordinary original criminal jurisdiction
over all persons residing in places within the jurisdiction of any
court subject to its superintendence.

11.The High court got power, authority to try at its discretion any
person brought before it on charges preferred by the advocate general
or by any magistrate or any other officer specially empowered by the
government in that behalf. The main purpose behind this provision was
to enable the high court to hold trials for offences committed out of
the presidency town.

12.High court got power to hear appeals as well as be a court of
reference and revision from the subordinate criminal courts.

13.High court got power to transfer criminal cases or appeal from one
court to another.

14.The High court was required to apply the Indian Penal code 1860
while acting as court of original criminal jurisdiction or a court of
appeal, reference or revision. Point to be noted today also we Indians
use the British India made laws.

15.High court was given jurisdiction as an insolvency court.

16.High court got power to try all civil , criminal and maritime
jurisdiction [ court of Admiralty ]

17.High court also enjoyed testamentary and intestate jurisdiction.

18.High court was supposed to follow civil procedure code 1859 and
criminal procedure code 1861.

With the establishment of High court in Presidency towns, it unified
the Supreme Court and sadar diwani adalat. Supreme Court got power
from the crown and sadar adalat got power from company, but
establishment of High court unified both systems of law.
This way first time all courts were brought under the one superior
high court.
Before this Supreme Court and sadar adalat clashed with each other,
but High court solved this problem. All the other High courts
established in other Presidency towns enjoyed same powers with little
difference.

05 August 2010
Part 26 – Indian Legal History – Creation of Allahabad High court and
The Indian High Courts act 1911

The Indian High courts act 1861 gave power, authority to her majesty
to issue letters patent to establish a high court for any area,
territories not included within the local jurisdiction of another High
court.

Meaning of Letters Patent –

Letters patent is a type of legal instrument in the form of an open
letter issued by monarch or government ,granting an office , right ,
monopoly, title or status to a person or to some entity such as
corporation.
Letters patent are used for the creation of corporations or government
offices.
In the United Kingdom letters patent are issued under the prerogative
powers of the head of state, royal prerogative, this is a type of
legislation without the consent of the parliament. Letter patent may
be used to grant assent to legislation.

Majesty meaning –
Majesty means –
• A royal personage.
• The greatness and dignity of a sovereign
• Supreme authority or power: the majesty of the law.

Majesty is Used with His, Her, or Your as a title and form of address
for a sovereign.

The territorial jurisdiction of the Calcutta high court was confined
to Bengal, Bihar and Orissa and did not extend to the North western
Provinces where Sadar adalats continuded to function as usual.

On March 17 Queen Victoria issued a charter and a High Court was
established at Agra for the North Western Provinces which abolished
the sadar diwani adalat and the sadar nizamat adalat.
The court started its working on June 11, 1886 and was shifted to
Allahabad in 1875 which was known as High court of Judicature at
Allahabad.
The powers of this High court were similar to the high court of
Calcutta.

In 1865 in Oudh a non- regulation territory a judicial commissioners
court was established.
Oudh civil courts act 1877 declared a judicial commissioners court as
highest court of appeal for Oudh.
In 1925, U.P. Legislature passed the Oudh Courts act 1925 and gave
status of chief court to the judicial commissioner’s court as per the
demand of Oudh talukdars and population.
That time Utter Pradesh was known as united provinces.
That time 2 separate courts of appeal functioned one at Allahabad and
other at Lucknow.
After Independence on July 26, 1948, the territorial jurisdiction of
the Allahabad High court was augmented by the amalgamation of the Oudh
chief court with it.
The Allahabad High Court however maintains a bench at Lucknow also.

The Indian High courts act 1911 modified few provisions of the Indian
high courts act 1861.
The act of 1861 fixed the number of High court judges at 15 excluding
the chief justice.
The act of 1911 increased the number of High court judges at 20
including chief justice.
The act of 1861 allowed establishing another High court in an area
which does not come under the local jurisdiction of the other High
court.
The act of 1911 modified this provision and gave power to the crown to
establish additional or High courts in any territory within his
majesty’s dominions in India which changed the local jurisdiction of
High court.
The act also fix that the salaries of the Judges or temporary judges
were to be paid out of the revenues of India.

13 August 2010
Part 27 – Indian Legal History the Government of India Act 1915

The Government of India Act 1915 –
On 29 July 1915 British Parliament passed the Government of India
[consolidating] Act 1915.

Reason to pass this Act – purpose behind this act was to consolidate
and reenact existing statutes relating to the government of India.
The act reenacted all the provisions made by the Indian High courts
acts of 1861 and 1911 in relation to the High courts.
This act made one change with respect to the ordinary original civil
jurisdiction of the High courts of Calcutta, Madras, and Bombay, the
act laid down that these courts may not exercise any original
jurisdiction in any matter concerning revenue or concerning any act
ordered or done in the collection thereof according to the usage and
practice of the country or the law for the time being in force.
This provision did not serve any purpose.

This act made a very wrong provision in the act.
Below is that provision.
The governor general, governor, lieutenant governor, chief
commissioner, members of the executive council of the governor general
or the governor or lieutenant governor and a minister were to be
exempt from the original jurisdiction of the High courts for anything
counseled, ordered or done by any of them in his public capacity.
None of these officials was to be liable to be arrested or imprisoned
in any suit or proceeding in any high courts on its original side or
was to be subject to the original criminal jurisdiction of a high
court in respect of any offence not being treason or felony.

A high court of judicature was set up at Patna through letters patent
issued by his majesty on February 9, 1916, in pursuance of S.113 of
the Government of India act 1915.
In 1865, the Punjab Chief court was established at Lahore through an
act of the Indian legislature act XXIII of 1865.
The chief court was raised to the statues of the High court on 21
March 1919 by a charter issued by George V in pursuance of the
Government of India 1915.
The High court was to have jurisdiction over the Punjab and Delhi.

23 August 2010
Part 28 – Indian Legal History – The Government of India Act 1935

In 1935, British Parliament enacted the government of India act to
bring the constitution of the country on federal lines.

This act contained many provisions regulating the composition,
constitution and working of the High courts.

The Government of India Act 1935 was passed during the “war Period”
and was the last pre-independent constitution of India.
In 1947, a relatively few amendments in the Act made it the
functioning interim constitutions of India and Pakistan.

The Act was originally passed in August 1935 (25 & 26 Geo. 5 c. 42),
and is said to have been the longest (British) Act of Parliament ever
enacted by that time.
Because of its length the Act was retroactively split by the
Government of India (Reprinting) Act 1935 (26 Geo. 5 & 1 Edw. 8 c. 1)
into two separate Acts:

1.The Government of India Act 1935 (26 Geo. 5 & 1 Edw. 8 c. 2)
2.The Government of Burma Act 1935 (26 Geo. 5 & 1 Edw. 8 c. 3)

The act made provision for the
1.establishment of a “Federation of India”, to be made up of both
British India and some or all of the “princely states”
2.the introduction of direct elections, thus increasing the franchise
from seven million to thirty-five million people
3.Sind was separated from Bombay
4.Burma was completely separated from India
5.Aden was also detached from India, and established as a separate
colony
6.the introductions of direct elections, thus increasing the franchise
from seven million to thirty-five million people and in 1937 first
elections were held.

The Indian High courts act 1911 fixed the maximum number of judges in
a High court at 20.
The act of 1935 removed this limit and gave authority to the King in
council to fix the number of judges for each High court from time to
time.

Before 1935, High court judges hold office during His Majestys
pleasure.

In England in 1701 act of settlement was passed to achieve the
independence of the judiciary from the executive.

The act of 1935 fix the retirement age for the judges that is age
sixty.

The act of 1935 added the rule that barristers and advocates of ten
years standing were to be qualified for appointment as the High court
judges.

On January 2, 1936 George V issued a charter and the Nagpur High court
was established in place of the chief court.

The High court of Assam was created through the Assam High court order
1948 issued by the Government of India under s.229 [1] of the
government of India act 1935 as adapted by the India Provisional
Constitution amendment order 1948.

State of the Nagaland was created by the states of Nagaland act 1962.
and High court of Assam became the common High court of the states of
Assam and Nagaland.
This High court was renamed as the Gauhati High court by the North
Eastern area reorganization act 1971 act 81.

The state of the Mizoram was created by the state of Mizoram act 1986.
The state of the Arunachal Pradesh was created by the state of
Arunachal Pradesh act 1986.

The High court of Orissa was created for Orissa under the Orissa High
court order 1948.

State of Andhra was created by the Andhra state act 1953 and High
court of Andhra was established with effect from 1st January, 1956.
The state was renamed as the state of Andhra Pradesh by the states
Reorganization act, 1956.

Like this many more High courts were created in India.

01 September 2010
Part 29 – Indian Legal History – Importance of Privy Council or King
in council towards Indian Legal History -

Reality views by sm –
Wednesday, September 01, 2010

Once England ruled the world and Privy Council or King in council
heard appeals from more than 150 countries in all types of cases
civil, criminal etc.
The jurisdiction of the Privy Council originated at the Norman
Conquest with the premise that:

“The King is the fountain of all justice throughout his Dominions, and
exercises jurisdiction in his Council, which act in an advisory
capacity to the Crown.”
At the beginning of the fourteenth century, receivers were appointed
to aid the dispensation of justice in Parliament. One group was
appointed for Great Britain and Ireland, and one for the Channel
Islands.
Appeals from the Channel Islands became the first regular appellate
business of the King’s Council, now the Judicial Committee of the
Privy Council. With the growth of the British Empire, this business
increased with appeals and petitions from the Royal Council, and Privy
Council Committees were formed.

From 1833 the Privy Council was officially known as or called as the
judicial committee of the Privy Council.

Privy Council – Abolished the Sati system of India.

In 1831 the Privy Council heard an appeal against the East India
Company “from certain Hindus of Calcutta complaining of a regulation
of the Governor General… abolishing the practice of Sati system”.
In India Sati is a custom in which after the death of Husband it was a
rule that the wife should commit suicide or burn herself with her dead
husband.
The ban was upheld by the Privy Council, but it was heard by an
unusually large board of nine judges.

This court was highest court of appeal for over two centuries, setting
high standard of justice system in India.

In 1726 for the first time a right to appeal to the king in council
was granted from the courts in India.
From period 1726 to 1833 more than three hundred appeals were disposed
of by the Privy Council.
During its period as the highest court of appeal from India the Privy
Council rendered more than 2500 judgment which for a great body of
precedents. These judgments constitute the fountain source of law on
many points.
Privy Council was situated and bases in London and distance was 5000
miles or more.

All the Privy council documents are kept at the Public Record office,
London.
If ever you read their letters, discussions about the slave colonies
in England parliament you will realize how less our own Politicians
discuss about the progress of India in our own parliament.
Today our politicians wait for Supreme Court of India to order them in
writing to give free food to poor people of India, give free medicine
or reduce the medicine prices.

K.M. Munshi, a lawyer-statesman observed –

The British Parliament and the Privy Council are the two great
institutions which the Anglo Saxon race has given to mankind.
The Privy Council during the last few centuries has not only laid down
law but coordinated the concept of right and obligations throughout
all the dominions and colonies in the British Commonwealth. So far as
India is concerned, the role of the Privy Council has been one of the
most important.
It has been a great unifying force and for us Indians it became the
instrument and embodiment of the rule of law, a concept on which alone
we have based the democratic institutions which we have set up in our
constitution.

Alladi Krishnaswami Ayyar, an eminent lawyer-member of the constituent
assembly observed regarding work of Privy Council, he said,
There can be no doubt that the record of the judicial committee of the
Privy Council has been a splendid one.

On 6th February,1950 at a sitting of the Privy council a message was
read from the Government of India paying a tribute to the Valuable
services rendered by Privy council to India over a period of more than
two centuries .
Government of India act 1935 started the federal policy in India.
This act established, made provision for the establishment of federal
court in India.
Federal policy, constitution means distribution of power between
centre and the constitutional unit.
Federal court is one which solves disputes between the centre and the
constitutional unit.
Federal court was formally inaugurated on the 1st October, 1937
The viceroy administered the oath of allegiance to the first three
judges of the court namely,

• Sir Maurice Gwyer – chief Justice from 1 October, 1937 to 25 April,
1943
• Sir shah Muhammad Sulaiman
• M.R. Jayakar.

The court held its first sitting at New Delhi on December 6.1937.
The governor general was not bound to accept the opinion of the
Federal court.
Governor General = Today’s Prime minister and his council
From Federal court appeals went to the Privy Council.
The judges of the federal court were appointed by his Majesty.
They were to remain in office till they reached age of 65 years.
A judge could be removed from office for misbehavior or infirmity of
mind or body.
In India federal court worked for only 12 years but the job done was
excellent.
Federal court is predecessor of the present day supreme court of
India.

Indian Constituent Assembly passed the abolition of Privy Council
jurisdiction act on the 24th September, 1949 to abolish the
jurisdiction of Privy Council in respect of appeals from India.
The act came into force on the 10th October, 1949.

The last appeal from India was disposed of by the Privy Council on
December 15, 1949 and with this came to an end India’s 200 year old
connection with Privy Council.

On January 26, 1950, the federal court itself was converted into the
Supreme Court and all the federal court judges on that day became the
judges of the Supreme Court.

Thus Indian Legal history started its new era.

In short I will here mention about the current working and role of The
Judicial Committee of the Privy Council around the world.

The Judicial Committee of the Privy Council is the highest court of
appeal for many current and former Commonwealth countries, as well as
the United Kingdom’s overseas territories, crown dependencies, and
military sovereign base areas.

It also hears very occasional appeals from a number of ancient and
ecclesiastical courts. These include the Church Commissioners, the
Arches Court of Canterbury, the Chancery Court of York, prize courts
and the Court of Admiralty of the Cinque Ports.

• United Kingdom appeals
• Commonwealth appeals
• Overseas territories and sovereign base appeals
• Appeals to local head of state

United Kingdom appeals

The Judicial Committee hears domestic appeals to Her Majesty in
Council as follows:

• Jersey, Guernsey and the Isle of Man
• the Disciplinary Committee of the Royal College of Veterinary
Surgeons
• against certain schemes of the Church Commissioners under the
Pastoral Measure 1983

The Judicial Committee also has the following rarely-used
jurisdictions:

• appeals from the Arches Court of Canterbury and the Chancery Court
of York in non-doctrinal faculty causes
• appeals from Prize Courts
• disputes under the House of Commons Disqualification Act
• appeals from the Court of Admiralty of the Cinque Ports

Additionally, Her Majesty has the power to refer any matter to the
Judicial Committee for “consideration and report” under section 4 of
the Judicial Committee Act 1833.

Under the Constitutional Reform Act 2005, devolution cases from the
regions of the United Kingdom are now heard by The Supreme Court.

Commonwealth appeals

To bring an appeal to the Judicial Committee of the Privy Council, you
must have been granted leave by the lower court whose decision you are
appealing. In the absence of leave, permission to appeal must be
granted by the Board. In some cases there is an appeal as of right and
a slightly different procedure applies.

In civil cases, the lower court will generally grant you leave to
appeal if the court is satisfied that your case raises a point of
general public importance.

In criminal cases, it is unusual for the lower court to have the power
to grant leave unless your case raises questions of great and general
importance, or there has been some grave violation of the principles
of natural justice.

Appeal therefore lies from these countries:

• Antigua and Barbuda
• Bahamas
• Barbados
• Belize
• Cook Islands and Niue (Associated States of New Zealand)
• Grenada
• Jamaica
• St Christopher and Nevis
• Saint Lucia
• Saint Vincent and the Grenadines
• Tuvalu

Legislation enacted in New Zealand in October 2003 abolished appeals
from New Zealand to the Privy Council in respect of all cases heard by
the Court of Appeal of New Zealand after the end of 2003. This New
Zealand legislation does not affect rights of appeal from the Cook
Islands and Niue.

Appeal to the Judicial Committee also lies from the following
independent republics within the Commonwealth:

• the Republic of Trinidad and Tobago
• the Commonwealth of Dominica
• Kiribati
• Mauritius

The circumstances in which appeals may be brought are similar to those
in which appeals lie to Her Majesty in Council as above, except that
from Kiribati an appeal lies only in cases where it is alleged that
certain constitutional rights of any Banaban or of the Rabi Council
have been or are likely to be infringed.

Overseas territories and sovereign base appeals

The Judicial Committee hears appeals from the following overseas
territories of the United Kingdom:

• Anguilla
• Bermuda
• British Virgin Islands
• Cayman Islands
• Falkland Islands
• Gibraltar
• Monserrat
• Pitcairn Islands
• St Helena and dependencies
• Turks and Caicos Islands

Additionally, appeals are heard from sovereign base areas in Cyprus:

• Akrotiri
• Dhekelia

Appeals to local head of state

In civil cases only, an appeal lies to the Judicial Committee from the
Court of Appeal of Brunei to the Sultan and Yang di-Pertuan.

By agreement between Her Majesty and the Sultan these appeals are
heard by the Judicial Committee, whose opinion is reported to the
Sultan instead of to Her Majesty.

08 September 2010
Part 30 – Indian Legal History – Criminal law system in India Prior to
British Rule , East India Company Rule

Reality views by sm –
Wednesday, September 08, 2010

Criminal law in India -

Before the rule of British king on India, India was ruled by the
Muslim kings who were also outsiders.
As king was the Muslim, Muslim criminal law was the law of the land
for administration of criminal justice in India.

More than 100 years East India Company [ Period of Diwan ] also did
not change the criminal law system in India, they also followed Muslim
criminal law.

Criminal law in India started to change with the introduction of
Indian Penal Code in 1860.
Please Note – Today also in 2010 we are using same Indian Penal Code.
An Indian Penal Code is a law given by a king for his slave nation
called as India.

Let us Understand Muslim law in India between 1772 to 1860-

The judge under Islamic Law is not bound by precedents, rules, or
prior decisions as in common law exception is Hadd.

When we talk about the Muslim law please understand that in Islam God
is law and law is God , Islam does not have theory of Separation of
church and state .

So Muslim criminal law in short we can say is that nothing but obeying
the Quran , surrendering to the will of Mohammad , God.

Islamic law is known as Shariah Law, and Shariah means the path to
follow God’s Law.
The first and primary element of Shar’iah Law is the Qur’an.

The second element of Shar’iah Law is known as the Sunna, the
teachings of the Prophet Mohammad. The Sunna contain stories and
anecdotes, called Hadith, to illustrate a concept.

The third element of Shar’iah Law is known as the Ijma.
The Muslim religion uses the term Ulama as a label for its religious
scholars.
When the Ulama’s reach a consensus, agree on an issue, it is
interpreted as Ijma.
In Muslim law Qazi performed all the duties of Judge.
Qazi or Kazi means Judge.

The traditional Muslim law is classified under following 3 categories.

1.Crime against god – includes crimes such as apostacy, drinking
intoxicating liquors, adultery etc.

2.Crime against sovereign – includes crime such as theft, highway
robbery, robbery with murder etc

3.Crime against private individual – includes crimes such as murder,
maiming, offences against human body.

As Per Muslim law there are 4 types of punishments which are given for
the various types of crime.
1.Hadd

2.Tazir

3.Kisa or Qisas – meaning retaliation, and following the biblical
principle of “an eye for an eye.”

4.Diya or Diyut

Let us understand Hadd Punishment –

Hadd crimes have fixed punishments because they are set by God and are
found in the Qur’an. Hadd crimes are crimes against God’s law and
Tazir crimes are crimes against society.
Hadd means limit or boundary
Hadd crimes are the most serious under Islamic Law, and Tazir crimes
are the least serious.

When offence or crime of person was against god or against public
justice, anti social and anti religious that time this according to
the Hadd Principal the punishment was given to the criminal.

In this type the punishment was fix and no one was allowed to
increased or decrease or change the punishment.

Once the crime was proved then punishment was given without any
change. The judge did not enjoy any discretion. No judge can change or
reduce the punishment for these serious crimes.

Only eye-witness testimony and confession were admitted.
For eye-witness testimony, the number of witnesses required was
doubled from Islamic law’s usual standard of two to four.
Moreover, only the testimony of free adult Muslim males was
acceptable.

The purpose behind Hadd Punishment is to deter people; people should
fear the law to do act against the religion or God or go against
Quran.

Example of Punishment –

1. Death by stoning – crime zina that is illicit intercourse. The
pregnancy of an unmarried woman can be sufficient proof against her.
2. Death by scourging – crime zina that is illicit intercourse
3. Amputation of limb like hand or leg or limbs – crime theft , cut
4. flogging
5. stripes – for falsely accusing a married woman of adultery eighty
stripes

Any person who is not liable for the hadd punishment for zina because
of any of the limitations may still be prosecuted under the criminal
law of discretionary punishment that is ta’zir.

Let us understand Tazir Type of Punishments – when offence is against
the sovereign –
Tazir punishment corporal punishment up to death
Under the principal of Hadd ,kisa or diya very few offences or crimes
are mentioned thus Tazir becomes very important in the Muslim criminal
law system and majority nearly all crimes come under Tazeer.

Indirectly every crime came under the Tazir , if judge found that he
can not punish the criminal using the hadd or kisa the he punished
that criminal using Tazir doctrine.
Tazir means discretionary punishment.
Judge was free to decide the nature of punishment [scope for
corruption]
Punishment is not fixing in this type of crime.

These punishments include imprisonment, exile, and corporal
punishment, boxing on ear, humiliating in public place.

Tazir Punishments change as per place and state , they are not written
or codified.
Siyasatan means exemplary punishment imposed on habitual offenders or
dangerous characters.

For which crime punishment was given according to Tazir below are few
examples

• Use of abusive language
• Forgery of deeds
• Forgery of letter
• Bestiality
• Sodomy
• Offence against human life
• Property disputes
• Public peace and tranquility
• Decency
• Morals
• Religious crimes

Let us understand Kisa or Qisas and Diya Type of Crimes and
Punishment-

Kisa or Qisas – meaning retaliation, and following the biblical
principle of “an eye for an eye.”
A Qesas crime is one of retaliation.

If you commit a Qesas crime, the victim has a right to seek
retribution and retaliation. The exact punishment for each Qesas crime
is set forth in the Qur’an.

If you are killed, then your family has a right to seek Qesas
punishment from the murderer.
Punishment can come in several forms and also may include “Diya.”
Diya is paid to the victim’s family as part of punishment.
Diya is form of restitution for the victim or his family.

The Qesas crimes require compensation for each crime committed. Each
nation sets the damage before the offence and the judge or Qazi then
fixes the proper Diya.
The family also may seek to have a public execution of the offender or
the family may seek to pardon the offender. Traditional Qesas crimes
include:

1. Murder (premeditated and non-premeditated).
2. Premeditated offences against human life, short of murder.
3. Murder by error.

One of the problems in Muslim law is that when murder was committed it
was the duty of the victim’s family to demand justice .
State did not interfere until the victim’s family demanded justice ,
state treated it as a personal matter , private matter Murder is not
the matter of state, suo motto state does not take any action against
accused person.

Now you will understand the problem with Muslim criminal law system
with this little story,
Suppose there are 4 brothers from 4 wives , one of the brother Kills
the father and 2 brothers to get half share of the property .
Now there are only 2 brothers left behind , one brother who should
complain about murder accept the diya or kisa punishment or he pardons
other brother who murdered his father and 2 step brothers.
In this case both brothers now enjoy the half share of property.

This is actual case which happened in 17th century.
Five men were convicted in case of robbery and murder .
But later complainant pardoned them all for just Rs.80.

Thus they did not any punishment and with paying Rs.80 their crime
became legal.

The price of Human life was very cheap and still today we Indians
behave in same manner we have no value for life.

As per Muslim law if one of the heirs of the murdered person pardoned
the murderer or compounded with him by accepting diya then all other
heirs were debarred from demanding kisa , they were entitled merely to
their share of the money . This money is many times called as blood
money.

No Muslim could be convicted capitally on the evidence of a non
Muslim.
October 3, 1791 in case of keetoo choudhury and kaloo choudhury in
this case chief kazi declared that as their names did not indicate
whether they were Hindus or Muslims if they were Muslims the evidence
of Hindus against Muslim could not be allowed or considered but if
they were Hindus they deserved severe punishment

This type of cases are mentioned in the old records like Cornwallis
Minute of 1790

Thus to earn more money or because of fear , majority times heirs
pardoned the murderers and criminals.
So if you are powerful poor people were unable to get justice.

21 September 2010
Part 31 – India Legal History – Changes and development in criminal
Law system in India from 1772 to 1860

First time 1772 Warren Hastings introduced only one change in criminal
law system that was severe punishment for dacoity in Bengal, Bihar and
Orissa.
But this law was never used.

Thus in 1772 Warren Hastings did not change anything in the Muslim
criminal law system.

1773 – Warren Hasting again created a draft regarding changes in
Muslim criminal law system.
He wanted to change the law regarding the relation of murder, willful
murder and classification of weapon.
Hastings said that Murder is a murder and there should not be any
distinction regarding murder weapon and punishment depending on the
nature of weapon.

2ndly Hastings wanted to change the right of kin and relatives to
forgive the murderer which encouraged and saved the murders from their
crime and punishment.
And also wanted to increase the fine amount to deter the criminals
from doing crimes.
Hastings submitted his proposals to the council for consideration and
approval but council took no decision.

In 1790 Cornwallis started to change the Muslim criminal law system in
India which was defective and helped and saved the criminals.

A regulation passed on December 3, 1790 changed the relation of weapon
and murder.
And gave importance to the intention of the murder.
Before this when criminal was punished he got punishment according to
which weapon criminal has used to murder the person like stick or
poison etc.

This regulation also lay down that the relation be in future debarred
from pardoning the offender and that the law be left to take its
course up on all persons convicted without any reference to the will
of the kindered of the deceased

In cases where the heir pardoned the murdered or claimed dyut instead
of Kisa, the trial court was not to pass the sentence or punishment
itself but was to forward the record of the trial to the Sadar Nizamat
Adalat for sentence.

The governor general in council resolved on the 10th October 1791 that
the punishment of mutilation of limbs, or amputation of legs and arms
or other cruel mutilation should not be inflicted on any criminal in
future instead of such punishment the criminal should be given
punishment of imprisonment of 14 years with hard labour if punishment
is for cutting of 2 limbs, if it is cutting of 1 limb then punishment
should be for 7 years.

On 13th April 1792 the governor general in council laid down that if
heirs refused to prosecute the criminal the court of the circuit were
to proceed with the trial in the same manner as if the slain had no
heir and the Muslim law officers attached to the courts were to render
the fatwa on the supposition that the heirs had been the prosecutor
and were present at the trial.
Thus it helped to stop the heirs forgiving the criminal for his own
personal gains.
The Muslim law did not permit a Hindu to testify against a Muslim
accused.

On 27th April, 1792 the governor general in council resolved that the
religious tenets of witnesses be no longer considered as a bar to the
conviction or condemnation of a prisoner but in cases in which the
evidence given on a trial would be deemed incompetent by the
Mohammedan law on the plea of the persons giving such evidence not
being of Mohammedan religion the law officers of the courts of circuit
were to declare what would have been their fatwa supposing such
witnesses was Muslim.

Imprisonment during pleasure this type of punishment was very common
in that time in Muslim courts which kept criminals in jail forever.
In 1791 and 1792 Sadar Nizamat Adalat reviewed all cases of such
imprisonment and they were released who served more punishment than
they should.

The Cornwallis code of 1793 reenacted all the above changes.

Regulation XIV of 1797 granted relief to the persons already in prison
on account of their inability to pay blood money.
Thus fines should be imposed not for the benefit of private parties
but for the benefit of government.

Regulation VIII of 1799 changed the theory of justifiable murder and
this regulation changed that and said in all cases of murder the
criminal should be given death sentence.
Regulation also provided that it was not to be any justification for a
willful murder that the person slain desired the murderer to kill him.
In such cases also criminal should be given death.

Regulation LIII of 1803 enacted, stated that to guard against the
infliction of any punishment without sufficient evidence of guilt and
to maintain the uniform and adequate punishment of offenders when
convicted according to the criminality of the offences established
against them. This regulation also brought changed in punishment of
Robbery crime.

Regulation III of 1805 increased the punishment for the crime of
robbery.

Regulation II of 1807 – increased the punishment for perjury and
forgery.

Regulation VIII of 1808 – enhanced punishment for dacoity.

Number of changes were introduced in the law not expressly through the
Regulation but by requiring references to be made to the Sadar Nizamat
Adalat.

By Regulation XVII of 1817, the law relating to adultery was
rationalized and modified.
Offence of adultery came under the Hadd type of offence.

And required 4 competent male witnesses to convict the accused person
and punishment was stoning or death.
This regulation changed that and stated that conviction for the
offence of adultery could be based on confessions, creditable
testimony or circumstantial evidence. The maximum punishment to be
given for the offence of adultery was fixed at 39 stripes and
imprisonment with hard labour up to seven years.
This regulation also laid down that if the Muslim law declared the
evidence of a witness inadmissible on grounds which appeared to the
judge unreasonable and insufficient this was no longer to be followed
the evidence had to be taken and the Islamic law officers had to give
their fatwa on the assumption that there was no objection against the
witness.

In 1817 the Sadar Nizamat Adalat was given power to convict and
sentence an accused acquitted by its law officers.
In 1822 Sadar Nizamat Adalat got power to acquit an accused ignoring
fatwa of conviction.

In 1825 women were declared completely exempt from corporal punishment
by stripes.

1829 Brought great, great and great Reform in Indian Hindu society.

In 1829 through Regulation XVII the sati system was abolished.
The custom of Sati or burning alive of Hindu Widow was declared to be
illegal and was made punishable in the same way as culpable homicide.
Even persons guilty of aiding and abetting sati were to be punished by
fine or imprisonment or both.
The regulation declared that sati was revolting to the feelings of
human nature and was in violation of the paramount dictates of justice
and humanity.
The evil of Sati was made a criminal offence in 1830.

Regulation VI of 1832 brought a great change in criminal justice
system.
This regulation marked the end of the Muslim criminal law as a general
and compulsory system of law applicable to all Muslims and non Muslims
alike.
The judge was authorized to avail himself of the assistance of
respectable Indians in one of the three ways while conducting a
criminal trial.
First the judge could refer the entire case or any point therein to a
panchayat of persons who would carry on their enquires apart from the
court and report the result to the judge.
Secondly the judge could constitute two or more persons as assessors
so that he could obtain the advantage which might be derived from
their observations in the examination of witnesses. Each assessor was
to give his opinion separately.
Thirdly the judge could employ the Indians more nearly as the jury.

In a case in which any of the above three methods was adopted then the
fatwa of Muslim law officer became unnecessary and can be ignored by
the judge.
The regulation also provided that if the accused person was not Muslim
and he demanded that he should not be tried under Muslim law then it
was the duty of the judge to try the case using any one of the 3
methods which are mentioned above.

Thus after the Regulation of 1832 it became optional for the criminal
court to seek fatwa from the Muslim law officer.

In 1833 as All India Legislature was created
During 1833 to 1860 few changes were made in the criminal law.

In 1852 Sir George Campbell described the Indian criminal system as
follows.

The foundation of our criminal law is still the Mohammedan code but so
altered and added to by our regulation that it is hardly to be
recognized and there has in fact by practice and continual amendative
enactments grown up a system of our own well understood by those whose
profession it is and towards which the original Mohammedan law and
Mohammedan lawyers are really little consulted.
Still the hidden substructure on which the whole building that is
criminal law rests is this Mohammedan law take which away and we
should have no definition of or authority for punishing many of the
most common crimes.

Bombay Province –

Bombay was not ruled by the Muslim kings.
Thus British administration used personal law of crimes in Bombay.

Section 36 of Regulation V of 1799 enacted that –

To Christians and Parsees the English criminal law was to be applied
Thus offenders were to be punished according to three systems of
criminal law that is English law, Hindu law and Muslim law.

In 1827 Mountstuart Elphinstone, governor of Bombay enacted a series
of Regulations which came to be known as the Elphinsone Code.
The Regulation had only 41 sections and defined and classified the
acts and omissions which constituted punishable offences along with
the scale of punishment for each offence.
The merit of this Regulation was that it was the first attempt to
codify and digest criminal law in India.
This code was used for 30 years until the introduction of Indian Penal
code 1860

The time English law was also developing and evolving in England and
was changing
In India Supreme Court of presidency followed English law.

That time English law also gave strict punishment in England also
example is that for stealing the accused was given death sentence in
England.

The above changes in the criminal law system are only bare and brief
summary of the amendments introduced by the British administration in
the Muslim criminal law before the enactment of the Indian Penal Code
in 1860.

English law kept changing as per times in UK and Our Indian law did
not change as per times it became static after our Independence.

14 October 2010
Part 32 – Indian Legal History – British Rule in India and development
law and administration –

To develop Indian laws British people took more than 200 Years.
This trial and error journey started in year 1661.
Only after doing trial and error British people were successful in
giving India a good justice system and administration with loopholes
to save the king and administrative officials who work for the king of
England and now today’s our politicians.

1774 – First time Supreme Court was established by Regulating Act.
This brought British barristers and lawyers into India.

1781 – The act directed Supreme Court of India to apply personal laws
of Hindus to Hindus and Muslim laws to Muslims in certain cases.

Never Forget the truth that when someone wins the nation, that nation
has to follow the rules and laws of New King.
Before British Empire India used to follow the rules and laws of
Muslim Kings and then Sikh Kings and Maratha Kings and other kings.

Prior to Formation and birth of India by British Crown in a reality
there was no India , no kingdom was their named or called as India .

British came, saw, won all the states and formed the India and before
leaving India formed Pakistan.

The English people who traveled outside England and found new
territories, settled on that land carried their own laws with them
that is English law.
This English law was called as Common law.
Once the state was won by the British People the English law became
the common law of the new country.
Also British law stated that whatever place British citizen may go he
must follow British rules and he will be always under British Crown or
parliament.

Australia, U.S.A and Canada also follow in this category,they were
ruled and governed by the British people and crown but when these
countries got independence the intelligent people of these nations
removed the bad things from the law and made such provisions that
their own civil servant or politicians will not enjoy protection from
corruption thus became super powers in few years.

Regarding British Crown, British Citizens and British Parliament they
got their own laws and powers from that time which kept changing here
I am not mentioning about those powers of king on colony and powers of
British Parliament on British Colonies.

But in India we never removed the bad civil, criminal procedure and
laws from these British laws after our Independence and we kept those
bad laws and result is that uneducated, criminal people are ruling us
Indians

today now position is that we Indians will never be able to change
this without peaceful civil war as all political parties have already
united but Indians do not understand and realize that they are still
fighting on name of religion and caste.

When British came to India, Indians followed laws which came from
Religion and religion can not act as law but we followed Religion as a
law.

Following religion as a law in a human society is a one step, and in
democracy religion has nothing to do, human rights are more important
that religion.

British people never introduced complete English law in India.
Indian laws were developed here in India by trial and error by British
People which was based on the British law.

British People always tried to follow Hindu laws for Hindu and Muslim
laws for Muslims.

English law of will, English law property, English law of marriage
these are few examples which were never fully applied.

Act of Settlement 1781 –

Section 17 of act said , directed that questions of inheritance and
succession and all matters of contract and dealing between party and
party should be determined in case of Hindu as per Hindu law and in
case of Muslim as per Muslim law.

After this very interesting question one will ask, what if two parties
belong to different religion one is Hindu and other is Muslim or
English.

Section 17 of the act of 1781 said that, when parties to a suit
belonged to different persuasions, then the law of the defendant was
to apply.

What does law of the defendant mean?

In general terms one will say that law of defendant means that if
plaintiff is Hindu and defendant is Muslim then use Muslim law and if
defendant is Hindu use Hindu law or if defendant is English use
English law.

This was confusing law and courts decided as per case and follow
English law also and Hindu as well as Muslim law as per the case.

Regarding contracts Supreme Court normally used the English contract
laws.

In Presidency of Bombay and Calcutta law of Damdupat was applied to
Hindus.
Damdupat under this a Hindu could not claim as interest more than the
amount of the principal lent.
The court held as not a moral but it is a rule of law.

12 November 2010
Part 33 – Indian Legal history – Regulations and codification in
British India 1793 up to year 1834

Warren Hastings Plan of 1772 started the journey of Indian judicial
system.
It introduced the concept of judicial tribunals known as Adalat system
in India.
This plan laid said that Hindu law should be followed for Hindus and
Muslim law for Muslims like Shastra for Hindu people and Koran for
Muslim people.

That time as it was the beginning of the judicial system, only little
part of India was under their control, they did not make separate
rules and laws for Sikh, Jain and other communities.

The Hindu wills Act 1870 was made applicable to the wills of a Hindu,
Jain, Sikh, and Budhist.

On other part The Married Women’s Property act 1874 distinguished
among Hindu, Muslim, Sikh, and Jain and Budhist communities.

The Special Marriage Act 1872 was enacted to provide a form of
marriage for persons not professing the Christina, Jewish, Muslim,
Hindu, Parsi, Budhist, Jain or Sikh religions.

The Plan of 1772 does not introduce British laws in Indian Presidency
Towns.

Warren Hastings believed that it will be very difficult to get the
obedience of the local people, population regarding English law, to
make them understand and obey English law.

Shore the Governor General said that, grand object of our government
in this country should be to conciliate the minds of the Natives by
allowing them the free enjoyment of all their prejudices and by
securing to them their rights and property.

Thus also began journey towards the preservation of Indian caste
system and religion and division of Indian people on the name of
religion.

Justice, Equity and good conscience –
Section XXI of Regulation III of 1793 provided that in cases coming
within the jurisdiction of the Zilla and city courts for which no
specific rule may exist, the judges are to act according to Justice,
Equity and good conscience.

After this term Justice, Equity and good conscience was used many
times in future laws.
That time this maxim played great role, as in beginning professionals
were not appointed as judges and also Indians were not familiar with
such court systems.

Indians only knew about one man show judicial system.
Kazi or Pandit or local village religious Mandir, temple babas and
Panchayat of rich people
And everyone was busy for his own benefit.

The regulations were passed to improve the legal system in India.

Bengal code starting year 1793 up to year 1834
Number of Regulations passed – 675

Madras code – period 1802 up to year 1834
Number of Regulations passed – 251

Bombay code started when Mountstuart Elphinstone became the governor
general of Bombay.
He built the first bungalow in Malabar Hill, during his tenure as the
Governor of Bombay, 1819 to 1827
But in year 1820 he appointed a committee for the codification of law.
Following were the task of the committee –

1- To revise and compress the existing regulations leaving out all
that had been rescinded or had become unnecessary striking out all
legal language and tautological expressions, to consolidate all
regulations relating to one subject and reducing the whole to the
utmost attainable simplicity in form and language

2- To embody with the above regulations all orders that had been
issued by the government in answer to references or in explanation of
the Regulations and which had the force of law without the legal form
and without having been publicly promulgated

3- To ascertain the practice of the judges and collectors in cases
which till then had been left to their discretion and to consider
whether it would be expedient to embody the most generally adopted and
successful parts of that practice into the Regulations so as to
diffuse the knowledge of the system adopted and to secure it from
being capriciously set aside or whether it would not be safe for some
years longer at least for the officers to have a large discretionary
power unfettered by former enactments.

4- To examine the native practices as they obtained in each district
before its acquisition by the English and to consider whether any part
of the same should be revived if it had been laid aside or secured by
Regulations still in force.

5- To examine the codes of Bengal and Madras and to consider whether
any of the Regulations in use under those presidencies were required
in Bombay

6- To suggest which obvious improvements as might occur to the
committee during the course of enquiry.

The committee studied everything for 7 years and new code was passed.
On 1st January 1827, the new code of the Bombay Regulation came into
force in Bombay Presidency.
And all the previous 79 regulation acts were abolished.

This new code was called as or is known as Elphinstone Code.

Regulations were in order of subject matter.
The code consisted of 27 Regulations; these regulations were
subdivided into chapters and sections.
When Indian Penal code was introduced this code was abolished.

The main problem with these regulations was that the legislative and
executive powers were enjoyed by same person.

Legislative means – Law making authority and power.
Executive means – a person who got power to carrying into effect the
laws.
Thus law maker and the person who made law was same person.

Today also India is facing the same problem.
Law maker is a politician
Who executives the laws – The organizations who execute the laws work
under the politician, these organizations can not go against the will
of the politician, law maker.

Thus hope you understand the problem now clearly.
Why India needs to change the system of administration.

The Elphinstone Road railway station and the Elphinstone Circle were
named after Lord John Elphinstone his nephew, who also became Governor
of Bombay in 1850s.

After India got Independence in 1947 Elphinstone Circle was renamed
after Benjamin Horniman, editor of the Bombay Chronicle

Elphinstone College is an institution of higher education affiliated
to the University of Mumbai. Established in 1856
Mountstuart Elphinstone before leaving Bombay ,
was responsible for beginning higher education in the city. Rs.2,
29,636.00 was collected by public subscription to fund teaching
professorships in the English language and the Arts, Science
The College was formally constituted in 1835.
The classes commenced in 1836, at Town Hall, with the first two
professors:
Arthur Bedford Orlebar (Natural Philosophy)
And John Harkness (General Literature).

University of Bombay was established in the year 1857. Inception
classes were held at Elphinstone College and were subsequently moved
to the present fort campus.

Sir J J School of Arts was founded in 1857 and was instituted to take
up drawing classes. Initial classes were held at Elphinstone
Institution.

05 December 2010
Part 34 – Indian Legal history – Charter of 1833 Introduction of
Justice, Equity and Conscience

Introduction of Justice, Equity and Conscience

In 1780 Bengal First time British rulers introduced the maxim justice,
equity and conscience and later it was introduced in other
presidencies like Bombay and Madras and rest of India.

In Punjab 1872 Punjab laws act 1872 introduced the doctrine, maxim
Justice, Equity and Conscience in judicial system.

Central Provinces Laws Act 1875, Section 6 mentions when the judge
that is court should use the maxim Justice, Equity and Conscience
while deciding a case.
Later it was added to other laws also.

How this maxim worked?
When court found that there is no provision in Hindu religious law or
Muslim religious law then the maxim Justice, Equity and Conscience
came to help the court and accordingly court decided the case.
This depends on the education of judge, his thinking thus what he felt
right was right.
Very slowly this began to influence and bring more and more English
law into India.

In 1862 High courts were established and Englishmen became the judge
who were studied and knew English judicial system, they were
barristers and were trained in law.

From India appeals went to Privy Council in England thus automatically
more and more English law was introduced in India.
But English law was not used in every case.
It depend on case, there are many cases which one can find where
English law was not used.
Few examples -
Khwaja Muhammad khan vs Husaini Begum
Srinath Roy vs Dinabandhu sen

English courts also always gave importance to Hindu customs and Muslim
customs in India.

After India became independent today also courts use the English
Judgments, now a day’s even American judgment is referred while giving
judgment.

But while doing this Indian courts see that and give more importance
to religion and mob and not to individual freedom.

As in India number of courts increased, high courts increased and
every court gave its own judgment and there was no supreme court, a
court whom other courts can look for guidance and to find the correct
meaning of law.

Thus English people felt the need for codification of laws in India.
Thus charter of 1833 made provision to create uniform and codified
system of law in India.
The charter introduced and established

1.
It established an omni competent all India legislature having
legislative authority throughout the country

2.
it created a new office of the law member in the government of India

3.
it provided for the appointment of a law commission in India

It established an omni competent all India legislature having
legislative authority throughout the country – First time in 1829 Lord
William Bentinck spoke about this.

The charter act 1833 received royal assent on august 28 1833 and came
into force on April 22, 1834.

The important provisions of this charter, law are as follows.

1.
The governor general of Bengal was designated as the Governor General
of India.

2.
Governor General in council got powers of superintendence, direction
and control of the whole civil and military government and the
revenues of India.

3.
centralization of legislative power

4.
setting up of legislative council

5.
legislative council got the power to repeal, amend any law in India
exception charter of 1833

6.
All the laws and enacts passed by the legislative council were called
as Acts of the Government of India, before this they were called as
regulations. All laws were binding on all the courts in India.

7.
The office of the law member was created who helped or assisted
governor general in law making

8.
appointment of law commission

First law commission in India was established in year 1835; under the
act membership of the commission had to be approved by the court of
directors.
The charter act placed the law commission wholly under the direction
and control of Governor General in council

The first project commission got was to codify the penal law for
India.
After this commission prepared draft and presented it to the Governor
General in 1837.
Macaulay did lot of work regarding creation of draft.
When Maculay retired after that the work of law commission lost the
speed.
It did nothing special.
In 1842 it prepared draft of the law of limitation.

The concept of Lex loci, a report was prepared as there were
situations when neither Hindu nor Muslim law was applicable.http://
www.blogger.com/img/blank.gif

20 December 2010
Part 35 – Indian Legal history – Charter Act 1853, codification of
Laws and Law commissions under British India.

The charter Act of 1853 made the law member a full fledged member of
the governor general’s council. Thus He got the right to vote at
executive meetings of the governor generals meetings.
As per charter act of 1833, legislative council member ship was
limited.
But charter act of 1853 increased the number of legislative council
members.

The new legislative council was consisted of

1.Governor general and members of his council

2.one member from each presidency

3.lieutenant governor to be appointed time to time

4.chief justice of the supreme court at Calcutta

5.one judge of the supreme court to be named by governor general

6.court of directors could direct the governor general to add two more
persons

The sittings, meetings of the legislative council were made public and
their proceedings were officially published.

The charter act of 1853 again made provision for the law commission.
This time law commission worked sits in England and not in India.

The preamble to S.28 of the act of 1853 accepted publicly and openly
the failure of First law commission in India.

First law commission worked hard in the beginning but it ultimate
result was that it failed.

Thus the law was that her majesty can appoint any time persons to
study the recommendations of first law commission to reform judicial
law system, to reform laws of India.

Second law commission was formed for the next 3 years that is up to
year 1856.
Second law commission was appointed in England on the 29th November
1853.
Following were the members of the 2nd law commission.
1.Sir, Lord john Romilly
2.master of the rolls as president of the commission
3.Sir john jervis
4.chief justice of the pleas
5.sir Edward ryan
6.ex chief justice of the supreme court at Calcutta Robert lowe
7.lord sherbrook M.P
8.c.h.cameron
9.john m.macleod
10.hawkings

The second law commission consisted of leading lawyers of England and
few persons who worked in India and knew about the Indian laws and
adalat system

In next 3 years second law commission submitted 4 reports
The first report recommended formation of single court at the place of
Supreme Court and sadar adalat, this court was to be called as High
court.

Recommended adoption of civil and criminal procedure code throughout
the jurisdiction of the High court.

In third report commission made plan for the establishment of judicial
system in north western provinces.

The fourth report made plan for the presidencies of Bombay and Madras.

In 1858 the East India Company was dissolved and the Government of
India was taken over by the British crown.

After this many important Indian laws were passed by the British
crown, Indian legislature which we Indians are still using them.

1.code of civil procedure 1859

2.limitation act 1859

3.Indian penal code 1860

4.code of criminal procedure 1861

Formation of third law commission –
On 2nd December 1861 a new commission was formed.
The 3rd law commission was directed to frame a body of substantive
law, in preparing which the law of England should be used as basis but
which once enacted should itself be the law of India on the subject it
embraced.

The third commission submitted seven reports containing the drafts of
the future proposed laws to the secretary of India.

The first report submitted draft, bill of the future law
And this bill was enacted and was titled as The Indian succession act
1863
First report, draft was submitted on 23 June 1863

July 18, 1866
2nd report was about law of contracts

July 24 1867
3rd report was about law of negotiable instrument

December, 18 1867
4th report was answer to the questions or doubts ask by the Indian
legislature regarding proposed law of contract.

August 3, 1868
5th report proposed the law of evidence

May 28 1870 -
6th report proposed the draft of law of transfer of property

June 11 1870, last and final report or draft
7th report proposed the revision, changes in the code of criminal
procedure code.

Third commission worked for 9 years and did excellent job.

Law commission was working speedily but Indian legislative council in
India was very slow, it was raising doubts which delayed the work.
Even Indian educated people started to oppose these new proposed laws
as before this everything was done as per custom and religion which
was beneficial to upper caste, or rich Muslim people of India.

Indian legislation delayed the implementation of new laws by one or
another reason.

During Sir Henry Summer Maines tenure as the law member 211 acts were
passed.

Indian companies act was enacted in year 1866.

General clauses act was passed on 1868

Divorce act was passed in 1869

New limitation act was passed in 1871

Evidence act was passed in 1872

After this 4th law commission was established.
This commission also suggested the how the codification of Indian law
should be made.
And many other provisions.

Indian negotiable instrument act was passed on 1881
Transfer of property and easement act was passed on 1882

The fourth law commission was the last law commission which was formed
in British India.

The 4th law commission directed that there should be a uniform code
for India, which we Indians haven’t achieved yet.

In 1858, British crown took the charge of India from East India
Company.
Indian council’s act 1861 was passed by British Parliament
The act had three main objectives –

1.expansion of governor generals legislative council

2.restoring legislative powers to the presidencies of Bombay and
Madras

3.Providing establishment of legislative bodies in other provinces

The first meeting of the National congress was held in 1885 and it
demanded the presence of elected members in the councils, the right to
discuss the budget and to ask questions.

After the Indian council act of 1861, Indian council act of 1892 was
enacted.
The act increased the membership, representation of public opinion by
increasing number of additional and of non official members in the
central council.

After this Indian council act 1909 was enacted
was based on Minto Morlay reforms.

20 December 2010
Part 36 – Indian Legal history – Act of 1909 Minto Morlay Reforms

In 1906, Lord Morley, the Secretary of State for Indian Affairs,
announced in the British parliament that his government wanted to
introduce new reforms for India, in which the Indian locals were to be
given more powers in legislative affairs.

George Nathaniel Curzon was the Viceroy of India and Foreign
Secretary.
In January 1899 he was appointed Viceroy of India.
The province of Bengal had an area of 189,000 miles2. and a population
more than 80 million , area and population both were more compared to
a France.
in August 1904 he became the Governor general of India.
Partitioning Bengal was first considered in 1903
The Partition of Bengal in 1905 was made on October 16 by then Viceroy
of India, Lord Curzon.
Bengal was larger than France and larger in population compared to
France.
But upper caste Hindus as well as rich Muslim people of Bengal did not
like this idea and they started to oppose the partition.
Partition means reduction in their powers over local people and area.
Remember Mahabharata , Kourava did not give a single village to
pandava which would have solved the problem.

A major famine coincided with Curzon’s time as viceroy in which 6.1 to
9 million people died.

East Bengal got more Muslim population and West Bengal got the more
Hindu population.
Indian National congress started to oppose the division of Bengal.
Indian population was uneducated that time and now also situation is
same.

I am not writing on how the area was divided, today it is not
important.

Due to violent protests the two parts of Bengal were reunited in 1911.
After this the Era of division based on the language started in India
which people call it as a linguistic division.

The Indian Councils Acts of 1909, also known as the Morley Minto
reforms by its provision, enlarged the size and their functions of the
legislatures both at the center and Provinces

The following were the main features of the Act of 1909:

1.The number of the members of the Legislative Council at the Center
was increased from 16 to 60. The Legislature was thus consisted of 69
members, of which 37 were to be officials while the remaining 32 non-
officials.

2.The Morley Minto Reforms introduced an electoral policy for the
elected members.

3.The number of the members of the Provincial Legislatives was also
increased. It was fixed as 50 in the provinces of Bengal, Madras and
Bombay, and for the rest of the provinces it was 30.

4.Right of separate electorate was given to the Muslims, which
increased the gap between Hindu and Muslim population

5.The system of election led by the Acts of 1909 was very indirect.
The people elected the members of the local bodies, which elected
members of the electoral college, which in turn elected the members of
the provincial Legislatures.

6.The members of the provincial legislature finally elected the
members of the Central Legislature.

7.In this type of election process again for the name sake there was a
voting system and people did not get any political knowledge or
understanding of government working. Very skillfully rich and educated
class kept the uneducated class away from all this.

8.The Secretary of State for India was empowered to increase the
number of the Executive Councils of Madras and Bombay from two to
four.

9.The Governor General was empowered to nominate one Indian member to
his Executive Council.

10.Two Indians were nominated to the Council of the Secretary of State
for Indian Affairs.

The Delhi Durbar was held in December 1911 to commemorate the
coronation of King George V and Queen Mary as Emperor and Empress of
India.
The necklace was presented to Queen Mary by the Maharani of Patiala

On December 15, 1911 King George V laid the foundation stones for the
new capital city of New Delhi.

After the Minto Morlay reforms participation of Indians increased and
as well as degradation of political process started and corruption
also increased.

31 December 2010
Part 37 – Indian Legal history – Government of India Act 1919 –

Secretary of state, Edwin S.Montagu and the viceroy of India Lord
Chelmsford wrote an inquiry report regarding participation of Indians
and responsible government in India, this report was published in
1918, Report on Indian constitutional Reform.
This report served as the basis for the creation of the legislation.

The government of India Act 1919 was passed by the British Parliament
To increase participation of the Indians in the government of India.
The Act embodied the reforms recommended in the report of the
Secretary of State for India, Edwin Montagu, and the Viceroy, Lord
Chelmsford.
The Act covered ten years, from 1919 to 1929.
The act was enacted for ten years from 1919 to 1929.

The Act provided a dual form of government (a “dyarchy”) for
provinces.

Matters of administration were first divided between the centre and
the provinces and then the provincial subjects were further bifurcated
into transferred and reserved subjects.

The transferred subjects were to be administered by the governor with
the help of ministers responsible to the legislative council composed
mainly of elected members.

The Transferred subjects are:

(1) Education, (2) Libraries, (3) Museums, (4) Local Self-Government,
(5) Medical Relief, (6) Public Health and Sanitation, (7) Agriculture,
(8) Cooperative Societies, (9) Public Works, (10) Veterinary, (11)
Fisheries, (12) Excise, (13) Industries, (14) Weights and Measure,
(15) Public Entertainment, (16) Religion and Charitable Endowments,
etc.

The reserved subjects were to remain the responsibility of the
governor and his executive council which was not responsible to the
legislature.
Governor got the power to override ministers and executive council.

The Reserved Subjects are:

(1) Land Revenue, (2) Famine Relief, (3) Justice, (4) Police, (5)
Pensions, (6) Criminal Tribes, (7) Printing Presses, (8) Irrigation
and Waterways, (9) Mines, (10) Factories, (11) Electricity, (12)
Labour Welfare and Industrial Disputes, (13) Motor Vehicles, (14)
Minor Ports, etc.

The effect of government of India Act 1919 –
(1) To introduce the bicameral or two chamber system in the Indian
legislative council
(2) To increase the size of the provincial legislative council , to
increase number of the elected members in each
(3) To substitute direct for indirect election
(4) To enlarge the electorate

This act applied the principal of communal representation to Muslims,
Sikhs, Anglo-Indians, and Indian Christians etc.

The Indian legislature council was to be called as the Indian
legislature.

The Indian legislature consisted of governor general and two chambers,
the council of state and the legislative assembly.
The council of state consisted of 60 members nominated or elected
under the rules, of whom not more than twenty were to be official
members.
Thus council got 33 elected members and 27 nominated by the governor
general of whom not more than 20 could of officials.

The legislative assembly consisted of 143 members.
The number of non elected members was 40 of whom 25 were official
members and 15 non officials.
The number of elected member was 103.
To pass a law, including financial bills consent of both houses was
required.

The power of both houses were same exception was power to vote supply
was allowed only to the Legislative assembly.

The duration of council was fixed at 5 and of the assembly at three
years.
The governor general got the power to dissolve either house or to
extend its existence if necessary.

The members were elected by a process of direct election, in hope that
the people will choose people to represent them.

Thus Hindus started to elect Hindus and Muslims elected Muslims and
also there was communal representation.

The act of 1919 did not introduce federalism in India.
Governor General in council got the power and authority to decide
whether a particular subject was central or provincial subject.

03 January 2011
Part 38 – Last Part – Indian Legal history – Government of India Act
1935

The government of India Act 1919, section 84 provided that a
commission of inquiry should be established for the development of
representative institution in British India.

Under Section 84 of the said Act, a statutory commission was to be
appointed at the end of ten years, to determine the next stage in the
realization of self-rule in India.

Thus a commission of inquiry was established in 1927 which was called
as Simon commission.

The commission consisted of Sir John Simon and six other members. All
of them were members of the British Parliament who came to India.

The commission was sent to investigate India’s constitutional problems
and make recommendations to the government on the future constitution
of India.

No Indian was the member of the Simon commission this angered the
Indians and they started to oppose the Simon commission.

An All-India Committee for Cooperation with the Simon Commission was
established by the Council of India and by selection by the Viceroy
the Lord Irwin.

The members of the committee were: Sir C. Sankaran Nair (Chairman),
Sir Arthur Froom, Rajah Nawab Ali Khan, Sardar Shivdev Singh Uberoi,
Nawab Sir Zulfiqar Ali Khan, Sir Hari Singh Gour, Sir Abdullah Al-
Mamun Suhrawardy, Kikabhai Premchand and Rao Bahadur M. C. Rajah.

On February 3, 1928, the Simon Commission arrived in Bombay.
The Commission published its 17-volume report in 1930.

Dominions originally referred to any land in possession of the British
Empire.
1928 – Nehru Report – was prepared by a committee of the All Parties
Conference chaired by Motilal Nehru with his son Jawaharlal acting as
secretary.
There were nine other members in this committee including two Muslims.
The Nehru report was approved by the congress at Calcutta in December
1928.
Muslim Political partied opposed the Nehru Report.

The three Round Table Conferences of 1930–32 were a series of
conferences organized by the British government to discuss
constitutional reforms in India.
They were conducted as per the recommendation by the report submitted
by the Simon Commission in May 1930.
The Labor Government returned to power in Britain in 1931 after that
The government decided to hold a Round Table Conference in London to
consider new constitutional reforms.
All Indian politicians; Hindus, Muslims, Sikhs and Christians were
summoned to London for the conference.

First Round Table Conference (November 1930 – January 1931)
B. R. Ambedkar demanded a separate electorate for the Untouchables.
Congress did not attend First Round Table Conference
89 members attended the conference

Second Round Table Conference (September – December 1931)
Gandhi-Irwin Pact –
The agreement between Gandhi and Irwin was signed on March 5, 1931.
On August 29, 1931, Gandhi sailed for England in the SS Rajputana to
attend the Second Round Table Conference; He went as the sole
representative of the Indian National Congress.
The second session of the conference opened in London on September 7,
1931

Congress, Gandhi said that Congress alone represented political India
and there is no need for special electorate or minority status for
Muslims or Untouchables.

Third Round Table Conference (November – December 1932)
Poona Pact – 1932 – Congress agreed with Ambedkar and problem of
untouchable electorate was solved.

The Labour Party from Britain and the Indian National Congress refused
to attend.

Thus 3rd round table conference finished with the deadlock without any
final conclusions.

Mahatma Gandhi launched a Civil Disobedience Movement on the 12th of
March 1930
This movement started, then was stopped and then again started.

The Government of India Act 1935 first time introduced federalism in
India comprising of the provinces and the Indian states.

Meaning –
Federalism – A system of government in which power is divided between
a central authority and constituent political units.

Provinces – A territory governed as an administrative or political
unit of a country or empire.

The principle of bicameralism was introduced at the Centre and some of
provinces.

Two houses were known as Federal Assembly and the council of state.
The council was permanent body consisting of 260 members and 1/3rd of
its members retiring every 3 years. The council has 156 members for
the British India and up to 104 members for the states.
Federal Assembly had a maximum duration of 5 years.
Federal Assembly was consisted of 250 representatives from the British
India and not more than 125 members from the Indian states.
The election seats were divided as General Seats, Sikh Seats, and
Muslim seats and reserved seats for scheduled castes and women, Anglo-
Indian, Europeans and Indian Christians, commerce and industry,
landholders and labor.

Introduced direct elections, thus increasing the franchise from seven
million to thirty-five million people and governor general got right
to nominate 6 members from scheduled classes, women and minority
communities.

Every type of bill was allowed to be introduced in any house exception
was finance bill.
Financial bill can only originate in the Assembly.
A financial bill could not be introduced without the recommendation of
the governor general.
When two houses got divided or got different opinion regarding bill,
the governor general got power to summon a joint sitting of the two
houses for the purpose of voting on the bill.

The Federal Court was established in the Center.
The Reserve Bank of India was established.

Under the act of 1935 first elections were held and congress won the
elections.

The central legislature was never constituted because Indian states
showed no interest to join federation of India.
Later 2ND World war started
Viceroy Lord Linlithgow declared that India was at war with Germany in
1939.

Congress Ministers resigned in year 1939 to gain full independence
from British Raj.
And also they were upset and angree that without their consultation UK
took the war decision about India’s participation.

They resigned but they supported the British Government in 2nd world
war.
Just one No was required and India would have got independence in year
1941
In 1941 Japan threw British People out of Malaya, Singapore, Burma and
threatened to end their empire in India.

Subhash Chandra Bose the great son of India formed Azad Hind Fauj
(Indian National Army – INA) in Singapore, and gave his famous slogan
“Give me blood and I’ll give you freedom”

Japan was defeated in year 1945.
How or who killed or murdered Bose only nature knows how the great son
of India died.
History books say he died in Air crash.
The military tribunal held the INA officers guilty and condemned them
to harsh punishments. But Government of India understood the feelings
of Indian population and cancelled the punishment.

Bicameral Legislature – such a legislature consisted of two houses,
house of assembly and a legislative council.

On December 9, 1946 constituent Assembly was set up to draft a
constitution for Independent India.

British Government passed the law Indian Independence Act 1947 and
after passing of this act central legislature ceased to exist on 14th
august 1947.
Constituent Assembly was to work as the Central Legislature of India.

The Government of India Act 1935 is the biggest act made by British
Parliament.
The Government of India Act 1935 was the longest bill among the Acts
which were passed by the British Parliament. Compared to the
constitution of the USA, it had fewer than 8,000 words.
The Government of India Act 1935 is important because it is one of the
foundation stones of the current Republic of India.
Government of India Act 1935 PDF consists of 341 Pages.

This is the final and last constitution of British India and in 1947
few amendments were made into this government of India Act 1935 and
this became the functioning interim constitutions of India and
Pakistan.

The constitution of India was adopted on November 26, 1949 and it
became fully operational with effect from January 26, 1950.

End of the Indian Legal History.

…and I am Sid Harth

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