CHAPTER -I

THE LAWS IN OPERATION IN INDIA

 THE LAWS IN OPERATION IN INDIA.

Legal system was there in India prior to occupation of

Britishers as it was required for a disciplined society. The Moghuls, the

Marahattas, the Native Rulers and the licensee foreigners had different set

up of judicial system for their subjects. Religion, custom and usage had

pivot role in deciding cases. In that back drop, the Britishers commenced

their judicial structure differently at their three separate dominions,

Calcutta, Madras and Bombay.

ADMINISTRATION OF JUSTICE IN CALCUTTA.

A few Englishmen established Calcutta in the year 1690 and

acquired Zamindary over three adjacent villages in the year 1698. Like

any other Zamidar they set up Criminal or Fouzdari Court and Cutchery

or Adawlut to administer criminal and civil justice respectively and kept

those under the control of one English officer designated as ‘ Collector’.

But Englishmen tried to assert themselves by making the Governor in

Council of Calcutta the appellate authority and authority to ratify capital

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punishment, the authority which was being enjoyed by Nawab of

Murshidabad. Then the administration of justice was not impartial and

was exercised not with a view to impart justice but for own interest. This

system based on Company’s authority as Zamidar continued till 1727

when in common with other Presidencies in India, a Mayor’s court was

established in Calcutta under the charter of 1726, Calcutta declared

Presidency since 1699.

Necessity of Royal Charter of 1726, also called V Judicial

Charter’ was much felt since the existing courts, and the system of

administration of justice in the Presidencies were not every satisfactory.

Also additional judicial powers were wanting for effective judicial

administration to settle the properties of Englishmen died in India and

above all to give recognition to the judgments and proceedings of court in

India by courts in England.1

1. M.P.Jain, Outlines of Indian Legal History, Delhi, 1952, P.P.32-37.

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ADMINISTRTION OF JUSTICE IN MADRAS

The judicial institution in the town of Madras before 1726

developed in three stages. First stage began with the foundation of

Madras in 1639 on acquirement of a piece of land by the British

Company, subsequently named as White Town, inhabited by only

Europeans and Britishers with administrative control over a village

originally named Madraspathnam and renamed as Black Town inhabited

only by Indians. There existed two separate and distinct bodies to

administer justice, the Agent and Council for the White Town and

Choultry Court, the customary court for the Black Town. References

were being made very often regarding judicial cases of White Town to

England and similar cases were referred to the Raja relating to Black

Town. This judicial administration was improved under the charter of

1661, but to the total disregard of Indian custom usages and laws and

conferring privilege to the English men granting judicial power along

with administrative power to the Governor in Council to be exercised in

accordance with the law in force in England lifting the restriction on

punishment only by way of imprisonment or fine prescribed under charter

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of 1660. However, this charter of 1661 only took effect in the year 1665

because of the difficulty in trial of a murder case of one Mrs. Ascentia

Dave as the accused by persons having no legal back ground or training

and that led to securing the status of Presidency to Madras that year.

The second stage came in the year 1678 with setting up the

court of the Governor in Council designated as High Court, a Superior

Court of Judicature with appellate jurisdiction only and reorganised

choultry court as lower court.

The third stage ushered in with the creation of Admirality

court in the year 1686 under the charter of 1683 of the Company and end

of the court of the President and Council. Next came the court of Mayor

for the Corporation of Madras but it administered justice not according to

any set regular legal system, but merely on the basis of ‘Justice and good

Conscience’. The decision, therefore, lacked uniformity and consistency.

In the year 1704 die Admirality Court was replaced by the Court of

Governor in Council and Mayor’s Court by another Mayor’s Court, a

Crown’s Court under the Royal Charter.2

2. M.P.Jain, Op.Cit, Delhi, 1952, P.P. 10-21.

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ADMINISTRTION OF JUSTICE IN BOMBAY

The first judicial system in Bombay was established in 1670

with superior court consisting of the Deputy Governor in Council having

both original and appellate powers and lower courts for its two divisions

with limited punishment power. Till 1672 the system did not function

well since no Judge had legal background.

The 1st phase of reformation came when in 1672 abolishing

Portuguese laws English law was given effect to. Civil cases were tried

by a Judge with the help of jury, after preliminary trial by a Justice of the

Peace. Criminal cases were tried by a central court with the help of jury

and Justice of Peace. Appeals from these courts were preferred to Deputy

Governor in Council of Bombay. Besides these courts. Court of

Conscience also was established to dispense Justice to the poor without

any cost. This judicial system of 1672 was designed to dispense justice at

a very low cost and each case to be disposed of within ten to twelve days.

The second phase came into being exactly on the same lines

as the one stated in Madras in 1686 on abolition of previous system and

establishment of an Admirality Court in 1684 headed by a professional

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lawyer from England and Admirality Judge who also acted as Chief

Justice of Bombay and who dispensed justice in all types of cases.

The third phase came after an eclipse of about 30 years in

the year 1718 on establishment of a new court consisting of English Chief

Justice and five English Judges and four Indian Judges with original and

appeal jurisdiction over all types of cases. Indian Judges were of less

importance since quorum of the court was to be three English Judges,

Indian Members not counted towards quorum and when English Judges

were called by individual names the Indian Judges were called

collectively as Black Justices. Indian Judges were included by the

precedent of Mayor’s court of 1687 at Madras to enlighten English

Judges on the manners and customs of natives. This court administered

justice in rough, ready and commonsense, there having no code, no law

reports, no books of law, no lawyer, no argument. Punishment was

awarded ‘ during pleasure’ and sometimes no mere suspicion and doubt

as opposed to proof. A better Court the Mayor’s Court replaced this

inferior type of court under the Royal Charter of 1726.3

3. M.P.Jain, Op.Cit, Delhi, 1952, PP.22-30.

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UNIFORMITY OF LAW IN INDIA

The different judicial systems followed in different English

territories in India needed uniformity after Britishers made their strong

hold on their dominions, they intending to leave back the earlier judicial

structure they have been following to certain extent.

By the Royal Charter granted in 1726, the 13th year of the

King George I, all the common and statute law at that time extant in

England was introduced into the Indian Presidencies.4 The Regulating

Act, the 13th Geo.III c.63, passed in 17735 empowered the Governor-

General in Council to make and issue such Rules, Ordinances, and

Regulations for the good order and civil Government of the United

Company’s settlement at Fort William in Bengal, and all places

subordinate thereto, as should be deemed just and reasonable subject to

vetting by the Supreme Court of Judicature to be established under the

4. AC.PatrcL Administration of Justice under East India Company in

Bengal, Bihar and Orissa, Cuttack, 1957, P.P.157-174, Clarke’s Rules
and orders of the Supreme Court of Judicature at Fort William in
Bengal, 1829.
5. Ibid, Section 36 and 37.
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said statute. The 3rd and 4th William IV c.85 by Section 43 empowered the

Governor-General in Council to legislate for India for repealing,

amending or altering former and future laws and regulations and by

making laws and regulations for all persons whether British or native,

foreign or others and for all courts of justice, whether established by His

Majesty’s Chapters or otherwise. While not affecting the right of the

Parliament to legislate for India such laws and regulations would have the

force of Acts of the Parliament.

The revival of the Hindu law and the continuance of the

Mohammedan law were responsible for the emergence of a few new texts

on the subjects of Hindu and Mohammedan law during the Company’s

regime. English common law principles were followed in cases of

contract in the Supreme Court at Calcutta. There were Court Pundits in

the Supreme Court at Calcutta to express their views on questions of

Hindu Law.6 The English law prohibiting usury applied in India only to

British subjects7 and not to native lenders.8

6. Patro, Op. Cit,Rumiklall Dutta Vs. Chittor Chur Dutt (1789).

7. Ibid, Hullodhur Ghose Vs. Connoylall Tagure ( 1899).
8. Ibid, Issenchunder Chatteijee Vs. F.W.Biddle ( 1851).
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The Hindu law as enunciated in the shastras was applied in

cases of mortgages by the Hindus.9 Trade usage of the Hindu community
had the force of law,10 local customs of merchants were considered the
basis of decisions.11 The English statute of limitations ( 21 Geo.III C.70.
S 17) did not apply to Hindu parties in the Supreme Court at Calcutta.12
The peculiarities of the Mohammedan law including the law of contract
was obeyed.13 In absence of Hindu or Mohammedan law or a regulation
or Act governing a particular contract, the English common law
principles were followed also in the Sadar Courts.14 Where the
regulations,15 Acts or general usages16 governed the matter those were so

9. Patro, Op.Cit, Mt. Goolab Vs Mt. Lohha ( 1820) I Borr. 313

Raja Burrodi count Ray Vs. Bisnosoondery (1836) Mor.91

lO.Ibid, Mohan Lall Tagore Vs. Naroojee Cahoojee ( 1815)

Fast’s Notes, Case 16.
11.Ibid, Morell Vs. Cocksell (1835) I. Fulton 200.

12.Ibid, Greedhur Babu Vs. Sree Luchesunder Dass, Hyde’s

Notes 1781 Sr. R.52Mor350.

13.Ibid, Mt. Rabea Khatoon Vs. Budroosina (1841)7S.d.

A.Rep.62.
14.1bid, Senlal Oodakishun Vs. Nainsook Goobaran ( 1839)
Set. Rep. 196 (bailment)
15.Ibid, Krishto Mohan Ray, (Applicant, 9 1840) I Sev.
Sum. Cases 96.

16.1bid, Mihirwanjee Vs. Wuluphdas ( 1822) 2 Borr.240.

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applied. On the subject of contract, Hindu law was expressly applied in

cases of bonds,17 loans,18 conditional acquittance of debt, surety,19 unjust

enrichment20 and other allied heads. The legal rates of interest under the

Hindu law varied according to the caste or class of the borrower. The

Hindu law of limitation as enunciated in the Hindu shastras was applied

in the cases of contract of the Hindus.

17.Patro, Op.Cit, Rai Bolgobind Vs. Sheikh Gholam Ali ( 1805) ISO

A.Rep 93, Jhyutee Ram Misser Vs Raja Mhypal Sing ( 1819) 2 S.D.A

Rep.316 (Security bond).

18.1bid, Manichund Purbhoo Vs Deo Karinta Teoligras( 1824)Sel. Rep. 9.

19.Ibid,Chuttoobhoj Ramanooj Doss Vs Mokunt Humerian Doss (1841)

7 S.D.A. Rep. 15.

20.Ibid,Gopee Churun Burral Vs Mt. Lukhee Tishmuree Dibia (1821),

3 S.D.A Rep.93.