HISTORY OF COURTS IN BRITISH INDIA

By
Name of the Student: T. Akash Kumar
Roll No.: 19LLB068
Semester: 2nd
Name of the Program: 5 year B.A., LL.B.
Name of the Faculty Member: Dr. Viswachandranath Madasu
Date of Submission: 12 December 2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

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 ACKNOWLEDGMENT

I’m highly indebted to my hon’ble Professor, Viswachandranath Madasu, for giving me an

opportunity to work on the topic History of courts in British India and it is because of his
excellent knowledge, experience and guidance, this project was made with great interest and
effort. I would also like to thank my seniors, friends and parents who had supported and
helped me doing this paper.

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 ABSTRACT
The common law system - a system of law based on recorded judicial precedents- came to
India with the British East India Company. The company was granted charter by King
George I in 1726 to establish "Mayor's Courts" in Madras, Bombay and Calcutta (now
Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded
substantially after its victory in Battle of Plassey and by 1772 company's courts expanded out
from the three major cities. In the process, the company slowly replaced the existing Mughal
legal system in those parts.

Following the First War of Independence in 1857, the control of company territories in India
passed to the British Crown. Being part of the empire saw the next big shift in the Indian
legal system. Supreme courts were established replacing the existing mayoral courts. These
courts were converted to the first High Courts through letters of patents authorized by the
Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower
courts and enrolment of law practitioners were deputed to the respective high courts.

In this paper the researcher mentioned regarding types of courts thet were established in the
period of British India. The law that was followed by the society of India under the rule of the
British is mentioned in this paper. The changes made by the British were also mentioned in
this paper. And how the Judiciary came to an end during the independence of India is
mentioned.

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 TABLE OF CONTENTS

Synopsis…………………………………………………………………..5

Introduction……………………………………………………………….6

History of courts…………………………………………………………..9

Authoritative and Uniform judicial pattern……………………………….11

Justice in interior………………………………………………………….13

Adalat system improves……………………………………………………16

Court of original jurisdiction….…………………………………..………..17

Mechanism for selection and appointment of judges………………………19

Federal polity initiates federal court……………………………………….21

High Courts in British India under Indian High court act,1861…………..23

Lower judicial structure during Independent India………………………..25

Conclusion………………………………………………………………….26

Bibliography…………………………………………………………………27

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 SYNOPSIS
OBJECTIVE OF THE STUDY
The objective of the study is to know the history of the courts in British India.

SCOPE OF THE STUDY

The scope of the study is limited to judicial aspect in the period of British India.

SIGNIFICANCE OF THE STUDY

This study helps to understand the various functions of law during the period of British India.

RESEARCH METHODOLOGY
The research methodology is doctrinal type of research.

TYPE OF RESEARCH
The research is descriptive and analytical.

RESEARCH QUESTIONS
 Whether all the courts are feasible to all the citizens of British India?
 Whether all the classes of the society get justice equally?

LITERATURE REVIEW
The Judicial System of British India: Indian Official
From this book, researcher has collected information regarding the judicial system in British
India and the functions of the courts in hierarchy in British India and mentioned it in the
paper.

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INTRODUCTION
The custom-based law system – a system of law in view of recorded legal points of reference
came to India with the British East India Company. The company was allowed sanction by
King George I in 1726 to build up "Mayor’s Courts" in Madras, Bombay and Calcutta. Legal
components of the company expanded extensively after its triumph in Battle of Plassey and
by 1772 company's courts stretched out from the three important towns. At the same time, the
company bit by bit supplanted the current Mughal legal system in those parts.

Following the First War of Independence in 1857, the control of company regions in India go
to the British Crown. Being a piece of the realm saw the following huge move in the Indian
legal system. Incomparable courts were built up supplanting the current numerous oral courts.
These courts were changed over to the fundamental High Courts through letters of licenses
endorsed by the Indian High Courts Act pass by the British parliament in 1862.
Superintendence of lower courts and enrolment of law specialists were deputed to the
individual high courts. Amid the Raj, the Privy Council went about as the most astounding
court of offer. Cases before the chamber were mediated by law rulers of the House of Lords.
The state sued and was sued for the sake of the British sovereign in her ability as Empress of
India.1

Amid the move from Mughal legal system, the advocates under that regime, "vakils", too
took action accordingly, however they generally proceeded with their before part as customer
agents. Resulting principles and statutes finishing in the Legal Practitioners Act of 1846
which opened up the calling paying little mind to nationality or religion.

Coding of law additionally started decisively with the shaping of the principal Law
Commission. Under the stewardship of its director, Thomas Babington Macaulay, the Indian
Penal Code was drafted, established and brought into constrain by 1862 . The Code of
Criminal Procedure was additionally drafted by a similar commission. Host of different
statutes and codes like Evidence Act (1872) and Contracts Act (1872).2

Origin

1
Lingat, Robert, and John Duncan Martin Derrett. The Classical Law of India. Oxford University Press, USA,
1998.
2
British Isles, 12 J. Soc. COMP. Legis. n.s. 360 (1911).

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A legal system is the meeting point of the past and the future of its locale. The past explains
it, and it foretells the future. A slight variation, however, in the case of the Indian legal
system is that its past is limited, stretching up to a particular milestone only. Accidents and
incidents of history have been such that its present legal mechanics has virtually no link with
the Hindu and the Muslim periods to which its source may be traced. Hindu law and its
jurisprudence got stiffed and had waned, giving way to Islamic law, except in certain pockets,
since the Muslim conquest of the country. The ruin of the Moghul Empire, in turn, was
completed with escalated speed after the death of Aurangazeb in 1707. In this state of
political confusion and instability in the last days of the Moghul rule, law could hardly thrive
and legal machinery survive the utter chaos and lawlessness which followed.

A little before this, the English traders had emerged on the scene as the most effective of the
European who came to India in quest of trade or conquest. Wherever the Englishmen settled,
except in Bombay, it was with specific permission from the local government. Their early
settlements were in Surat (1612), Bombay (1668), Madras (1639) and Calcutta (1690).
Normally the English should have been subjected to the authority of the local government
and its law. But since the first settlement in Surat, the English somehow managed to get
permission to be governed by their own laws in disputes amongst themselves. Many theories
are advanced by historians to explain this concession, each failing to carry conviction. The
only plausible explanation coule be that the local authorities failed to realize the implications
and the gravity of the permission, at that time. However, this created a situation in which the
initiation of measure for finding, applying and executing English law on the Indian soil
became imminent. Further, since on the eve of the Mughal rule the central authority in Delhi
was not sufficiently effective and the provincial Moghul deputies or other independent native
rulers crucially suffered from lack of imagination, sense of responsibility, sheer indifference
or acute inertia, it became easy for the English to fill in the nebulous state of administrative
void. Their settlements soon assumed the character of floating English territories in the Indian
subcontinent.3

Without special effort or will or much hope, the English East India Company also found itself
confronted with the task of administering the local population too. The port and island of
Bombay was ceded with full sovereign rights to the British Crown in 1661 by the King of
Portugal. It, therefore, became the personal responsibility of the English to administer the
island. In Madras, the grant made by the local Hindu raja empowered the company to build a
3
Supra at 1

7
fort and factory and expected it to organize the governance and administration of the village
Madraspatnam, on payment of half the customs and revenue to the raja. In Bengal, the
Company purchased the zamindari (landlordship) of three villages around the area now
known as Calcutta, and this implied the exercise of administrative and judicial authority over
them. This became the starting point for the Company to combine political ambitions with its
initial object of pure trade. The ambition got an impetus owing to the Company's military
superiority, the rot in the Mughal power and the local conflicts amongst the lieutenants of the
Moghul king.

The Company expanded its zamindari and in the confused state of affairs got the opportunity
to be appointed as diwan of Bengal, Bihar and Orissa in 1765, by Shah Alam, the helpless
Moghul ruler in Delhi. As diwan, the Company was to be the deputy of the Moghul ruler,
responsible for collection of revenue and customs and for administration of justice in civil
and revenue matters in return for a payment of a sum of twenty six lakhs of rupees. The
criminal justice remained with the puppet nawab, another deputy of the king. Since the
assumption of diwani in Bengal, this Presidency acted as the laboratory for the other
settlements. Solutions to difficult problems were worked out in Bengal, a policy formulated,
and then transferred to Madras and Bombay. Prior to that, each settlement was organized
separately and individually according to the genius of its governor and the requirements of
the area. It is to be noted that till 1857 when India was formally subjugated by the British, the
dejure status of the English in the country remained that of an ordinary foreign merchant at
the pleasure of the Indian authority. Of course, the defacto position was quire otherwise. 4

This period, particularly till late eighteenth century, was marked by military struggle and civil
disorder, with sporadic efforts to organize matters. The East India Company started as a
trading concern: its charters, issued by the Crown, did not provide for any authority
resembling functions of a proper or even a semi-proper government. Absence (or abeyance)
of a proper and smoothly operating indigenous legal order made matters worse.
Consequently, the Company very often had to find, interpret, at times even improvise law,
and institute appropriate applicatory and executory agencies. It functioned most haphazardly
when faced with the task of administration.

The history of the courts and the legislature during this period is intermixed with the history
of the executive. The executive was the Governor and his Council appointed by the Company
in each settlement. These were Englishmen who, though not legal specialist or even lawyers
4
Jatar, Nilakshi, and Laxmi Paranjape. Legal History: Evolution of the Indian Legal System. 2012.

8
by profession, were generally acquainted with their own legal system. Their attempts at
formulating a process of law and order were bound to be oriented and directed by the only
law they were familiar with. This is the turning point in the history of Indian law when a
break with the indigenous system began. The process was familiar and stepped up into full
gear after the Indian mutiny was quelled and the country declared a British possession. A
legal pattern thus emerged in India which is more British than Indian. At best it may be
termed Anglo-Indian or Indo-Anglian. This as a legacy was left by the British when they
departed in 1947. The Hindu shastric and the Muslim quranic laws and jurisprudence have a
feelble eco in it in the lone pocket of family law. No effort was made after independence to
ignore the reality and attempt compulsive Indianisation of the system. As a consequence, the
original Indian law is much more alien to Indians today than the imported alien forms of the
English common law system. It is, therefore, futile to go beyond the seventeenth century for
any appreciation or understanding of the existing Indian legal institutions or concepts. Again,
here also, the relevant source material is to be searched not in the then tottering indigenous
system but in the British attempts at improvisation.5

HISTORY OF THE COURTS

THE JUDICIARY

Informal, Rough and Ready Justice (1600-1726)

Soon after their arrival the English realized the need and strategic relevance of organizing a
working judicial system in the areas under their supervision. Without much delay some sort
of dispute- deciding machinery was begun in the presidency towns of Bombay, Madras and
Calcutta.

The East India Company as a trading concern was not furnished with any judicial powers
other than those required for maintaining discipline over its men. As an alien body it could
hardly possess judicial authority over the local population. But owing to the unsteady
political and administrative situation in the country, the Company found it difficult to carry
on its business properly without permission to settle disputes amongst its own members and
people around it. Upon request from the Company in 1661, the British Crown authorized the
Governor and Council in each factory to judge all persons, whether belonging to the

5
Bhansali, Sanwat Raj. Legal System in India. 1992.

9
Company or living under them, in both civil and criminal matters. The Charter of Charles II
in 1661 can be treated as the first provision enabling the Company to exercise judicial powers
on the Indian soil. This was a great leap from the initial Charter of 1600 where under the
Company had neither the right to decide important issues like murder, nor had any authority
to decide matters not related to the members of the Company. Since the inception of the
factory at Surat, wherever the English settled on the Indian soil, they managed to be allowed
to be adjudged according to English law by their own people. Still, this did not explain the
legal validity of the 1661 Charter as regards judicial administration over persons other than
Englishmen residing in the Company's settlements.6

In pursuance of the 1661 Charter each presidency town formulated separate and independent
judicial system depending upon the genius and imagination of the local Governor and
Council. Scanty records available of the period show that the Governor and Council
functioned as a court for all civil, criminal and other matters. Not too sure for their judicial
authority, deficient in legal training and more interested in business than judicial
administration, they generally hesitated in deciding serious cases like murder, preferring to
refer such matters to the Company authorities in England. An attempt was made in each
presidency to have subordinate judicial units also, which mostly meant mere continuance or
slight modification in the indigenous system. At times it meant innovation too. Decisions
from these subordinate judicial units were always appelable in the court of the Governor and
Council.

But the Governor and Council acutely felt the need of trained legal expertise and positive
judicial authority to manage the task of handing down decisions. One major problem was to
tackle the 'interlopers' interfering unauthorized with the trade monopoly of the Company.
Upon request, the Crown authorized the Company in 1683 to establish an Admiralty court in
all proper places to try all cases of trespass, injuries and wrong, done or committed on the
high seas, or within the charter limits cases of forfeitures and seizures of ships of goods
which came for trade within the Company's monopoly area. The composition of the court was
to be a person learned in civil law and two merchants appointed by the Company. Admiralty
Court when established in Madras functioned well for a while, and it actually carried on all
judicial work including civil and criminal cases, though by virtue of its charter it was to be
exclusively a maritime and Admiralty Court. The situation changed soon as the Company
directors at home were in no mood to foot the bill for a legal expert to preside over the court.
6
British India, 7 J. COMP. Legis. & INT'l L. 3D ser. 143 (1925).

10
One of the councilors who had no legal training was thereafter expected to preside over the
Admiralty Court. Events in Bombay so conspired that there too the Admiralty Court was
initially entrusted with all judicial work. But soon it became the object of jealousy of the
Council which could not tolerate any person or institution as superior to itself in any matter
whatsoever. It reduced the Admiralty Court to the minimum in its independence, jurisdiction
and authority. Calcutta never got an Admiralty Court. Thus, the judicial power again got
concentrated in the executive, i.e., the Governor and Council.

During this period, that is, up to 1726, Madras saw the continuation of the indigenous judicial
system and a few innovations. Bombay went through successive judicial plans, none too
effective.7

In Calcutta, besides the court of the Governor and Council, there was the collector's court
with one of the councillors appointed as the collector. He dispensed justice in all matters
civil, criminal and revenue pertaining to the Indians residing in the settlement.
Pronouncement of a death sentence by it had to be confirmed by the Governor and Council,
and appeals from it also lay to the latter. Collector's court existed by virtue of the Company
being a zamindar. The other zamindars, however, sent their appeals to the Moghul courts at
Murshidabad and sought confirmation of the death sentence from the nawab, the deputy of
the emperor in Delhi. It was a momentous but illegal deviation from the settled practice of the
collector to look up to the Governor and Council for final order instead of seeking the
approval of the Indian authority.

The period is marked for its unmethodical and raw administration of justice. It neither had a
systematic pattern of courts nor a well-defined and definite law or procedure. The Company
authorities were essentially traders without any legal training, considering judicial work as
subservient to their administrative authority and ambition. Whatever existed in the name of
courts imparted justice in a rough and ready manner according to common sense and
invariably depending upon the importance of the litigants and nationality of the party. As a
rule the courts were manned by senior members of the Company. There are instances when
persons other than Englishmen were also associated with the judicial work. Records show
that these Others' did not mean much as for all practical purposes their status was that of
inferior 'black justice'.

Authoritative and uniform judicial pattern (1726-1773)

7
Supra at 6

11
After a century since its inception, dimensions and needs of the Company changed
considerably. Its flourishing trade increased business transactions and added to the population
in each settlement. The disorganized and informal mode of administering justice was no more
suitable.

But it took about two decades for the Company's Controlling Board in London to realize the
unsatisfactory arrangement and quality of justice. On petition presented by the Company,
George I granted the Charter of 1726. It purported to meet the want of a proper and
competent authority for the more speedy, effectual, and appropriate administration of justice.
Thereupon the existing courts whatever they might have been, were superseded, and in the
year 1726 the Crown by letters patent created a corporation in the three settlements—Madras,
Bombay and Fort William (Calcutta)- and established a Mayor's Court at each. Its
composition was to be mayor and nine alderman, seven of whom with the Mayor were
required to be natural born British subjects. They were removable on proof of sufficient cause
by the Governor and Council. The court could hear and decide all civil causes arising within
the Presidency town and in its subordinate factories. First appeals from it lay to the Governor
and Council and second appeals to the King-in-Council. To safeguard the interest of the heirs
of Englishmen dying intestate in India, the court was empowered with testamentary
jurisdiction also. The court was to administer justice according to 'justice and right'. 'Justice
and right' in the then existing context was taken to mean English law. For criminal
jurisdiction in each presidency town, the Governor and five senior councilors were to act
individually as Justices of the Peace, and to enjoy the same powers as the Justices of the
Peace of England at that time. A Justice of the Peace was more of a committing magistrate
than a trial judge. Three Justices of the Peace together were to form a Court of oyer and
terminer and gaol delivery. It had authority to punish every criminal wrong except high
treason. Trial was to be conducted with the help of grand and petty jury. This initiated
English criminal law and procedure on the Indian soil.8

The Charter of 1726 is referred to as the first judicial charter in the sense that in spite of its
inherent limitations it initiated uniformity and authenticity in the judicial administration. It
was the first time when courts started drawing authority from the Crown instead of from a
mere trading company, implying formalization of judicial authority. Each presidency got
similar judicial pattern terminating the period of individual diverse judicial experimentation.

8
Srivastava, Ramesh Chandra. Development of Judicial System in India under the East India Company, 1833-
1858. 1971.

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In initiating a system of appeals from India to the Privy Council of England it laid a very
important milestone in the history of Indian courts. The Privy Council remained the last court
of appeal for India for more than two hundred years. The effective contribution of the Privy
Council in developing Indian Law and establishing sound precedent for Indian judiciary is
unparalleled.

But the plan of 1726 did not prove to be any imminent success. In the prevailing
circumstances, persons manning the court were connected with the Company, and in one way
or the other, under the influence of the Governor and Council. The latter also had the power
to order their removal. The Governor and Council was also given complete control over
administration of criminal justice. There was no provision for judges to be legally trained. It
implied repetition of the old evil, namely, an executive ridden judiciary, possessing little legal
attainments and biased in favour of the interests of the Company.

Further, the charter made no provision for the natives. Justice administered by the Mayor's
Court was in accordance with English law which was, more often than not, contrary to the
legal and social tradition of the natives, causing them immense hardship and dissatisfaction.
It resulted in resentment against the court. In no mood to enter into local troubles, the Crown
formally exempted them in 1753 from the court's jurisdiction unless both the parties agreed to
come to it. But the non-availability of any other court in the presidency areas made the
exemption meaningless9.

The territorial jurisdiction both of the civil and criminal courts under the charter was
restricted to the limits of the respective presidency towns. In the case of Bengal at least
Englishmen had spread into the interior also. They fell beyond the jurisdiction of the Mayor's
Court in Calcutta. With the weakening of the nawab's authority, they declared themselves
immune from local tribunals also. Immune from any judicial control they were free to indulge
in all sorts of wrongful conduct without fear.

Justice in the interior (mofussil)

With the passage of time political ambitions of the Company gained momentum and large
areas beyond the limits of the presidency towns were brought under its control. These,
referred to as the 'mofussil', were distinct from the 'presidency areas' for purposes of
administration. The 'mofussil' was completely under the Company's jurisdiction with no
relation with the Crown. Judicial organization provided by the Company in the 'mofussil' was
9
Supra at 8

13
called the adalat system, whose initial milestone were laid in Bengal. Defeating the Muslim
Governor at Plassey in 1757, formally receiving from the Mughal emperor the status of
diwan in 1765, and extracting the essence of the office of nawab by a private arrangement
with him, made the Company the virtual authority in Bengal. These developments were a fact
without any blessing or recognition from England. The Company now held the reins of the
entire administration of Bengal, Bihar and Orissa, including collection of revenue and the
administration of civil and criminal justice.

The civil administration of justice was, by and large, left under the immediate management of
the two native diwans, the Company considering it not prudent to entrust it immediately to
Europeans unfamiliar with the local law and society. An exception was made in the case of
districts close to Calcutta where English covenanted servants were appointed for the task.

Similarly, the administration of criminal justice was left in the hands of the native authorities.
It meant continuation of the local decrepit zamindar's courts, with the additional confusion of
having two masters-the Company and the Moghul authority almost breathing its last.

Separation of judicial and executive powers (1773 onwards)

In the absence of any steady and appropriate judicial order, Company rule in Bengal became
a terror. The tales of cruelty and oppression committed by the Company servants got
confirmed by the show of unusual wealth of its personnel returning home. English public
opinion was roused, and upon the insistence of parliamentarians like Burke, the British
government decided to interfere. It was specially concerned about the administration of
justice. Parliament passed the Regulating Act in 1773 to regulate matters in Bengal.

Beside other provisions, it provided for the establishment of a Supreme Court replacing the
Mayor's Court. The attempt was to separate the judicial entirely from the executive limb and
to place it under the direct authority of the King instead of the Company. The court was
consist of a Chief Justice and two or three puisne judges who were to be trained English
lawyers, directly appointed by the Crown. Its jurisdictional powers were to exercise all civil,
criminal, admiralty and ecclesiastical jurisdiction, and to establish rules of practice and
process, and do all things necessary for the administration of justice. In criminal matters it
was to act as the court of over and terminer and goal delivery as in England, for the town of
Calcutta, the factory of Fort William and other factories subordinate to it. It was also to act as
court of equity like the Court of Chancery in England. Appeals from it, both in civil and
criminal matters, lay to the Privy Council. Territorially its jurisdiction did not include the

14
entire population of the province. It covered the presidency town and extended over British
subjects and His Majesty's subjects residing anywhere in the province, persons, directly or
indirectly, in the employment of the company or any of His Majesty's subjects, any resident
of the province agreeing to be subject to the court in a contract with the other party if the
latter was one of His Majesty's subjects.10

It was a decided improvement upon the Mayor's Court. However, certain ambiguities in the
charter created difficulties. Many expressions and situations were left undefined in the
charter, e.g., 'His Majesty's subjects' 'British subjects', 'in the employment of the Company',
Company's status and actions as diwan, the executive-judicial relationship, and the
relationship between the Supreme Court and the Company's courts. To cap it all, the law to
be applied by the court was not stated. A tornado of anger and resentment gathered against
the court. The executive disliked the court's interference in its administrative actions.
Company personnel could not tolerate court's sanction and scrutiny over their diwani pursuits
which they thought to be a relationship exclusively between them and the Moghul authority.
Indians were none too pleased and dreaded the court's alien laws and procedure. Its worst
feature was illustrated in the famous trial of Nandkumar who was awarded death sentence for
forgery in accordance with English law. Penal sanction for forgery in Indian law was much
simpler.

The Regulating Act was well-intentioned but ill-planned and rashly and ignorantly executed.
Attempt was to initiate the concept of justiciability of executive action. Undoubtedly a bold
step, but it was politically motivated to check the unbridled might and affluence of the
Company in Bengal. It was, however, ill-timed since excessive judicial scrutiny hindered the
Company in establishing effective administration in its early phases, particularly the
collection of revenue. Unwittingly it established two independent rival powers - the Council
and the Supreme Court, with utterly undefined boundaries between the two. The conflict
raged for seven years till parliament intervened by passing the amending Act of 1781. It
expressly exempted the executive in its official capacity from the jurisdiction of the court. It
was a retrograde step but obligedly taken owing to practical reasons. Further, the adalat
courts, matter of revenue collection, farmers and other land holders, and persons in the
employment of the Company or of any British subject were also made immune from the
jurisdiction of the Supreme Court. To remove the inconvenience of native residents of the
city of Calcutta who were still within the jurisdiction of the court, the act of 1781 provided
10
Supra at 8

15
that their personal laws may be applied to them and in case the two parties belonged to
different legal systems, law of the defendant was to prevail. The most noteworthy provision
in the 1781 Act was to allow an appeal to His Majesty from the Sardar Diwani Adalat, the
highest civil court on the adalat side. It meant positive recognition of the adalat system
(judicial authority of the Company as diwan) as independent of and equal to the Supreme
Court. It fully perpetuated two distinct judicial orders - one for the presidency town and the
other for the mofussil. The scene in Madras and Bombay was generally the same as in
Calcutta.

Adalat system improves

The adalat system of the Company started with haphazard attempts to solve disputes,
gradually assumed method and appropriate judicial character.

To restore order in Bengal, Hastings had determinedly started organizing courts in the
mofussil. Each district was given a mofussil diwani (civil) and a mofussil foujdari (criminal)
court. The collector of the district, invariably an Englishman and administrative and
executive officer for the area, presided over the former and supervised the latter which had
Muslim officers. Appeals from mofussil diwani adalat lay to the Sardar Diwani Adalat
composed of the Governor and Council. Appeals from the mofussil foujdari adalat lay to the
Sardar Foujdari Adalat manned by Muslim judges but supervised by the Governor and
Council. A few small causes courts were also set up for quick disposal for petty cases.

Cornwallis arriving on the scene resented the policy of over concentration of authority in the
collector. By the eve of the eighteenth century, the collector was stripped of all judicial
powers and was confined to revenue collection and administrative duties. Cornwallis also
introduced two additional judicial rungs, namely, one, the Provincial Court of Appeal
immediately below the Sardar Diwani Adalat; and two, the Munsiffs courts below the
yiofussil Diwani Adaht. Integration of civil and criminal courts was attempted. The higher
judiciary was completely separated from the executive. The Sadar Diwani Adalat and Sadar
Foujdari Adalat were separated from the Council and exclusively entrusted with judicial work
at the beginning of the nineteenth century.11

This tempo, however, did not last long. Excessive pressure of work on judicial bodies added
with practical considerations of strengthening the hands of the English executive officers,
resulted in reinvesting the executive with judicial powers in revenue and criminal matters. In
11
Sharma, S. P. Indian Legal System. Mittal Publications, 1991.

16
1829 commissioners, the administrative officers above the district level, were invested with
criminal judicial authority, and in 1832 collectors were allowed to try revenue cases.
Magisterial powers at the district level and below were transferred to the collector and his
assistants a little later. The achievement of Cornwallis was thus somewhat undone in the
interest of administrative convenience and for ease in revenue collection, the primary interest
of the English.

By mid-nineteenth century a regular hierarchy of courts, separation of the judiciary from the
executive at least in civil matters, classification of civil, revenue and criminal jurisdictions,
and sound procedural practice had evolved. The law applied in these tribunals was native
personal law tempered with equity and retouched by Regulations formulated in each
province. Initially natives were only associated as legal advisers for expounding native law.
In course of time they were appointed judges at the lower rungs of the adalat ladder. Munsiff
or amin for civil, and collector magistrate for the revenue and criminal matters, stood at the
base, then came the district courts, and finally the Sadar Diwani and the Sadar Nizamat
respectively for civil and criminal work. The Sadar Adalats were primarily appellate bodies.

Firstly, all the three provinces were sub-divided into districts which were placed Collectors.
These collectors were responsible not only for the collection of revenue, but also for looking
after the general administration of the district, judicial system was sought to be overhauled
and separate civil (diwani) and (nizamat) courts (adalats) were established at various levels.
Secondly, it should be remembered that in the presidency towns, Mayor's established under
the Charter of 1726 continued to function as usual. In fact, the Mayor's Courts had been
established to handle cases which involved or concerned the Englishmen serving under the
Company or foreigners. These Courts, therefore, did not touch upon matters which concerned
the natives living in the areas beyond the Presidency towns. The Adalat System which was
introduced under the Judicial Plan of 1772, therefore, covered the mofussil areas under the
Company. Thus the judicial plan covered the natives living in the mofussil areas.

The Adalat System, thus, introduced, can be discussed under the following main heads,

Courts of original jurisdiction

The Provinces of Bengal, Bihar and Orissa, were divided into various units for the purpose of
administration, both judicial and civil. These units were called districts.

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(1) Mofussil Diwani Adalat: At the level of each district, a mofussil diwani adalat was
established. It was a court of original jurisdiction in civil or diwani matters. This court was
headed by the Collector who functioned as a judge. The laws applied by this court were those
embodied in the Shastras in case of the Hindus and in the Koran in case of the Muslims. This
court handled all cases relating to property, inheritance, succession, marriage, castes,
contracts and related matters. The Collector was assisted by the learned Pandits and Kazis
who were well versed in the Hindu and the Muslim laws respectively.

(2) Mofussil Faujdari Adalats: Corresponding to the diwani adalat at each district, Mofussil
Faujdari Adalat was established at the level of each district. This court handled all criminal
cases. The law applied by this court was the Muslim law. This Court was presided over by a
learned Kazi and a Mufti who were assisted by two maulvis all well versed in the Muslim
law. The supervisory control on this court vested with the Collector. This court had the power
to decide all criminal cases and punish the criminals except in the case of capital punishment.
The proceedings of such cases had to be submitted to the Sadar Nizamat Adalat for
confirmation of the sentence of death passed by this Court. There was a further provision for
appeal to the Nawab or the Subedar who finally confirmed, commuted or reduced the
punishment.

(3) Adalats of Small Causes: At the level of village or a small town, a Small Causes Adalat
was established under the Head Farmer who decided the cases upto the value of Rupees ten.
His decision in cases upto the value of Rupees one hundred seven were final. In other cases,
the matter could be taken up higher to the Mufissil Diwani Adalat.

Courts of Appeal

(1) Sadar Faujdari (Nizamat) Adalat: This was an appellate court in all criminal matters
and was presided over by a Daroga who was alded in his work by the Chief Kazi, the Chief
Mufti and three Maulvis. The overall supervisory control on this court was exercised by the
Governor General and his Council.

(2) Sadar Diwani Adalat: This Court was in fact the Governor General and his Council who
all sat as judges in all diwani cases. This court heard all appeals from the Mofussil Diwani
Adalats beyond the value of Rupees five hundred. The Diwani & Nizamat Adalats were
established under the judicial plan of Warren Hastings. For the first time, these adalats were
directed to apply personal laws of the natives. The law of the Shastras in the case of the

18
Hindus, and the Law of the Koran in respect of the Muslims were to be applied to cases of
marriage, caste, Inheritance etc. The Pandits and Maulvis were to expound the personal laws
of the natives.

In the field of criminal justice, the Muslim criminal law which was prevalent since long was
to continue. Some improvements were however made from time to time with a view to
imparting impartial justice.

In some cases and disputes the parties were allowed to resort to arbitration, and after the
award, get a decree of the Mofussil Diwani Adalat.

A policy of racial discrimination initially exempted the British totally from the jurisdiction of
the adalat courts. Later the exemption was curtailed and extended only to the very
subordinate adalat courts with the reservation that in case of appeal a Britisher should move
the Supreme Court instead of the Sadar Diwani or Sadar Foujdari AdaUt. With a few
procedural reservations in criminal cases, for all practical purposes the exemption was ended
by 1850 in all presidencies.

MECHANISM FOR SELECTION AND APPOINTMENT OF JUDGES

During British Period4, there existed two sets of courts—the English people were governed
by their own laws and courts whereas for the native population there were different courts. In
other words, Presidency town of Madras, Bombay and Calcutta inhabited by the English and
the muffusil areas dominated by rural population had different courts. During the period
1793- 1861, some of the Governor-Generals showed a keen interest in improving the existing
Adalat system by introducing many reforms.
The judges of the Supreme Court were appointed by the British Crown under his seal and
held office during his pleasure. On the other hand, the judges of the Company’s court were
appointed by the Governor General and held office during his pleasure. Thus, the concept of
“tenure and pleasure” made the judges subservient to the government, which means that the
judges were accountable to the government while performing their judicial functions.
The Chartered Act of 1935 enacted by the British Parliament which centralized the whole
legislative machinery and provided for appointment of law commission was a great step
towards the unification of laws and courts. The enactment of Civil Procedure Code, Indian
Penal Code and Criminal Procedure Code in the years 1859, 1860 1861 respectively paved
the way for the amalgamation of the dual system of courts and finally the object was achieved

19
by Indian High Court Act, 1861.
In August 1861 by enactment of Indian High Court Act, Her Majesty was empowered to
abolish the Supreme Court and sadar adalats and in their place constitute a High Court of
judicature for each of the three Presidencies. The court was to consist of a Chief Justice and
such other number of judges to be appointed by Her Majesty from time to time. The act
prescribed professional qualification of judges and the judges were appointed by Her Majesty
and held office during Her Majesty, pleasure.
The enactment of the Government of India Act, 1935 gave a new dimension to the judicial
system of the country. The act for the first time guaranteed a security of tenure to the judges
who could be removed by His Majesty only on the ground of proved misbehavior or infirmity
of mind or body. It was a drastic change as judges from 1862 to 1935 used to hold office
during Her Majesty pleasure. Whereas from 1935 they held office during good behavior and
also special provisions were made for salary and pension of judges.

Judicial duality ends

Queen Victoria's declaration making India a British dependency in 1858 meant absolute
control and responsibility of England for administering India. Sense of responsibility and
obvious futility, even incongruity, in running two parallel judicial systems in India led to the
amalgamation of the Crown courts with the Company courts. It materialized in 1861 by the
passing of the Indian High Courts Act. The Act abolished the Supreme Courts and the Sadar
Adalats and established a High Court of Judicature in each presidency. The High Court was
Her Majesty's court superceding and inheriting the jurisdictions of the courts abolished. It
was to regulate and supervise procedure and practice of all subordinate courts. Provision for
establishing more High Courts was made in the Act. In course of time a High Court was
established practically in each province. The creation of High Courts was a momentous
progressive step in developing a unified system of law and administration of justice in the
country. In the presidency High Courts, however, the fusion appeared more of two courts
than of laws. For quite some time these High Courts continued to follow two sets of law, one
inherited from the Supreme Court and the other from the adalats. The two sets of law were
applied not because of the nationality of the litigant but because of territorial differences, that
is, whether he was from the town of Calcutta or from outside.

Progressive legislation gradually establishing in course of time a body of Anglo-Indian law

applicable by the High Court ended the duality, finalizing the initially contemplated fusion.

20
Other High Courts which were created later enjoyed the same powers, jurisdiction and
authority as the presidency High Courts, except that generally the former did not enjoy
jurisdiction over insolvency matters, admiralty and ordinary original civil jurisdiction (that is,
the old Supreme Court's jurisdictional powers and authority as inherited by the presidency
High Courts). High Courts in each province acted as the highest court of appeal. Appeals
from them went to the Privy Council.12

Federal polity initiates a federal court

Under the Government of India Act 1935, the attempt to initiate a federal policy in India
necessitated the creation of a federal court. To interpret provision of the Act objectively and
determine disputed issues arising between the federation and the units or the units inter se, a
Federal Court was established in 1937. As an appellate body it could hear appeals from the
High Courts on a certificate that the issue involved a substantial question of law as to the
interpretation of the 1935 Act. In its advisory jurisdiction it could render advice to the
Governor General on any legal matter of public importance. The Federal Court actually left
the domain and authority of the High Courts untouched. Barring a limited sphere, appeals
from the High Courts also continued to go to the Privy Council as before. Decisions of the
Federal Court were also appealable in the Privy Council.13

Establishment and constitution of Federal Court:

There shall be a Federal Court consisting of a Chief Justice of India and such number of other
judges as His Majesty may deem necessary, but unless and until an address has been
presented by the Federal Legislature to the Governor-General for submission to His Majesty
praying for an increase in the number of judges, the number of puisne judges shall not exceed
six. Every judge of the Federal Court shall be appointed by His Majesty by warrant under the
Royal Sign Manual and shall hold office until he attains the age of sixty-five years.

A person shall not be qualified for appointment as a judge of the Federal Court unless he-

(a) has been for at least five years a judge of a High Court in British India or in a Federated
State ; or

(b) is a barrister of England or Northern Ireland. of at least ten years standing, or a member of
the Faculty of Advocates in Scotland of at least ten years standing ; or

12
Roy, Tirthankar, and Anand V. Swamy. Law and the Economy in Colonial India. 2016.
13
Supra at 11

21
(c) has been for at least ten years a pleader of a High Court in British India or in a Federated
State or of two or more such Courts in succession.

Every person appointed to be a judge of the Federal Court shall, before he enters upon his
office, make and subscribe before the Governor-General or some person appointed by him an
oath according to the form set out in that behalf in the Fourth Schedule to this Act.

Salaries of Judges

The judges of the Federal Court shall be entitled to such salaries and allowances, including
allowances for expenses in respect of equipment and travelling upon appointment, and to
such rights in respect of leave and pensions, as may from time to time be fixed by His
Majesty in Council:

Provided that neither the salary of a judge nor his rights in respect of leave of absence or
pension shall be varied to his disadvantage after his, appointment.

Temporary appointment

If the office of Chief Justice of India becomes vacant, or if the Chief Justice is, by reason of
absence or for any other reason, unable to perform the duties of his office, those duties shall,
until some person appointed by His Majesty to the, vacant office has entered on the duties
thereof, or until the Chief Justice has resumed his duties, as the case may be, be performed by
such one of the other judges of the court as the Governor-General may in his discretion
appoint for the purpose.

Appellate jurisdiction of Federal Court in appeals from High Courts in British India.

An appeal shall lie to the Federal Court from any judgment, decree or final order of a High
Court in British India, if the High Court certifies that the case involves a substantial question
of law as to the interpretation of this Act or any Order in Council made thereunder, and it
shall be the duty of every High Court in British India to consider in every case whether or not
any such question is involved and of its own motion to give or to withhold a certificate
accordingly.

Where such a certificate is given, any party in the case may appeal to the Federal Court on
the ground that any such question as aforesaid has been wrongly decided, and on any ground
on which that party could have appealed without special leave to His Majesty in Council if no

22
such certificate had been given, and, with the leave of the Federal Court, on any other ground,
and no direct appeal shall lie to His Majesty in Council, either with or without special leave.

Appellate jurisdiction of Federal Court in appeals from High Courts in Federated

States.

An appeal shall lie to the Federal Court from a High- Court in a Federated State on the
ground that a question of law has been wrongly decided, being a question which concerns the
interpretation of this Act or of an Order in Council made thereunder or the extent of the
legislative or executive authority vested in the Federation by virtue of the Instrument of
Accession of that State, or arises under an agreement made under Part VI of this Act in
relation to the administration in that State of a law of the Federal Legislature.

An appeal under this section shall be by way of special case to be stated for the opinion of the
Federal Court by the High Court, and the Federal Court may require a case to be so stated,
and may return any case so stated in order that further facts may be stated therein.

Rules of Court

The Federal Court may from time to time, with the approval of the Governor-General in his
discretion, make rules of court for regulating generally the practice and procedure of the
court, including rules as to the persons practising before the court, as to the time within which
appeals to the court are to be entered, as to the costs of and incidental to any proceedings in
the court, and as to the fees to be charged in respect of proceedings therein, and in particular
may make rules providing for the summary determination of any appeal which appears to the
court to be frivolous or vexatious or brought for the purpose of delay.

High Court in British India

Meaning of High Court

The following courts shall in relation to British India be deemed to be High Courts for the
purposes of this Act, that is to say, the High Courts in Calcutta, Madras, Bombay, Allahabad,
Lahore, and Patna, the Chief Court in Oudh, the Judicial Commissioner's Courts in the
Central Provinces and Berar, in the North-West Frontier Province and in Sind, any other
court in British India constituted or reconstituted under this chapter as a High Court, and any
other comparable court in British India which His Majesty in Council may declare to be a
High Court for the purposes of this Act.

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Constitution of High Courts.

Every High Court shall be a court of record and shall consist of a chief justice and such other
judges as His Majesty may from time to time deem it necessary to appoint.

Every judge of a High Court shall be appointed by His Majesty by warrant under the Royal
Sign Manual and shall hold office until he attains the age of sixty years.

Salaries of judges

The judges of the several High Courts shall of judges. be entitled to such salaries and
allowances, including allowances for expenses in respect of equipment and travelling upon
appointment, and to such rights in respect of leave and pensions, as may from time to time be
fixed by His Majesty in Council.

Temporary and additional judges

If the office of chief justice of a High Court becomes vacant, or if any such chief justice is by
reason of absence, or for any other reason, unable to perform the duties of his office, those
duties shall, until some person appointed by His Majesty to the vacant office has entered on
the duties thereof, or until the chief justice has resumed his duties, as the case may be, be
performed by such one of the other judges of the court as the Governor-General may in his
discretion think fit to appoint for the purpose.

Independence and the establishment of the Supreme Court of India

Since India became a republic after independence the Supreme Court of India has been
established as the highest court in the country. It has replaced the combined jurisdiction and
authority of its predecessors, the Federal Court and the Privy Council. The last link with the
Privy Council was severed in 1949 in anticipation of India attaining the status of a full
republic in 1950. The Supreme Court has a wide appellate jurisdiction in constitutional, civil,
criminal and other matters. In the normal course a decision of the high court is only
appealable when the High Court certifies that the cases satisfy the conditions prescribed for
appeal in the Constitution. But the court enjoys further overriding discretion to grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or
matter made by any court or tribunal in the country. This is to cover all instances of gross
miscarriage of justice anywhere in any form. It strengthens the authority and ability of the
highest court in the country to rectify all deviations from norms of sound administration of

24
justice. On the original side it repeats the role of the Federal Court to decide disputes between
the centre and the states or amongst the states. Its original jurisdiction also further
encompasses the important sphere of fundamental rights as enshrined in the Constitution. The
enforcement of these rights can itself be claimed as a fundamental right, through writs
issuable by the Supreme Court. Its advisory role is to give opinion on any important issue
referred to it by the President of India. The Constitution has ensured the independence of the
Supreme Court in many ways. Law declared by the Supreme Court is constitutionally binding
on all the courts in India. The court itself is, however, free to change its views by overruling
its earlier decision.

The lower judicial structure

The remaining judicial structure is materially the same as left by the British. It is a correlated
hierarchy resulting in a pyramid with the Supreme Court at the apex. The immediate
successive rung is of the High Courts, one of each state. This is the highest state forum of
appeal and revision for both civil and criminal matters; it is also invested with writ
jurisdiction.

Next appear several lower judicial units organized by each state in its territory. This
individual arrangement, far from being diverse, is by and large similar to character. Before
independence certain pockets, like the areas under the control of native princes had different
and individual patterns of courts for administering justice. Now they are part of the Indian
republic and their judicial scheme is the same as of any other state in the country.

For administration of civil justice each state is divided into several districts. Every district has
a District Court as the principal civil court of original jurisdiction. It is a court of appeal and
has power of supervision over the courts below. Under it there are arranged a number of
lower courts whose details vary from state to state. But the lowest unit is invariably the rural
panchayat court. It is an elected body with extremely limited civil and criminal jurisdiction,
and free from procedural technicalities. It helps to bring justice speedily to one's door in the
village. Panchayat courts are an ancient tradition in the country. In criminal matters
subordinate courts are organized under the provision of the Code of Criminal Procedure,
1973 applicable to the entire country. Taken in an ascending order the system starts with the
village panchayat, then come the first, second and third class magistrates' courts, and finally
the Sessions Court which is usually the District (civil) Court mentioned above. Some

25
honorary magistrates are also appointed to lighten the load of the regular magistrates. As the
system is a composite whole, appeals lie from each lower unit to the court above it.14

Separation of the judiciary from the executive in India gives ample opportunity to be
objective, independent and be an effective instrument to check arbitrary action of both the
states and the individual. Administration of criminal justice at the subordinate level still
generally lacks complete separation of judicial authority from the executive. Magistrates as
the executive officers apprehends as well as judge the accused. Combining the police and the
deciding authority is anomalous and contrary to all principles of good administration of
justice. The tradition of collector-judges is a legacy of the British. The district collector
responsible for the administration represented the governmental authority in the old days. To
furnish him with the power of punishing the offender was the most direct way of emphasizing
his authority. The Constitution now provides for a complete separation of the judiciary and
the executive, as one of the directive principles of state policy. In response some states have
appointed judicial magistrates to try minor criminal cases, others have conferred similar
powers upon munsiffs who are subordinate judicial officers on the civil side.

Indian judiciary has travelled a long way since the early days of the Company rule in the
three presidencies. Its present shape is unrecognizably distinct from its early phase. But
beneath the surface there is a strain of continuity. Further, even a superficial glance is
sufficient to show its close resemblance to the English legal system. The rule of law, doctrine
of binding Indian judiciary has travelled a long way since the early days of the Company rule
in the three presidencies. Its present shape is unrecognizably distinct from its early phase. But
beneath the surface there is a strain of continuity. Further, even a superficial glance is
sufficient to show its close resemblance to the English legal system. The rule of law, doctrine
of binding precedent and integrated judicial pattern are some, amongst many, English
influences to be found in the Indian judicial fabric.15

CONCLUSION

History comprises of the growth evolution and development of the legal system in the
country and sets forth the historical process whereby a legal system has come to be what it is
overtime. The legal system of a country at given time is not creation of one man or of one day
but is the cumulative fruit of the endeavor experience thoughtful planning and patient labor of
a large number of people through generation. With the coming of the British to India the legal
14
Supra at 12.
15
British India, 3 J. Soc. COMP. Legis. n.s. 312 (1901).

26
system of India changed from what it was in the Mughal period where mainly the Islamic law
was followed before that the Hindu laws were followed. The legal system currently in India
bears a very close resemblance to what the British left with. From this study, it is evident that
the null hypothesis fails as the present legal system is well refined and has developed to its
best.

BIBLIOGRAPHY

 Roy, Tirthankar, and Anand V. Swamy. Law and the Economy in Colonial India.
2016.
 Srivastava, Ramesh Chandra. Development of Judicial System in India under the East
India Company, 1833-1858. 1971.
 Hamid, Abdul. A Chronicle of British Indian Legal History. South Asia Books, 1991.

URL’s

 www.heinonline.org (last used on 11 December 2020)

 www.jstor.org (last used on 10 December 2020)
 www.barcouncilofindia.org (last used on 10 December 2020)

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