Biyani's Think Tank

Concept based notes

Legal and Constitutional History

of India
Law

Sonia Gill
Lecturer
Deptt. of Law
Biyani Girls College, Jaipur

Published by :

Think Tanks
Biyani Group of Colleges

Concept & Copyright :

Biyani Shikshan Samiti

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E-mail : acad@biyanicolleges.org
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Edition : 2011
Price:

While every effort is taken to avoid errors or omissions in this Publication, any mistake or
omission that may have crept in is not intentional. It may be taken note of that neither the
publisher nor the author will be responsible for any damage or loss of any kind arising to
anyone in any manner on account of such errors and omissions.

Leaser Type Setted by :

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Preface

am glad to present this book, especially designed to serve the needs of the
students. The book has been written keeping in mind the general weakness in
understanding the fundamental concept of the topic. The book is self-explanatory and
adopts the Teach Yourself style. It is based on question-answer pattern. The language of book
is quite easy and understandable based on scientific approach.
Any further improvement in the contents of the book by making corrections, omission
and inclusion is keen to be achieved based on suggestions from the reader for which the author
shall be obliged.
I acknowledge special thanks to Mr. Rajeev Biyani, Chiarman & Dr. Sanjay Biyani,
Director (Acad.) Biyani Group of Colleges, who is the backbone and main concept provider and
also have been constant source of motivation throughout this endeavour. We also extend our
thanks to Biyani Shikshan Samiti, Jaipur, who played an active role in co-ordinating the various
stages of this endeavour and spearheaded the publishing work.
I look forward to receiving valuable suggestions from professors of various educational
institutions, other faculty members and the students for improvement of the quality of the book.
The reader may feel free to send in their comments and suggestions to the under mentioned
address.

Author

Legal History
Legal History Notes- A comprehensive compilation of the landmarks in Indian Legal and
Constitutional History1
Charter of 1600
The governor and company merchants of London trading into the East Indies fifteen years
life. Can be wound up with 2 years notice.
India, Asia, Africa & America falls within its jurisdiction. Exclusive trading rights- violators
are punished all members together form general court.
General court elects the board of directors for one year, the board consists of the governor
and 24 directors.
Legislative powers
General court has the authority to make, ordain and constitute laws, orders and constitutions
for the good governance of itself, its servants and better advancement and continuance of its
trade. Punishments can be given for violators, they range from fine, forfeiture and
imprisonment.
Shall not the repayment to laws, customs and statutes in Engla nd.
No legislative powers over any territory.
It was the germ out of which the anglo-Indian codes were ultimately developed.
Kings Commission
Involving royal prerogative obtained commission to the captain of the ship. Separate
commissions were dispensed with the power was conferred on the company
In 1615- trail by jury of12 persons.
1623- Similar powers were given to ordain the settlement on land- on precedents or chief
officers. Power to enforce discipline both on land and high seas.
Charter of 1661
It authorised the governor and council of each factory to judge all persons, whether
belonging to the company or living under them in all causes, civil or criminal according to
the laws of England and to execute judgement accordingly.

Sonia Gill, Assistant Professor, Department of Law, Biyani Girls College,Jaipur.

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1600
1661
Only to company servants
including Indians
No power to award death sentence
sentence
To enforce discipline
companys territory.

to all living in the settlements

has got power to award death
creating judicial system to

Features
1. No separation of judiciary and executive powers with governor and council.
2. Applied to English Law.
Surat Factory
Set foot on Indian soil during Jahangirs reign.
Factory was a place consisting of offices,residences for companys servants and spacious
warehouses for storage of goods.
Factory-Province- Empire.
Commercial centre- busy port- routed the Portuguese.
1612 Factory with permission of local moghul governor
Firman- James I sent Sir. Thomas Roe to Moghul emperor for obtaining trading facilities
directly from him. He issued firman in 1615.
Features of the Firman
Established factory in a hired house
Allowed to give- their law religious-they settled disputed among the themselves Disputes
with natives Local law
1687- Seat of president & Council was transferred to Bombay.
Presidencies of Bombay , Calcutta, Madras.
-Presidency towns , and territories around them are known as moffusil.
Surat had a rudimentary administrative and judicial setup.
Law
- Law was a personal and religious institution.
- Criminal law Muslim law
- Civil law personal laws of community
- English people obtained right to be governed by their own law.
- Right to self- government was given.
Judiciary
- Governor and Council

Disputes among the companys servants only

No regular tribunals
Charter of 1623 authorised criminal trails
Justice according to justice and fairplay.

MADRAS PRESIDENCY
Three stages I stage 1639-1665
Second stage 1665-1686
Third stage 1686-1726
First stage:
Madras was the first presidency town to be established in India
Founded by Francis Day-fortified factory-called fort st.George.
Full powers to govern and dispose of the government of Madraspatanam- a small village
lying near the fort.
The white town and black town together came to be known as Madras.
Administration
Status of agency-agent and a council and subordinate to Surat.
Judicial System
White town-agent and council- complicated matters were referred to companys authorities
in England
Dictatory and unsatisfactory.
Black town- Raja left the authority to English- no regular tribunal was set upchoultry court- Adigar-old, traditional- indigenous system-small civil and criminal casesadigar corrupt- English men appointed to that duty-procedure informal- serious crimes
referred to Raja.
Raja ordered the company to execute1. company had no power to do so under the charter of 1600
2. did not want to annoy local people and raja
system was demeritary
Second stage
Case of Mrs.Ascentia Dawest (1665) murdering slave girl- was referred to the company in
England-decided to invoke charter of 1661-status of agent was raised to governor
Thus became Presidency in 1665
Charter 1665 applicable to all live in the settlement including local people
Applied English law
No expert in law
Justice according to wisdom and common sense
Governor and council hesitant- being conscious of the lack of power

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They consulted the authority in England causing inordinate delay

Streynsham Master-governor 1667 to 1681
High court of judicature-1678-governor and councilhas to sit on two days weekly- English
law was applied
Choultry court-upto 50 pagodas small and peety criminal cases-appeals to the high court of
judicature
Third stage
Admiralty court- all cases mercantile and maritime in nature-trepass, injury or wrong in the
high seas or within charter limits
Composition-person learned in civil law and two merchants
Chief Judge called the judge advocate
Law applied- rule of equity and good conscience and the laws and customs of merchants
Founded on the civil law rather than common law
Procedure- it can settle subject to crowns directions
The charter of 1683 by Charles II established one or more courts for people indulging in
trade violating the monopoly
Mercantile and maritime law-based on roman law- based on roman law
1687 John Riggs as Judge Advocate
After the arrival of the lawyer governor and council relinquished judicial functions.
Two Important changes
1. Expert in law for the first time
2. Executive was separated from judicial __
Powers- Civil, criminal, mercantile and maritime in criminal cases jury trial was followed.
1689- Briggs died , Governor general and council appointed __
Judge advocate and two members of the council __ other judges. Associating with them, two
merchants, an Armenian & a Hindu to assist the court.
1692- new judge advocate John Dolber was dismissed in 1694, William Fraser a civil
servant. Thereafter the members of the council sat in turn as judge advocate since 1696.
1698 -onwards started hearing appeals from admiralty courts incase of less than 100 pagodas.
1704 ceased to sit as a regular court.

MAYORS COURT
Corporation
Charter of 1687 relied on 1600& 1683- empowered company to constitute a corporationCorporation came into existence on Sept. 29, 1688.
Mayor(An Englishman, elected every year by aldermen and burgesses) 12 aldermen(for life
or during the residency in Madras by Mayor, aldermen & burgesses from burgesses of whom
atleast three should be companys covenanted Servants), 60 -120 burgesses(selection by
aldermen and mayor)
Reserve power with the governor and councils to remove anybody.

Mayors Court
Court of Record
Composition: Mayor and three senior aldermen
Quorum : Mayor and two aldermen
Recorder of court-covenant servant skilled in law Briggs
Juris diction : Civil and Criminal, granting probates of wills, letters of administration of
deceaseds property. Appeal to admiralty court- in civil (over 3 pagodas) criminal
Sentence of laws of life and limb.
Jury in criminal trail.- Justice was dispensed
Law applied :- In a summary way according to justice and good conscience and laws made
by company- it was not definite- decision uniformity and consistency
It would award death sentence only to Indians
Demerits :
1.
2.
3.
4.
5.
6.

Recorder is the judge advocate in admiralty court which would hear appeals from
Mayors court
Some of the Council members were part of the corporation thereby the judges in the
mayors court
Governor and Council could remove the members of the corporation a nd appoint
someone else.
The strained relationship between governor and council affected the functioning of the
court
Biggs death- Admiralty court was suspended Mayors court claimed its orders are
final but the governor and council did not accede to it.
Choultry court lost importance petty jurisdiction trying small offences and civil
cases upto two pagodas.

BOMBAY
First: 1668 1683,
Second: 1684 1690
Third: 1718 1726
Portuguese acquired island of Bombay in 1534 by cession from king of Gujarat & sultan
bahadur.
In 1661, the Portuguese king, alfonsus Vim transformed the island to Charles II as dowry on
the marriage of his sister Princess Katherine with British king.

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First 1668 1683

A population of about 10000

Charter of 1668:
Full powers, privileges, jurisdiction, for the administration, legislature and dispensation of
justice.
Company was empowered to laws for good governance and improve penalties for breach of
such laws.
Law applicable
1. Company can make the laws.
a. They were to be consonant to reason and were not to repugnant or contrary, but as
near as might be agreeable to English law.
- Company was authored to create courts
- Procedure as established and used in England.
-

it concedes imperium and jurisdiction sovereignty with necessary flexibility

Judicial system 1670

Deputy governor and council for administration under the surat presidency.
Bombay two divisions
1. Bombay, mazagaon and girgaon.
2. Nasik, sion and worli
Composition
A court of 5 judges each.
President of the court customs of of each divisiom
Indians were also appointed
4 judges were the qurom.
Remuneration not paid, they were honorary.
Jurisdiction 1. Civil disputed upto 200 xeraphim or rs. 150
2 criminal cases of small thefts
Superior court deputy governor and council
Jurisdiction 1. Appeals from divisional court
2, original, jurisdiction in all matters beyond his jurisdiction of devisinal courts.
Trial by jury in D.G and councils courtscourts are to be maintain records to be submitted to
D G and council.
Demerits elementary, nature.
1. Judges are traders not experts.
2. No remuneration
3. Judiciary was too much identified with executive.
Judicial system of 1672

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Initially the English had not been formally introduced

1672 English law by a government declaration.
A court with George Wilcox as judge.
Jurisdiction civil, criminal, probate & testamentary, civil care by jury, sit only once a week
to decide civil cases.
CRIMINAL JUSTICE
In Bombay the criminal jurisdiction was divided into four- Bombay, Maim, Meagan and
Sion.
The Justice of Peace an Englishman was appointed in each division for parliamentary
examination of witnesses.
The same court which decided civil cases.
Acted as a committing Magistrate. Sat once in a month with jury.
All Justices of peace sat in the court Assessors to help the court.
Appeals governor general and council at Bombay.
Court of Conscience to decide petty civil cases upto 20 xerafins without jury.
Sat once in a week no fee
Remuneration- Rs. 2000 per annum
In actual practice it was not paid later it was reduced considerably
In 1683 the system came to end due to Keigwins rebellion on the island.
SECOND PERIOD -1684-1690
Admiralty Court was set up in 1684 under the Charter of1683. Dr. John, a learned civil
lawyer was appointed as the Judge Advocate. The remuneration paid was 200 pounds.The
appointment of legal experts in Bombay didnt come well as in the case of Madras. The court
had civil, criminal, admiralty and maritime affairs. The Surat Governor Child and the
Governor turned into inimical terms. Later the Governor in1685 by divested the admiralty
court its civil and criminal jurisdiction.
NEW COURT WITH VAUX AS JUDGE
The court had to try civil and criminal cases. Disputes arose between Dr John and Vaux as to
the jurisdiction in civil matters between the council and the governors councils appellate
jurisdiction.
Dr.St.John was dismissed in 1687
Conflict between judiciary and executive
After Dr.st.John Deputy Governer took over the judgeship of Admiralty Court. Compny
objected to it Vaux was appointed as judge.
1690 Bombay was attacked b Moghul Admiral Siddi fell on evil days. Put an end to the
existing system.
THIRD PERIOD (1718 1726)
Composition ( in the year1718) : Chief Justice and nine other judges.
5 were British 4 were Indian judges representing Hindus, Muslims, Portugese,
Christians and Parsis known as Black Justices.
C.J and a few were members of G & Council.

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Jurisdiction : civil, criminal, testamentary, worked as a registration hours for immovable

Properties transfer.
Law applied : justice according to Law, Equity and good conscience, the Companys
rules and ordinances due regard to caste customs and English law.
Appeal : Governor and Council
no provision for jury trial
- moderate fees were charged.
( 1687 G & Council moved to Bombay from surat.)
Quorum : 3 English judges
- Indians role was in the nature of assessors to make familiarize with
local
Customs, roles. They were the leading people of the locality following
Mayors court which had Indians.
Merits : outside element in the sense Indians had a place in the composition of the court
however small their role in the court.
Demerits :
1. Judges took part in hearing cases in which they themselves are
interested.
2. Members who sat in the court were Council members. They again
would sit in G & Council as ultimate authority.
3. Executive never interested in having an independent judiciary .
Mayors court
Charter by King George I on the 24 th of September 1726 judicial charter
a. uniform system of administration of justice in all the presidencies town
b. courts derived authority from the crown and not from the company
c. initiated the system of appeals to the privy council established a bridge between
English and Indian legal systems. tried to apply English principles of law were
Indian law was deficient and wanting.
d. established local legislatures
e. introduced English law to india
Charter however followed two traditions
f. justice continued to be administered by non professionals
g. integral relationship with executive and judiciary was maintained
Reasons:1. Presidency towns grew in size and population better system of administration
and delivery of justice was necessary

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2. testamentary jurisdiction with authority was necessary. without this the

verdicts of the company were challenged in the English courts .

Corporation
Mayor
9 Aldermen 2 could be subjects of any prince who is in amity with the
British- the rest are natural subjects of the crown
mayor holds the post for an year-has to be elected every year among the
aldermen .
Alderman held the post for life or residency in the town- vacancy was to be
filled in by the mayor and aldermen from among the principle inhabitants of
the town.
Governor and Council could remove aldermen on sufficient grounds appeals
would otherwise lay to the privy council.
Mayors Court
Composition- Mayor and Aldermen- 4
Quorum- Mayor or senior aldermen and two other aldermen
Jurisdiction- 1. presidency town and its subordinate factories
2. civil, testamentary matters [could grant probates of will and letters of
administration]
Court of Record and can punish for contempt
Law applied:- court was to render its decisions according to justice and right
administered English law
Criminal jurisdictionComposition- Governor and five senior members of the council each of
them was to be a justice of peace - three justices of peace formed a court of
record-same powers as enjoyed in England justices acted as committing
magistrates also [ apprehending and preliminary inquirydecided petty cases,
the more serious crimes were referred to the quarter session court
Powers had the powers of the court of oyer and Terminer and gaol delivery
Plenary jurisdiction- formerly, tried criminal cases, felonies and
misdemeanors, but later try only those arrested, lodged in prisons trial by
grand and petty jury
Quarter sessions- four times a year

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13

Procedural Law- manner and form

The procedure followed by the different organs were to be the same or in the
like
manner and form as near as the circumstances and conditions of the inhabitants will admit
of as the similar courts and jurisdictions in England do and proceed.
judiciary independence- not provided for since the members of the governor and council
were the judges of criminal cases and appellate jurisdiction not professionals
Before it was court of directors legislative Governor and council of each presidency town
was given powers to make by- laws, rules and ordinances for good governance and regulation
of the corporation and the inhabitants of the settlements. They were to be agreeable to reason
and contrary and repugnant to the laws and statues of England. Were not be effective unless
approved court of directors first time legislatures were created
Mayors court of 1687, Madras

Under Charter of 1726

1.Applied only to madras

To all presidency towns

2.jurisdiction-both civil and criminal cases

Only civil cases

3.appeal to admiralty court

Appeal to governor and council and then

to privy council

4.charter of company itself

Charter of the crown

5.lawyer was attached as Recorder

No legal expert

6.was more of a court of equity rather than

law

Thoroughly an English court-english law

substantial and procedural

7.administered criminal justice also

Criminal justice was left to the governor

and council- not regarded as a
progressive step

8.sizeable representation of Indians

Under-represented

Working of the systema. it was not smooth and was marred by hostility and conflict between the gover nment
and the Mayors court
b. the functioning was not as much useful to the Indians it applied English law and
procedure was not in conformity with the ideas and traditions of the people
eg.pagoda oath and gita oath
c. the court attempted to arrest independence , its members did not show judicial
restraint or dispassionate attitude
d. council asserted its supremacy all through.

Charter of 17531746 French occupied Madras and surrendered it only in 1749

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charter of 1726 ceased to exist and new charter was issued1. Mayor is appointed by governor and council out of a panel of two
nominations submitted by the aldermen.
2. aldermen were appointed by the council
3. the power of dismissal already law with the governor and council
4. the jurisdiction of the court vis--vis Indians restricted- only when both the
parties submitted to its jurisdiction
5. flexibility in administration of the oath
Provisions to make it impartial and effective: 1. action can be moved against the Mayor
2. interested parties cannot be judges to the same cause
3. can hear suit against the company and the govt. must be the defendant
4. court fee to be deposited with the govt and not with the court

Creation of new court-court of request

Composition: Commissioners from 8 to 24 in number. 3 were to form the court
Appointment: First commissioner was appointed by the Government from amongst the
servants. Half of them retire every year. New appointments were to made by ballot by
remaining commissioners.
Jurisdiction: cases value upto 5 pagodas or Rs.15.
Successful court, not much problems- as-indians disputes did not draw much attention from
the council because of the value of the dispute
1753 hierarchy of courtsCivil side:
Mayors court
Court of requests
Governor and council
Privy Council
Criminal side:
Governor and council-quarter sessions court
Justices of peace
Privy council
Courts to the Inidians
MadrasProblems with Mayors Court-comment-court of request can decide cases uptto Rs.20
1726- Choultry court was reconstituted appointed justices of peace upto Rs.20
Justices of peace is member of the council and appeal from this court would lie to the
governor and council
Sheriff court-abolished later
1796

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Simple court under a servant of the company to hear cases over 5 pagodas, sat twice a week,
gave way to recorders court in 1798
CalcuttaDue to ban on Mayors to try cases of Indian, Indians did not suffer much, because of the
existence of zamindari or collectors court trtried cases beyond the jurisdiction of courts of
request.
Ban on the mayors court to deal with the cases fortified the position of the zamindari;s court.
But dispute arose as to the jurisdiction. Zamindari court had no jurisdiction over
Europeans,Americans, fringys(black mixed Portuguese Christians)
Zamindaris court was reformed.
Criminal
Justices of peace to take cognizance of all criminal caese.
Quorum-3 justices of peace to try only capital offences
Capital sentence required approval from the governor and council
Civil
Composition-a court of 5 companny servants
Jurisdiction- cases valued more than rs.20
Appeal- to Governor in council over rs.100
Quorum-3 sat ordinarily. One sat to decide the cases.
Quarter Sessions tried some cases involving Indians
Case of lady committed infidelity
Forgery and petty thieving were met with death penalty following accordance with English
laws was beyond the imagination of the Indians out of tune with their prevailing mores,
notions and customs
Bombay- Mayors court continued to exercise its jurisdiction over the Indians for two
reasons that Bombay was ceded to the British crown , consequently the company had full
power over the territory no new courts were created in Bombay
Defects of the judicial system: a. too much executive ridden
-members were nominated by the govt.
-youngsters-servants depended on the grace of the company
-not an effective instrument of justice
-could not take detached views were the government or its members were directly or
indirectly interested
-power of dismissal
system suffered from all weaknesses arising fro m a combination of executive and judicial
authority in the hands of the people who had commercial interests of their own to defend.
justice was too much of a political farce

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criminal jurisdiction- consisted of members of the executive, too suffered the similar
weaknessesjudges never took impartial decisions were company or its members are interested. jury also
failed refused to take cognizance of such cases
matterexecutive legislative powers on the same body
the whole government system of a presidency town was despotic in nature without any
adequate safeguard to the people liberty, life and property
a. lack of adequate knowledge of English law on part of the judges
-knowledge confined to material supplied by the company
-judges primarily men of commerce and not of law
-no codes or law reports
-also practiced law without the necessary legal training, cases were
decided according to their sense of discretion, sense of justice and fair
play
-no problem with simple cases but trouble with intricate or difficult legal
questions arose on the criminal side also
The charter of 1726 and 1753 introduced technicalities of the English law
and procedure and forms of the English judicature in the presidency towns
without at the same time introducing any legal element in the composition
neither of courts nor with competent people to work them properly.
b. comments and observations by the companys lawyers in England on the
working of the courts
c. arrangements made for the administration of civil justice were poor and
insufficient
-application of English criminal laws which was too harsh proved to be
not in tune with the local laws or customs
e. territorial jurisdiction was confined to the presidency towns no
mechanism to judge English people who resided outside the presidency
towns.
f.
treatment of attorneys they were dismissed without adequate reason
and at the
companys pleasure
Merits:Mayors court did constitute an important link in the chain of the
evolutionary process, it was more regular and formal , paved way for more improvements
and sophisticated judicial system manned by professional lawyers continued to exist till
1798 in Bombay and Madras.
BEGINNING OF THE ADALAT SYSTEM

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Adalat system in the territory of Bengal, Bihar and Orissa beyonf the Presidency town of
Calcutta.
As time passed the Company expanded its political activities and brought new territories
surrounding the Presidency Towns under its control known as Moffusil in contradiction
with the Presidency Towns
First territorial acquisition of Bengal, bihar and Orissa.
COMPANY BECOMES THE DIWAN
1756- Calcutta was captured by Siraj-ud-Daula :Nawab of Bengal. Who turned out the
British.
1757 Recaptured by Sir Robert Clive (Battle of Plassey in the same year, Nawab was
defeated)
Power passed into the Companys hands
Company appointed as the Nawab
Fiction was maintained due
(i)territorial acquisition may invite parliamentary interventio n
no
sov.
(ii)invite international conflict due to jealousy between French and Portugese.
Deputy Nawab was appointed
1764- Battle of Buxar
1765- Moghul Emperor Shah Alam granted the Company the Diwani for the annual payment
of Rs. 26 lakhs rest of the revenue went to the Company =de jure Diwan
Diwani

Province or Susah

Nizamat(Nawab or nizam)

Diwan collecting revenue Positions were held during Military, maintenance of law
Deciding civil &
the pleasure of Emperor and order, administration of
Revenue cases.
Criminal justice.
System of Checks and balances
Division between treasury Power
Due to disintegration of Moghul EmpireNawab became more powerful and
appointed as the Diwan.
Emperor became only titular head fait accompli
Theoritically Nizamat was left to the Nawab
Company wanted to make him powerless
Right to maintain army was taken away

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53 lakhs annually paid for maintaining himself and administration of criminal justice.
EXECUTION OF DIWANI FUNCTION
No mention in the firmangiven Cali Blandra
Company had no acquainted with administration
left to indigenous machinery
System proved to ruinous because nobody felt responsibility, companys officials were
corrupt- exploited the country, they involved in private trade
Total Anarchy, no security of life & property 1771.Bengal faced a very acute a famine. 1/5 th
of the population swept away.
1771- Company decided to stand forth as diwan
For good revenue- these must be prosperity .there must be peace and security of life n
property
Judiciary was also corrupt
Judicial Plan 1772
Plan of 1772 was devised with a district as the unit. The whole territory was devided into
several districts- collector ineach of these who was to be responsible for collection of la nd
revenue. Applied personal laws native law officers were appointed kazis n pandits
CIVIL
a. Mofussil diwani adalats
Collector as judge all civil cases , real and personal property , inheritance, marriage, caste ,
disputed accounts , debt, contract ( upto rs 500 was final), partnerships, demands on vast
b. Small cause adalats
Disputes valued upto rs 10
Presided by head farmer of pergunna
c. Sadr diwani adalats
Governor and council members
Appeals from mofussil diwani adalats 5 % courtfee, within 2 months
CRIMINAL
a. Mofussil Nizamat Adalat
b. All criminal cases collector supervise
Judicial plan 1980
Provincial councils were diverted with judicial power
Confined to collection of revenue and to decide revenue disputes
Civil
A provisional diwani adalats : was established in each of the 6 divisions
Superintendent of Diwani Adalat
Presided over it he was a covenanted servant of company and he had to take an oath that he
will increase his powers with fear n power
Jurisdiction
Civil cases . inheritance , property, contract, could decide cases relating to the inheritance n
succession of zamindaries and talukdaries

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Native law officer- authorized to expound law

Appeal- in case the value exceeds 1000 rupees to sadr diwani adalats
Court fees rangin from 2% to 5%
EVALUATION
Clear separation of executive n judicial functions provincial council had no judicial
powers
DEMERITS
1 paucity of adalats
2 heavy work load
3 superintendants were junior officer no legal knowledge or other experience
4 revenue cases decided by provincial cases judge of its own cause
29th September 1980 Impey was appointed to the sadr diwani adalats remained for a year
there are some sought of regulations for functioning of adalats
1781
Number of diwani adalats increased to 18- adalats were to hv jurisdiction completely
separate from the revenue jurisdiction or public revenue
Judicial Plan of 1772: CRIMINAL
a. Moffusil fordari(nizamat) adalat
All criminal cases collector supervise
Consisted of muslim law office, kazi, mufti, moulavis,
Death & forfeiture of property with sadar nizamat adalats confirmation.
b. Sadar nizamat adalat
Composition - daroga-i-adalat
assisted by chief kazi, chief mufti & 3 moulavis
Appointed by nawab on the advice of governor
Jurisdiction confirmation of death sentence & forfeiture of property. General
supervision.
Miscellaneous provisions
Civil head on open court, were to maintain registers and records, abstracts of records were
to be given to sadar adalat, limitation of 12 years, a rough and ready procedure, moderate
fees prescribed arbitration was provided.
Criminal severe punishments dacoiti were executed mutilation was not found favours
with.
Appraisal of the plan
Judges were paid by the govt. court fees went to the govt.
System commission was abolished a court in each district easily accessible zamindars
judicial powers were abolished.
Traditional division between diwani & nazamat was maintained.
Technically company was only responsible for civil justive as diwan. Criminal justive was
with nawab. Warren Hastings forced only to organize them in 15 aformal patterns. Criminal
administration, muslim law officers. Supervision provided for.

20

Bold step Decided to follow personal laws in civil litigation.

Defects 1772 plan
a. Dacoity of court districts were inaccessibly due to the distance. Small cause courts
jurisdiction was limited more number of courts were required.
b. Concentration of power in collector
Revenue collection, administration, civil judge and supervisor of criminal court.
Plan of 1774
a. Collectors were recalled instead a amil or diwan was appointed for collection of
revenue and to start as judge in mofussil diwani adalats
b. Whole territory divided into six divisions. It consists of several districtsA provisional council in each division with 5 covenanted servants as judges to hear
appeals from a] mofussil diwani adalat and supervise revenue collection original
jurisdiction at the place were they sat
Demerits Council members were more despotic
- Corrupt as they were junior servants than seniors
SUPREME COURT AT CALCUTTA
After the Battle of Plessey, Bengal, Bihar and Orissa were in the grip of confusion, chaos and
anarchy. The Companys servants exploited Indians and amassed wealth. They returned to
England and led a life out of tune against the existing mores. They got involved into active
politics. They purchased seats in the House of Commons. They also purchased Companys
shares and attempted to influence its policies. This created doubt in the mind of people in
England. Company in India underwent a severe crisis. They requested the Crown to grant
them a loan. The Crown took this opportunity to acquire and regulate the Companys affairs.
The Parliament appointed a Secret Committee and Select Committee for this purpose.
REGULATING ACT OF1773
The Act aimed at establishing certain regulations for the better management of the affairs of
the East India Company as well in India as in Europe.
1. Directors term was fixed at 4 years. There was also a provision for electing one
fourth of them annually.
2. Voting rights were restricted. One can vote only he had stock worth 1000 pounds.
3. Control correspondence relating to the revenue from India were to be submitted to
the Treasury and on civil and military affairs before the Secretary of State.
MACHINERY FORADMINISTRATION
The Governor General and Council of 4 had a tenure of 5 years. They were to act according
to decision of the majority. The presidencies of Madras and Bombay were made subordinate
to Calcutta. It put the two Presidencies under the control of Calcutta in matters of war and
peace with exception of imminent necessity or direct orders of Court of Directors.
LEGISLATIVE AUTHORITY

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21

Governor General and Council were authorized to enact suc h rules, regulations and
ordinances for the good governance of Fort William and factories subordinate to it.
RESTRICTIONS
1. Not to be repugnant to the laws of England.
2. To be reasonable and to impose reasonable penalties for their breach.
3. Rules were not to be effective until they were registered and published in the
Supreme Court.
Appeals were to lie to the King in Council from an aggrieved Indian within 60 days of
registration. Suo moto powers of the King in Council to review the rules within 2 years.
One can see elements of JUDICIAL REVIEW of legislation.
MISCELLANOUS PROVOSIONS
1. The Governor General and Council members, judges of the SC, officers involved in
the collection of revenue were prohibited from receiving presents or engaging in
private trade.
2. Kings Bench was authorized to punish crimes or misdemeanors committed by the
officers.
SUPREME COURT
Composition: Chief Justice and puisne judges.
Qualification: only a barrister of 5 years standing.
Appointment: by crown.
Tenure: during the pleasure of the Crown.
Jurisdiction: civil, criminal, admiralty and ecclesiastical, equity.
Territory: Bengal, Bihar, Orissa
PERSONS; The Company, the Corporation of Calcutta, His Majestys subjects residing or
having debt or property in Bengal, Bihar and Orissa, executors or administers of those
subjects, any person employed by or being directly or indirectly in the service of the
Company, the Corporation or any of His Majestys subjects, any inhabitant if he enter into an
agreement with His Majestys subject agreeing to be subjected to its jurisdiction.
EQUITY: Power as nearly as maybe according to the rules and procedure of High Court of
Chancery.
CRIMINAL: As a court of oyer and terminer and goal delivery, employed Grant and Petty
jury.
- Power to reprieve or suspend the execution of capital sentence till a mercy
petition is decided by the Crown
ECCLECIASTICAL: On British subjects in the territory according to the ecclesiastical law
prevailing in the Diocese of London. It had the power to issue probates a nd letters of
administration. It also had the power to appoint guardians and keepers of infants and insane
persons.
ADMIRALTY: Over the same people civil and criminal maritime issues.
SUPERVISORY: Over courts of Requests, Justices of Peace and Quarter Sessions similar
to the powers of Kings Bench.
WRIT: For the above purpose.
JUSTICES OF PEACE: Empowered to arrest and examine those who were charged with
serious offences, and to punish minor offences.

22

KINGS BENCH: Jurisdiction to issue writs such as mandamus, certiorari, prohibition,

habeas corpus.
POWERS: Court of Record was authorized to frame such rules of procedure, had to do all
such acts as were necessary for the administration of justice and due execution of all powers
conferred on it subject to approval of King in Council.
APPEAL: - Civil- If the value exceeds 1000 pagodas and on petition seeking permission
from the S.C within 6 months of judgment.
CRIMINAL: Discretion of S.C, absolute power. Reserve powers to admit or refuse an appeal
from any judgment, decrees, or order of S.C.
LEGAL PROFESSION: S.C was powered to admit advocates and attorneys, only they could
appear, on reasonable cause they could be removed from the role.
IMMUNITY: Gov- Gen, Council members Judges of S.C were to be exempt from the
process of court except for treason or felony.
MERITS:
1. Judges were professional lawyers
2. Tenure Security- appointed by the king and continued during his pleasure
3. Judges had knowledge of English Law.
4. Independent of Companys organizational scheme, separation of Judiciary and
Executive.
5. Jurisdiction extended beyond Calcutta, and over Bengal, Bihar and Orissa- could
book those Englishmen residing in these areas.
6. It was a combination of ordinary as well as equity jurisdiction.
DEMERITS:
1. Charter had not specifically dealt with regarding Bengal, Bihar and Orissa. Various
powers over these territories.
2. Diwani lands were not considered as British territory, yet allowed the S.C writ to run.
It created anomaly and contradiction in the exercising of jurisdiction. Bengal, Bihar
and Orissa were Diwani lands. It was not British territory and therefore no
jurisdiction theoretically. But practical emergencies compelled to do so.
3. The terms British Subjects and subjects of His Majesty, persons employed directly
or indirectly in the service of the Company were not clear from the Charter.
4. Regulating Act sought the S.C to control executive, it suddenly overturned the system
prevailing, in which Judiciary was controlled by the executive.
Jurisdiction over such persons- jurisdiction that was exercised by the Kings Bench
and to issue writs. There were frequent conflicts between G.G in Council and Court
and also between the servants and Courts.
-whether S.C had jurisdiction over matters relating to collection of revenue.
Can the Council interfere with Diwani functions of Company.
5. The Act and Charter did not specify the relationship between the G.G and Council
and S.C. It was not specified in case of dispute between the two which would prevail
over the other. The Act did not draw distinction between their governmental and
individual acts.

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23

6. Conflict between Companys court and S.C since the S.C had got jurisdiction over
Bengal, Bihar and Orissa- overlapping of jurisdiction. Whether the S.C got
jurisdiction of Companys Courts their illegality, wrongs or corruption. Interference
was not to the liking of Governor General and Council.
7. Judges were to act as Justices of Peace- whether this extended over the Indians also.
They were to function according to English principles of law. If Indians were made
subject to this jurisdiction the English law would apply. It was contrary to the
principles then followed that natives are governed by Mohammedan criminal law.
Issues arising out of commission of an offence by British and Indians together.
8. It vested in each judge the authority and analogous to that enjoyed by the Court of
Kings Bench. It includes the power to issue writs. If the intent of the Act was to
control the Companys people it could issue writs. In that event the whole adalat
system would have been brought under the control of S.C.
9. Justices of Peace after committed proceedings satin the Court as judges- investigation
and adjudication were in the hands of same person.
10. The creation of Supreme court gave rise to a host of p roblems for Indians in the
moffusil since they applied English laws which were totally inconsistent with the
traditions and mores of the Indian people
-Question of jurisdiction they should appeal first and plead lack of jurisdiction in
effect subjected to the proceedings bail bond values were very high
11. The Act left wholly untouched the question of law to be administration by the
supreme court the unregenerate english law, insular, technical , formless , tempered its
application to the english circumstances by the quibbles of judges and the obstinacy of
juries, capable of being an instrument of the most monstrous injustice when administered
in an atmosphere different from that in which it had grown.
Trail of Nandakumar:Raja Nanadakumar at the instance of the majority of the council members brought a
notion against warren Hastings on the grounds of bribery and corruption before the
council hastings was very annoyed by it- later one mohan Prasad filed certain changes
of forgery against Nandakumar before S.C - he was tried with the help of jury and
sentenced to death . An Act of 1728 by Parliament had made forgery a capital offence.
Sentence was executed duly
The execution of Nandakumar is said to be a judicial murder
The reasons were based
-on the question of applicability of English law
-on the ground that trail was baised and it was at the instance of Warren Hastings
I. A. Though the English law was made applicable to it was applicable only in so far it
suits the local conditions the question was whether it was suited in the
circumstances prevailing then forgery was not a capital offence as per the hindu
and muslim laws
B. The act which made forgery a capital offence was in the year 1728 During that time
when king introduces his law in a conquered dominion , all such laws as were in force at
the time in England at that time when the laws are so introduced , do become the laws of
the dominion . the laws made subsequent to that was to be specially introduced, otherwise

24

such laws are most applicable . it was followed that the English law was introduced only
in the year 1726. Therefore unless the Act of 1728 introduced specifically it has no
application to Calcutta.
II. 1] The charge preferred against Nandakumar was shortly after he had leveled charges
against warren hastings
2] C.J Impey was a close friend of Hastings
3] Every judge of the S.C cross examined the defence witnessed due to which the
defence collapsed.
4] Application for granting leave to appeal to the king in council was rejected
5] Nandakumar applied for mercy, it was not forwarded to the S.C . It was granted
in another case.
Recorders court
Act of 1797 act of parliament authorizing the king to establish mayors courts. Madras 1798
in Bombay also near about that time.
Composition :mayor and three aldermen and a recorder.
Qualification: Recorder was to be a barrister with not less tah 5 years standing. Recorder was
the president of the court.
Jurisdiction: civil, criminal, ecclestiastical and admiralty. Its authority was similar to that of
Supreme Court t Calcutta.
Personal: similar to SC but the jurisdiction of British subjects or his majestys subjects in the
territories of native princes in amity with company or in alliance.
Restriction: all the restrictions imposed upon the SC at Calcutta was extended to this court
also by the act of 1981. Matters concerning revenue. Wider in nature.
Appeal: judicial committee of privy council.
Recorders court absorbed the mayors court and the court of Oyer and terminer and gaol
delivery under the charter of 1753.
Court of requests: jurisdiction of court of requests established in the presidency towns were
increased from 5 pagodas to 80 rupees.
Comparison with old mayors courts
1. Consists of legal expert.
2. Independent of companys establishment. Recorder was appointed by the crown.
3. It has both civil and criminal jurisdiction.
4. It has admiralty jurisdiction.
5. Indians subjected to its jurisdiction within the presidency town. But mayors court
was not.
6. Mayors court though an English court could not apply English law due to lack of
knowledge. But recorders could do so.
7. It applied the personal law of hindus and muslims- not mayors court.

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25

8. Appeal from mayors court to governor general and council and then to king in
council if value exceeds 1000 pagodas.
Supreme Court
Act of 1800 by parliament. Supreme court at Madras. Established in the year 1801.
Act of 1823, established in the year 1823.
Federal court
Government of India Act, 1935
Federal court 1937
1. Original
2. Advisory- governor general can seek the advice of council.
3. Appellate- with special leave from high court. If no leave is made no appeal can
be made.
Appeal to privy council1. Original jurisdiction
2. In other cases by the leave of the federal court.
Sc 212- privy council decision binding
Appointment by his majesty. Continue till 65 years. Removal is same as that of high
court judges. The federal court( enlargement of jurisdiction) act, 1948.stopped appeal to
privy council from high court.
Privy council abolition act- power of privy council to FC.
Privy council
King in council privy council
Star chamber abolition act 1641.
Residuary appeals from its colony
A committee of privy council.
1833- judicial committee act.2 Indian retired judges as
Special features
1. Advisory in nature
2. Report does not contain difference of opinion.
3. Not bound by the rule of precedents.
1949, abolition of privy council jurisdiction act
JUDICIAL PLAN:1780
Provincial councils were divested with judicial power.
-confined to collection of revenue and to decide revenue disputes.
Civil provincial
A provincial adalat :was established in each of the six divisions.
Superintandent of the Diwani Adalat presided over it was a convenanted servant of the
company and he had to take another that he will exercise his powers with fear and power.

26

Jurisdiction-: Civil cases, inheritance, property, contract could decide cases relating to the
inheritance of and succession of Zamindaries and Talukdaries. Wakil law officer,arrested to
expound law.
Appeal in case the value exceeded 1000 rupees to Sadar Diwani Adalat: a council court fees
ranging from 2% to 5%.
Evaluation: clear separation of executive and judicial functions provincial council had no
judicial powers.
Demerits:
-paucity of adalats.
-heavy workload
-superintendants were junior judicial officers
-no legal knowledge or other experiences.
- revenue cases decided by provincial counought of regulations for judging its own cause.
29th September 1980, impey was appointed to the Sadar Diwani Adalat- remained for an
year
Some sought of Regulations for the functioning of Adalats.
1781
Number of diwani adalats increased to 18
-Adalats were to have jurisdiction completely separate from the revenue jurisdiction or public
revenue
ACT OF SETTLEMENT 1781
Was disliked by everybody: - Company- it sought to control the administrative process and
interfered with revenue collection.
- Officials interfered with their actions and sought to discipline them
- Europeans it stood in the way of their self aggrandizement.
- Indians its procedure language and law everything connected with
it was mysterious.
Examples of Nandakumar and patna case.
System failed both the court and government responsible.
Act of 1781 was passed.
1. to remove doubts and difficulties which had arisen regarding the true intend and
meaning of certain clauses in the Regulating Act.
2. to support lawful government of Bengal, Bihar and Orissa so that revenue might be
collected with certainty.
3. to maintain and protect the inhabitants enjoyment of all their laws, usages and
previlages.
The act was in favour of the Council.
SUPREME COURT CHANGES
1. Governor General and Council was not subject jointly or separately to the Supreme
Courts jurisdiction for anything done or ordered by them in the public capacity and
acting as Governor General and Council.
No person was to be held responsible in the SC either civilly or criminally for the acts
done by him in pursuance of the Governor General and Councils order in writing.

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27

However immunity is not available against the British subjects and in the process
before English courts.
Government was totally immune from the process of SC vis--vis Indians.
Uncontrollable power with the government increased with immunity.
2. Exempted revenue matters or concerning any act ordered or done in the collection of
revenue according to the usage or practice of the country or the regulations made by
the governor general and council in this regard. Major conflicts arose in this areaavoided by the exception clause- govt had free hand.
3. Persons employed were not subjected to its jurisdiction in matters relating to
succession inheritance or contract- except in actions for wrongs or trespass in civil
matters by agreement subject to its jurisdiction- Those issue which had nothing to do
with service were excluded- matters of personal law and contract.
4. Can try here and determine all actions and suites against the inhabitance of Calcutta.
Personal laws were applied in matters of inheritance, succession, land and goods, and
contracts. Incase of difference in religious laws, the law of defendant was applied.
5. Family laws and customs were preferred if it was against the English principles of
law.
6. Supreme court was empowered to frame rules to deal with the matters of natives to
avoid arrest on mesne process
Sadar Diwani Adalat
-

Was approved- court of record- consist of Governor Genral and

council- Decisions were to be final and conclusive except on an
appeal to the King in council where the value of subject matter
exceeded 1000 pounds. Entire system of courts created by the
company thus came to be recognized by the parliament- was given
equal status with the supreme court.
Revenue jurisdiction was conferred on the Sadar Diwani Adalat to
Hear and determine all offences, abuses and corruptions committed
in the collection of revenue- the control could not mean much in
practice- because the governor general and the council presided.

Immunity
The actions of the judges of the companys courts in exercise of their judicial power were
immune from the proceedings of the court.Similary those actions done pursuant to a court
direction- but action for corrupt practice would lie on following a definite procedural notice
and shall not be exempted.
Persons committed to the prison by the Supreme Court in the Patna Case to be releasedGovt. paid the damages
Legislative Powers

28

Specifically extended over Bengal Bihar and Orrissa Basis of plan 1772 and 1774 were
created- Argued the plans were framed under Diwani powers- But Diwani is only an
executive function and not a legislative authority.
Two Powers : One over Calcutta under the act of 1773
Second over Bengal, Bihar and Orissa under Act of 1781
Distinction
Were to be reasonable and shall not be
repugnant to the English law
Restriction with Supreme Court

Normal Restrictions
Limited powers can be exercised only for
Adalats.

COMPREHENSIVE CIVIL PROCEDURE CODE (CPC)

Was established for guidance of Sadar adalats and Moffusil Adalats. The first CPC was a
regulation. It had 95 clauses.
Quick and impartial and uniform procedure was established.
Codified the existing rules.
Procedure for adalats
Sadar Adalats had appellate as well as original jurisdiction on the matters referred to it.
It had supervisory jurisdiction over Moffusil Adalats.
The provision for applying personal law was refrained.
For left over matters the adalats had jurisdiction to decide cases according to justice, equity
and good conscience. This resulted in the passing of judicial legislation.
Impey lost both Chief Justiceship and Adalat Judgeship. The attempt to co-ordinate between
the two systems ended abruptly. His appointment was constitutional.
Impeys motive was not money.
CRIMINAL JUDICATURE
1781- a machinery was created for arresting all culprits and bringing them before the courts.
- judges of Moffisil Adalats were appointed as Magistrates also. Persons thus
arrested were sent to the nearest Fozdari Adalat for trial. This resulted in
delay. The persons were compelled to be in prisons till their trial took place
after long time.
1785 the Magistrates were authorized to punish petty cases like assault, pilfery.
1781- a new department was constituted at Calcutta with a Remembrancer as its head under
the immediate control and direction of Governor General and Council to have general
administration over criminal justice. Criminal courts were to send periodical reports and
returns of their proceedings to the Remembrancer. It gave a clear picture not effective, no
clear information or false information. It had no control over the courts.
JUDICIAL PLAN 1780
The provincial councils were divested with judicial power .
- confined to the collection of revenue and to decrease revenue dispuits.
CIVIL
A PROVINCIAL DIWANI ADALAT was established in each of the six divisions. The
Superintendent of the diwani adalat presided over it. He was a covenanted servant of the
Company and he had to take an oath that he will exercise hi power without fear or favour.

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29

JURISDICTION civil cases, inheritance, property, contract. It could decide cases relating
to the inheritance of and successors of Zamindaris and Talukdaris.
Native law officers were to attend the adalat to expound the law.
APPEAL- in case the value exceeded Rs. 1000, to Sadar Diwani Adalat which consisted of
Governor General and Council.
Court fees ranging from 2-5%
EVALUATION
There was clear separation of executive and judicial functions. The provincial councils had
no judicial powers.
DEMERIT
- Paucity of adalats
- Heavy workload
- Superintendents were junior judicial officer who had no legal knowledge or
other experience.
- Revenue cases decided by Provincial Councils
Judges of their own cause.
29th sep 1780 Impey was appointed to the Sadar Diwani Adalat-remained for an year there.
Some sort of regulations on the functioning of Adalats.
1781
Number of Diwani adalats increased to 18.
- adalats were to have jurisdiction completely separate from the revenue jurisdiction or public
revenue.

HIGH COURTS
Two judicial tribunal distinctive & separate functioning concurrently but indep endently of
each other nothing common between them ; a wide gulf separated them ; there was no
meeting point between them and they often came in clash in actual operation
4. Transaction and affairs are spread over the two territories- Doctrine of constructive
inhabitancy
5. Execution proceedings
6. Concurrent jurisdiction
Plea of unification of two systems, Charter of 1833
Second law commission reportsEnactment of several laws.
1858 Company was dissolved and territories were taken over by the Britain
The Indian High courts Act, 1861.
- To establish High Court of Judicature in three presidency towns. Abolish SC and
Sadar Adalats.
- Authorised king to establish letters patent under the Great Seal of the U.K to ( ) and
establish High Courts.
- The new order and documents of the court abolished here to become the new order
and documents of the new high court,

30

- Composition : A chief justice and puisne judges upto a maximum of 15

Qualifications :
7. Barristers not less than five years standing
8. Members of covenantal civil service of not less than ten years standing, who shall
have served as Zilla judges for at least three years of that period.
9. Persons who shall have held judicial office not inferior to that of principal sadar
amen or judge of a small cause court for a period not less than 5 years.
10. Person who had been pleaders of a Sadar court or High Court for a period not less
than 10 years.
- Not less than 1/3rd including chief justice were to be barristers.
- 1/3rd of the members of covenanted civil service
Tenure
Held the office, during the pleasure of King.
Jurisdiction
Civil, criminal,admirality, testamentary, intestate and matrimonial, original and appellate
Subject to any directions contained in the letters patent and without prejudice to the
legislative powers of the governor general and council each high court was to have and
exercise all jurisdiction and such power and authority what so ever , in any manner vested in
any of the courts abolished
All provisions of the Act of Parliament or any of his majesty in council , or charter of any of
the Indian legislatures applied to the supreme court were to apply to the high court as they
were consistent with the provisions of the high courts act and the charter issued there under
subjected to the legislative process of the governor general and council
High courts were to have superintendence over all subjects to its appellate jurisdiction
To prescribe for regulating the practice and proceedings of such courts
1862 High court were consitituted in Calcutta, Bombay and madras
Was a court of record
Ordinary original jurisdiction: -within local limits of Calcutta, or within such local limits as may be declared and prescribed
from time to time by any law by competent legislative authority in India
-similar to the supreme courts jurisdiction
-excluded the matters that fell within the jurisdiction of the small causes court , value not
exceeding Rs.100
-to take cognizance of a suit
A] in which the immovable property situated
B] or cause of action wholly or partially within Calcutta
C] or if the defendant at the time of commencing the suit -, dwelt, carried out business or
personally wished for jurisdiction within such local limits
-jurisdiction confined to local limits of presidency towns
-advantage
1] jurisdiction over revenue matters
2] to take cognizance of cases of every description to apply a remedy for every wrong
Extra Ordinary Jurisdiction:Appellate Civil jurisdiction:

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31

To hear appeals from civil courts subordinate to it

-initiated from the sadar diwani adalats
-provision for letters patent appeal
Ordinary Original jurisdiction:Jurisdiction enjoyed by the supreme court extended to moffusils over British subjects
Extra ordinary original jurisdiction
On charges preferred by advocate general, or by any magistrate, or by any officer
specially empowered to do so.
Appellate criminal jurisdiction
Appellate, revisional and reference jurisdiction
Law applied
Civil
-

Ordinary original civil- the law or equity applied by Supreme court

Extra ordinary civil- law, equity and the rule of good conscience as would have
been applied to such case by the local courts concerned.

Appellate
-

Law or equity and the rule of good conscience as would have been applied by
the court to how the suit was originally initiated

Criminal
Indian penal code, 1860

Procedure- could frame rules on civil side which as far as possible guided by CPC 1859.
Criminal ordinary original procedure followed by the Supreme court all other criminal cases
Cr.P.C 1861.
Procedure
Civil
Can frame rules, was to be guided as far as possible by the provisions of C.P.C, 1859- all
other cases C.P.C, 1859.
Criminal
Original criminal empowered to frame rules
-

In all other criminal matters Cr.P.C 1861

appeal to privy council
Charter was declared to be subject to the legislative power of the Indian
legislature, which could amend or allow it in all respects.

Appraisal
1.
2.
3.
4.
5.

Centralized control of subordinate court.

Advantage by combining knowledge of lawyers and civil servants.
Single procedure for equity and law.
Only the courts were combined.
The law applied then were different. There was no fusion of laws applied by the companys
courts and the supreme court.

32

Laws enacted after 1861 in India was made applicable uniformly to all courts.
Where such law was wanting the English law prevailed to some extent over certain
disputes.
Indian high courts act, 1911
- Ceiling of 15 judges was raised to 20 judges.
- Authorized the crown to establish such number of high courts.

Curia regis and centralization of justice

Curia regis was the Kings council, during anglo Saxon period. It was known as Witan.
It was not merely a law court- administrative organs for the whole country by means of
which and with whose councel the King governed the realm and controlled royal officers.
Curia regis assembled in 2 ways
1. On great occasions of at least all the leading feudal and lords and all royal officials
would ment- it would be making new laws-discarding disputes of high people.ldecided cases of great men and great causes.
2. This was concerned with every day business, particularly of an administrative
capacity, and especially that of finance. When the work increased different branches
developed, from this ramification its the common law was born and inherited their
peculiar features.
-began on the financial side
-the curia regis was fertile a mother of law courts that, under the more modern description of
kings council
Administration of justice in dual capacity
1. Feudal jurisdiction- holding a court as a feudal lord for its tenants.
2. A jurisdiction inherited from the general principle of Kingship- authority over
persons generally due to the fact that
a. He was responsible for maintaining order
b. All men were to look to him for justice if it were denied elsewhere.
Judges were anxious to increase their work
-parties opted the common law courts because it was implemented by a relatively more
powerful central government.
-trial by jury-better than old forms of decision making

Common Law
Judicial precedents of early common law court no substantive law grievances - sought
justice remedy with a remedy .a principle or rule was applied there ruling became
the precedents and in the courts of laws

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33

law common to all- law applied by local courts local customary law
in contradiction to this- law applied in France and Germany was civil law by the courts
statute law
equity law
writ- form of action
civil action started by an original writ [original because it originated its proceedings]
in the case of royal writ the writ from the king through the Chancery, the secretarial
department of the state original writs from administrative office for a fee contents varied
according to the matter involved
the general purpose was to secure the presence of a party before the royal courts usually
through the agency of sheriff of the country each writ contained a brief statement of
plaintiffs ground of claim
these write became stylized rapidly
claims containing certain types of misconduct came to be recognised and each type of wrong
came to have its own appropriate writ
to bring an action means to select an appropriate writ like
-

Writ of right- claimed tenant without a claim of right deprived of him his land
Writ of debt defendant owes him so much money
Writ of detinue- defendant detinued from the plaintiff something which was his
Plaintiff of the case had to pick up the particular writ if they did not action failed
Stereotyped

Changes by parliament
Administrative by the chancery
Innovative judges
Later upon the facts stated and upon the proof by the plaintiff actual injury suffered by him
all actions were allowed on the case statute = in cases where there was no unit to cover
thethe plaintiffs claim , but the judges would take the initiative to advance an appropriate
writ
-slow process by analogy from preceding rules-common law thus grew
Register of write- the sum total of writs contained in the register of writs was the common
at any given point of time
-evolution of common law proliferating forms of action
-about 700 hundred years pace of growth was slow and sometimes fast- dependency upon
the political and social conditions depended upon the ruler and the judges also.

Old ones were replaced by new ones but was a continuous growth
Writ system was abolished by the common law prodecure act, 1852 judicature act of 1873
During the last century the statutory creation of law was prolific
still civil actions are based on the principles thus developed.

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Maitland the forms of action we have buried, but they still rule us from their graves
The common law as opposed to statute law with its fits and starts is still an evolutionary
creation from its ancient fountain heads
Main defect was the stylization of writs- one had to choose the writ to suit the case or the
action would fail

Equity lawThose who failed to get justice from common law crossed to the hall of Westminster Hall and
sought the aid of the Chancellor who applied equity.
Secretary of state to all depts.. he headed the chancery, the royal secretariat he was
responsible for the use and custody of the great seal of realm
-chancellor was an important member the king in council
-reason of failure of common law courts to do justice
1] the common law was defective in some ways- for eg. The early common law remedies for
breach of contract were grossly inadequate
2] the only remedy usually the common law courts would supply was the award of damages ,
this was grossly inadequate to meet the circumstances
3] although the law was adequate to meet the cause , justice might not always be obtained in
the common law courts because of the greatness of one of the parties
Chancellor being one of the chief royal officers , he was not bound by rules nor the
procedure, nor was he likely to over awed by any man
In deciding cases he slowly evolved principles.
Chancellor had no separate court initially, he consulted the council, even the judges
Since 15th century, chancellor started sitting independently continued till the judicature act of
1873 was passed
Equity latin , aequitas = leveling
Later stages only it was systematized
Once it was remarked that early equity varied according to the length of the chancellors foot
Equity assumes its law, it did not come to defeat common law but to supplement and fulfill it
Maitland it acts as gloss or appendix to the law
Equity follows the law
It acts in personam upon the conscience of the defendant