Presentation Judicial Admn. 18.1.2011

8/7/2019 Presentation Judicial Admn. 18.1.2011

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Main features of the English Legal system:

1. Rule of law

Uniformity and Codification(reduction of laws customarily

observed by a particular set of people to a more or lesspermanent, organized and written form)

2. Independence of the Judiciary

Separation of the executive and judicial functions

These doctrines had evolved in England and in thehad become fundamental principles of English

Constitutional law in 18th century


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Introduction of the British legal

System 1764Battle of Buxar

1765 Grant of Diwani

1765-1772 Establishment of Dual Govt by Clive. Both Civil and

Criminal Justice was left in the hands of natives 1772- Warren Hastings (1772-1785) ended Dual Govt. Besides

the collection of Revenue accepted full responsibility for the

administration of Civil justice. Left criminal justice in the

hands of the natives although even this branch was brought

under the nominal control of the co. and new hierarchies of

courts, both civil and criminal, under British supervision

were created.


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District level

A civil (Diwani Adalat)and a criminal court

(Faujdari Adalat) was est.Collector was to preside in the Diwani Adalat

which could deal with all civil disputes of

property, inheritance, marriage caste, debt,

contracts etc.

Collectors combined in themselves the functions

of revenue collection and civil justice


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In Calcutta

Two corresponding courts of superior judicature

were est. : the Sadar Diwani Adalat and theSadr Nizamat Adalat.

Sadar Diwani Adalat

the Governor General and two members of hiscouncil were to preside

-- Its function was to settle appeals from the

decisions of the District Courts.


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1773 Regulating Act established a Supreme Court in Calcutta

representing the British crown with its jurisdiction over all

Europeans living in Bengal and all native citizens of Calcuttaonly. The Sadar Adalat had no jurisdiction over the Europeans

nor the Supreme Court over the natives outside of Calcutta.

Initially gave rise to confusion between executive and judicial

authorities and the courts of the company due to vagueness

of the provisions of the Regulating Act . The Supreme Court

struck terror among the people by ignoring the authority of

the Cos Courts and adopting legal principals and procedures

which were foreign to india. This was corrected in 1781 when

the jurisdiction of the Supreme Court was restricted , legalrecognition was given to the Cos courts and the application of

the English law was banned


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Judicial reforms of Lord Cornwallis

1786-1793 Called the father of Indian Judicial system

Brought about a division betwee the executive and

the judicial branches of the govt.

Collector was divested of his judicial duties

Introduced a three tier system of courts- Established

four provincial courts of appeal above the zillah

courts. Business in these was conducted by threecovenanted servantas of the Co. Their decision was

final in suits upto 1000 Rs


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Accepted responsibility for the administration of criminal

justice :

Had general distrust of Indians and was averse to their

holding key positions in administration. Believed that no legalreform could work so long as its execution lay in their hands.

Muslim judges to be replaced by Europeans.

Sadar Nizamat adalat brought under control of Gov.

General and members of his council

The four provincial Diwani adalats were to act as Courts of

circuit in the admn. Of criminal justice under

suprintendence of 3 covenanted servants of the Co.


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All legal amendments related to judicial procedure.

British contribution lay in devising a better method

for administering the laws

No attempt was made to introduce British law-

Justice contd. to be administered according to the

laws of the land. Early officials repeatedly proclaimed

that civil and personal laws, such as property,

inheritance, succession, marriage, adoption etc,

would be administered according to traditionallaws


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For Hindu law :A team of eleven Pundits appointed to compile

a code on Hindu law in 1772 The Pundits compiled a text

under the title Vivadarnavasetu A Bridge in the Ocean of

Disputes. The original Sanskrit version was later on rendered

in Persian and then into English by Nathaniel Halhead under

the title A Code of Gentoo laws Referred to as Standard

handbook on Hindu law Project was encouraged and funded

by Warren Hastings

1794-William Jones translated Manusmrti (500 and 400 B. C)under the title The Institutes of Hindu Law.


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Another compilation was undertaken under the initiative of

William Jones who appointed Jagannath Tarkapanchanan, the

legendary scholar on all branches of the Dharmasastras tocompile Vivadabhangarnavathat literally means a break

wave on the ocean of disputes. Due to the untimely death of

Jones, H. T Colebrooke translated the text under the title A

Digest of Hindu Law, first published in 1801.

For Muslim Law -Main text was Al Hidaya- guide to Muslim

law. The Author, Shaykh al-Islam Burhan al-Din al-Marghindni

(d. 1197 CE) leading jurist of the Muslim world in his times.Tr.

By Charles Hamilton Was the primary text used by Muslim

jurists to issue authentic and reliable rulings on Islamic law


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Major difficulties in administering Indian law

lack of knowledge of local laws, customs and languages.

Books containing the laws were not purely books of law

but contained religious principles and precepts Amount of literature was too vast and presented a

confusing picture

Appointment of Native law officers to assist the judges by

expounding the principles of indigenous law


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Defects of Muslim Criminal law

Muslim criminal law in force before introd. Of English

law

It often contained ideas repugnant to the morality of

the English. It had been modified piecemeal earlier

was superseded by the Indian penal code.

Defects: Generally regarded crime as a wrong done

to the injured party not an offence against the state

and punishment regarded as the private right of the

aggrieved party.


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Classification of crimes under Muhammadan law:

1) Crimes against God- apostasy, adultery, fornication, falsely

accusing married persons of adultery, drinking intoxicating

liquor, theft, highway robbery , robbery with murder

HADD -specific penalties for specific offences regarded as

anti-social or anti religious :For Zina (adultery) punishment

was stoning and scourging ; for falsely accusing a marriedwoman of adultery and for wine drinking , the penaty was

scourging . For theft, mutilation of right hand

For highway robbery both hands and feet were to be cut off

and robbery with murder was punishable by death.


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2) crimes against private individuals

Punishments.

Qisas-or retaliation means life for life and limb for

limb.

Gave the right to the injured person or next of kin

the right to inflict a similar injury to the wrong-doer DIYA (blood money) Kisa could be exchanged with

Diya (blood money)In case of intentional wounding

fine could be accepted in lieu of retaliation

TAZIR (discretionary punishment )judges could

exercise their discretion with regard to the

punishment in the absence of any rule


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Law of Evidence was unsatisfactory:

No Mohammedan could be convicted on the

evidence of an infidel . A Mohammedans word regarded equivalent

to those of two Hindus

Evidence of two women equal to that of oneman. In the case of hadd or Kisa a womans

evidence was inadmissible.


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Reforms and changes in Muslim

criminal law upto 1834 The option of the next of kin to pardon a murderer

was taken away. If the kin had pardoned a murderer

or claimed Diya, he would be tried in sadar Nizamat

Adalat Criminal courts were directed to see that thelaw took its own course upon all persons convicted

without any reference to the will of the heir or

kindred of the deceased

replaced mutilation of limb by temporary hard

labour or fine or imprisonment according to the

circumstances. If a prisoner was condemned to lose

two limbs imprisonment and hard labour for 14

years. One limb= hard labour for 7 years


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Revised Muhammadan law of evidence and

provided for the prosecution and conviction of

Muslims on the testimony of a non muslims

According to the regul;ation- the religious

persuasion of a witness shall not be

considered a bar to the conviction or

condemnation of a prisoner.


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Crimes in Hindu community

Regulations were passed against female

infanticide in 1795 and1804 The Female

Infanticide Prevention Act 1870

Abolition of Sati by a Regulation of 1829 .

Orthodox Hindus sent an appeal to the Privy

Council in England. Ram Mohan Roy carried a

Counter petition which he presented to the

House of Commons and was present when the

appeal was dismissed.


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Critique Relied largely on written texts and ignored dynamic

interaction between textual law and non textualcustom which had gradually evolved in pre-British

India

Systematic projection of the Sastras -Attempt to

understand the Hindu law on the basis of scriptural

texts- srutis, smritis, Dharamsastras, digests and

commentaries with the help of Pandits-Reliance on

scriptural texts produced an understanding of Indian

society which was overwhelmingly religious- religion

regarded as the prime mover of Indian society


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Tradition ofTikas and Nibandhas which offered

interpretations of the same text varied among authors in

different regions and periods of time. Medhatithis

Manubhasya or Kulluka Bhattas Manavarthamuktavali

British legal terminologies such as digest and law

transformed prescriptive guidelines enshrined in the Sastras

into legal rules to be directly administered through court.

Brahminisation of the lower classes- established Brahmins at

the centre f the judicial discourse. Hindu law expanded its

authority across large areas of society which had not known it

before and for long periods had their own more localize and

non scriptural customs..


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Codification of Law Was one of the most important achievements of

the East India Company judicial administration

1830 Whigs came to power Triumph ofliberalism- The great Reform Act of 1932 waspassed in England

Charter Act of 1833-constitutedIst Law Commissionfor consolidating codifying and improving Indianlaw.

Macaulay, first Chairman of the commission

Our principle is simply this uniformity when youcan have it ; diversity when you must have it ; butin all cases certainty.( Macaulay)


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Macaulay Code- draft of a penal code prepared by himbecame, after a revision of many years, was enactedin 1860 as the Indian Penal Code.Sir James Stephen

"it reproduces in a concise and even more beautifulform the spirit of the law of England, The Indian penalcode is to the English criminal law what amanufactured article ready for use is to the materialsout of which it is made. It is to the French code and to

the German code of 1871, what a finished picture is toa sketch. It is simpler and better expressed thanLivingston's code for Louisiana; and its practical successhas been complete.


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Hindu and Muslim law was rarely included in

these Indian law codes, so the entire

codification process represented the

transplantation of English law to India,

complete with lawyers and judges.


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SECOND LAW COMMISSION under Charter act of 1853. Brief:

examining and considering the recommendations of the first

Indian Law commission for the reform of the judicial

establishment, judicial procedure and laws of India. Achievements-

Penal Code proposed by Macaulay was revised and finally

passed in 1860

Codes of civil and criminal procedure were passed in 1859and 1861 respectively

Draft of Law of limitation was passed into law in 1859

Adopted the recommendations of the first commission

regarding substantive civil law on the basis of the law of

England but with constant regard to the conditions and

institutions of India, the religions and usages of its people

These codes did away with regional and local variations in

judicial practice, brought about legal unity and established

rule of law instead of rule of custom


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Indian high Courts Act-1861 High Courts were

established by letters patent of the Queen in

calcutta , Madras and Bombay. On their

establishment the old Supreme Courts and

sadar adalats were abolished and their

jurisdiction and powers transferred to the new

high courts These courts were independent of the

executive Govt . A free judiciary evolved in

India within the framework of despotism


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1861 Third Law Commission - Events of 1857 Brief :prepare a

body of substantive Civil law using law of England as a basis

having due regard for institutions

Achievements Preparation of draft of law of succession which became

Indian Succession act of 1865

draft of Contract Bill which did away with hindu and

Muslim Law of Contracts enacted as Indian Contract act

1872

Draft of Negotiable Instruments Bill enacted in 1881

Draft of Transfer of property Bill

Draft code of law of insurance


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Fourth Law Commission 1879

Between 1882-1912 no new important codeswere passed. But all important codes were

amended and consolidated.

Contribution -Gave India a system of codesdealing with important parts of substantive

and procedural civil and criminal law.


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Racial discrimination

Civil Justice 1833 Charter act opened up doors of British india for

British subjects

Section 85 of the act provided protection to natives

from insults and outrages of the British subjectsagainst their persons, properties religions etc.

Section 46 made an important reservation- that the

Govt. of India could not make any law without

previous sanction of Directors empowering courts

other than Supreme Court to sentence Briotish

subjects to death.


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Macaulay: for elimination of discrimination- To give

every English defendant in every civil case a right to

bring the native plaintiff before the Supreme Court is

to give every dishonest Englishman immunity against

all civil prosecution.

Special privileges of the British abolished in Civil law

in 1843 but contd. for longer in criminal law.

Code of criminal procedure 1861 secured the legal

superiority of European subjects by reserving for

them special privileges such as right to trial with amajority of European jurors, amenability only to

British judges and limited punishment


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As Thomas, a member of the legislative Council

remarked

Whether a planter gets justice or not at the hand of

the native magistrate is a secondary consideration.

The mere fact of his having to appear before and be

tried by a native magistratewill so lower him in the

eyes of the coolies that he will not be able to

command their respect anymore.

1872 British Subjects living in the interior were

exempt from the jurisdiction of the courts presided

by Indian judges in criminal matters.


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1883- Ilbert Bill- C.P. Ilbert, the Law Member in

Viceroy Ripons Council introduced a bill which

proposed to give Indian District magistrates and

session judges the power to try European offendersin the mofussil as they already did in the presidency

towns. Created a White Mutiny

In 1884, bill was withdrawn . A compromise formula

was adopted whereby a mixed jury was mandatory incases involving European offenders.

1949- Criminal Law (Removal of Racial discrimination

Act)


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Warren Hastings was the first to initiate codification

of Hindu and Muslim law :

Among the various plans , the necessity of establishing anew form of judicature and giving laws to a people who

were supposed to be governed by no other principle of

justice than the arbitrary wills ,has been frequently

suggested it is too positively asserted that written laws

are unknown to the Hindus or original inhabitants of

Hindustan. It would be a grievance to deprive the people

of the protection of their own laws , but it would be

wanton tyranny to require their obedience to others of

which they are wholly ignorant and of such they have nomeans of acquiring knowledge. It was judged advisable for

the sake of giving confidence to the people and to enable

courts to decide with certainty and dispatch to form a

compilation of Hindu law with the best authority that

could be obtained


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to rule effectively, one must love India; to love India, one

must communicate with her people; to communicate with

her people, one must acquire her languages. (Warren

Hastings)

A patron of the arts and of learning he laid the foundations

for the creation of the Asiatic Society in 1784 by Sir William

Jones, a British lawyer and Orientalist, to encourage Oriental

studies.

The declared aim of the society was to further the bounds ofinvestigations will be the geographical limits of Asia, and

within these limits its enquiries will be extended to whatever

is performed by man or produced by nature.


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Sir William Jones

At twenty he became adept in French, Italian, Spanish,

Portuguese, Greek, Latin and English. His knowledge of Arabic

and Persian made King Christian VII of Denmark assign him

the translation of "Tariq-i-Nadiri" into French.

Great admirer of Sanskrit language which according to him

that the Sanskrit language had wonderful structure, more

perfect than Greek, more copious than the Latin.

He translated Kalidasa's "Abhijnana Shakuntala" and "Ritu

Samhara," and Jayadeva's "Gita Govinda" into English.

Laid foundation of Science of Linguistics. Thereafter, many

western universities began founding chairs in Sanskrit.


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The terms- Institute and law were English terms -

Derrrett defined the Western notion of law as

follows:

Law is the body of rules (namely positive and

negative injunctions and prohibitions), which can be

enforced by judicial actions. A rule which will not beobserved, directly or indirectly, in a court or before a

tribunal is not law. What ought (in some peoples

perception) to be law is not law. Ethical injunctions

are not law. That which is left to choice is not law. Both the concepts of code and law were foreign

to the entire tradition.


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The word Dharma literally means to hold, to support, to

maintain or to sustain. The rules expounded here provided

prescriptive, normative and moralistic guidelines for thetwice-born (Brahmin, ksatriya and Vaisya) and marginally for

the Sudras. The prescriptions were designed to regulate the

entire life-cycle of a Hindu individual- both male and female.

They were encouraged to perform the righteous duties

appropriate to his or her sex (Stripuruso dharma), status

(Varna) and stages of life (asrama). In the end, the entire

literature envisaged not only worldly happiness and a

harmonious social order but also hopes of blissful existence in

heaven. Sastras defined wrong actions as sin rather than crime and

they would best impose strictures and penances as symbol of

repentance. The penances were by no means equal to

punishment or conviction


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Focus on hindu law in the early period. Since the

legal theory of Islam did not recognize custom as a

formal and independent source of law

Main text was Al Hidaya- guide to Muslim lawThe

Author, Shaykh al-Islam Burhan al-Din al-Marghindni

(d. 1197 CE) leading jurist of the Muslim world in his

times.Tr. By Charles Hamilton The Hidayah has

dominated the field of Islamic jurisprudence since

the day it was written over 800 years ago. It has been

the primary text used by Muslim jurists to issue

authentic and reliable rulings on Islamic law.

Islamization of Muslim law


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Post 1857 Parsee Marriage and Divorce Act and the Parsee

Intestate Succession Act (15 and 21 of 1865).

The Native Converts Marriage Dissolution act, 1866

that allows a Hindu to appeal for a divorce if aspouse converts to Christianity

The Special marriage act 1872 applied only to

followers of Brahma Samaj . Abolished polygamy and

marriage of girls before 14; sanctioned intercastemarriages and remarriage of widows

The Indian Succession Act 1865


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Age of Consent Act 1891 forbade the

consummation of marriage before the wife

had reached the age of 12.

The Hindu Wills act 1870 extended to hindus

rules and regulations which govern

testamentary disposition in England. Conversions,

to Christianity and to Hindu reformist sects in the nineteenthcentury created social conflicts, in which the British

government intervened with legislations prohibiting civil

discrimination on a religious basis. Hindu, Muslim and Parsi

orthodoxies were unable to prevent such legislation,


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The press and registration of Books act 1867

The Indian trustees act 1865The Religious

Endowments act


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1773- British Subjects residing in Bengal

could be tried only in the Supreme Court.

1793 Justices of Peace were appointed

from the covenanted servants of the

Company who could enquire into charges

and apprehend but could not try.

1813- Magistrates could act as Justices of

Peace and try the English and punish them

by fine not exceeding Rs.500 or imprison

them in case of non payment Such

convictions could be removed by a writ in

the Supreme Court.Act of 1836- abolished discrimination No

person should be exempt from the

Companys courts above that of Munsif in

Bengal. Black Act

1839- No person would be exempt from

the jurisdiction of the Munsif Courts .

Presentation Judicial Admn. 18.1.2011

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