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Indian Legal and Constitutional

History

Dr. Saurabh Chaturvedi


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East India Company

The 1stEast India Company was incorporated in

England under a Charter granted by QueenElizabeth on 31stDec 1600 AD, in the name of

The Governor and Company of Merchants of London

trading into East IndiesThe members of the Company had to elect 24

members annually to form Court of Directors and aGovernor, eligible to re-elect.

Having exclusive rights to trade all parts of Asia, Africaand America except Europe.

Initially the charter was granted for 15 years

renewable to 15 more years.


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East India Company The Company was authorized to make legislations including civil and

criminal laws, Orders and the Constitution applicable on its people( English)for

good governance

Advancement and continuance of its trade and traffic

The Company was empowered to impose Punishments by way of

Imprisonment ,Fine & forfeiture of goods/vessles.

Kings Commission

Issuance of Royal Commission by Queen Elizabeth (1601) and empowermentof Commander-in-Chief to award capital punishment towrongdoers(Subject to the approval of a Jury constituted by 12 members ofCompany itself)

Era of James I,Empowerment of Company to grant Royal Commission(1615)

In 1623 granted the Companys Presidents/Chief Officers the same powersapplicable in their Companys establishment/port or land


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East India Company

Issues

1. The English law could germ out of which Anglo-

Indian codes were ultimately developed.

2. The Company was armed with adequate authority

to enforce discipline amongst its servants both on

the high seas and on the Indian soil


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Bombay 1684-1690

Bombay 2

nd

Statge Establishment of Admiralty Court(1684) having

Jurisdiction on Civil, Criminal and Maritime matters

Appointment of Dr. John St. John as Advocate General

Conflict in between The Governor Child and Dr. John onvarious issues

Reduction of Jurisdiction of Admiralty Court tomaritime matters only

Appointment of Vaux as a Judge in a new Court to lookinto Civil and Criminal matters

Conflict in Jurisdictional issue between the Courts ofVaux and Dr. John

Conflict between Executive and Judiciary


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Bombay 1684-1690

Dismissal of Dr. JohnIssues

Overlapping powers of Executive & Judiciary

Attitude problem of Legal professionals

Intolerance of Judicial independence

Judge made laws exceeding English laws n

interpreting differently

End of Bombay Judicial System by attack of Moghul

Admiral Siddi Yakub in 1690-1718 as dark period


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Bombay 1718-1726

3rd

Stage Establishment of a new Judicial system after 30

years in 1718

Appointment of a Chief Justice and 9 other Judges

Five British n 4 India Judges from Hindu, Muslim,

Portuguese Christian + Parsis, one each.

Jurisdiction to judge all cases of Civil, Criminal,Military and Testamentary

Work as Registrar of immovable Property

The Court had wide powers to execute its decrees


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Bombay 1718-1726

No equal status to Indian Judges

Due regard to caste custom and local traditions

along with English laws

Appeal to Governor and Council Inexpensive and quick award based on common

sense

Stringent punishment to criminal and Debtors

Rama KamatisCase


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Calcutta 1690-1726The Company secured Zamindari of 3 adjacent villages

,Sutanti, Calcutta and Govindpur@ 1195 Rs. P.a. fromPrince Azmaish shah( Grand Son of Aurangzeb, thenSubedar of Bangal)

In 1668 a fortified factory was constructed as Fort William

On the bank of river Hugli(Sutanti)a few Englishmenlanded on 24thAug.1690,under the leadership of JamesCharnock.

Acquisition of zamindari was a significant event forCompany through it company secured a legal andconstitutional status within Moghul administrativemachinery.

Company became entitled to exercise all those functions

and powers within the zamindari territory.


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Calcutta 1690-1726

Dec.1699 Calcutta became Presidency.A Governor(President) and a Council was appointed

to administer the settlement.

English Judicial System in CalcuttaThe zamindari functions of the Company, within the

settlement of Calcutta, were entrusted to an English

Officer called Collector, who used to be a memberof Governors Council

Collector had judicial powers in all Civil, Criminal and

Revenue cases pertaining to the Indian inhabitants


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Calcutta 1690-1726

Besides this a parallel Court of Zamindar was also in

existence and dealing with civil cases of local Indianpeople according to customs and usage and

discretion for which appeals lay to the Governor

and Council.Evaluation

Parallel justice administration system of Nawab &

Company and approval before capital punishmentLack of impartial administration of justice

Concentration of extensive Power in the hands of

Collector


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Charter of 1726

The Charter of 1726 was a big advancement of Companysestablishment in India which was requested to fetchmore powers from Crown.

King George I issued a fresh charter to Company where all

three Presidency were brought under a uniform Judicialsystem.

Establishment of Civil and Criminal Courts in eachPresidency deriving authority from the Crown

Designated as Royal Courts these Courts were equivalentto English Courts having formal, regular and definitebase

An appeal from India could be made directly to PrivyCouncil


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Charter of 1726

The Charter established a bridge in British and Indian

legal system

It became a channel through which British Crown

could directly apply their legal interpretations and

applications

Where ever Indian laws were absent British laws were

guiding them to find the way


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Charter of 1726

Provisions

1. Establishment of separate Corporation in each

Presidency consisting a Mayor and 9 Aldermen.

The First Mayor is appointed by the Crown for one

year after retirement the Mayor remains anAlderman only.

Two Alderman are appointed from the local jagirdar

and rest are natural born subjects of the company.

Aldermen is appointed for life but could be removed

by the Governor and Council subject to appeal to

King-in-Council in England


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Charter of 1726

2. Judicial System

In each Presidency a Mayors Court was establishedconsisting a Mayor and two senior Aldermen

The Court had jurisdiction only to the Civil Matters alongwith Testamentary and Court of Record for contempt.

An appeal could be made to the King-in-Council

Sheriff

He was responsible for implementation of Mayors

Courts directions including summons, seizure ofproperty ,execution of warrant etc, having jurisdictionover the entire Presidency and 10 miles around.

Appointed by Governor for one year duration


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Charter of 1726

Criminal Jurisdiction

Vested with the Governor and 5 senior members of

the Council each was a Justice of the Peace.

Powers to arrest like police and punish for petty

offences

Grand and Petty jury to sit 4 times in one year and to

look into serious crimes

All technical forms and procedures and manners of

English law were introduced

Three justices of the Peace were collectively forming

Court of Record(To hear and Determine)


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Charter of 1726

Effects

The post charter period was not smooth arising

conflicts between Governor and The Mayors Court

Neither Law nor Justice was accorded

Mayors Court became autonomous and the Governor

sought to interfere with the functioning of the

Court.

No clarity on personal laws and religious matters

Conflict in between Court and The Council


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The Adalat SystemBackground

Calcutta was captured by Nawab Siraz-ud-daula 1756Clive recaptured Calcutta under guidance of Clive from Madras

1757

Battle of Plassy in between Nawab and company (1757) ,who

wins and projects Mir Jaafer as Nawab .Mir Jaafar was succeeded by his minor son Nijam-ud-daula.

With every change in Bengal Company increased in power andinfluence.

The battle of Buxar(1764) gave path to Company to get Diwaniof Bangal, Bihar and Orissa from Moghul Emperor Shah Alam

The Company remained actual power keeping Nawab as apuppet.


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The Adalat System

The Company kept Nawab for two reasons

1. If Company assumes direct administration theCrown would interfere due to English Constitutional

Law provision that no British subject can acquire

Sovereignty over any territory for himself. It mustvest in the Crown so the Parliament becomes

entitled to legislate for the territory.

2. The possibility of French and Portugueseinterference which could create international

problem


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The Adalat System

The Company agreed to pay Rs 26 Lakh to the

Emperor and to retain the rest for their own use.The power of Diwani gave a big status and legitimacy

to the Company.

It used to have to senior officers Nawab/Nizam andDiwan, appointed by the Emperor in India.

The Nizam was the head of Military, Maintenance ofLaw & Order and Administration of Criminal Justicesystem.

Diwan was responsible for collection of Civil &Revenue matters and also to manage funds for the

Govt.


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The Adalat System

The company wanted to have all control in its hand by

merging both Nizam and Diwan powers in favor ofCompany.

Through a contract Nawab(who was a minor) surrenderedto company all powers of Diwani and Nizam both andaccepted a sum of 53 lakh p.a. for maintenance ofhimself and criminal judicature.

Thus Company acquired all legitimated powers in its hand

and became responsible for administration of CivilJustice and revenue Collection.

Company appointed two Naib nazim to control theworking of machinery at Mushirdabad and Patna under

the supervision of two English Officers.


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The Adalat System

Effects

1. The system was very faulty due to lack of

accountability among English officers and

helplessness of Indian officers due to lack of power

against English People.

2. Private trade by company officers including

Governor and his council members


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Warren Hastings and Judicial Plan of 1772

Warren Hastingss administrative plan of 1772 divided the whole

Bengal into smaller districts.In each district an English servant was appointed as Collector

responsible for collection of revenue.

For Judicial plan, he established the following..

1. Mofussil Diwani Adalat..was established in each district withCollector as a Judge, authorized to decide all civil cases likeReal and personal Property, Inheritance, marriage, caste,bad debts, disputed accounts, contracts, partnerships and

Renting arrangement.For Inheritance, marriage,or caste related issues KORAN or

SHASTRAS were to be taken into consideration as per Kazi orPandit expound based on religion and interpretation.


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Mofussil Fozdari Adalat

It was supervised by the Collector,who had to see thewitnesses and to render judgments

Crimes were heard by the Kazi and Moulvis who used togive Fatwas against Crimes and Criminals.

Death sentence or forfeiture of property were to besubmitted to Sadar Nizamat Adalat for approval.

Sadar Adalats

Over Mufussil Diwani and Fauzdari two superior courts,Sadar Diwani (Consisting Governor and Cuncil) andSadar Nizamat Adalat (Consisting a Daroga-i-Adalat toassist Chief Kazi,Chief Mufti and Three Molvies)wereestablished at Calcutta (1773)

Small Cause Court


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Appraisal of the Plan

A credible achievement

Impartial and inexpensive justice

Establishment of Anglo-Indian Judicial System

Replacement of Commission to Court Fees going tothe Govt. not to judge

Abolition of Judicial powers of Zamindars

Division of power in between Nizam and Diwan

Separate Courts of civil and Criminal courts

Concentration of Excessive power in the hands of

Governor


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Plan of 1774

The collectors were recalled from the Districts and anIndian officer, called Diwan, was appointed at theplace of Collector.

Responsible for collection of revenue and also to actas Judge in the mofussil Diwani Adalat.

Division of entire province into six divisions having

headquarter at Calcutta.A provincial council consisting 4-5 Englishservents,was appointed to supervise the collectionof revenue and to hear appeals


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The Supreme CourtSupreme Court at Calcutta

The Regulating Act created a Supreme Court at Calcuttain 1773.

Besides managing internal management andadministration of East India Company, it re-organised

the structure of the Calcutta Government . Appointment of 1stGovernor General and a Council of 4

English persons vested with whole power of Civil andMilitary Govt. For a duration of 5 years, he could be

removed by the King on the recommendations ofCompanys Directors

It includes Ordering, Management and Government ofall territorial acquisition and revenues in the kingdom

of Bangal, Bihar and Orissa.


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The Supreme Court

Effects

Each Presidency was independent of each other and

had a direct relation with the Court of Directors in

England

Madras and Bombay Presidencies were brought

under direct supervision of Calcutta Presidency in

matters of Peace and War in necessity

The subordinate Presidencies were required to

transmit regularly to the Governor general

regarding, Govt. revenue, or interests of the

company


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The Supreme Court

A Supreme Court was established at Calcutta by King

George III on 26 March 1774 through a Royal Charter

It was having 3 judges(having a qualification of a Barrister

of minimum 5 yrs experience) appointed by the crown

for a term extending up to the pleasure of the Crown.It had jurisdiction on Civil. Criminal & Admiralty cases

The Court was empowered to hear civil cases against the

Company & The Corporation of Calcutta also.It had jurisdiction only on the persons of Company or His

Majestys subject

An appeal could be made in King in Council


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Trial of Raja Nand Kumar

Conflict between Governor General and the Council

Charges against Warren Hastings by Raja Nand KumarCharges by Mohan Prasad against Raja Nand Kumar

Jury found him guilty under British Act of 1728 and sentenceddeath

CJ Impay was tried for impeachment for committing Judicialmurder

Issues

1. Whether the trial was impartial

2. Whether committing forgery suited to death sentence in theprevailing conditions of calcutta?

3. Whether British Criminal Laws of 1728 were applicable inCalcutta having retrospective effect

4. Why Raja was not allowed to make an appeal to PrivyCouncil


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Patna Case

Succession by a Muslim widow

Shahbaz beg Khan(died 1776),Bahadur Beg(Nephew) and

Nadirah Begum(Widow)

Issues

A gift deed was executed in favor of Nadirah by Shahbaz

Bahadur Beg claimed the property on the basis of

adopted son so filed a case against Begum in Patna

Provincial Council.The case was delegated for dealing to Mufti and Kazi for

(A) Making an inventory of the entire property

(B) Sealing it to maintain status quo


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Patna CaseAll proceeding in Patna Council were ex partewithout notice to

Begum.No witness was examined on oath and some could not presentthemselves in person

Begums plea of gift alleged as forged

Outcome1. Begums house was sealed and only one room was left open

2. She was given only 1/4thpart of her deceased husband andrest 3/4thwas handed over to Bahadur Beg on behalf of his

father(ShahbazsBrother)..as per Hanafi Muslim SchoolShe approached to Supreme Court and filed an action against

Bahadur Beg, Mufti and the Kazi for assault, falseimprisonment, breaking and entering her house etc and

asked for damages of 6 lakh


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Patna CaseSupreme Court issued a writ of Capias, for arrestment

of Kazi, Mufti and Bahadur Beg.They were brought to Calcutta and asked to furnish a

bail of Rs 4,00,000,on failing put in the prison.

Issues1. Whether the Law officers could be empowered by

the Council, which was also a Court, by delegationof its powers to perform judicial actions by

executives and to decide the questions of fact andlaw.

2. Whether the Supreme Court at Calcutta was

having jurisdiction over native Indian people


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Patna Case

The Supreme Court held that the procedure and practice

adopted by law officers was illegal on the followinggrounds

1. The power to administer justice was vested in Patna

Council.2. The Council left the whole case to Law officers who

exercised the reflecting powers of the Council

3. The Council was not authorized to delegate its powersThe declared the gift deed genuine and said that Begum

is entitled for the entire property left by her husband

and also awarded Rs 3,00,000 for damages


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Cossijurah Case

Background

1. Mr Kashinath landed a large sum to the Zamindarof Cosijurah n did not return the same even afterrepeated remainders.

2. Kashinath brought a case in Supreme Court in 1779against the Zamindar.

3. Court issued a Writ of Capias warranting arrest ofthe Zamindar,who became underground and theWRIT remained unexecuted.

4. The Govt. sought an opinion from Advocategeneral,who suggested that the Zamindars etc. do

not fall within the jurisdiction of Supreme Court.


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Cossijurah Case

5. The Zamindar of Cossijurah was suggested to not to

appear,plead or do any such act which shows thejurisdiction of Court on him.

The Advocate General suggested the Govt to not to assistthe Court and leave the entire execution on the Court

itself.

The Govt. did the same and gave a notice to all Zamindarsand land lords informing that they do not fall within the

jurisdiction of the Supreme Court.

On the other hand the Supreme Court issued anotherWrit of Sequestration for forfeiture of the property ofthe Zamindar and to force him to appear before the

Court and also sent Sheriffs force to execute the writ.


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Cossijurah Case

The Govt. sent an another force to stop the Sheriffs

force, which arrested the Courts force and broughtthem to Calcutta.

Kashinath brought an action against the Governor

General and members of the Council individually fortraspass, who initially appeared in Court but later

withdrew themselves as their action was in official

capacity as they had done nothing in personalcapacity and were also exempted from criminal

proceedings in advancement of their official work


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Development of Criminal Law 1772-1886

When the company assumed responsibility for

administrating Bengal, Bihar and Orissa the Muslimcriminal law was very well entrenched in that territory.

The British administrators did not immediately disturbedthe status quo and allowed this law to continue.

The law however had a number of glaring defects. Manyof its principles were not in accord with the Britishnotion of justice, common sense and good government

The Muslim criminal law formally remained in operationin the Mofussil of Bengal, Bihar and Orissa for over 100years after the company had taken over theadministration.


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The traditional Muslim criminal law broadly classified

crimes under three heads: Crimes against god(apostasy, drinking intoxicating

liquors, adultery, etc.)

Crimes against sovereign( theft, robbery & robbery

with murder) Crimes against private individuals( murder, rape etc.)

The Muslim criminal law arranged punishments forvarious offences into four categories,

kisa or retaliation meant life for life, it was applied onwillful killing and grave hurt. It was regarded as a rightof a man and gave to the injured party or his heirs aright to inflict a like injury on the wrong doer as he had

inflicted on his victim.


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Development of Criminal Law 1772-1886DIYA- Diya meant blood money. In certain cases, like

unintentional injuries, diya was awarded to thevictim on a fixed scale.

In cases where kisa was available, it could beexchanged with diya, or blood money.

The injured person or his heir could accept diya orkisa as he liked.

In case of murder, the heir of the victim could accept

diya and forgo his right to claim death on themurderer.

In cases of intentional wounding or maiming, the

victim could accept diya in lieu of kisa


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HADD- meant boundary or limit. In criminal law, it meantspecific penalties for specific offences.

The underlying idea was to prescribe, define and fix thenature, quantity and quality of punishments for certainparticular offences which the society regarded as anti-social or anti-religious

The judge had no discretion in the matter, thepunishments prescribed under crimes could not bevaried, increased or decreased.

The prescribed punishments for certain offences were: forzina or illicit intercourse, death by stoning,for theft,amputation of limbs like the right hand or the left foot;for falsely accusing married woman of adultery, eightstripes. Etc.


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TAZEER- Tazeer meant discretionary punishments.

These punishments were inflicted at the discretionof the judge as there were no fixed rules to

prescribe such punishments.

Status of Witness

Willful murder or Unintentional death

Pattern of punishments


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Issues

1. Law was very uncertain

2. Differences of opinion among the Muslim jurists

3. Muslim law of crimes appears to be very severe in

punishments4. Muslim law and theory was based on such relations of

State and Social relations which were obsolete fromthe west

5. Doctrine of Tazeer gave unwarranted power in thehands of Judges

6. Fatwa were appeared inconsistent with the view of

enlightened Europeans


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In 1773, Warren Hasting formulated certain proposals for

its modification:- He suggested that the intention and not the nature of

the weapon used be made the test of willful murder. Ifthe intention of murderer be clearly proved, no

distinction should be made with respect to the weaponby which the crime was perpetrated. The murderershould suffer death and the fine be remitted.

He suggested abolition of the privilege granted by the

mohammedan law to the sons or the nearest of kin topardon the murderers of their parents or kinsmen.According to him, it was a law of barbarousconstruction, and contrary to the first principle of civilsociety ,by which the state acquires an interest in every

member which composes it , and right in his security.


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He advocated abolition of the rule which required the

children, or the nearest of kin of the deceased, toexecute the sentence passed on the murderers of theirparents or kinsmen.

He suggested that the fine imposed for manslaughtershould be proportionate not only to the nature of thecrime, but both to the nature and the degree of thecrime and to the substance and means of the of thecriminal.

Warren Hasting submitted his proposals to the councilfor consideration and approval. But the council took nodecision thereon as it regarded it a very delicate matter

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