a.

History of Indian Legal System: with focus on Cossijurah case and

Regulating Act of 1773

Introduction
the importance of understanding the Indian legal system as a whole, rather than
focusing solely on its individual components. It explains that a legal system is a set of
principles and norms designed to protect and promote a secure living environment for
the people in a cultured society. This involves recognizing rights, assigning duties,
and providing mechanisms for enforcement, all of which are shaped by the
sociological, economic, and political conditions of the society.

The legal system is described as a coherent whole, guided by underlying philosophies

or ideas that connect its different parts for harmonious functioning. While laws may
change through legislation and judicial decisions, the fundamental concepts and
methods of the system remain constant the classification of major legal systems in the
world, including common law, civil law, socialist legality, and religious systems of
law. It notes that the Indian legal system is primarily a common law system but
incorporates elements from the other three systems. The system is described as open,
adapting to the needs of society by incorporating what is most suitable.
The judiciary
Infomal, rough and ready justice (1600-1726)
The East India Company as a trading concerns was not furnished with any judical
power other than those required for maintaing discipilne over it's men the company
found it difficult to carry on its business properly without permission to settle disputes
amongst its own members of people around it . The company in 1661 the British
crown authorized the Governor and council in each factory to judge all persons to the
company or living in both civil and criminal matters. the charter of charles II in 1661
can be treated as the first provisons eastabling the company to exercise judical power
on the Indian soil. 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.

the 1661 Charter each presidency town formulated

separate and independent judicial system depending upon the genius and
imagination of the local Governor and Council.the Governor and Council functioned
as a court for all civil, criminal and other matters.
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. Decisions from these subordinate judicial units were always
appelable in the court of the Governor and Councl
The Governor and council acutely felt the need of trained legal expertise and positive
judical authority to manage the task of handing down decisons .one of the major
problem was tackle the' intrlopers' interfering unathorizedly with the trade monopoly
of the company . The crown authorized the company kn 1683 to eastblish an admirly
court in all proper places to try all cases of trespass, injuries and wrong, done or 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'.on the high seas or within the charter limits cases of
forefetitures and seizures of ships goods which came for trade within the company
monopoly area. 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. One of the
councilors who had no legal training was thereafter expected to preside over the
Admiralty Court.

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 judical system and few innovations bombay went through successive
judical plans none too effective
In calcutta besides the court of the Governor and councill there was the collector
court with one of the councillors appointed as collector. He dispensed justice in all
matters civil, criminal and revenue pertaining to the indias residing in the settlement.
The other zamindars however sent their appeals to moghul courts at murshidabad and
sought confirmation of the death sentence from the nawab. There are instances when
persons other than
Englishmen were also associated with the judicial work .Record show that the these '
'others'did not mean much as for all pratical purposes their status
was that of inferior 'black justice'.
Athoritative and unifrom judical pattern ( 1726-1773)
The Charter of 1726 was a significant event in the history of the East India Company
and the development of the Indian judicial system. It established a uniform system of
courts and law in the three presidency towns of Madras, Bombay, and Calcutta, and it
also created a system of appeals to the Privy Council in England. This system of
courts and law helped to bring stability and order to the Indian subcontinent, and it
also helped to protect the rights of British subjects living in India.

The Charter of 1726 was granted by King George I in response to a petition from the
East India Company. The Company had been operating in India for over a century,
and its trade had grown significantly during that time. As a result, the Company's
presence in India had become more complex, and the need for a more formal system
of justice had become apparent.

The Charter of 1726 established a Mayor's Court in each of the three presidency
towns. The Mayor's Court was to be composed of a mayor and nine aldermen, seven
of whom were required to be natural-born British subjects. The Mayor's Court had
jurisdiction over all civil causes arising within the presidency town and its subordinate
factories. First appeals from the Mayor's Court lay to the Governor and Council, and
second appeals lay to the King-in-Council.

The Charter of 1726 also established a system of criminal courts 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.

The Charter of 1726 was a significant step forward in the development of the Indian
judicial system. It established a uniform system of courts and law in the three
presidency towns, and it also created a system of appeals to the Privy Council in
England. This system of courts and law helped to bring stability and order to the
Indian subcontinent, and it also helped to protect the rights of British subjects living
The Mayor's Court was a court of law established in Calcutta in 1726 by the British
East India Company. It was the first court in India to be established by a European
power. The court was initially intended to deal with disputes between Europeans and
Indians, but it soon came to be used by the British to exercise control over the Indian
population.

The Mayor's Court was administered in accordance with English law, which was often
contrary to the legal and social traditions of the Indians. This caused resentment
among the Indians and led to a number of protests. In 1753, the Crown formally
exempted the Indians from the jurisdiction of the Mayor's Court, but this exemption
was meaningless as there was no other court in the presidency areas that could hear
their cases.

The territorial jurisdiction of the Mayor's Court was also restricted to the limits of the
respective presidency towns. This meant that Englishmen who lived in the interior of
India were not subject to the court's jurisdiction. With the weakening of the Nawab's
authority, the Englishmen declared themselves immune from local tribunals as well.
This made them free to indulge in all sorts of wrongful conduct without fear of
punishment.

The Mayor's Court was a symbol of British power and authority in India. It was used
by the British to exploit the Indians and to maintain their control over the country. The
court was also a source of resentment and anger among the Indians. It was one of the
factors that led to the Indian Rebellion of 1857India
Justice in the interior( Mofussil)
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
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. 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 justiceThe 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
The legistaltion
Early days of the company (1600- 1726)
The East India Company was granted legislative authority in India in 1698. This
authority was initially limited to making rules for maintaining discipline among the
Company's servants and for preserving trade interests. However, in the context of the
Indian political scene in the seventeenth century, wider legislative authority was
considered necessary. In 1726, the Company's General Court (managing body) sitting
in England was given the power to make laws for the Company's territories in India.
This power was later extended to the Company's Governor-General in India. The
Company's legislative authority was finally abolished in 1858, when the British
government took direct control of India.

The Company's legislative authority was used to make a wide range of laws,
including laws on trade, taxation, criminal law, and civil law. The Company's laws
were often based on English law, but they were also adapted to the Indian context.
The Company's laws had a significant impact on the development of Indian law
Beginning of legislative authority on India soil ( 1726 onwards) The expansion of
trade and the creation of a corporation in each presidency in 1726 led to increased
activity in making rules. As distant authority was unable to meet the task, it was
considered prudent to locate the authority locally. In 1726, the Crown empowered the
Governor and Council of each presidency to make by-laws, rules, and ordinances for
the good government and regulation of the corporation and the residents of the
settlement. Final written approval and confirmation by the Company in England was
preserved as an essential condition. This established a subordinate power of
legislation in India itself, which was destined to supersede similar authority earlier
vested in the Company. These legislative bodies, one in each presidency, independent
of each other, were expected to make rules not contrary to 'reason' and 'English Law'.

Apprehensive of financial instability of the Company and certain of its gross

mismanagement in Bengal, the British Parliament decided to mend matters through
direct interference by passing the Regulating Act of 1773. It raised the status of the
Governor of Calcutta to that of Governor-General. The Governor-General and
Council, besides being the chief executive of the three presidencies, was also to be the
legislative body for Calcutta and its subordinate factories. Matters were decided by
majority vote, but a power of veto was vested in the Supreme Court created under the
Act. Provision was also made for publication of ordinances and regulations. A right of
appeal to the King and Council against the propriety of these rules was provided for,
and the King-in-Council had the power of repeal. It amounted to empowering the
Governor-General and Council with legislative authority subject to judicial and
Crown control. In 1781, authority was extended to include the mofussil area without
the controlling veto of the Supreme Court.

In practice, however, the Governor-General found himself impotent before the

majority in the council and the veto of the Supreme Court. To improve his position,
power of veto to overrule the majority opinion in the council was transferred to the
Governor-General himself in 1789. The Governor-General, thus fortified,
appropriately passed most of the regulations in Bengal. Within a couple of decades,
the Governor and Council at Madras and Bombay were also empowered to make
regulations for their presidencies. Madras and Bombay councils were independent of
Calcutta in their legislative functions. But a copy of all the regulations made in the
two presidencies had to be sent to Calcutta for approval without further scrutiny. It
meant decentralized legislative authority located at three places

Centralization of legislative Authority

. It was the year that the British East India Company was granted a monopoly on
trade with India. This monopoly gave the Company a great deal of power and
influence in India, and it led to a number of changes in the way that the country was
governed.

One of the most important changes was the creation of a new legislative body, the
Governor-General's Council. This Council was responsible for making laws for all of
India, and it was the first time that a single body had been given this authority. The
Council was made up of the Governor-General, four other members, and a law
member. The law member was responsible for drafting new laws, and he was the only
member of the Council who was not a British citizen.

The creation of the Governor-General's Council was a major step forward in the
development of Indian law. It brought together representatives from all parts of India,
and it allowed for the development of a uniform legal system. The Council also
played a role in codifying Indian law, which is the process of putting laws into a
written form. This made it easier for people to understand the law, and it helped to
ensure that the law was applied fairly and consistently.

The achievements of the Governor-General's Council are the foundation of modern

Indian law. The Council's work helped to create a system of law that is fair, just, and
accessible to all
The Cossijurah Case (1779-80)
Facts of the case
Raja Sundernarain, zamindar of Cossijurah (Kasijora), owed Cossinaut Babu a huge
sum of money (Kashinath). Despite Cossinaut Babu’s best efforts, the money was not
recovered from the Raja. As a result, he launched a civil suit at the Supreme Court of
Calcutta against the Raja of Cossijurah. Raja was arrested when the Supreme Court
issued a writ of Capias.

Raja went into hiding in order to avoid serving the writ since he was terrified. The
Council published a notice alerting all landowners that they did not need to pay
attention to the Supreme Court’s proceedings unless they were either an employee of
the firm or had consented to the court’s jurisdiction. The Raja was also expressly
notified by the council, and the Council further ordered the collector of Midnapur (an
Orissa district) to refuse the Sheriff and his men any assistance. As a result, when the
Sheriff of the SC arrived with a writ to arrest the Raja of Cossijurah, his people drove
him away.
The conflict of jurisdiction in the case
On the 12th of November 1779, the SC issued another writ of sequestration to seize
the property of Raja’s house in order to compel him to appear in court. The Raja was
imprisoned by the British, who are reported to have violated the sacredness of the
family idol by entering the Zenana. Meanwhile, the Governor-General and Council
directed Colonel Ahmuty, the commander of the armed forces, to deploy a strong
force to intercept and arrest Sheriff and his party and further release Raja.
The sheriff and his party were arrested on December 3rd, 1779, and held in
confinement for three days. They were then deported to Calcutta as prisoners, but the
Sheriff’s party was released by the Council, who also directed Colonel Ahmuty to
release any additional writs issued by the Supreme Court.

Observations and questions

The Cossijurah case raises two critical issues that must be addressed:

Whether the Supreme Court had jurisdiction over zamindars.

Who was the decision-making authority in this case?
With regard to the first issue, the councilors could not remove their protection of the
Raja of Cossijurah without jeopardising their influence and prestige. In response to
the second question, the Supreme Court Judges had the ability to assess the legal
status of zamindars, whereas the council did not.

“I genuinely mourn our differences to the Judges: yet it was unavoidable,” Warren
Hastings wrote in a letter to John Purling. I believe you will back us; if you do not,
rest assured that Bengal, and by consequence, India, would be lost to the British
Empire.” The contents of this letter revealed that Warren Hastings valued the
council’s power over his friendship with Impey. Warren Hastings proclaimed, “We are
on the verge of an open battle with the Court,” when he ordered the military to arrest
the court’s Sheriff.

In response to these events, a petition was sent to the British Parliament in March
1779, signed by all major British residents of Bengal, company servants, and
zamindars, protesting the excesses of the SC in Bengal. As a result, a parliamentary
committee was formed, which later presented before the parliament a detailed report.
As a result, the parliament passed
the Act of Settlement, 1781.
The Act of Settlement was a 1781 Amending Act passed by the British Parliament on
July 5, 1781, to correct the flaws in the Regulating Act of 1773. The Declaratory Act
of 1781 is another name for it. Following are some salient features of the Act:

Changes in the Supreme Court’s powers: Previously subjected employees of the

company were now exempted from the Supreme Court’s jurisdiction.
Jurisdiction in a Revenue Matter: Expressly s Set the Supreme Court’s jurisdiction in
revenue disputes to a specific limit.
Exemption for Jamindars and landholders: The Supreme Court will not have
jurisdiction over anyone who holds the position of a landholder, farmer, or company
employee.
The company’s provisional court had been recognised.
Sadar Diwani Adalat was recognised as the chief court. The Act established the Sadar
Diwani Adalat as a court of appeal to handle civil appeals from company courts
.
b. Indian Judicial System: focus on powers and functions of sessions and
magistrate court
The Indian judicial system is a complex and multi-tiered system that is responsible for
upholding the rule of law in India. The system is divided into three main branches: the
Supreme Court, the High Courts, and the subordinate courts. The Supreme Court is
the highest court in the land and has the power to hear appeals from all lower courts.
The High Courts are the highest courts in each state and have the power to hear
appeals from all lower courts in their state. The subordinate courts are the lowest
courts in the system and have the power to hear cases involving minor offenses and
civil disputes.

The sessions court is a type of subordinate court that has jurisdiction over serious
criminal cases. The magistrate court is another type of subordinate court that has
jurisdiction over minor criminal cases and civil disputes. The powers and functions of
the sessions court and the magistrate court are set out in the Code of Criminal
Procedure, 1973.

The sessions court has the power to try all criminal cases, except those that are triable
by the High Court. The sessions court also has the power to pass sentences of up to
life imprisonment. The magistrate court has the power to try minor criminal cases and
civil disputes. The magistrate court also has the power to pass sentences of up to three
years imprisonment.

The sessions court and the magistrate court are important institutions in the Indian
judicial system. They play a vital role in upholding the rule of law and ensuring that
justice is served.

I. Sessions Courts:

1. Powers:

• Original Jurisdiction: Sessions courts have original jurisdiction over serious offenses
under the Indian Penal Code (IPC), including offenses punishable with death, life
imprisonment, or imprisonment for more than 10 years.
• Appellate Jurisdiction: They also have appellate jurisdiction over decisions made by
subordinate magistrate courts, meaning they can review the magistrate's decisions and
alter or confirm them.
• Trial by Jury: Sessions courts are authorized to conduct trials by jury in certain cases
specified by law.

2. Functions:

• Conducting Trials: Sessions courts are responsible for conducting trials in serious
criminal cases, including hearing evidence, examining witnesses, and delivering
judgments.
• Sentencing: Upon conviction, sessions courts have the power to impose
punishments, including fines, imprisonment, and in certain cases, the death penalty.
• Supervising Subordinate Courts: Sessions courts also play a supervisory role over
magistrate courts within their jurisdiction.

II. Magistrate Courts:

1. Powers:
• Original Jurisdiction: Magistrate courts have original jurisdiction over a wide range
of offenses under the IPC and other criminal laws, including offenses punishable with
less than 10 years of imprisonment. They also deal with minor offenses and cases
related to civil matters.
• Committal Powers: Magistrate courts have the power to commit accused persons to
sessions courts for trial in cases that fall under the jurisdiction of the sessions courts.

2. Functions:

• Investigating Offences: Magistrate courts are involved in the investigation of

criminal offenses and have the power to issue warrants for arrest, conduct preliminary
inquiries, and record evidence.
• Trial of Minor Offences: Magistrate courts handle the trial of minor offenses and
civil cases within their jurisdiction.
• Issuing Warrants: Magistrate courts can issue warrants for arrest, search warrants,
and other legal processes.
• Bail and Remand: They have the authority to grant bail to accused persons and
remand them to custody for further investigation.

Types of Magistrate Courts:

• Chief Judicial Magistrate (CJM): The most senior magistrate, with supervisory
jurisdiction over other magistrate courts.
• Additional Chief Judicial Magistrate (ACJM): Assists the CJM in performing
judicial functions.
• Judicial Magistrate First Class (JMFC): Deals with more serious cases and has a
higher level of judicial power.
• Judicial Magistrate Second Class (JMSC): Handles less serious cases and has a
lower level of judicial power.

Key Points:

• Hierarchy and Specialization: The Indian judicial system, with its distinct powers
and functions of sessions and magistrate courts, ensures a system of checks and
balances and allows for specialization in handling different types of cases.
• Trial and Sentencing: The system is designed to provide fair trials and appropriate
sentencing for different levels of offenses.
• Appeal System: The hierarchical structure includes a robust appeal system, allowing
for judicial review and ensuring fairness and due process.

Overall: Sessions and magistrate courts play crucial roles in the Indian judicial
system, ensuring the administration of justice, safeguarding individual rights, and
maintaining public order. They function within a well-defined hierarchy, ensuring
appropriate procedures and powers for different levels of offenses and complexities of
cases.

C) Role and Skills of Paralegal Volunteers