INTRODUCTION AND HISTORICAL PERSPECTIVE

At the best, man is the noblest of all animals; Separated from law and justice,
he is the worst.
Aristotle

1.1. INTRODUCTION

Earlier the concept of State was different then it is in present scenario because the role
of State was limited i.e. it was only a Police State to maintain law and order in
society, dispensing justice to its subjects and collecting a few taxes to finance these
activities. The concept of Laissez Faire prevailed which refers to the economic policy
of letting owners of industry and business set working conditions without interference
and favours a free market unregulated by the government.

This philosophy envisages minimum government control, maximum free enterprise

and contractual freedom. Jeremy Bentham(1748-1832) was the supporter of this
concept, as he had talked about the same concept in his theory of “ Individualism;
Utilitarianism “and his philosophy can be summed up in his own words as follows:-

“Natural has placed man under the empire of pleasure and pain. We owe to them all
our ideas;we refer to them all our judgments, and all the determination of our life. He
who pretends to withdraw himself from this subjection knows not what he says. His
only object is to seek pleasure and to shun pain… These eternal and irresistible
sentiments ought to be the great study of the moralist and the legislator. The principle
of utility subjects everything to these two motives.”1

In course of time, the society had changed and along with it the concept of State had
also changed. The concept of police State had changed into a Welfare State and the
reason for such change is that the Laissez Fairetheory resulted in human misery as the
bargaining position of every person was not equal and uncontrolled contractual
freedom led to the exploitation of weaker section by the stronger e.g. of the labour by
the management in industries and concentration of wealth in a few hands and to
ensure the welfare of general public and to provide them with maximum required
facilities.
1
B.N. Mani Tripathi, Jurisprudence The Legal Theory, Allahabad Law Agency, Faridabad, Haryana,19 th
ed. 2012, P. 16.

1
A police State had neither concern to the different life affairs of the citizens, nor the
State had to bother about the other aspects of life which does not comes under the
purview of its police functions. It is only after the independence that the State was
considered to be an entity whose functions should not be confined in a strait jacket
formula, rather it should be such an entity which covers various human life activities,
so as to make their lives to run smoothly.

Judiciary in India forms one of the three organs of the governmenti, e. Legislature,
Executive and Judiciary. The legislature is to make laws, executive is to implement
the laws and judiciary is to interpret the laws. So it can be said that the functions
performed by each of these organs are demarcated in such a manner so as to secure
the equal importance of all the organs. The theory of Basic Structure which was
propounded in KesavanandaBharati’s2 case and explained as “ systematic principles
underlying and connecting provisions of the Constitution and give coherence and
durability to the Constitution” in M. Nagraj v. Union of India,3also includes the
concept of Separation of powers. Under the Indian Constitution Article 504is based on
the bedrock of the principle of independence of judiciary i.e. Separation of judiciary
from executive, i.e. “The State shall take steps to separate the judiciary from the
executive in the public services of the State. “

Judiciary in India plays a very vital role in maintaining the Rule of law5. This doctrine
is ascribed to Dicey whose writing in 1885 on British Constitution included, Absence
of Arbitrary Power, Equality before law and Individual liberties and provide satisfied
justice to the parties in controversies before it. The courts are to resolve disputes
between the Citizens, between the Citizens and the State, between States inter se and
also between the Centre and State government.

The functions of judiciary is very wide as it has to work keeping in view the aims and
objectives of the Indian Constitution, i,e. the promise that WE, THE PEOPLE OF
INDIA6have given to ourselves, including the Preamble which forms the integral part
2
AIR 1973 SC 1461.
3
AIR 2007 SC 71
4
Article 50 of the Indian Constitution, 1950. Separation of judiciary from executive.
5
M.P. Jain, Indian Constitutional Law, LexisNexis, Gurgaon, Haryana, 7th ed. 2014, P. 7-8.
6
Preamble of the Indian Constitution, “ WE, THE PEOPLE OF INDIA having solemnly resolved to
constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its
citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and
worship; Equally of status and of opportunity; and to promote among them all; Fraternity assuring
the dignity of the individual and the unity and the integrity of the Nation.In our Constituent

2
of the Constitution7. The concept of Justice envisaged in the Preamble i. e Justice-
social, economic and political, which ultimately speaks about the tasks to be
performed by the courts. 8

The apex court of India i.e. the Supreme court’s achievements is significant in all
areas of National life. It is the defender of the Constitution and the principles
enshrined therein, guardian of human rights and promoter of peace, cordiality and
balance between different organs of the government. The court as part of the federal
system and as the defender of democracy has always remained responsive to the
changes in Indian Society and retained its relevance, for if the society moves but the
law remain static, it shall be detrimental for both. It has without any reservations,
intervened to protect democracy, human rights of individuals to uphold to rule of
law.9

1.2. HISTORICAL PERSPECTIVE

Law is a dynamic concept which changes from time to time and place to place to suit
the needs and conditions of a given society which is constantly changing and
developing with the advancement of human knowledge and civilization. The history
of human society tells us that “ the roots of the present lies in the past”. So is also the
case with the legal institutions. The Courts and laws which we have today, have taken
the present shape after years of experimentation and planning. So, in order to
appreciate the present legal system, it becomes necessary to probe into the past history
of its evolution and development of laws and courts in India.

It cannot be denied that the existing system of laws and courts primarily owe their
origin to the judicial system introduced by the British rulers in India and it has not any
direct linkage with the legal system operating in India during the ancient Vedic period
but it cannot be forgotten that the influence of the ancient legal system still persists in
one form or the other in the modern Indian legal philosophy because of its rationality
and humanistic approach in law. As observed by SirMayne, the Indian law was the

Assembly this twenty-sixth day of November, 1949 do Hereby, Adopt, Enact and Give to Ourselves
this Constitution.”
7
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225.
8
K.G. Balakrishnan, Judiciary of India: Problems and Prospects, Journal of the Indian Law
InstituteVol.-50. No.4, October-November 2008, Shivam Offset Press, Naraina, New Delhi, PP.461-
467.
9
Justice R.C . Lahoti , A Conspectus of Judicial System, Nyaya Deep: The OfficialJournal of NALSA
Vol.-6, Issue-1, National Legal Service Authority, New Delhi, PP. 5-31.

3
oldest pedigree of any known system of jurisprudence, and even now it shows no
signs of decrepitude. At this day, it governs races of men, existing from Kashmir to
Capecomorin, who agree in nothing else except their submission to it.10

1.2.1. PRIMITIVEAGE

It was once thought that there was no need of a system of law in the primitive society
because it was automatically law-abiding. The traditions of a tribe were regarded as a
confused mass of usages, customs and religion, it was said that there was no law, no
individual property, no real means of enforcing any right which an individual thought
he possessed except self-help. What kept the community together was the fear of the
unknown, of the estrange spirit that may punishment. Early law, therefore, springs
from a religious sanction, the fear of the unknown, of the spirits that dwell
everywhere.11

1.2.2. VEDIC PERIOD

The legal and judicial history of India is as old as 5000 years from now. In the Vedic
period, when the social and State formation was yet to be completed, Dharma which
emanated from Vedas was the main source or the sole source of law. Vedic concept of
Rita and Satya are the precursors of the concept of Justice. Rita is rectitude, the
straight path leading man to perfection. It is a divine cosmic order by which the
universe and even the Gods were governed. Rita as it manifests itself in the moral
consciousness of man comes to be called as Satya or truth . The Satya that is
socialised becomes Dharma.12

10
Mayne: Hindu Law & Usage, Preface, 1st ed. P. 1.
11
Dr. Veena Madhav Tonapi, Textbook on Jurisprudence, Universal Law Publishing Co., New Delhi, 2nd
ed. 2013, P. 233.
12
H.V. Shreenivasa, History of India Part 1, Eastern Book Company, Lucknow, 1st ed. 1993, P. 184.

4
1.2.2.1.ELEMENTS OF VEDAS

 Tell the truth.

 Never tell untruth.
 Never hurt anyone.
 Follow Dharma.
 Treat your father and mother as God.
 Perform only such acts which are not forbidden. Etc

The Hindu legal system is embedded in Dharmaas propounded in the Vedas, Puranas
Smrities and other works of that time. Dharma means Justice (Nyaya), what is right in
a given circumstances, morals, religion, pious or righteous conduct, being helpful to
living beings, giving clarity or alms, natural qualities or characteristics or properties
of living beings and things, duty, law and usage or custom having the force of law and
also a valid Rajashasana( royal edict ).13

“Law is a Chatra of Chatras, therefore, there is nothing higher than the law.

Thenceforth even a weak man rules a stronger with the help of law, as with the help
of the King.

This law is what is called the truth….. Truth and law both are same”.14

Dharma was the base of all the activities of the King or the ruler. He does justice
believed himself to be the messenger of God, who has to do only justice. But later
people deflected from the path of Dharma being overpowered by greed and stronger
person began to harass the weaker ones and as a remedy of this situation the three-
fold ideals called Dharma, Artha( material wealth ) and Kama(Desire)were laid down
for the welfare and happiness of the people and a fourth ideal namely Moksha the
desire to secure eternal happiness was also prescribed and the King was entrusted
with the responsibility of enforcing Dharma.15

Later on Shrutiand Smritiesbecame the source of law in India. Shruti means that
which was heard and handed down from generation to generation verbally and the

13
Justice M. Rama Jois, Legal and Constitutional History of India, Universal Law Publishing Co. Pvt.
Ltd., 1st ed. 1984, P. 1.
14
Briharanyak Upanishad 1, Chap. 4, Verse 4.
15
Dr. N.V. Paranjape, Indian Legal and Constitutional History, Central Law Publications, Allahabad, 7th
ed. 2015, P.4.

5
source of Shrutiwas believed to be Divine. They include the four Vedas i. e Rigveda,
Yajurveda, Samavedaand Athatvanaveda.Further the Smritiesresembles the modern
method of codification. It means what has been remembered. All the legal principles
here and there scattered in the Vedas, Dharma Sutras, Custom and Usages, which
came to be practised and accepted by the society, were collected together and
arranged subject wise in a systematic manner. The Smritiesalso dwelt with the
Constitution and gradation of courts, appointment of judges, their qualification and
the procedural law for the enforcement of substantial law.Smritiesmay be divided into
Dharmasutraswhich are early Smrities and Dharmashastrawhich are later Smrities. 16

Dharmasutras were also the source of law. It laid down the law or rules of conduct
regulating the entire gamut of human activities. It includes civil and criminal law. The
art of Mimamsawas used to interpret or understand the real meaning of those
authoritative texts of Vedas, Shruti,Smrities,Dharmasutrasetc. Some of the
DharmasutrasareGautama, Baudhayana, Apastamba, Vasistha, Vishnu, Harita etc.
On the other handDharmashastradeal with the subject-matter in a systematic manner.
Most of the Dharmashastras are divided into three parts i.e. Achara, Vyavahara and
Prayaschitta. The first deals with the rules of religious observations and the last deals
with the penance or expiation and the second part deals with civil law.
FurtherNibhandas (Essays) or commentaries, Digests, Customs were also the sources
of law.

1.2.3. RIG VEDIC PERIOD

The administrative machinery of the Aryans of Rig Vedic period functioned with the
tribal chief called Rajan. He did not exercise unlimited power, having reckoned with
the tribal organizations. In day to day administration, the King was assisted by a few
functionaries. The most important of these have been the purohita. The priests
inspired the tribal chief into action and lauded their exploits in return for handsome
rewards in cows and women slaves. Next in rank to the King was the Senanior the
head of the army. He used spears, axes, swords, etc. The Rig Vedic does not mention
any officer for administration of justice. It was not, however an ideal society but one

16
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad, Haryana, 22 nd ed. 2013, P.
27-28, 30.

6
in which there were cases of theft and burglary, and people stole cows. Spies were
employed to keep an eye on such anti-social activities.17

1.2.4.KAUTILYA’S ARTHASHASTRA

In the Kautilya’sArthashastrathe realm was divided into four administrative units

called Sthaniya, Dranmukha, Kharvatikaand Sangrahana. Sthaniyawas a fortress
established in the Centre of 800 villages, Dranmukhain the centre of 400 villages,
Kharvatikain the midst of 200 villages and Sangrahanain the centre of 10 villages. In
each of these places and at the mutiny places of districts, (JanapadaSamdhishu) law
courts were established to decide disputes between citizens.18

1.2.5. THE EPICS AGE

The Ramayana and Mahabharata are the two known epics of the Aryans. They are
concerned with events, which took place between 1000 and 700 B.C. They are not
books on the topic of Dharmashastras. However, Valmiki and Vyasa, who are held in
highest esteem by the society have incorporated important principles of Dharma.
Rama killed Rakshasa to protect Dharma. Further, Mahabharata contains laws on the
following topics:-19

 Coronation rights.
 Evils of anarchy.
 Rajdharma.
 Importance of punishment.
 Penalties.
 Marriage.
 Sonship.
 Inheritance.

17
R. S. Sharma, India’s Ancient Past, Oxford University Press , New Delhi. 1st ed. 2005, Pg. 110 and
111.
18
Sumeet Malik , Landmarks in Indian Legal and Constitutional History,Eastern Book Company,
Lucknow 11th ed. 2016, P. 10-11.
19
Dr. S.R. Myneni, Indian History, Allahabad Law Agency, Faridabad, Haryana, 3rd ed. 2015, P. 74.

7
1.2.6. BUDDHIST PERIOD

In Ancient Indian law, unlike modern law covers not only legal codes but also
prescribes codes of ethics and religious practices. As these codes changed, due to
internal and external factors, legal values too changed. One Cataclysmic change
occurred between the sixth and third century B.C. due to the high tide of Buddhism.
In this era, all old norms were attacked and shaken from their very roots. The Varna
hierarchy was badly damaged by the theory of equality put forward by Buddhism. The
privileges, which Brahmins enjoyed earlier, were no more available to them.20

1.2.7. MUGHAL PERIOD

Mughal period started with the advent of Muslim rulers after the decay of Hindu
kingdom through the various invasions by Mongols, Afghans and other foreign
invaders. During this period the Mughal rulers substituted their own legal system
throughout India irrespective of any caste, creed and religionexception some specific
matters. The resulting effect was that thousands of Hindus were converted to Islam by
force, public worship of Hindus images was forbidden and the Hindu temples and
their images were destroyed.21

Different officers were appointment for the transaction of its multitudinous affairs.
The chief departments of state were:-22

 The Imperial Household under the Khan-I-Saman.

 The Exchequer under Deccan.
 The Military pay and Accounts office under the Mir Bakshi.
 The Judiciary under the Chief Qazi.
 Religion endowments and charities under the Chief Sadr or Sadr-u-Sudur.
 The Censorship of public morals under the Mohtasib.
 The Diwan or Wazir was in charge of revenue and finance.

There were no legislations or written codes at that time except the twelve ordinances
of Jahangir and the Fatwa-i-Alamgiri, a digest of Muslim law prepared under the
20
Indra Deva Shrirama, Growth of Legal System in India Society, Allied Publishers Private Ltd., New
Delhi,1st ed. P.2.
21
B.R. Sharma, Constitutional Law and Judicial Activism, Ashish Publishing House, New Delhi,1st ed.
1990, P. 175.
22
Gokulesh Sharma, Ancient Judicial System in India, Deep & Deep Publications Pvt. Ltd., New Delhi,
1st ed. 2008, P.193,194.

8
supervision of Aurangzeb. The judges followed Quranic injunction, the Fatwas or
previous interpretation of the Holy law by eminent jurists. They did not disregard the
customary laws and also followed principles of equity. Above all the Emperor’s
interpretation prevailed, provided they are not run counter to the sacred laws. They
believed in speedy justice and the officers were also not immured from punishment.23

The Chief Qazi was the Chief judicialofficer. He appointed Qazis in every provincial
capital. The Qazis made investigations into and tried civil as well as criminal cases of
both Hindus and Muslims. The Muftis expounded Muslim law and the Mir Adls drew
up and pronounced judgments . There were no primary courts below Qazisand the
villagers and the inhabitants of smaller towns having no Qazis, settled their
differences locally by appeal to the caste courts or panchayats, the arbitration of an
impartial umpire (Salis) or by resort to force.24

Punishment like amputations, mutilation and whipping could be inflicted by the courts
without reference to the Emperor, but his consent was necessary in inflicting capital
punishment. There was no regular jail system but the prisoners were confined in
forts.25

1.2.8. BRITISH PERIOD

When the British reached the Indian soil, in the early years of the 17th century, the
Indian scenario was of a medieval, backward looking, superstitious, stagnant society,
unaware of the great possibilities of the world around. It was the best of the times for
the West and it was the worst of times for the East. It was the age of wisdom for the
West and it was the age of foolishness for the East. It was the spring of hope for the
West and it was the winter of despair for the East, when the Westerners came to India.

1.2.8.1. CHARTER OF 1600

The emergence of British Empire in India stands out as a unique event in the history
of the world. The East India company with its official title as “The Governor and
Company of Merchants of London trading into the East Indies” was incorporated in
England on the 31st December 1600 by a Charter of Queen Elizabeth which settled its
Constitution, power and privileges. The Company was to have a life span of fifteen
23
Adv. Ram Khobragade, Indian Constitution under Communal Attack, Gyan Publishing House, New
Delhi, 1st ed. 2002, P. 35.
24
S.R. Myneni, Legal System in the World, Asia Law House, Hyderabad, 1st ed. 2007, P. 322.
25
Dr. U.S. Singh, Indian History,Allahabad Law Agency, Faridabad, Haryana, 3 rd ed. 2005, P. 72.

9
years, but the Crown on two years notice could revise the Charter earlier if the trade
carried on by it did not appear to be profitable to the realm. The affairs of the
Company were to be conducted on the Democratic lines. All its members were to
form the General court, which was to elect annually the Court of Directors consisting
of a Governor and 24 Directors for managing the Company’s affairs. The Governor
and the Directors of the Court of Directors were to be elected by the General courts
for one year but the General court might remove any of them from his office even
before the expiry of his term of office.26

1.2.8.1.1. OBJECTS OF THE CHARTER OF 1600

The East India Company was incorporated to promote British trade and commerce in
Asia including India, Africa and America and on account of it under the Charter of
1600, the company was conferred on only those powers which were necessary to
regulate its business and maintain discipline amongst its servants and they were not at
all adequate for governance of any territory. But when the company came into India
and found the India Kings disunited and unaware of the modern politics, the Company
gradually inclined to acquire territory in India. Portuguese occupation of Indian
territories also inspired the Company to acquire territory in India. In short, the
commercial agenda turned into political one.27

1.2.8.2. ROYAL COMMISSION 1601

In order to enable the Company to punish its servants for grosser offences on long
voyages, the Company secured the first Royal Commission in 1601. Later, on 14th
December 1615, the King authorised the Company to issue such Commissions to its
Captains subject to one condition that in case of capital offences e.g. wilful murder
and mutiny, a jury of twelve servants of the Company will give the verdict. The
Company was given this power in order to maintain discipline on board during the
voyages. Some additional powers were given to the Company for enforcing Martial
law by the Charter of 1623.28

1.2.8.3.FARMAN OF 1615

26
M.P. Jain, Outline of Indian Legal and Constitutional History,LexisNexis, Gurgaon, Haryana,, 6th ed.
2012, P. 6-7.
27
Dr. Kailash Rai, History of Courts, Allahabad Law Agency, Faridabad, Haryana, 5th ed. 2009, P. 1.
28
B.M. Gandhi,Landmarks in Indian Legal and Constitutional History,Eastern Book Company,
Lucknow, 9th ed. 2009, P. 37.

10
In 1615 the Mughal Emperor, on the pleadings of Sir Thomas Roe, issued a Farman
granting certain facilities to the Englishmen by allowing them to live according to
their own religion and laws and to settle disputes among themselves by their President
. But the disputes between an Englishman and an Indian were to be decided by the
native Judges. The President of Surat factory and members of his council constituted a
court to decide disputes between the Englishmen inter se in accordance with their
own laws and customs. They were to decide both civil and criminal cases. In the case
of capital offences, the verdict was to be given by a Jury.29

1.2.8.4.CHARTER OF 1726

However, the Company’s Legislative powers were vested in the Court of Directors in
England, but they were not acquainted with the prevailing conditions and
circumstances in India. So it was realized that Legislative powers should be vested
with the Governor and Council of three Presidency towns to make laws and bye-laws
and also to make rules and regulations for the better governance of the Company and
to impose punishment for their contravention. However, the Court of Directors in
England could not enforce these laws and statutes unless approved and confirmed in
writing. The Charter of 1726 issued by King George 1, also made provisions for
setting up of the Mayor’s Courts at Bombay, Calcutta and Madras. English laws were
imposed on Presidencies by this charter.30

1.2.8.5.CHARTER OF 1753

In September 1746, the French occupied Madras and surrendered it to the British in
August 1749. During the period of French occupation, the Madras corporation
established under the Charter of 1726 ceased to function. Accordingly. King George 2
issued a new Chapter on 8th January 1753. The Company utilized this opportunity to
remove the defects which has been experienced in the working of the old Charter. The
new Charter was made applicable uniformly to all the three Presidency towns.31

The British Company established their first settlement in Surat and then at Bombay
and Madras. For the administration of justice in those settlements the Company had
power to settle their disputes inter se. The persons administering justice were persons

29
Kailash Rai, Indian Constitutional Law, Allahabad Law Agency, Allahabad, 6th ed. 1996, P. 2.
30
S.C. Tripathi, Indian Legal and Constitutional History,Central Law Publications, Allahabad, 3rd ed.
2011, P. 28.
31
M.P. Jain, Outline of Indian Legal History, N.M. Tripathi Private Ltd., Bombay, 3rd ed. 1972, P. 55.

11
having no legal knowledge. They were to follow the English law, but in reality they
settled the disputes according to their common sense. Executive was the supreme
administrative body, even the judiciary was subordinate to it.

1.2.8.6.COURTS ESTABLISHED IN PRESIDENCIES DURING 1600-175332

MADRAS BOMBAY CALCUTTA

Choultry Court (1639-1800) Courts of Customs offers Zamindari Courts (1700-
(1670-1672) 1772)
Court of Judicature (1678- Courts of Deputy-Governor- Court of Governor-in-Council
1696) in-Council (1670-1687) (1700-1727)
Court of Admiralty (1686- Court of Governor-in-Council Crown’s Mayor’s Court
1689: 1692-1704) (1670-1728) (1727-1774)
Company’s Mayor’s Court Court of Judicature (1672- Court of Civil Appeal (1727-
(1688-1727) 1690: 1718-1728) 1774)
Temporary Court of Court of Conscience (1672- Session Court (1727-1774)
Judicature (1690-1692) 1690)
Court of Appeal (1704-1727) Court of Admiralty (1684- King-in-Council
1690)
Crown’s Mayor’s Court Crown’s Mayor’s Court Court of Requests (1753-
(1727-1798) (1728-1798) 1850)
Court of Civil Appeal (1727- Court of Civil Appeal (1728-
1798) 1798)
King-in-Council Session Court (1728-1798)
Court of Requests (1753- King-in-Council
1850)
Court of Requests (1753-
1850)
1.2.8.7. GRANT OF DIWANI

In 1765, the Mughal Emperor Shah Alam transferred the Diwani of Bengal, Bihar and
Orissa to the British Company in lieu of Rupees twenty-six lakhs per annum. Diwani
was a term used for fiscal administration and meant the collection of revenue and
customs and administration of civil justice. The Company preferred to exercise
Diwani functions through the natives under the supervision of its officials instead of
appointing its own English servants. The administration of criminal justice remains in
the hands of Nawabbecause the administration of criminal justice was not beneficial

32
J.K. Mittal, Indian Legal History,Allahabad Law Agency, Allahabad, 3rd ed. 1970, P. 34.

12
for the Company and it was likely to arouse the sentiments of the native population
against the Company’s mal-intention.33

1.2.8.8. ACTS AND CHARTERS BETWEEN 1711 AND 1758 DURING

BRITISH PERIOD

In the years 1711, 1730, 1744 etc., several Acts were passed to extend the privileges
of the Company, through every time the Company had to lend money to the State at
reduced rate of interest. Charters granted to the Company in 1709, 1726, 1754, 1757
and 1758 pertained to the cession of territory, distribution of booty and regulation of
Indian troops. It is obvious that these very Acts and Charters stabilized the position of
the Company in India. Every new Charter extended its authority and enhanced its
prestige.34

1.2.8.9. THE REGULATING ACT 1773

The Regulating Act, 1773 set up at Calcutta a Central authority known as the
Governor-General-in-Council for regulating the Company’s entire territory in India. It
was to consist of a Governor-General and a council of four Councillors. It empowered
the Governor-General-in-Council to make an issue rules, ordinances and regulations
for the good order and civil government of the Company’s territory in India. It
provided for setting up of a Supreme Court at Calcutta consisting of Chief Justice and
three other Judges, who were to be barristers of England or Ireland, of not less than
five years standing. The Supreme Court was to be a Court of Record and was to
exercise civil, criminal, admiralty and ecclesiastical jurisdiction. It was to have both
original and appellate jurisdiction.35

1.2.8.9.1. SUPREME COURT AT CALCUTTA

The Supreme Court at Calcutta consist of a Chief Justice and three PuisneJudges who
were barristers of at least five years standing. They were appointed by the Crown and
hold office during pleasure of the Crown. Salary of the Chief Justice was 8000
Pounds and other Judges was 6000 Pounds per/annum. The Supreme Court had two

33
Anup Chand Kapur, Constitutional History of India, S. Chand & Co. (Pvt.) Ltd., New Delhi, 2nd ed
1976, P. 5.
34
Vishnoo Bhagwan, Constitutional History of India Part 1,Atma Ram & Sons Publishers, Chandigarh,
2nd ed. 1968, P. 5.
35
Narender Kumar, Constitutional Law of India, Allahabad Law Agency, Faridabad, Haryana, 8 th ed.
2011, P.10.

13
kinds of civil jurisdiction i.e. territorial and personal. For Calcutta it has territorial
jurisdiction and for Bengal, Bihar and Orissa it has personal jurisdiction. In case of
criminal cases it was considered as Court of Oyer and Terrainer and Goa Delivery in
and for the town of Calcutta and of subordinate factories. It employed the service of
Grand and Petty jury for trial. It has no jurisdiction over the native inhabitants of
Calcutta and territory of Bengal, Bihar and Orissa, the Governor-General and
members of the Council or the judges of Supreme Court for any offence excepting
treason and felony. It also had ecclesiastical and Admiralty jurisdiction. It was a court
of Record and had power to punish for its contempt. Appeal from Supreme Court
moves to the King-in-Council in England with the leave of the Supreme Court, if the
subject matter in dispute exceeded 1000 pagodas. It was also a court of equity to
decide in a summary manner.36

The Supreme Court was independent of the Legislature and Executive. It had
introduced the concept of judicial control of administrative actions because Supreme
Court exercised control over the Executive, which resulted in clashes between the
Supreme Court and the Executive and the example of this is the Nand Kumar’s case,
Patna case and Cossijurah case. Later is dispute was settled by the Settlement Act of
1781, through which the Executive was made independent of the Supreme Court.37

36
Dr. Dinesh Sabat, Legal and Constitutional History of India, LexisNexis, Gurgaon, Haryana, 1st ed.
2015, P. 53.
37
Dr. N.V. Paranjape , Indian Legal and Constitutional History, Central Law Agency, Allahabad, 6th ed.
2006, P. 2-3.

14
1.2.8.9.2.SUPREME COURT AT MADRAS AND BOMBAY

In 1799, the British Parliament enacted an Act authorising the Crown to issue Charter
for establishing a Recorder’s Court at Madras and Bombay. So King George 3 issued
a Charter on 1st February 1798. The Recorder’s Court constitutes of one Recorder, the
Mayor and three Aldermen of the Corporation. The Recorder was a barrister with at
least five years standing. He was appointed by the Crown and was the President of the
Court. This court has similar jurisdiction and is subject to the same restrictions as the
Supreme Court at Calcutta has. The Recorder’s Court had functioned hardly for two
years when Parliament thought that a Supreme Court should replace it. Accordingly,
in 1800 the Parliament by an Act authorized the Crown to establish a Supreme Court
at Madras on 26th December 1800. In Bombay the Recorder’s Court functioned till
1824, but in the year 1823 a Supreme Court was established in Bombay which came
into being on 8th May 1824. The jurisdiction, powers, functions and limitations was
same as Supreme Court at Calcutta.38

1.2.8.10. THE ACT OF SETTLEMENT 1781

The Act of Settlement of 1781, made many changes in the Regulating Act. It
exempted the actions of the public servants of the Company, done in their official
capacity from the jurisdiction of Supreme Court. It tried to settle the question of
jurisdiction of Supreme Court over servants of the Company and the native
inhabitants. It clarified what law was to be administered by the Supreme Court. It
recognizes and confirmed the appellate jurisdiction of the Governor-General and
Council in cases decided by the Mofussils Courts. It empowered the Governor-
General and Council to frame regulations.39

Further, Adalat system was introduced in Bengal in the Mofussils. Initially the
Company’s civil servants used to manage the Adalats, who had no legal knowledge.
Later, the judicial functions were separated from the Executive functions of the civil
servants, but still the criminal justice remained executive officer Collector. Moreover,
the Adalat system was extended to newly acquired territories of the Company in
India.

1.2.8.11. PITTS INDIA ACT 1784

38
M.P. Singh, Outline of Indian Legal and Constitutional History, LexisNexis, Gurgaon, Haryana, 8th ed.
2006, P. 50-51.
39
Dr. V.D. Mahajan, Constitutional Law of India, Eastern Book Company, Lucknow, 7th ed. 1991, P. 4.

15
The Pitt’s India Act brought the most important change, which was to curtail the
powers of the Court of Directors of the Company over political affairs. The Act,
which received Royal assent in 1784, allowed the Court of Directors to manage the
commercial affairs of the Company, as they liked. With regard to political affairs, the
Board of Control was appointed. The Board was presided over by the Chancellor of
the Exchequer and four Privy Councillors and a Secretary were also its members. This
Board exercised the powers of superintendence, direction and control of all the affairs
in relation of the civil and military government of the British territorial possessions in
the East Indies. Excepting the power of appointment of the officers of the Company,
the court of Proprietors lost all its political powers. The Company also professed the
policy of non- intervention in the affairs of Indian rulers.40

1.2.8.12. THE GOVERNMENT OF INDIA ACT 1838

The Government of India Act 1838 gave the British Crown power to assume direct
administration of India from East India company. Now India was to be governed in
the name of Her Majesty the Queen of England. The Act abolished both the Board of
Control and the Court of Directors and their powers were transferred to the Queen’s
Secretary of State for India. A Council of fifteen members were constituted to assist
the Secretary. The Crown was empowered to appoint the Governor-General of India
and the Governors of Presidencies.41

1.2.8.13. THE INDIAN HIGH COURTS ACT 1861

This Act Authorized the British Crown to establish a High Court in each of the
Presidency towns. So, a Charter was issued in May 1862 to establish a High court at
Calcutta and again in June 1862 for establishing a High court at Madras and Bombay.
With the establishment of High court at Calcutta, the already existing Supreme Court
and SadarAdalats were abolished and their jurisdiction and powers were transferred to
the High Court. Every High Court was to consist of a Chief Justice and not more than
fifteen Puisne Judges. The judges of the Supreme Court and the Sadar Adalats were
automatically to become the judges of the High Court.

40
P.K. Majumdar, R.P. Kataria, Commentary on the Constitution of India Vol 1, Orient Publishing
Company, New Delhi, 10th ed. 2009, P. 60-61.
41
Dr. K.C. Joshi, The Constitutional Law of India, Central Law Publications, Allahabad, 1st ed. 2011, P. 1-
2.

16
The High Court was to be a Court of Record and have original and appellate
jurisdiction over civil, criminal, admiralty, testamentary, intestate and matrimonial
causes. It had superintendence power over the subordinate courts. The decision of the
High Court was final in appeal from criminal cases and no further appeal lay to any
other court. But in civil cases appeal lay to the Privy Council provided the pecuniary
value of the suit was not less than Rs. 10,000 or the High Court certified the case as fit
one for appeal to the Privy Council.

1.2.8.14. PRIVY COUNCIL

It played a very important role in shaping the administration of justice prior to Indian
Independence. It has a great contribution in systematising the law and administration
of justice in India . Every kind of dispute was to be adjudicated upon by the Privy
Council because its jurisdictional area covered almost one-fifth of the human
population in the world. But in practice it was the last court or apex court of appeal
for colonies and dominions but the decision of the Council was always in the form of
advice and not as a final order as in case of other courts.

1.2.8.15.CABINET MISSION, 194642

The Cabinet Mission studied the situation in India and recommended ;

 That a Union of British India and Indian States was to be established and that
with the exception of certain reserved subjects, all subjects to be retained by
the States.
 That the paramount of the Crown was to cease.
 That a Constituent Assembly was to be elected for the purpose of settling the
future Constitution.
 That an Interim Government at the Centre consisting of leaders of main
political parties.

1.2.8.16.IMPORTANT EVENTS IN INDIAN HISTORY43

42
Dr. S. Dayal, The Constitutional Law of India, Allahabad Law Agency, Faridabad, Haryana, 10th ed.
1974, P. 7.
43
Dr. S.C. Tripathi, Indian Legal and Constitution History, Central Law Publications, Allahabad, 3rd ed.
2011, P. 4-5.

17
YEAR EVENTS
1600 Formation of East India company under the Charter of Queen
Elizabeth.
1613 Royal Farman of Moghul Emperor Jahangir granting privilege to
establish training centre.
1615 Royal grant authorised the East India company to execute Martial laws
1639 Presidency of Madras founded.
1668 Bombay was handed over to Humphrey Cooke.
1672 At Bombay the court of judicature established.
1683 At Madras , Mayor and Corporation established.
1687 Company established a Mayor’s court at Madras.
1690 Presidency of Calcutta founded.
1726 Mayor’s court established in presidency towns.
1746 French occupied Madras.
1749 Madras restored by Englishmen.
1757 Battle of Plessey held.
1764 Battle of Buxar held.
1765 Clive came back to Bengal.
1765 Diwani granted to the Company by the Royal Farman of Shah Alam.
1772 Warren Hastings plan.
1773 Passing of Regulation Act.
1774 At Fort William, the Supreme court of Judicature established.
1775 NandKumar hanged unto death.
1777 Patna case.
1779 Cossijurah case.
1781 Settlement Act.
1784 Pitts India Act.
1786 Lord Cornwallis became the Governor General of India.
1800 Supreme Court established at Madras.
1823 Supreme Court established at Bombay.
1834 First law commission constituted.
1840 Lax-Loci Report.
1857 Indian Mutiny.
1858 Transfer of power from East India company to the British Crown.
1861 The High Court Act passed.
1864 Office of Native law officer abolished.
1892 Indian Council Act passed.
1905 Partition of Bengal and boycott movement launched by the Indian
National Congress.
1906 Formation of Muslim League at national level.
1909 Minto-Morley reform introduced.
1909 Commencement of the communal representation in the Council.
1918 Montfort Report
1919 Montague- Chelmsford Reforms introduced.
1920 Khilafat movement launched by the Muslim League.
1921 Non-Cooperation movement, Chauri-Chaura incident.
1928 Simon Commission.

18
 YEAR EVENTS
1929 Proclamation by Lord Irwin.
1930-31 Launching of Civil Disobedience Movement.
1930-31 First Round Table Conference.
1931 Second Round Table Conference.
1932 Third Round Table Conference.
1932 Announcement of Communal Award by British Prime Minister.
1932 Poona Pact.
1935 The Government of India Act , 1935.
1940 August Offer.
1942 Cripps Mission
1942 Quit India Movement.
1946 First meeting of Constituent Assembly held.
1947 Lord Mountbatten plan.
1947 Indian Independence Act.
1949 New Constitution of India adopted and signed.
1950 Constitution of India came into force.

1.3. JUDICIAL SYSTEM IN INDIA POST INDEPENDENCE

Post independence the Indian legal system had gone through many phases depending
upon the changing needs and conditions of the folks. The era of Privy Council came
to an end and the Supreme Court of India as the apex court was established under
Article 124 of the Indian Constitution which is as follows:-

Article 124. Establishment and constitution of Supreme Court.44

1) There shall be a Supreme Court of India consisting of a Chief Justice of India and,
until Parliament by law prescribes a larger number, of not more than seven1 other
Judges.
2) Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary
for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of India shall always be consulted:

Provided further that- (a) A Judge may, by writing under his hand addressed to the
President, resign his office;

(b) A Judge may be removed from his office in the manner provided in clause (4).
44
Article 124 of the Indian Constitution, 1950.Establishment and constitution of Supreme Court.

19
(2A) The age of a Judge of the Supreme Court shall be determined by such authority
and in such manner as Parliament may by law provide.

(3) A person shall not be qualified for appointment as a Judge of the Supreme Court
unless he is a citizen of India and-

(a) Has been for at least five years a Judge of a High Court or of two or more such
Courts in succession; or

(b) Has been for at least ten years an advocate of a High Court or of two or more such
Courts in succession; or

(c) Is, in the opinion of the President, a distinguished jurist.

Explanation I. In this clause, High Court means a High Court, which exercises, or
which at any time before the commencement of this Constitution exercised,
jurisdiction in any part of the territory of India.

Explanation II. In computing for the purpose of this clause the period during which a
person has been an advocate, any period during which a person has held judicial
office not inferior to that of a district judge after he became an advocate shall be
included.

(4) A Judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament supported
by a majority of the total membership of that House and by a majority of not less than
two-thirds of the members of that House present and voting has been presented to the
President in the same session for such removal on the ground of proved misbehaviour
or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address
and for the investigation and proof of the misbehaviour or incapacity of a Judge under
clause (4).

(6) Every person appointed a Judge of the Supreme Court shall, before he enters upon
his office, make and subscribe before the President, or some person appointed in that
behalf by him, an oath or affirmation according to the form set out for the purpose in
the Third Schedule.

20
(7) No person who has held office as a Judge of the Supreme court shall plead or act
in any court or before any authority within the territory of India.

21
1.3.1. INHERENT POWERS OF SUPREME COURT UNDER INDIAN
CONSTITUTION

1.3.1.1. Remedies for violation of Fundamental Rights- According to Article

32(1)45the right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1)
and (2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

1.3.1.2. Court of Record- According to Article 12946 The Supreme Court shall be a
court of record and shall have all the powers of such a court including the power to
punish for contempt of itself.

1.3.1.3. Special leave to appeal by the Supreme Court- According to Article

136(1)47 Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or
order passed or made by any court or tribunal constituted by or under any law relating
to the Armed Forces.

1.3.1.4. Enforcement of decrees and orders of Supreme Court and orders as to

discovery, etc.- According to Article 142(1)48 The Supreme Court in the exercise of

45
Article 32 of the Indian Constitution, 1950.Remedies for violation of Fundamental Rights
46
Article 129 of the Indian Constitution, 1950.Supreme Court to be a Court of Record
47
Article 136 of the Indian Constitution, 1950.Special leave to appeal by Supreme Court.
48
Article 142 of the Indian Constitution, 1950.Enforcement of decrees and orders of Supreme Court
and orders as to discovery, etc.

22
its jurisdiction may pass such decree or make such order as is necessary for doing
complete justice in any cause or matter pending before it, and any decree so passed or
order so made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until provision in
that behalf is so made, in such manner as the President may by order 1prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and every
power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any
contempt of itself.

The Supreme Court of India by virtue of its commanding position and being the apex
court is considered as the protector of the aims, objectives and ideals of Preamble.
This makes the court assume the role of not merely an adjudicator, but something
more. This extra responsibility of the Supreme Court is to secure the ends of justice
by discovering juristic devices. In KesavanandaBharati v. State of
Kerala,49advancement was made in this direction in which the concept of basic
structure was evolved limiting the amending powers of Legislature, that is to avoid
the use of amending power according the whims and caprices of the politicians.

Then came the decision in Maneka Gandhi v. Union of India,50 it was a remarkable
achievement in Indian history and its major contribution coming from the Supreme
Court enhanced the concept of Right to life and personal liberty , removed the
territorial limitation on freedom of speech and expression etc . This has given the
Supreme Court the position of a dynamic, innovative, social institution capable of
healing the injuries of the society. This achievement is due to the power embedded in
the constitution of the Supreme Court in the form of inherent powers. The inherent
power is one component which has enabled the Supreme Court to prepare the ground
for judicial creativity and judicial supremacy as well as make the judiciary command
respect from one and all.

It can be noted that the Supreme Court on many occasions had takes us to higher
levels of thinking while exercising the powers, even though it does not have any

49
AIR 1973 SC 1461.
50
AIR 1978 SC 597.

23
inherent powers similar to one conserved and preserved under section 48251 Cr.P.C.
1973, in the interest of justice.

In India, the legal system is arranged in a hierarchy of courts in which the Supreme
Court is at the top being the apex of all Courts. Then comes the High Courts and then
the Subordinate Courts, whichincludes-

 Civil Court52-It includes District Courts, Lower Courts, other Small Cause
Courts and the Village Panchayats.
 Criminal Courts53- It includes the Court of Session, Judicial Magistrates of
first class, and Judicial Magistrates of second class and Executive Magistrates.

The concept of Public Interest Litigation which means any public spirited citizens can
file a petition for the enforcement of Constitutional and other legal rights of any
person or group of persons who because of their poverty or socially or economically
disadvantaged position are unable to approach the Court for relief 54 had relaxed the
traditional rule of Locus Standi that a petition under Article 32 and 226 can only be
filled by a person whose rights are violated. This concept had lead to the growth of
Judicial Activism which had further resulted in some praiseworthy decision made by
the Supreme Court and High Courts. For instance A.B.S.K. Sangh v. Union of India55,
S.P. Gupta and others v. President of India and others 56, Peoples Union for
Democratic Rights v. Union of India57, Bandhua Mukti Morcha v. Union of India58,
M.C. Mehta v. Union of India59, Hussainara Khatoon v. State of Bihar60etc.

51
Saving of Inherent power of High Court- “Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be necessary to give effect to any
order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of
justice”.
52
Section 3 of The Civil Procedure Code, 1908. Subordination of Courts- “For the purposes of this
Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to
that of a District Court and every Court of Small Causes is subordinate to the High Court and District
Court”.
53
Section 6 of The Code of Criminal Procedure, 1973. Classes of Criminal Courts- “Besides the High
Courts and the courts constituted under any law, other than this Code, there shall be, in every
State, the following classes of Criminal Courts, namely.(i) Courts of Session;(ii) Judicial Magistrate of
the first class and, in any Metropolitan area, Metropolitan Magistrate;(iii) Judicial Magistrate of the
second class; and(iv) Executive Magistrate”.
54
J.N. Pandey, The Constitutional Law of India, Central Law Agency, Allahabad, 50th ed. 2013, P. 400
55
AIR 1981 SC 298.
56
AIR 1982 SC 149.
57
AIR 1983 SC 339.
58
AIR 1984 SC 803.
59
AIR 1987 SC 1087.
60
AIR 1979 SC 1369.

24
So, it can be said that the Indian legal system is developing till date and new concept
are evolved time to time like the concept of Curative Petition, Suo Motu, LokAdalats
etc. This development is never ending as with the change in time and needs, there will
always be change in the interpretation of the provisions of laws by the courts, so as to
suit the requirements of the society.

Judiciary, being the protector of the Constitution and Statutory Rights of the People,
has a special role to play, particularly in the Constitutional scheme. In discharging the
duty, the Supreme Court has been playing the role of “a sentinel on the qui vive”. In
keeping with the plenary functions, the Court is not merely the interpreter of the law
as existing, but much more beyond that. The Court being the wing of the State, is
itself a source of law. In discharging their high Constitutional obligation, the judiciary
has earned the popularity as the preservour of democracy, protector of Fundamental
Rights and an effective agency for social transmission. The common man’s belief in
judiciary, as his saviour, is strengthening.

In the present scenario ‘Judicial Activism’ in India has become an important

debatable concept for the general public. This concept as a facet of justice delivery
system took birth in U.S.A, when Chief Justice Marshall gave innovative
interpretation to U.S. laws in Marbury v. Madison case during 1804. It is believed
that in India during 1976 seeds of Judicial Activism in the form of Public Interest
Litigation were down by Justice Krishna Iyer in the case of Mumbai Karghar Sabha
v. Abdullah Bai,61

61
Mr. Baldeep Singh and Prof. Dr. Charanjit Singh, Judicial Activism as a Facet of Justice Delivery
System: A Boon or Bane‘Punjabi University Law JournalVol. 4 2010, Department of Law Punjabi
University, Patiala, PP. 159-163,

25
 REVIEW OF LITERATURE

VishnooBhagwan (1968), has made a modest attempt to write in a comprehensive and

consolidated form Constitutional development of India, since the East India Company
pitched its tents on the sacred soil of our motherland. New exploitation pertaining to
Indian National Movement and the new developments affecting the present
Constitution viz, the bifurcation of Punjab and the emergency of new State of
Haryana and Punjab, the Fourth General Elections, the non – Congress elements, the
defections and their effect on our Parliamentary Democracy.

J.K. Mittal (1970), has tried to give an objective and accurate account of the legal
development in the Country. Care has been taken to incorporate all available material
on the subject including the relevant case laws.

Dr. S. Dayal (1974), has given a compressed but full matter relating to the provisions
of the Constitution and the history from the Advent of the British to the present day.
Decided cases has also been referred and some of the important decisions by the
Supreme Court has been added as appendix at the end. A thorough analysis and
evaluation of the judgment of Kesavananda Bharat’s case, commonly known as the
Fundamental Rights case has been included.

Anup Chand Kapur (1976),has brought out the gist of Constitutional History of India
since 1765 to 1975. He has divided his book into four parts. The first part deals with
concepts when the traders because Rulers, gradual tightening of Parliamentary control
and the last phase of the Company. The second part deals with end of Company
Bahadur, structure of the Government of India, development of Legislative bodies,
rise of nationalism, the Indian National Congress, the Rise of Muslim Nationalism,
the Indian Council’s Act, 1892, Morley Minto Reforms. The third part deals with
Montagu-Chelmsford Reforms , Government of India Act, 1935, Constitutional
development, 1937-45, division and Independence. The fourth part deals with making
of the Constitution, Fundamental Rights and Directive Principles of State Policy,
Government at the Centre, the Supreme Court, the State governmental organs and
services under the Union and the State.

H.V. Shreenivasa Murthy (1993), has emphasized on the concept of history and its
territory i.e. all the other fields associated with history, for instance Antiquarianism,
Geography, Politics, Economic, Sociology, Law , history as a living subject, purpose

26
of history, history and its neighbours, Indian Historiography etc. He has also
explained the Polity i.e. State formation, tribal polity in the Rig Vedic, tribal
assemblies, later Vedic development, Kingship etc., State and Government i.e. the
Maurya polity, quasi-feudalism and feudalism, local administration etc., Social
Organizations i.e. the Varna system Gotra and Parvara, Varna and Jati, the
untouchables, the family, slavery etc., Status and Position to women i.e. education,
marriage, right to properly, divorce, prostitution and widows, Economic Status i.e.
Pastoralist, peasant phase, agriculture and stockbreeding, origin and type of property,
urban centres, guilds, trade and finance and maritime trade, Legal System i.e. legal
literature, role of the Smritikars, the sources of law, the concept of Dharma, Law
making and law interpreting process, Law and custom, human law and Divine law
and Administration of justice in the Ancient and Medieval period.

Kailash Rai (1996), has reviewed all the provisions of the Indian Constitution. The
77th Constitutional Amendment has also been incorporated which has added clause (4-
A) in Article 16 and some legislations were also included in the ninth schedule along
with it several important decisions of the Supreme Court and High Courts have been
reported. Further, on many issues the law is not well settled, on such issues
conflicting views have been summarized and an attempt has been made to derive a
conclusion as to the present position of law.

Adv. Ram Khobragade (2002), has enunciated the concepts like the Dooms-Day,
Constitutional philosophy, procedures and performance, evolution of Indian
Constitution, Constitution in the eyes of critics, Indian culture under Hindutvawadi
attack, Indian economy under Capitalist attack, minorities and Indian Constitution.
Nation, Nationalism and Constitution and Constitution, people and politics.

M.P. Jain (2006), has came up with gems of information of the past and the present
which marks its special features: like progress of India before and after Independence,
movement in the direction of a Uniform Civil Code, review of the Constitution,
reports of the Law Commission of India, amendments of the Constitution, landmark
decisions of the Supreme Court in various fields and the latest enactment of the Right
to Information Act, 2005.

Dr. U.S. Singh (2005), has described the Indian history and culture from the earliest
time to Modern times with Constitutional development under the Company and

27
British Crown which further includes the nature, scope, function and source of
history, effect of Indian culture in the culture of Western Countries, contribution of
South India to Indian culture, special features of Indus Valley civilisation, Vedic age,
epic age, Maurya’s administration etc. The development of Social and Economic life
in Ancient India, the coming of Muslims, its impact on Indian society with their
Administrative policies which further includes administration in Hindu States and
nature of State in Medieval India and the Advent of the Europeans and the Impact of
British rule all has been discussed in lucid, clear and thoughtful manner which further
includes Sepoy Mutiny, growth of modern industry, growth of middle class,
emergency of labour force, the Religious and Social reform movements, modern legal
system, Gandhism-Sarvodaya etc.

Gokulesh Sharma (2008),has tried to present a comparative legal philosophy, on the

one hand, of the Hindu, Muslim and Chinese thought relating to the eastern world and
communist philosophy of Russia, and on the other hand, western philosophy of
Greek, Roman, British and American thinkers. Although brief role of German,
Australian and other thinkers of various other nations has also been taken up for
consideration. He has divided his book into two parts. The first part deals with
introductory reflections which further includes Greek Philosophy, Law, Justice, Ethics
and Social Morality, Science and Legal Theory. Legal Theory and Social Evolution.
The second part deals with survey of Legal Theories which further includes
Analytical Theory (Positivism), the Pure Theory, Historical and Anthropological
Approaches, Economic Approaches, Sociological Approaches, Realism,
Philosophical and Natural Law Theories, Oriental and Continental Approaches,
Critical Legal Studies, Feminist Theory, Post-Modernist jurisprudence and current
trends in jurisprudence.

Dr. N.V. Paranjape (2006), has traced the origin and development of legal and
Constitutional institutions in India during the last three centuries. In the first part of
his book he had dealt with the development of law and courts in India since the advent
of the British East India Company in 1600 A.D. and the second part is devoted to a
comprehensive account of the constitutional development in India which eventually
led to the framing of the Indian Constitution is 1950. The relevant case-law has been
cited wherever necessary and an endeavour has been made to analyse the different
juristic concepts.

28
M.P. Singh (2006), has appeared with the outlines of early British settlement at Surat,
Madras, Bombay and Calcutta, the establishment of Crown’s Mayor’s Court, Charter
of 1726, 1753, courts for Natives, beginning of Adalat system, Judicial plan of 1772,
1774, 1780, administration of criminal justice, establishment of Supreme Court at
Calcutta, Madras and Bombay, the Regulating Act, 1773, the Act of Settlement of
1781, judicial system beyond Bengal, judicial administration in non-regulation
Provinces, High Courts and Privy Council, the Law and its codification, development
of Personal Laws during British period, personal laws and legislation, adjudication,
racial discrimination in the judicial administration, civil and criminal matters, modern
judiciary, the Supreme Court, the High Courts, subordinate courts Nyaya Panchayats,
legal profession, the Legal Practitioners Act, 1879, the Chamier Committee and the
Indian Bar Council Act, 1926, the All India Bar Committee, 1951, the Advocate Act,
1961, Constitutional History of India, elements of Indian legal system and concept
and sources of law.

S.R. Myneni (2007), has given brief overview of the legal system in the World which
includes legal system of Italy, Germany, France, Spain, Portugal, Norway, Denmark,
Sweden, Finland, Countries of Common Law legal system, United kingdom, United
States of America, Canada, Australia, Switzerland, Japan, Singapore, South Africa,
Brazil, Mexico, Muslim and Islamic Countries, Cuba, People Republic of China,
Russia, India and Sri Lanka.

Dr. Kailash Rai (2009), has divided his work into four parts. The first part deals with
the history of courts in India. The second part deals with the history of legislature in
India. The third part deals with the history of legal profession in India and the fourth
part deals with the significant events during the national movement. An attempt has
been made to deal with the legislative and judicial institutions with reference to their
objects and political background. In case of controversial issues, the views of different
authorities have been made to derive a conclusion.

P.K. Majumdar and R.P. Kataria (2009), has incorporated commentaries on historical
introduction to Constitution of India and all the provisions of the Indian Constitution
with special mention concerning provisions relating to land reforms as also the
advancement of socially and educationally backward classes of citizens or the
Scheduled Caste and Scheduled Tribes. Provisions has also been made for giving

29
effect to certain Directive Principles contained in Article 39 towards building a
Welfare State. Similarly, incorporation of the Tenth Schedule to the Constitution for
containing the politics of defection; Constitutional sanction to Democracy at the grass
roots level by inserting two new parts and Eleventh and Twelfth Schedules are yet
another important addition. Despite making amendments, we have not effected any
changes so as to alter the main features of the Constitution. The Sarkaria Commission
too, in its report on Centre-State Relations, did not recommend any major changes in
our constitutional scheme, but emphasized the need to develop proper conventions for
a healthy functioning of our Parliamentary Democracy. This factor needs to be
emphasized upon, as it is incumbent on all Constitutional functionaries to perform
their duties under the Constitution in the true spirit of the Constitutional provisions.

S.C. Tripathi (2011), has made an effort to provide material on major events in the
field of legal and Constitutional History in chronological order. The first part contains
material on the Indian legal history like Chandragupta Maurya’s administration,
judicial system in Mughal period, arrival of Britishers, British rule through East India
Company, abolition of Company’s regime and establishment of direct rule of the
British Crown, advent of self-government, Indian High Court, the Privy Council,
judicial reforms, introduction of English laws, history of personal laws, evolution of
criminal laws, Law Commission and codification of Indian laws development of legal
profession, whereas the second part deals with the Indian Constitutional History and
the process of shaping of the Indian Constitution. Moreover, he had dealt with new
topics such as judicial system in ancient and medieval periods in India besides
original, Constitution of the Supreme Court in India along with doctrine of
precedents, prerogative writs in India, concept of racial discrimination and growth of
justice, equity and good conscience.

Dr. Dinesh Sabat (2015), has emerged with the history of India from 1600 when the
East India Company settled in India till 1726, Company’s settlement at Surat,
Bombay, Madras and Calcutta and administration of justice, common features of
administration of justice in all settlements, establishment of Crown’s Court or
Mayor’s Court, main provisions, reasons, aims of issuing, consequences, working,
defects of Charter of 1726, comparison of Mayor’s Court established under Charter of
1687 and 1726, Charter of 1753, beginning of Adalat Systems during Warren
Hastings period, Hastings judicial plan of 1772, Judicial plan of 1774, 1780,

30
Appointment of Sir Impey as sole judge of Sadar Diwani Adalat, Supreme Court at
Calcutta, Madras and Bombay, object and defects of Regulation Act, working of the
Supreme Court, Adalat system under Lord Cornwallis, Adalat system after Lord
Cornwallis and before 1861, High Courts and Privy Council, Federal court in India,
Judicial system under Construction of India, codification of laws, legal profession in
India and Rule of Law.

Dr. S.R. Myneni (2015), has brought the whole Indian History in five parts. The first
part deals with Ancient Indian cultural heritage which further includes importance of
study of Indian History, stone age culture of India, the Harappan civilization, Vedic
civilization (Aryan Culture), caste system in India, family and condition of women in
Vedic period, the Epic age, society and legal system in ancient India, fruition of
Indian philosophy, village republic in ancient India. Part two deals with rise of
Magadha, Mauryan administration, the epoch of foreign invaders, the Satavahanas in
Deccan, the Gupta Dynasty, Harsha, society and culture in the Harsha and post-
Harsha period, Cholas in South India, Pallavas of Kanchi, Chalukyas of Badami,
KalyaniChalukyas, Rashtrakutas and Rajputs. The third part deals with advent of
Islam in India (Medieval age), Delhi Sultanate, Bhakti movement, South Indian
dynasties, Hoyasalas etc. The fourth part deals modern times of India (British Period),
colonialism in India, India Under the East India Company, Imperial rule in India,
impact of British rule in India, social and cultural reforms brought about by the
British in India and the fifth part deals with Indian National Movement.

Sumeet Malik (2016), has beautifully brought in the unification of the legal and
Constitutional history in India. He goes back to the Vedic period and reveals the
atmosphere of that time with regard to customs and laws prevailing in the society
which further includes Sutras, Dharmasutras, role of Smritikars, Hindu period judicial
system in ancient India, caste system, joint family system, administration of justice,
constitution of courts, judicial procedures, institution of lawyers, appointment of
judges and Judicial standard, trial by jury, trial by ordeal and crime and punishment. It
also includes the Muslim period judicial system in medieval India, the causes of the
downfall of early Hindu kingdoms and the Mughal period judicial system, citizenship,
position of Akbar’s policy of tolerance. He had also broadly covered the recent legal
and Constitutional development in India i.e. amendment in the Constitution of India,
Criminal Law (Amendment) Act, 2013, Official language of the State, Union and the

31
Courts, reorganization of States, development of Personal Laws of Hindus and
Muslims and legal journalism as an emerging profession in the field of law.

Justice M Rama Jois (1984) has dwelt upon ancient Indian Legal, judicial and
Constitutional system(VyavaharadharmaandRajadharma). The topics covered are
concept of law (Dharma) and its supremacy, substantive civil law and rules of
interpretation. The objectives set before and purpose intended to be achieved by the
State (King), the place and role of Judiciary, functions and responsibilities of the
Council of Ministers, taxation policy, foreign policy and organization and
administration of departments of Government. A brief account of the practice working
of Rajdharma is also given. Thus spanning a wide field under the ancient legal
system. The basic principles of Dharma, or law of eternal value, in respect of each of
the topics and many other useful provisions relevant to the subject, evolved and laid
down by the ancient Indian jurists, are culled from the mass of literature available in
the form of Smrities, Dharmashastras, the commentaries thereon and
Kautilya’sArthashastra and other important works. Provisions in Sanskrit on each
topic together with their translation are given in every case.

Indra Deva Shrirama62, has observed the broad patterns of social change and the
conception of justice, sources of law, judicial institutions and procedure, law of
inheritance, law of contract and criminal law.

ARTICLES

Justice R.C. Lahoti (2005), had given an overview of Supreme Court’s performance,
that the Supreme Court had not shed away from its responsibility of upholding the
goals of the Constitution. He had also discussed the independent nature of Judiciary in
acting as a watchdog through judicial review with the acts of Legislature and
Executive. He had mentioned the actual strength and vacancies in different courts,
along with the views of Justice Y.V. Chandrachud on an effective judicial system and
had referred some reports of the Law Commission. The role of media as a supporter
of justice is also included.

K.G. Balakrishnan (2008), had explained the significance of LAW DAY for the path
of Constitutional Democracy and Rule of Law and also to take stock of the promises
which WE, THE PEOPLE OF INDIA have given to ourselves. He had also
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The researcher is not able to find the year of publication.

32
emphasized to uphold the purity of justice and to ensure its timely delivery to the
millions who knock at the doors of the courts. He had also pointed out the arrears and
delay in judicial decision-making, the importance of Judicial education and training,
alternative methods of delivery of justice and to root out judicial corruption
mercilessly, legal aid and access to justice.

Mr. Baldeep Singh and Prof. Dr.Charanjit Singh (2010) had discussed about the
Indian Judiciary as an interpreter of the Indian Constitution. He had also referred to
the views of Justice Benjamin Cardozo on interpretative role of the courts and of
Chief Justice Anand on justice. He had discussed the questions like, Whether judicial
activism is an adventurous step on the part of the judiciary, Whether judicial activism
is a boon or bane for the society at large, Whether judicial activism is a step towards
judicial dictatorship and whether it is a step towards real and constructive democracy.
He had also explained the meaning, object and factors affecting the concept of judicial
activism and had also given some suggestions.

RESEARCH GAP

After reviewing all the existing literature and with due respect to the senior scholars
and the work done by them. The researcher has found that the available literature
deals with certain aspects of inherent powers very widely like, issuance of Writs and
Public Interest Litigation, but the modern trends to exercise these powers are not
mentioned like, Suo Motu, Curative Petition and power under Article 142. The
meaning, nature and scope of inherent powers are discussed by all the scholars, but
the disadvantages and limitations are ignored by them like suspension of Inherent
powers during emergency, these powers cannot be exercised against the Fundamental
Rights, they are not to interfere with the free exercise of judicial powers vested in trial
courts and these powers cannot be used to supplant substantive law applicable to the
case or cause under consideration of the Court and thereby to achieve something
indirectly which cannot be achieved directly. Through this study the researcher will
study the inherent powers in relation with emerging trends, controversies and latest
case-laws.

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OBJECTIVES OF THE STUDY

To examine the Historical perspective of evolution and development of law and courts
in India.

To analyse the Constitutional ideals of justice and the rule of Indian judicial system in
achieving the goals of justice enshrined in the Indian Constitution.

To evaluate the inherent powers of Supreme Court and its difference from inherent
powers of High Courts.

To critically examine the concept of Justice Activism and judicial power in the light
of Suo Motu power of Supreme Court.

To find out the limitations faced by the Supreme Court in exercising its inherent
powers.

SIGNIFICANCE AND SCOPE OF THE STUDY

The study will help to know about the working of Supreme Court. There are certain
powers like to issue Writs and Public Interest Litigation which are used very often by
the Supreme Court but, through this study the inherent powers which are hidden in the
Constitution or which are used in exceptional cases like, power under Article 142,
Suo Motu, Curative Petition etc. Will also be emphasized and understood which will
ultimately help in collecting literature relating to such topics because there is very
limited literature available and can help in further research.

HYPOTHESIS

The inherent powers of Supreme Court has been exercised to attain Constitutional
goals of justice and Judicial Activism in the form of Suo motu power of Supreme
Court had become the new emerging trend to attain justice. But, these powers are not
absolute in nature, there are many limitations on them like suspension of Inherent
powers during emergency, these powers cannot be exercised against the Fundamental
Rights, it is not to interfere with the free exercise of judicial powers vested in trial
courts and these powers cannot be used to supplant substantive law applicable to the
case or cause under consideration of the Court and thereby to achieve something
indirectly which cannot be achieved directly.

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RESEARCH METHODOLOGY

The researcher has done doctrinal research. For collecting data and secondary sources
are used like, journals, Articles, text books. Law reports, newspaper reports, bulletins,
official reports, authenticated internet sites and various judicial decisions.

RESEARCH QUESTIONS

What is inherent powers.

What kind of inherent powers Supreme Court have.

Whether Supreme Court had exercised its inherent powers adequately.

Whether the judicial goals enshrined in the Indian Constitution is fully achieved.

Whether Curative Petition is an inherent power.

Whether Suo Motu is an inherent power.

Whether inherent powers of Supreme Court is supplementary and complementary to

the powers expressly provided by the statutes.

Whether there are any kind of limitations on inherent powers of Supreme Court.

LIMITATIONS OF THE STUDY

The researcher had tried to cover all the aspects relating to the topic of study but, due
to time boundations and insufficient financial resources, certain aspects might have
escaped the ambit of the study.

SCHEME OF THE STUDY

CHAPTER ONE:- INTRODUCTION AND HISTORICAL PERSPECTIVE

This chapter includes the introduction to the legal system from the lassie faire form of
government to the Welfare State. It also includes the evolution and development of
legal system from the Vedic to British period and then after Independence.
Constitutional provisions regarding inherent powers of Supreme are also mentioned.

CHAPTER TWO:- IDEA OF JUSTICE: AN OVERVIEW

This chapter deals with the concept of Justice from the ancient period, till date.. It also
gives an overview of idea of Justice according to different Jurists like Aristotle,

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Cicero, Heraclitus, Hobbes, John, Rousseau, John Rawls etc., along with the Hart –
Fuller debate. It also talks about the Constitutional goals of Justice enshrined under
the Indian Constitution along with relevant case laws.

CHAPTER THREE:- INHERENT POWERS OF SUPREME COURT: AN

ANALYSIS

This chapter deals with the composition, terms of service, qualifications of Supreme
Court Judges, along with the concept of independence of judiciary and general
inherent powers of Supreme Court like writs jurisdiction, public interest litigation,
contempt of court, special leave to appeal, plenary power under Article 142, advisory
jurisdiction under Article 143 and limitations of all the above mentioned powers.

CHAPTER FOUR:- THE ERA OF SECOND REVIEW PETITION/

CURATIVE PETITION

This chapter explains the Curative petition and suo motu as inherent powers of
Supreme Court. Both the concepts are dealt in detail along with latest case laws. The
evolution and development till date is discussed along with the limitations of these
concepts.

CHAPTER FIVE :- CONCLUSION AND SUGGESTIONS.

This chapter contains the conclusion of the study, coupled with some suggestions
regarding all the inherent powers of Supreme Court.

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