CHAPTER II

HISTORICAL BACKGROUND OF THE ADMINISTRATION OF

This chapter explains the historical background of the administration of justice

in India. For this purpose, the chapter has been divided into four parts and the evolution

of the concept of administration of justice from ancient India to its position in modern

times has been discussed in a holistic manner. Moreover, it gives a comparative view of

ancient to the modern position of administration of justice.

Administration of justice in Ancient India: Hindu Period

2.1. Constitution of Courts

In Ancient India, the king was regarded as the fountain-head of justice1. His

foremost duty was to protect his subjects. He was respected as the lord of dharma and

was entrusted with the supreme authority of the administration of justice in his

kingdom. The King’s Court was the highest court of appeal as well as an original court

in cases of vital importance to the State. In the King’s Court, the king was advised by

learned Brahmins, the Chief Justice and other judges, ministers, elders and

representatives of the trading community. Next to the king was the court of the Chief

Justice (Pradvivaka). Apart from the Chief Justice, the court consisted of a board of

judges to assist him. All the judges were from the three upper castes preferably

Brahmins. Sometimes some of these judges constituted separate tribunals having

specified territorial jurisdiction. Brihaspathas stated that there were four kinds of

1
P.V. Kane III, History of Dharmasastra, 242-316 (Bhandarkar Oriental Research Institute, Mumbai,
3rdedn., 1973).

15
tribunals, namely, stationary, movable courts held under the royal signet in the absence

of the king, and commissions under the king’s presidency.2

In villages, the local village councils or Kulani, similar to modern panchayats,

consisted of a board of five or more members to dispense justice to villagers3. It was

concerned with all matters relating to endowments, irrigation, cultivable land,

punishment of crime etc. Village councils dealt with simple civil and criminal cases. At

a higher level in towns and districts, the courts were presided over by the government

officers under the authority of the king to administer justice. The link between the

village assembly and the official administration was the headman of the village. In each

village, a local headman was holding hereditary office and was required to maintain

order and administer justice. He was also a member of the village council. He acted

both as the leader of the village and the mediator with the government4.

Criminal cases were ordinarily presented before the Central Court, or the courts

held under royal authority. The smaller judicial assembly at the village level was

allowed to hear only minor criminal cases.5

Vachaspati Misra has pointed out that even in Ancient India the decision of each

higher court superseded that of the court below. Each lower court showed full respect to

the decision of each higher court. As such the king’s decision was supreme.6

2
Julius Jolly, XXXIII The Sacred Books of the East 1-3 (MotilalBanarsidass Publishing House, New
Delhi, 2014).
3
S. Varadachariar, The Hindu Judicial System 88 (Lucknow University, Uttar Pradesh, 2ndedn., 1946).
4
Supra note1, at 65
5
Id at 89
6
Raj Kumar (ed.), I Essay on Legal System in India 13 (Discovery Publishing House, New Delhi, 1st edn.,
2003).

16
 One of the cardinal rules of the administration of justice in Ancient India was

that a single individual should not administer justice. A Bench of two or more judges

was always preferred to administer justice. Thus, Vasishta says, “Let the king or his

ministers (or the king taking counsel with Brahmins) transact the business on the

Bench”. The king sitting in his council heard the cases and administered justice.7

2.2. Judicial Procedure

Judicial procedure was very elaborate. According to Brihaspati a suit or trial

(vyavahara) consisted of four parts

i. The plaint (poor-va-paksha)

ii. The reply (uttar)

iii. The trial and investigation of dispute by the court (kriyaa)

iv. The verdict or decision (nirnaya)

The filing of plaint before the court meant that the plaintiff submitted himself to

the jurisdiction of the court. The court was then entitled to issue an order to the

defendant to submit his reply based on allegations made in the plaint. If the defendant

admitted the allegations levelled against him in the plaint, the business of the court was

to decide the case. Where the defendant contested the case before the court, it was the

duty of the court to provide full opportunity to both the parties to prove their cases.

After the trial was over the final decision was given by the court. During proceedings,

both parties were required to prove their case by producing evidence. Ordinarily,

7
Id. at 17

17
evidence was based on any or all the three sources, namely, documents, witnesses and

the possession of incriminating objects.8

In criminal cases, sometimes circumstantial evidence was sufficient to punish

the criminal or to acquit him. The accused was allowed to produce any witness in his

defence before the court, to prove his innocence. Witnesses were required to take an

oath before the court. Ordeal as a means of proof was not only permitted but frequently

used. In criminal cases, the courts were enjoined to convict only according to the

procedure established by law. False witnesses were very severely fined by the courts.

Narada says that they were condemned to go to a horrible hell and stay there for a

kalpa(an aeon)9.

2.3. Trial by jury

In the ancient judicial system of India trial by jury existed but not in the same

form as we understand the term now10. In the court scene of the Mrichchakatika, which

according to Jayaswal is a product of the 3rd century, the jury is mentioned. Sukraniti,

Brihaspati and Narada defined the functions of the jury. This shows that the members of

the community assisted in the administration of justice.11

2.4. Trial by ordeal

Trial by ordeal was a method to determine the guilt of a person.12 The Ancient

Indian society, which was largely dominated by religion and faith in God, considered

8
Id at 15
9
Narada, Quotations,V, 10.
10
V.R. Ramachandra Dikshitar, Hindu Administrative Institutions 246-47 (Life Span Publishers &
Distributors, New Delhi, 6th edn., 2021).
11
Supra note 8, at 22.
12
Supra note1, at 361-378

18
the trial by ordeal as a valid method of proof.13 It was very common to swear “by my

troth” or to call upon the Gods to witness the truth of a statement, as is clear from

various illustrations of the ordeal given in the epics. Smriti writers generally limited its

application to cases where any concrete evidence on either side was not available. Its

greatest drawback was that sometimes a person proved his innocence by death as the

ordeal was very painful and dangerous.14

A detailed account of ordeals, as they existed in Ancient India, is given in Agni

Purana15. It points out that only in cases of high treason or very serious offences the trial

by ordeal was used. In other petty matters, it was sufficient to prove the truth by taking

an oath. Some important types of ordeal, which were commonly adopted, may be stated

as follows. These ordeals were:

i. ordeal and balance16,

ii. ordeal of fire17,

iii. ordeal by water18,

iv. ordeal by poison,

v. ordeal of lot19,

vi. ordeal of rice grains, and

vii. ordeal of fountain-cheese20.

13
S. Varadachariar, The Hindu Judicial System 164-166 (Lucknow University, Uttar Pradesh, 2ndedn.,
1946)
14
Vepa P Sarathi, Law of Evidence in India 7-8 (Eastern Book Company, Lucknow, 7thedn., 2023).
15
S.C. Banerjee, Dharmsutras: A Study in their Origin and Development 108-109 (PunthiPustak,
Calcutta, 3rdedn., 1962).
16
John W. Spellman, Political Theory of Ancient India: A Study of Kingship from the Earliest Times to
Circa A.D. 300 120 (Cambridge University Press, United Kingdom, 4th edn., 2009).
17
L.D. Barnett, Antiquities of India: An Account on the History and Culture of Ancient Hindustan 155
(PunthiPustak, Calcutta, 3rdedn., 1964).
18
Supra note 16, at 123
19
L.D. Barnett, Antiquities of India: An Account on the History and Culture of Ancient Hindustan 155
(PunthiPustak, Calcutta, 3rdedn., 1964).

19
2.5. Crimes and punishments

In ancient Hindu period punishment was a sort of expiation which removed

impurities from the man of sinful promptings and reformed his character.21 Manu22

states that men who are guilty of crimes and have been punished by the king go to

heaven, becoming pure like those who perform meritorious deeds. Ancient Smriti

writers were also fully aware of various purposes served by punishing the criminals.

The punishments served four main purposes, namely, to meet the urge of the person

who suffered, for revenge or retaliation, as deterrent and preventive measures, and for

reformation or redemption of the evildoer23.

There were four methods of punishment, namely, by gentle admonition, by

severe reproof, by fine and by corporal punishment; and declare that these punishments

may be inflicted separately or together according to the nature of offence.24

Kautilya25 lays down that the awarding of punishment must be regulated by a

consideration of the motive and nature of the offence, time and place, strength, age,

conduct (or duties), learning and monetary position of the offender, and by the fact,

whether the offence is repeated. This means judges always considered the relevant

circumstances before deciding the actual punishment.

20
J.W. McCrindle, Ancient India as Described by Ktesias and Knidian 17-18 (Hansebooks, Germany,
5thedn., 2020).
21
Justice M Rama Jois, Legal and Constitutional History of India: Ancient Legal, Judicial and
Constitutional System 324 (Lexis Nexis Universal, Reprint, 2022).
22
VIII Manusmriti318.
23
Supra note1, at388-390
24
Ashika Ranjan “Evaluation of the Process of Punishment in India” IV International Journal of law,
Management & Humanities2999-3003 (2021).
25
IV Kautilya’sArthashastra, 10

20
 Certain classes of persons were exempted from punishment under ancient

criminal law in India. Angiras quoted by the Mitakshara26 states that an old man over

80, a boy below 16, women and persons suffering from diseases are to be given half

prayaschitta and sankha; a child less than five commits no crime nor sin by any act and

is not to suffer any punishment nor to undergo any prayaschitta27.

Certain Smriti writers28 prescribe that as a rule a Brahmin offender was not to be

sentenced to death or corporal punishment for any offence deserving a death sentence,

but in such cases other punishments were substituted. Katyayana29 and Kautilya30 were

against exempting Brahmins.

Under ancient criminal law, criminals were required to pay a fine as well as to

undergo corporal punishment for their offences. In certain cases, the court was

empowered to grant compensation to the aggrieved party in addition to the punishment

given to the offender.

In adultery and rape, punishment was awarded based on the caste considerations

of the offender and of the woman.31

In abuse or contempt cases, every care was taken to see that each higher caste

got due respect from persons of the lower caste. Gautama32, Manu33, Yajnavalkya34

prescribe that a Kshatriya or a Vaisya abusing or defaming a Brahmin was to be

punished respectively with a fine of 100 panas and 150 panas. A Sudra was punished by

corporal punishment (cutting off the tongue). While a Brahmin defaming a Kshatriya or

26
IIIYajnavalkyasmriti, , 243.
27
IVNaradasmriti, , 85
28
Supra note 25, at 8
29
Katyayana’sSmriti, 806
30
Supra note 25, at 11
31
IIYajnavalkyasmriti, 286
32
XII Gautama’s Dharmasutra, 1, 8-12
33
VIII Manusmriti, 267-268.
34
Supra note31, at 206-207.

21
Vaisya was to be fined 50, 25 or 12 panas respectively. According to Gautama35, a

Brahmin could flout a Sudra with impunity. If a person of a lower caste sat on the same

bench with a man of a higher caste, the man of the lower caste was branded on the

breech.

For committing murder, early Sutras prescribe that the murderer should pay fine

according to the caste of the person murdered. Mostly the penalties were based on caste

considerations as informed by Baudhayana. Other ancient law books lay down that

punishment for murder was death with confiscation of the murderer’s property. The

Arthashastra prescribes death penalty for the murder, even if it occurred in a quarrel or

duel. Capital punishment was given in varied forms, namely, roasting alive, drowning,

trampling by elephants, devouring by dogs, cutting into pieces, impalement, etc.

Mutilation, torture and imprisonment were common penalties for many other crimes36.

Penal law of ancient communities is not the law of crimes, it is the law of

wrongs or to use the English technical word, of Torts.37However, it has proved that this

generalisation is not true for ancient Hindu Law.38

2.6. Judicial System in Medieval India-Muslim Period

Muslim period marks the beginning of a new era in the legal history of India.

Arabs were the first Muslims who came to India.39 They came in the 8th century and

settled down in the Malabar Coast and in Sind but never penetrated further.40

2.7. Constitution of Courts

35
XII Dharmasutra, 13
36
Supra note 1, at 391-410
37
Henry Maine, Ancient Law 370 (Cosimo Classics, New York, 5thedn., 2005).
38
P.N. Sen, General Principle of Hindu jurisprudence 264-266 (Allahabad Law Agency, Haryana, 5thedn.,
1984).
39
Abdur Rahim, The principle of Muhammedan Jurisprudence 6 (Cosmo Publication, New Delhi 2011).
40
Id. at 8

22
 In Medieval India, the Sultan, being head of the State, was the supreme authority

to administer justice in his kingdom. The administration of justice was one of the

important functions of the Sultan, which was done in his name in three capacities:

Diwan-e-Qaza(arbitrator), Diwan-e-Mazalim (as head of bureaucracy) and Diwan-e-

Siyasat (as Commander-in-Chief of forces). The courts were required to seek his prior

approval before awarding the capital punishment.41

The judicial system under the Sultan was organised based on administrative

divisions of the kingdom. A systematic classification and gradation of the courts existed

at the seat of the capital, in provinces, districts, parganas and villages42. The powers and

jurisdiction of each court were clearly defined.

Six courts which were established at the capital of the Sultanate, may be stated as

follows: The King’s Court, Diwan-Al-Mazalim, Diwan-e-Risalat, Sadre Jahan’s Court,

Chief Justice’s Court and Diwan-e-Siyasat. The King’s Court, presided over by the

Sultan, exercised both original and appellate jurisdiction on all kinds of cases. It was the

highest court of appeal in the realm43. The Sultan was assisted by two reputed Muftis

highly qualified in law.44

The court of Diwan-e-Mazalim was the highest court of criminal appeal and the

court ofDiwan-e-Risalat was the highest court of civil appeal.45 Though the Sultan

41
Id. at 9
42
M.B. Ahmad, The Administration of Justice in Medieval India 104-125 (Cosmo Publications, New
Delhi, 1st edn., 2015).
43
H. Beveridge, A Comprehensive History of India: Vol. I 102 (Atlantic Publication, New Delhi, 2ndedn.,
2007).
44
Sumeet Malik (ed.), Landmarks in Indian Legal and Constitutional History 24 (Eastern Book
Company, Lucknow, 11thedn, 2016).
45
Supra note 21 at 40

23
nominally presided over these two courts, he seldom sat in them. The Chief Justice

(Qazi-ul-Quzat) was the highest judicial officer next to the Sultan.46

From 1206 to 1248 in the absence of the Sultan, the Chief Justice presided over

these courts. In 1248 Sultan Nasir-ud-Din, being dissatisfied with the then Chief Justice,

created a superior post of Sadre Jahan and appointed Qazi Minhaj Siraj to this

post.Sincethen,Sadre Jahan became de facto head of the judiciary.47

The Court of Ecclesiastical cases, which was under the Chief Justice up to 1248 was

also transferred to the Sadre Jahan and later became popular as Sadre Jahan’s court.

Sadre Jahan became more powerful and occasionally presided over the King’s Court.48

The offices of the Sadre Jahan and Chief Justice remained separate for a long time, Ala-

ud-din amalgamated the two.49 They were again separated by Sultan Firoz Tughlaq.50

The court of Diwan-e-Siyasat was constituted to deal with the case of rebels and

those charged with high treason. Its main purpose was to deal with criminal

prosecutions.51 It was established by Mohammed-bin-Tughlaq and continued up to

1351.52

The Chief Justice’s court was established in 1206 The Chief Justice and pusine

judges were men of ability (Afazil-e-Razgar) and were highly respected. Many Chief

46
Romila Thapar, Ancient Indian Social History: Some Interpretations 35 (Orient Blackswan, New Delhi,
2ndedn, 2010).
47
J.K. Mittal, Indian Legal & Constitutional History 32 (Allahabad Law Agency, Haryana, 14thedn,
2004).
48
N.V. Paranjapee, Indian Legal & Constitutional History 25 (Central Law Agency, Allahabad, 7thedn,
2015).
49
Kailash Rai, Indian Legal & Constitutional History 27 (Allahabad Law Agency, Haryana, 5thedn,
2011).
50
M.P. Jain, Outlines of Indian Legal and Constitutional History 30 (Lexis Nexis, Haryana, 7thedn,
2014).
51
Kailash Rai, History of Courts, Legislature & Legal Profession in India 20 (Allahabad Law Agency,
Haryana, 6thedn, 2013).
52
Supra note 45, at 42

24
Justices were famous for their impartiality and independent character during the

Sultanate period. Four officers, namely, Mufti, Pandit, Mohtasib and Dadbak were

attached to the court of Chief Justice.53

In each province (subah) at the provincial headquarters five courts were established,

namely, Adalat Nazim Subah, Adalat Qazi-e-Subah, Governor’s Bench (Nazim-e-

Subah’s Bench), Diwan-e-Subah and Sadre-e-Subah. Adalat Nazim Subah was the

Governor’s (Subedar) court54. Sultan, provinces the Sultan was represented by the

Governor and like the Sultan, he exercised original and appellate jurisdiction. In

original cases, he usually sat as a single judge.55 From his judgement, an appeal lay to

the Central appellate court at Delhi.56

While exercising his appellate jurisdiction, the Governor sat with the Qazi-e-Subah

constituting a Bench to hear appeals. From the decision of this Bench, a final second

appeal was allowed to be filed before the Central Court at Delhi. Adalat Qazi-e-Subah

was presided over by the Chief Provincial Qazi. He was empowered to try civil and

criminal cases of any description and to hear appeals from the courts of District Qazis.57

Appeals from Adalat Qazi-e-Subah were allowed to be made to the Adalat Nazim-e-

Subah. Qazi-e-Subah was also expected to supervise the administration of justice in his

subah and to see that Qazis in districts were properly carrying out their functions. He

was elected by the Chief Justice or by Sadre Jahan and was appointed by the Sultan.58

53
Supra note 47 at 40.
54
Supra note 44, at 24
55
Supra note 48, at 30
56
Supra note 46, at 38
57
Supra note 50 at 34
58
Id. at 35

25
Four officers, namely, Mufti, Pandit, Mohtasib and Dadbak were attached to this court

also.

In each district (sarkar), at the district headquarter, six courts were established,

namely, Qazi, Dadbaks or Mir Adls, Faujdars, Sadre, Amils and Kotwals.59 The court of

the District Qazi60 was empowered to hear all original civil and criminal cases. Appeals

were also filed before this court from the judgements of the ParganaQazis, Kotwals and

village panchayats. The court was presided over by the District Qazi who was appointed

on the recommendation of the Qazi-e-Subah or directly by Sadre Jahan.61The four

officers, namely, Mufti, Pandit, Mohtasib and Dadbak were attached to the court of

District Qazi.62

The court of the faujdar tried petty criminal cases concerning security and suspected

criminals.63 Appeals were filed to the court of Nazim-e-Subah. The court of Sadr dealt

with cases concerning grant of land and registration of land. Appeals were allowed to be

filed before the Sadre-e-Subah. Court of Amils dealt with the land revenue cases. From

the judgement of this court an appeal was allowed to the court of Diwan-e-Subah.

Kotwals were authorised to decide petty criminal cases and police cases.

At each pargana headquarter two courts were established, namely, Qazi-e-Pargana

and Kotwal. The court of Qazi-e-Pargana had all the powers of a District Qazi in all

civil and criminal cases except hearing appeals. Canon law cases were also filed before

59
Id. at 36
60
M. Elphinstone, TheHistory of India 421 (CreateSpace Independent Pub, United States, 1stedn., 2015).
61
Supra note 44, at25
62
Ibid
63
Id. at 26

26
this court. Petty criminal cases were filed before the Kotwal. He was the Principal

Executive Officer in towns.64

A pargana was divided into a group of villages. For each group of villages there was

a village assembly or panchayat, a body of five leading men to look after the executive

and judicial affairs. The Sarpanch or Chairman was appointed by the Nazim or the

faujdar. The panchayats decided civil and criminal cases of a purely local character65.

Though the decrees given by the panchayats were based on local customs and were not

strictly according to the law of the kingdom, still there was no interference in the

working of the panchayats. As a rule, the decision of the panchayat was binding upon

the parties and no appeal was allowed from its decision.66

2.7. Judicial Reforms of Sher Shah

In 1540 Sher Shah laid the foundations of Sur dynasty in India after defeating the

Mughal Emperor Humayun, son of Babur. During the reign of the Sur dynasty from

1540 to 1555, when Sher Shah and later on Islam Shah ruled over India, the Mughal

Empire remained in abeyance.67 Sultan Sher Shah was famous not only for his heroic

deeds in the battlefield but also for his administrative and judicial abilities. It was said

by Sultan Sher Shah that “Stability of government depended on Justice and that it could

be his greatest care not to violate it either by oppressing the weak or permitting the

strong to infringe the laws with impunity”68. Although Sher Shah ruled only for five

years, he introduced various remarkable reforms in the administrative and judicial

64
Supra note 51, at 25
65
John Briggs, III History of the Rise of the Mohammedan Power in India: Till the Year A.D. 1612 420
(Atlantic Publishers and Distributors Pvt. Ltd, New Delhi, 5th edn., 2023).
66
Supra note 61, at 26
67
Ibid
68
Supra note 65, at 124.

27
system of his kingdom. His important judicial reforms, as summarised by M.B.

Ahmad69, may be stated as follows:

i. Sher Shah introduced the system of having in the parganas, separate courts of

first instance for civil and criminal cases. At each pargana town he stationed a

Civil Judge called Munsif, a title which survives to this day to hear civil disputes

and to watch conduct of the Amils and the Moqoddams70 (officers connected

with revenue collections). The Shiqahdars who had until now powers

corresponding to those of Kotwals were given Magisterial powers within the

parganas. They continued to be in charge of the local police71.

ii. Moqoddams or heads of the Village Councils were recognised and were order to

prevent theft and robberies. In case of robberies, they were made to pay for the

loss sustained by the victim. Police regulations were not drawn up for the first

time in India.

iii. WhenaShiqahdar or a Munsif was appointed, his duties were specifically

enumerated.

iv. The judicial officers below the Chief Provincial Qazi were transferred after

every two or three years. The practice continued in British India.

v. The duties of Governors and their deputies regarding the preservation of law and

order were emphasised72.

vi. The Chief Qazi of the province or the Qazi-ul-Quzat was in some cases

authorized to report directly to the emperor on the conduct of the Governor73,

especially if the latter made any attempt to override the law.

69
Supra note 42, at 129
70
Henry Elliot and John MrasDowson, History of India as told by its Own Historians: The Muhammadan
Period 414 (Nabu Press, United States, 1stedn., 2013).
71
William Erskine, II History of India under Babur443 (Atlantic Publications, New Delhi, 7thedn., 1994).
72
Supra note70, at420.

28
2.8. Judicial System during the Mughal Period

In India, the Mughal period begins with the victory of Babur in 1526 over the

last Lodi Sultan of Delhi. His son, Humayun, though he lost his kingdom to Sher Shah

in 1540, regained it after defeating the descendants of Sher Shah in July 1555. The

Mughal Empire continued from 1555 to 1750.74

2.9. Administrative divisions

The Mughal Empire (Sultanat-e-Mughaliah) was administered based on the

same political divisions as existed during the reign of Sher Shah. For the purposes of

civil administration, the whole empire was divided into the imperial capital, provinces

(subahs), districts (sarkars), parganas and villages.75 The Mughal Emperor was the

supreme authority and in him the entire executive, legislative, judicial and military

power resided.76

2.10. Constitution of courts

During the Mughal period, the emperor was considered the “foundation of

justice”. The emperor created a separate department of justice (Mahukma-e-Adalat) to

regulate and see that justice was administered properly.77Based on the administrative

divisions, at the official headquarters in each province, district, pargana and village,

separate courts were established to decide civil, criminal and revenue cases78. At Delhi,

the imperial capital of India, highest courts of the empire empowered with original and

73
Charles Stewart, The History of Bengal: From the First Mohammeden Invasion Until the Virtual
Conquest of that Country by the English, A.D. 1757 143 (Nabu Press, United States, 2ndedn., 2013).
74
Supra note 54, at 27
75
Supra note 69, at 15-17
76
Id. at 18
77
Supra note 50, at 37
78
Supra note 75, at 143-166

29
appellate jurisdictions were established. A systematic gradation of courts, with well-

defined powers of the presiding judges, existed all over the Empire.79

2.11. Emperor’s Court

The Emperor’s Court presided over by the emperor, was the highest court of the

empire. The court had jurisdiction to hear original civil and criminal cases. As a court of

the first instance generally the emperor was assisted by a Darogha-e-Adalat, a Mufti and

a Mir Adl. In criminal cases the Mohtasib-e-Mumalik or the Chief Mohtasib, like the

Attorney General for India today, also assisted the Emperor.80 In order to hear appeals,

the Emperor presided over a Bench consisting of the Chief Justice (Qazi-ul-Qazat) and

Qazis of the Chief Justice’s Court.81 The Bench decided questions both of fact and law.

Where the Emperor considered it necessary to obtain authoritative interpretation of law

on a particular point, the same was referred to the Bench of the Chief Justice’s Court for

opinion.82 The public was allowed to make representations and appeals to the Emperor’s

Court to obtain his impartial judgement.83

The Chief Court of the empire was the second important court at Delhi, the seat

of the capital. It was presided over by the Chief Justice (Qazi-ul-Quzat). The court had

the power to try original, civil and criminal cases, to hear appeals from the provincial

courts. It was also required to supervise the working of the provincial courts.84 In

administering justice, the Chief Justice was assisted by one or two Qazis of great

79
Id. at 170
80
Supra note 54, at28
81
Supra note 47, at 42
82
Supra note 48, at 38
83
Supra note 56, at 40
84
Supra note 54, at28

30
eminence, who were attached to his court as puisne judges.85 Four officers attached to

the court were – Darogha-e-Adalat, Mufti, Mohtasib Mir Adl. The Mufti attached to the

Chief Justice’s Court was known as Mufti-e-Azam.86

The Chief Justice was appointed by the Emperor. He was considered the next

important person, after the Emperor, holding the highest office in the judiciary.

Referring to the qualifications of a Chief Justice, Sir J Sarkar has observed, “Men of

high scholarship and reputed sanctity of character wherever available were chosen”87.

Sometimes a Chief Provincial Qazi was promoted to the post of the Chief Justice.

Apart from the above stated three important courts, there were also two lower

courts at Delhi to decide local cases. The court of Qazi of Delhi, who enjoyed the status

of Chief Qazi of a province, decided local civil and criminal cases. An appeal was

allowed to the court of Chief Justice.88

In each province (subah) there were three courts, namely, the Governor’s own

court and the Bench, the Chief appellate court, the Chief Revenue court.89

The Governor’s own court (Adalat-e-Nazim-e-Subah) had original jurisdiction

in all cases arising in the provincial capital. It was presided over by the

Governor (Nazim-e-Subah).

The provincial Chief appellate court was presided over by the Qazi-e-Subah.

The court had original civil and criminal jurisdiction.Provincial Chief Revenue

85
Id. at 29
86
Supra note 51, at 28
87
Jadunath Sarkar, Mughal Administration 29 (Life Span Publishers & Distributors, New Delhi, 7th edn.,
2020).
88
Id. at 30
89
Supra note 50 at 29

31
 court was presided over by Diwan-e-Subah. The court was granted original and

appellate jurisdiction in revenue cases.

In each district (sarkar) there were four courts, namely, the Chief Civil and

Criminal court of the District, FaujdariAdalat, Kotwali and AmalguzariKachehri.90The

Chief Civil and Criminal court of the District was presided over by the Qazi-e-Sarkar.

The court had original and appellate jurisdiction in all civil and criminal cases and in

religious matters.91

Qazi-e-Sarkar was the principal judicial officer in a district. He was officially

known as ShariyatPanah. Six officers attached to his court were – Darogha-e-Adalat,

Mir Adl, Mufti, Pandit or Shastri, Mohtasib and Vakil-e-Sharayat. Appeals from this

court lay to Qazi-e-Subah92.Faujdari Adalat dealt with criminal cases concerning riots

and State security. It was presided by the faujdar.93 Appeals lay to the Governor’s court.

Kotwali court decided cases like those under modern Police Acts and had appellate

jurisdiction. It was presided by Kotwal-e-Shahar. Appeals lay to the District Qazi94.

In each pargana there were three courts, namely, Adalat-e-Pargana, Kotwali and

Kachehri.95Adalat-e-Pargana was presided over by Qazi-e-Pargana. The court had

jurisdiction over all civil and criminal cases arising within its original jurisdiction. In

included all those villages which were under the pargana court’s jurisdiction. Four

90
Id. at 30
91
Supra note 47, at 45
92
Henry Elliot and John MrasDowson,IIIHistory of India as told by its Own Historians: The
Muhammadan Period 172-173 (Nabu Press, United States, 1stedn., 2013).
93
Id. at 174
94
Alexander Dow, III The History of Hindustan 752 (MotilalBanarsidass Publishers, New Delhi, 3rd edn.,
2003).
95
Supra note 46, at 29

32
officers attached to Adalat-e-Pargana were – Mufti, Mohtasib-e-Pargana, Darogha-e-

Adalat and Vakil-e-Shara.96

Court of Kotwaliwas presided by Kotwal-e-Pargana to decide such cases as are

found in the modern Police Act. Appeals were made to the court of District Qazi.Amin

was the presiding officer in Kachehri which decided revenue cases. An appeal lay to the

District Amalguzar.97

The village was the smallest administrative unit. From ancient times the village

council (panchayats) were authorised to administer justice in all petty civil and criminal

matters.98 Generally, the panchayat meetings were held in public places. It was presided

by five panchs elected by the villagers who were expected to give a patient hearing to

both the parties and deliver their judgement in the panchayat meeting. Sarpanch or

Village-Headman was generally President of the panchayat. No appeal was allowed

from the decision of a panchayat. Village panchayats were mostly governed by their

customary law.99

2.12. Judicial procedure

A systematic judicial procedure was followed by the courts during the Muslim

period. It was mainly regulated by two Muslim Codes namely, ‘Fiqh-e-FirozShahi’ and

‘Fatawa-i-Alamgiri’.100The status of the court was determined by the political divisions

of the kingdom.

96
Id. at 30
97
Supra note 21 at 32
98
Supra note 48, at 31
99
Id. at 32
100
Supra note 42 at 176-188

33
 In criminal cases, a complaint was presented before the court either personally

or through representative.101Every criminal court was attached a public prosecutor

known as Mohtasib. He instituted prosecutions against the accused before the court. The

court was empowered to call the accused at once and to begin hearing of the case.102

Sometimes the court insisted on hearing the complainant’s evidence before calling the

accused person. Ordinarily, the judgement was given in open court. In exceptional

cases, where either the public trial was against the interest of the State or the accused

was dangerously influential, the judgement was not pronounced in the open court.103

2.13. Trial by ordeal

The Muslim Law prohibited the use of trial by ordeal to determine the guilt of a

person.104It was not favoured either by the Sultans or by the Mughal rulers in India. As

stated earlier, the trial by ordeal was mostly used during the ancient Hindu period. In the

non-Muslim States, which were under the protection of the Sultans and Mughals,

however, the old system of trial by ordeal somehow continued.105

2.14. Crimes and punishments

During the Muslim period Islamic Law or Shara was followed by all the Sultans

and Mughal Emperors.106 The Shara is based on the principles enunciated by the Koran.

Under the Muslim criminal law, which was mostly based on the religion, any violation

101
Id. at 189
102
Id. at 190
103
V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History 118-120 (Eastern Book
Company , Lucknow, 1989)
104
Supra note 49, at 32
105
Id. at 33
106
Sumeet Malik (ed.), Landmarks in Indian Legal and Constitutional History 40(Eastern Book
Company, Lucknow, 11th edn., 2016).

34
of public rights was an offence against the State.107 Islam provides that the State belongs

to God; therefore, it was the primary duty of any Muslim ruler to punish the criminals

and maintain law and order. Offences against individuals were also punishable as they

infringed private rights.108

Three forms of punishments, as recognised by the Muslim Law, were: hadd, tazir

and qisas.109

Haddprovided a fixed punishment as laid down in Shara, the Islamic Law, for

crimes like theft, robbery, whoredom (zina), apostasy (ijtihad), defamation

(itteham-e-zina) and drunkenness (shurb). It was equally applicable to Muslims

and non-Muslims. The Statewas under a duty to prosecute all those persons who

were guilty under hadd. No compensation was granted under it.110

Tazirwas another form of punishment which meant prohibition and it was

applicable to all the crimes which were not classified under hadd. It included

crimes like counterfeiting coins, gambling, causing injury, minor theft, etc.

Under tazir, the courts exercised their discretion in awarding suitable

punishment to the criminal. The courts were free to invent new methods of

punishing the criminals, e.g. cutting out the tongue, impalement, etc111.

Qisasor blood-fine was imposed in cases relating to homicide. It was a sort of o

blood-money paid by the man who killed another man if the murderer was

convicted but not sentenced to death for his offence. Muslim jurists supported

qisas on the basis that “the right of God’s creatures should prevail” and only

107
Id. at 43
108
Supra note 48 at 115-116
109
S.P Sagar, “Administration Of Justice in Mughal India” 26 Proceedings of the Indian History
Congress”41-48 (1964), available at http://www.jstor.org/stable/44140316.( last visited on May 12 , 2023).
110
Id. at 50
111
Supra note 42, at 225

35
 when the aggrieved party had expressed his desire, the State should intervene.

The court exercised its discretion to compound the homicide cases. Qisasmay be

compared with the wergild of the contemporary English period. The State was

authorised topunish the criminals for grave offences although the injured party

might “waive his private claim to compensation or redress”112.

The Muslim Law considered “treason” (ghadr) as a crime against God and

religion and therefore against the State. Persons held responsible for treason by the

court were mostly punished with death. No consideration was shown for their rank,

religion, and caste. Only the ruler was empowered to consider a mercy petition.113

Contempt of the court was considered a serious offence and was severely punished in

the Muslim period.

Judicial System during the British period

2.15. Administration of Justice in Madras: 1639-1726

The early centers of British power in India were the three Presidency Towns of

Madras, Bombay and Calcutta which were founded by the British and which grew

almost from a scratch. The year 1726 constitutes a landmark in the Indian Legal History

as it gave a new orientation to the judicial system in the three Presidency Towns.114 The

judicial system at the Presidency Towns was designed primarily to administer justice to

the Englishmen. But, with the passage of time, the Indian population of these

settlements increased and therefore adjustments had to be made in the judicial system

with a view to provide for the administration of justice to these people as well115.

112
M.U.S. Jung, The Administration of Justice of Muslim Law 102 (Gale, Making of Modern Law, United
States, 4th edn., 2013).
113
Supra note 106 at 33
114
Id. at 38
115
Supra note 51 at 4

36
Despite this factor, however, the judicial machinery in the Presidency Towns remained

heavily oriented towards the English legal system.116

Madras was the first Presidency Town established by the British in India. Here,

the judicial institutions grew in three stages. In the first stage, from 1639 to 1665, the

administration of justice was in an extremely elementary state. The second period,

which runs from 1665 to 1686, saw the establishment of the court of the Governor and

Council. The significant event during the third period from 1686 to 1726 was the

creation of two courts: the Admiralty Court and the Mayor’s Court117.

First Period: 1639-1665

2.16. Administrative Set-up

Madras was given the status of an agency and its administrative head was called

the “Agent”. He administered the settlement with the help of a Council. It was

subordinate to Surat, which was the only Presidency in India at the time118.

2.17. Judicial System

Very meagre information is available regarding the early judicial system in the

settlement. Justice was dispensed to the inhabitants of the White Town by the Agent and

Council.119. The scope of their judicial power was very vague and indefinite and

therefore they hesitated in handling serious criminal cases and very often referred such

cases to the Company’s authorities in England for advice. As communication between

116
Supra note 48, at15-16
117
Supra note 47, at6
118
Id. at 7
119
Supra note 50, at 23

37
India and England in those days took a long time, administration of justice became very

dilatory and unsatisfactory120.

Though the Raja had left the responsibility to administer the Black Town to the

English, they did not evince much interest in this respect at this time. No regular judicial

tribunal was established and the old, traditional, indigenous system which had been

operating in the Village of Madraspatnam before the advent of the British was allowed

to continue.121

Thus, a Choultry Court with Adigar as the judge decided small civil and

criminal cases. The Choultry Court was merely a court of petty cases. No other court

was created for trial of those civil and criminal cases which fell beyond the competence

of the Choultry Court.122

2.17. No Established Procedure

There was no fixed form of trial procedure and usually the methods resorted to

for the purpose were informal. Trial of serious crimes committed by the Indians or by

others against them appear to have been conducted on an ad hoc basis and the procedure

for the same varied from case to case as it was thought expedient in the circumstances

of each case.123

The Agent evinced some interest when a serious crime was committed in the

Black Town. In capital cases committed by persons other than the British, reference was

120
Id. at 24
121
Supra note 50, at 16
122
Id. at 17
123
Supra note 48 at 24

38
usually made to the Raja who invariably ordered that the accused be punished according

to the English law124.

This period is, therefore, conspicuous by the absence of any systematic and

regular administration of justice. The judicial methods were elementary. The Agent and

Council for administering justice in WhiteTownwas not efficient as it was a very

hesitant sort of court and was not sure of its power. The Choultry Court could decide

only petty cases; for trial of serious cases arising in the Black Town, there was no

established procedure or forum.125

Second Period: 1665-1686

2.18 Extensive Power and Delay in Justice

The Charter of 1661 which had conferred extensive judicial power on the

Governor and Council of a settlement did not become immediately operative in Madras.

Thus, there occurred no change in the judicial set up and status quo was maintained in

Madras for some time.126 A criminal case of Mrs.AscentiaDawesin 1665, considered to

be the turning point regarding criminal trial. This case compels the Company to make

the Charter of 1661 effective in Madras and to this end raised the Agent to the status of

the Governor. The Governor and Council tried Mrs. Dawes for the first time with the

help of the jury.127 The foreman sent a note to the court saying that the jury found her

guilty of the murder but not in manner and form and so desired directions from the

124
Supra note 122
125
Ibid
126
Supra note 47, at 9
127
Supra note 106, at 49

39
court128. The Governor and council returned the answer that the jury must bring in a

verdict of ‘guilty’ or ‘not guilty’ without any exception or limitation. Quite

unexpectedly the jury returned the verdict of ‘not guilty’ and Mrs. Dawes was

acquitted.129

None of the Governor and the Council was a lawyer by education or training and

so these people had difficulty in meeting the legal complications which arose in the

trial. They did not know what to do when the jury brought in an unexpected verdict.

Thus, due to lack of skilled people in the law and formalities, justice continued to be

dispensed by the Governor and Council according to their wisdom and common sense

and therefore the quality of justice could not be of a high order. The Charter of 1661 had

stipulated the administration of English law but as none of the judges had even an

elementary knowledge of this law, this clause in the Charter remained a dead letter for

all practical purposes.130

In criminal cases, the accused persons had to wait for long before they were put

on trial. The main reason for the delay was that the Governor and Council like their

predecessors, the Agent and Council, being conscious of their lack of legal knowledge,

hesitated to decide criminal cases without consulting the Company’s authorities in

England and in those days consultation between Fort St. George and London involved

inordinate delay131.

Streynsham Master who was the Governor of Madras from 1667 to 1681 took

steps to put life, vigour and efficiency into the Court of the Governor and Council so

128
Supra note 50 at 17-18
129
Supra note at 51, at 6
130
Id. at 7
131
Supra note 50 at18

40
that it could function more regularly and properly in terms of the Charter of 1661.132 In

March 1678, the Governor and Council resolved that they would sit as a court on two

days in a week to administer justice in all cases, civil and criminal according to the laws

of England with the help of jury of 12 men. This court was designated as the High Court

of Judicature and was formally inaugurated on 27thMarch, 1678 at a public function.

The Choultry Court was also re-organised and it was to consist of the

Company’s servants (mint master, customer, pay master or any two of them) and was to

sit twice a week to try small misdemeanors, matters of peace, civil action up to 50

pagodas and cases of a higher value with the consent of the parties. All other cases and

appeals from the Choultry Court were to be heard by the Court of the Governor and

Council with the help of jury.133

A hierarchy of courts was established in Madras with their respective

jurisdictions demarcated. The Choultry Court was to take cognizance of small matters;

the Governor and Council were to have original jurisdiction in matters beyond the

purview of and appellate jurisdiction in cases decided by the Choultry Court.134

Third Period:1686-1726

2.19. Admiralty Court

Charles II on 9th August, 1683 granted a Charter to the Company authorising it

to establish one or more courts having jurisdiction to try maritime cases at such place or

places.The court was to consist of a person “learned in the civil law” and two merchants

132
Ibid. a
133
Id. at 19
134
Supra note 131 at 19

41
appointed by the Company.135 It was to have power to hear and determine all cases,

mercantile and maritime in nature, concerning persons within the charter limits of the

Company; all cases of trespasses, injuries and wrongs, done or committed on the high

seas or within the charter limits; cases of forfeitures and seizures of ships or goods

which came for the purpose of trade within the Company’s monopoly area against the

tenor of the Charter of 1600. The court was to decide cases according to the rules of

equity and good conscience and the laws and customs of merchants. It could settle its

own procedure subject to the directions of the Crown, if any. The Chief Judge of the

Admiralty Court was known as the Judge-Advocate.136

Under the above provisions, a Court of Admiralty was started in Madras on

10thJuly, 1686. It consisted of three civil servants who were members of the Governor’s

Council.137 Occasionally, the Governor and Council held trials to enforce “law martial”

under the authority of the above-mentioned Charter. In 1687, the Company sent from

England Sir John Biggs, a professional lawyer learned in the Civil law to act as the

Judge-Advocate and thereafter the court started to function properly and in right earnest.

The Governor and Council thereafter relinquished the judicial functions which they had

been exercising under the Charter of 1661 and ceased to sit as a court138.

The Admiralty Court in practice came to function as a general court of the land

and it was not confined merely to maritime and admiralty cases proper as was envisaged

135
Supra note 48, at 26
136
Ibid.
137
Supra note 47 at 10
138
Supra note 50, at 20

42
by its Charter. It exercised a much wider jurisdiction and dispensed justice in all cases;

civil, criminal, maritime and mercantile. The court used jury in criminal cases .139

Sir John Biggs died in 1689 and as no other qualified person was available in the

settlement to take his place, the Governor and Council appointed the Governor as the

Judge-Advocate with two members of the Council as the judges of the Admiralty Court,

associating with them two merchants, an Armenian and a Hindu to assist the court in

regard to the disputes arising from their respective communities.140

In 1692, a new Judge Advocate, John Dolben was sent from England but his

tenure was brief as he was dismissed in 1694 on the charge of taking bribes. William

Fraser, a civil servant was then appointed as the Judge-Advocate. In 1696, the Company

directed that the members of the Council should in succession serve as the Judge-

Advocate.141 From 1698 onwards, under instructions from the Company, the Governor

and Council started hearing appeals from the Admiralty Court in cases involving less

than 100 pagodas. After 1704, the Admiralty Court ceased to sit on a regular basis but

was convened occasionally as and when the necessity for the same was felt.142

2.20. Mayor’s Court

The year 1688 the Mayor’s Courtwas established in Madras under a Charter

dated December 30, 1687 issued by the Company.143In the Charter, the Company

declared that it was its desire to encourage merchants and traders of all nations and all

religions and therefore the Corporation should consist of a mixture of the best and

139
Supra note 49, at 8
140
Supra note 51 at 9
141
Supra note 106 at 51
142
Id. at 52
143
Supra note 50 at21

43
honest people of all sorts residing within the limits of the Corporation and that the court

of the aldermen of the Corporation especially should be made up of the heads and chiefs

of all respective castes. The Company also stated in the Charter that it desired to confer

power on the Corporation or the speedier determination of small controversies of little

moment frequently happening among the unarmed inhabitants144

2.21. Choultry Court

After the Mayor’s Court came into existence, the Choultry Court, an important

institution earlier, lost its importance and functioned as a court of petty jurisdiction

trying only small offences and civil cases up to two pagodas. In criminal cases, it

inflicted punishments of fine, imprisonment, pillory, whipping and even of slavery.145

2.22. Crimes and Punishments

In Madras, the process of administering justice was very slow and tardy.

Criminals as well as debtors were confined to the prison for long periods so much so

that at times even their offences were forgotten.146

There was no measure or standard of punishment nor was there any principle

behind its mode and quality.147 Often the punishment awarded bore no relation to the

offence committed and depended on the personal whims, idiosyncrasiesand prejudices

of the judges. Usually, the punishments were barbarous and inhuman and were awarded

with the idea of making them deterrent and preventive148.

144
Ibid.
145
Supra note 47 at 11
146
Supra note 50 at 24
147
Ibid.
148
Supra note 50 at 24-25

44
 The offender was made an example so that others might be deterred from

committing the same crime again. The lash was the popular medium of punishment for

minor offences which was applied in public; it knew no distinction of sex and fell

heavily on both males and females. Pillory also appears to be in vogue at this time. A

technical principle of the English Ecclesiastical Law, known as the benefit of clergy,

was available to the Englishmen as a defence and was commonly invoked in cases of

manslaughter, in such a case, the accused was branded on the hand and discharged.149

Administration of Justice in Bombay: 1668-1726

Before 1726, the judicial system in the Island of Bombay grew in three stages:

the first stage ran from 1668 to 1683; the second from 1683 to 1690; and the third from

1718 to 1726150.

2.23. Charter of 1668

At the time of the transfer, Charles II granted a Charter to the Company

conferring on it full powers, privileges and jurisdiction requisite for the administration,

legislation and dispensation of justice in Bombay.151 The Charter empowered the

Company to make laws for the good government of the Island and to impose for the due

observance of the said laws, pains, penalties and punishments by way of fines,

imprisonment or even death. The laws and punishments had to fulfil the two usual

conditions: viz., they were to be consonant to reason, and were not to be repugnant or

contrary, but as near as might be agreeable, to the laws of England.152

149
Ibid
150
Id at 28
151
Ibid.
152
Supra note 106 at 55

45
 The Company was also authorised to create courts to judge all persons and all

actions. Their proceedings, however, were to be like those as were established and used

in England. The Charter thus very characteristically contemplated the establishment of

courts and laws in Bombay on the same lines as in England.

2.24. Judicial System

A Deputy Governor and Council were appointed to administer Bombay subject

to the control of the Surat Presidency. The Governor of the Surat Factory was the ex-

officio Governor of Bombay. The main architect of the first judicial system in Bombay

was Gerald Aungier, the Governor of the Surat Factory. He has been described as the

true founder of Bombay. A man of liberal ideas he believed in a sound and impartial

administration of justice without fear or favour. Due to his efforts, the first judicial

system was established in 1670.153

Bombay was divided into two divisions; one division comprised Bombay,

Mazagaon and Girgaon; the other Mahim, Parel, Sion and Worli. A court consisting of

five judges was started in each division.154 The customs officer of each division, who

was an Englishman, was to be President of the respective court. Three judges were to

form a quorum155. Some of the judges were Indians who were appointed for two main

reasons. There was a paucity of suitable Englishmen who could be spared from other

duties for the administration of justice.156

Secondly, it was done to ‘sweeten’ the English Government to the Indian

population. The judges were honorary, no emoluments being given to them as judges.

153
Supra note 48 at 28-29
154
Supra note 47 at 12
Supra note 50 at 28
156
Ibid

46
The court was authorised to decide cases of small thefts and all civil actions involving a

subject-matter up to 200 xeraphins or nearly 150 rupees. The court was required to keep

a register of all its proceedings and was to deliver authentic copies thereof quarterly to

the Deputy Governor and Council. 157

The Deputy Governor and Council were to constitute a superior court. It was to

hear appeals from the divisional courts and try all civil and criminal cases lying beyond

their scope, viz., civil cases over 200 xeraphins and all treasonable, felonious, capital or

criminal cases. The Deputy Governor’s court thus enjoyed original as well as appellate

jurisdiction. It conducted all trials with the help of Jury.158

2.25. Judicial System of 1672

Before the British take over, Bombay had been under the Portuguese domination

for well over a century. This long association had transplanted Portuguese laws and

customs there. 159The treaty of cession between the Portuguese and the British monarchs

did not stipulate the continuance of Portuguese laws and customs. On the other hand,

the Charter of 1668 envisaged the application of the English law on the Island.160 The

Portuguese laws and customs which were left untouched in 1670 when the first judicial

system was created were now formally abolished and the English law was introduced

instead by a government proclamation on August 1, 1672. This was a prelude to the

creation of a new judicial system.161

157
Supra note 51 at 14
158
Supra note 47 at 15-16
159
Supra note 106, at 57
160
Supra note 50 at 29
161
Supra note 49 at 14

47
 The new judicial system consisted of a court with George Wilcox as the judge.

The court was to have jurisdiction in all cases, civil, criminal, probate and

testamentary.162 For administration of criminal justice, Bombay was divided into four

sections viz Bombay, Mahim, Mazagaon and Sion. A justice of the peace, an

Englishman was appointed in each section. First, the justice of the peace held a

preliminary examination of the witnesses against an accused. He acted not as a punitive

court but only as a committing magistrate. The record of this examination was sent to

the Court which sat once a month to try criminal cases with the help of jury163. All

justice of the peace sat in the court as assessors to help the judge in deciding criminal

cases. Appeals from the Court lay to the Deputy Governor and Council of Bombay.164

2.26. Second Period: 1684-1690

The second phase in the development of the judiciary at Bombay opened with

the setting up of an Admiralty Court in 1684 under the Charter of 1683. The Company

sent from England Dr. St. John, a person “learned in civil law” to preside in the court as

the Judge-Advocate on an annual salary of Pound 200.165

2.26. Admiralty Court in 1684

The Admiralty Court took cognizance of all cases, civil and criminal, in addition

to the admiralty and maritime matters falling properly within the ambit of the Charter of

1683166.Consequently, he came into direct conflict with John Child, the President of

Surat Factory. The reasons were obvious Dr. St. John wanted the independence of the

162
Supra note 47, at 16
163
Supra note 50, at 29
164
Supra note 51, at 15
165
Supra note 48 at 31
166
Supra note50, at 31

48
judiciary and the executive authorities tried to establish their superiority and considered

judiciary subservient to them. Annoyed with this adamant attitude of Dr. St. John, the

President of Surat Mr. John Child in1685 divested the Admiralty Court of the function

of deciding ordinary civil and criminal cases and by confining it only to maritime and

mercantile cases. Dr. St. John was finally dismissed by President John Child in 1687167.

A new court with Vaux as the judge was started to decide civil and criminal

cases practically on the same lines as the court of 1672. Vaux was to be a member of the

Bombay Council also. He had no legal training.168

In 1690, Bombay was attacked by Moghul Admiral Siddi. Bombay now fell on

evil days. Siddi’s attack put an end to the judicial system and thus came to an end the

second period of judicial development in Bombay.169 From 1690-1718 is the dark

period in the legal history of the Island. No court was established; the Governor and

Council who had moved to Bombay from Surat in 1687 administered justice in a rough

and ready manner. Justice was at a very low ebb and the orderly development of the

judicial system was thus interrupted for over three decades170.

2.27. Court of Judicature

After an eclipse of 30 years, the English judicial system in Bombay revived

again with the establishment of a Court of Judicature under Lawrence Parker on March

25, 1718. The court consisted of an English Chief Justice and nine other Judges

including four Indians representing Hindus, Mohammedans, Portugese, Christian and

167
Supra note 51, at 31
168
id, at 18
169
Ibid.
170
Supra note 50, at 32

49
Parsis171. The Chief Justice and a few of the English judges were members of the

Governor’s Council. The court was authorized to decide all cases, civil, criminal and

testamentary.172 It administered justice according to law, equity and good conscience

and the Company’s rules and ordinances; it was required to pay due regard to caste

customs, Company’s orders and known laws of England.173Appeals from the court went

to the Governor and Council. No provision was made for jury trial.174

The Indian Judges do not appear to have enjoyed a status co-equal with the

British judges. They acted more like assessor than full-fledged judges175. The Indian

Judges were called the “Black Judges” and their presence was not counted for the

purpose of quorum176.

Therefore, Indian judges played a subsidiary role and that they did not form an

integral part of the court. These judges were the leading citizens of Bombay and were

associated with the court so that they might enlighten the British judges about the

peculiar manners and customs of the various castes with which the Englishmen were not

familiar177.

The court sat once a week and decided all sorts of cases. It was at once a civil,

criminal, military and a prerogative court.178 Its proceedings were quick and

inexpensive and it administered justice in a commonsense, rough and ready manner. It

171
Supra note 48, at 32
172
Supra note 51 at 18
173
Supra note106 at60
174
Ibid.
175
Supra note 50, at 33
176
N.V. Paranjape, Indian Legal & Constitutional History 32 (Central Law Agency, Allahabad, 6th edn.,
2006).
177
Supra note 175
178
Ibid.

50
was not bound by any technical rules, law or precedent. There were no lawyers to argue

the case, no codes, no reports and no law books.179

The major work of the court lay in the area of criminal justice180. The

administration of criminal justice was considerably fair and impartial. Whipping was

the common mode of punishment which was equally applied in cases of men and

women offenders181 and was inflicted in public so that others might learn a lesson. In

some cases, it awarded imprisonment ‘during pleasure’ which meant an indefinite

period of incarceration182. The court was not bound by the technicalities of law and

could punish a person merely on doubt even without the proof of his guilt183.

The habitual and hardened criminals or those guilty of heinous crimes were

usually banished. Sometimes, the accused were branded also. Unlike England, theft of

property worth 40 shillings or more was not treated as a capital offence. Treason, rape,

murder, manslaughter were capital offences. Robbers were first whipped, then branded

with red hot iron and then imprisoned with hard labour ‘during pleasure’184.However,

the court could not award capital sentence as this power was to be exercised exclusively

by the Court of Governor and Council. Appeals from the decision of the Court of

Judicature lay to the Court of Governor and Council185.

The revived Court of Judicature established in 1718186 continued to function till

it was superseded by a new judicial system under the Charter of 1726187.

179
Ibid.
180
Ibid.
181
Supra note 176
182
Supra note 50, at 33-34
183
Supra note 176
184
Supra note 50 at 34
185
Supra note 176
186
Id. at 33

51
2.28. Administration of Justice at Calcutta (1690-1726)

The foundations of the premier Indian city of Calcutta were laid on the 24th

August, 1690 when a few Englishmen under the leadership of Job Charnock landed at

Sutanati on the banks of the river Hughly and constructed a fortified factory named Fort

William.

In December 1699, Calcutta became a Presidency and a President (or Governor)

and Council were appointed to administer the settlement. The acquisition of the

zamindari was a significant event for the Company which thus secured a legal and

constitutional status within the framework of the Moghul administrative machinery. As

a zamindar, the Company became entitled to exercise all those functions and powers

within the zamindari territory as other zamindars in Bengal commonly exercised at that

time within their domains188.

2.29. Zamindar’s Judicial Powers

Having acquired the zamindari rights from the Moghuls, the Company assumed

the functions of a zamindar. Under the Moghul rule, the zamindars of Bengal were

empowered to collect land revenue and maintain law and order in their zamindari189.

They enjoyed no significant judicial power. Kazi’s courts, interspersed throughout the

country, decided civil and criminal cases. There used to be a Kazi in each Sarkar

(district), in each parganah, in each city and even in a large village.190Village

panchayats were also quite active and they decided all kinds of cases except those

pertaining to serious crimes. These panchayats fulfilled the judicial functions very

187
Supra note 50 at 35
188
Supra note 50 at 37
189
Supra note 176 at 33
190
Supra note 50 at 38

52
effectively and it is only rarely that their decisions gave dissatisfaction to the village

people. The members of the panchayats were deterred from committing an injustice by

fear of public opinion in whose midst they lived.

The litigants and the witnesses also could not lightly tell lies for in a small

community very usually the affairs of one were known to others. Appeals from the

decisions of the panchayats lay to the kazi of the Sarkar and then to the chief kazi of the

subah.191

The judicial system was simple and served the needs of the people. Not much

litigation came before the kazis because of the existence of village panchayats and

because civil causes amongst the Hindus were decided by their own elders or Brahmins.

Overall, the judicial department under the Moghuls was not as well organised as other

departments. Men of intelligence and ambition preferred to go to departments other than

the judicial department where they had a far greater chance to rise to glory.192

2.30. Kazis and Courts

When the Moghul administrative structure started disintegrating and Nawab’s

authority weakened in Bengal, degeneration in the ranks of the kazis set in; these offices

either remained unfilled for long or were filled not by people of merit; they became

hereditary offices and even began to be leased or under leased to the highest bidder193.

Thus, unscrupulous people, ignorant of even the elementary principles of law, came to

occupy most of these places and this resulted in extortion and corruption on a large

scale. Justice was not impartially enforced; it could be purchased by payment of money.

191
Ibid
192
Ibid.
193
Ibid.

53
The judges were paid no salaries. They appropriated fines for petty offences and one-

fourth of the debts or property recovered through the court. At times, both parties had to

pay; the guilty by way of fine, the innocent by way of thanksgiving.194

The kazi’s court in the countryside either did not function at all or functioned in

a very corrupt and indifferent manner. A general confusion prevailed and a kind of

vacuum was created in the sphere of law and justice in the interior of the country. In the

absence of regular judicial tribunals in the countryside, people had no option else to

look to except their zamindar and accordingly they came to him in search of justice.

This encouraged the zamindars to assume judicial powers which they exercised in a

very arbitrary manner.

The zamindars came to administer justice in all cases, civil, criminal and

revenue. Appeals from their decisions lay to the Nawab’s courts at Murshidabad. The

zamindars could even award capital sentences; such a sentence would not, however, be

executed without the confirmation of the Nawab’s government. The zamindars charged

high fees for deciding civil cases in their courts. At times, it amounted to one-fourth of

the property recovered through the court. The judicial powers in the hands of the

zamindars thus became an instrument of oppression for the people. The proceedings of

the zamindar’s courts were very summary and unsatisfactory and were hardly impartial.

Fines imposed by them were appropriated by them for their own use. Judgements were

mostly discretionary; there was no definite body of law which they administered; they

maintained no register of proceedings in the courts. They used the judicial powers not

impartially but in their own interest, not for justice but for oppression195. In the interior

194
Supra note 50, at 38
195
Id. at 38-39

54
of the country, beyond the seats of the zamindars, there was no judicial organisation

worth the name. There were corrupt and incompetent kazis here and there who dabbled

in justice.

2.31. Nawab’s Courts

The Nawab’s Courts at Murshidabad, the seat of government, fared no better.

Their authority had become cabined and confined to the limits of the capital and their

existence was not felt beyond Murshidabad.196 Theoretically, the highest criminal court

was that of the Nawab as he was the head of the Nizamat and as such responsible for

maintenance of law and order and administration of criminal justice. There was a time

when the Nawab used to preside personally in the court but in the course of time, he

ceased to do so due to his other reoccupations.197

The Darogah-Adalat-al-alia, who was formerly the Nawab deputy in the court,

began to exercise all the Nawab’s judicial functions. The highest civil court was that of

the Diwan who used to be the head of the Diwani and thus responsible for collection of

land revenue.

The kazi administered justice in claims of inheritance and succession and in

causes concerning marriage; mufti, a learned jurist, helped the kazi in discharging

judicial functions by expounding the law. Mufti did not decide a matter himself; his

duty was to state the law applicable to the case before the kazi who gave the decision.

The fozdar was a police officer whose function was to suppress serious crime; kotwal

196
Supra note 50, at 39
197
Ibid.

55
took into cognizance of petty criminal cases; mohtassib took cognisance of

drunkenness, selling of liquors and examination of false weights and measures.198

Though, overall, the judicial facade was maintained, yet, in actual practice, the

administration of justice was in a very poor shape in Bengal at the time of the advent of

the British.199 An important factor responsible for perversion of justice was the

uncertainty of law. There was no regular system of law. Koran, its commentators,

failing whom the customs, formed the sources of law; but the rules derived from these

sources were in general very loose and uncertain and this rendered administration of

justice in a great measure discretionary.200

2.32. Judicial System at Calcutta

The zamindari functions of the company within the settlement of Calcutta were

entrusted to an English officer, known as the Collector or the Zamindar, who used to be

a member of the Governor’s Council201. He was empowered to collect revenue and

decide civil, criminal and revenue cases of the native inhabitants.

The English Collector maintained a Fouzdari Court for the administration of

The common modes of punishments which could be awarded by this court included

whipping, imprisonment, banishment, fine, work on roads etc. Death sentence could

also be inflicted, not by hanging but by whipping or lashing. The execution of death

198
Supra note 50 at 39
199
Ibid.
200
Ibid.
201
Id. at 39-40
202
Supra note 106, at 63

56
sentence, however, required the confirmation by the President and Council. The

Collector normally executed the punishment as soon as it was awarded.203

As regards the offences committed by Englishmen, the Collector could take

cognizance of only petty crimes and misdemeanours committed by them and serious

offences could be tried by the Governor and Council.

The above-mentioned judicial scheme at Calcutta show that from the very

beginning, the company’s representatives at Calcutta asserted and exercised more

powers than belonged to them as zamindar under the customs then prevailing in

Bengal.204

Thus, from the very outset, the Company sought to act as a territorial sovereign

vis-a-vis Calcutta and tried to exclude any semblance of the Nawab’s authority from the

governance and administration of Calcutta even though formally the Company at the

time was merely a zamindar and nothing more.

The judicial system at Calcutta was extremely rudimentary and was not at all

conducive to impartial administration of justice. All judicial powers were concentrated

in a single individual, the collector, who was an executive officer; the authority vested

in him was very extensive. This system continued to operate till 1727 when it was

replaced by a new system usnder the Charter of 1726205.

203
Supra note 176, at 34
204
Supra note 50, at 40
205
Ibid.

57
2.33. Mayor’s Court (Charters of 1726 and 1753)

The Charter issued to the Company by King George I on the 24th September,

1726 turned over a new leaf in the evolution of judicial institutions in the three

Presidency Towns.206. The Charter of 1726 introduced uniformity of approach in this

respect as in each Presidency Town, similar judicial institutions were established, and

even the subsequent developments followed a similar course. The Charter established

civil and criminal courts in the Presidency Towns which derived their authority not

from the Company but from the British Crown.207 These courts could, therefore, be

designated as the royal courts in the true sense of the term. The status of the courts prior

to 1726 was very vague and indefinite. Instead, the new civil and criminal courts had

more formal, regular and definite bases.208

The advantage of having royal courts in India was that their decisions were as

authoritative as those of the courts in England because the source of authority for both

the courts was the same, viz., the Crown, who was regarded as the fountain of justice.209

Further, the Charter of 1726 initiated the system of appeals from the courts in India to

the Privy Council in England and thus was established a bridge between the English and

the Indian legal systems.210

A channel for the reception of the English law into India was thus created and

this resulted in the English law making a deep impact on and profoundly influencing,

the Indian law in course of time. The Privy Council saw to it that wherever the Indian

law was deficient or wanting, and wherever it was possible, principles of English law

206
Supra note 47, at 25
207
Supra note 49, at 23
208
Supra note 50 at 42
209
Supra note176, at 36
210
Supra note106, at 69

58
were applied by the courts to decide disputes. In addition, the Charter of 1726 also

established a local legislature in each Presidency Town and thus the locus of legislative

power was shifted from England to India. This was an important development for it now

became possible to make laws consistent with local needs. Last, but not the least, the

Charter has an important bearing on the question of the date of introduction of English

law into the Presidency Towns.

2.34. Judicial System

In each Presidency Town, the Mayor and the Aldermen were to constitute the

Mayor’s Court. The quorum of the Court was to be three – the Mayor or senior

Alderman together with two other Aldermen.211The court was to have authority to hear

and try all civil suits arising within the Town and its subordinate factories. The first

appeal from the Court lay within fourteen days to the Governor and Council, from

where a further appeal could be lodged within fourteen days with the King-in-Council

in all matters involving 1,000 pagodas or more. Thus, for the first time, a right of appeal

to the King-in-Council from the decisions of the courts in India was granted212.

The Mayor’s Court was to act as a court of record and thus had power to punish

persons for its contempt. The Court also had testamentary jurisdiction and could thus

grant probates of wills of the deceased persons. In case a person died intestate, it could

grant letters of administration.

The Charter did not explicitly lay down what law the Mayor’s Court was to

apply. It merely said that the Court was to render its decisions according to ‘justice and

211
Supra note 51at 27
212
Supra note 50, at 44

59
right’. The Mayor’s Court was to be a court of English law. The company again and

again impressed on the judges that they were required to administer the English law.

2.35. Criminal Jurisdiction

The criminal jurisdiction in each Presidency Town was vested in the Governor

and five senior members of the Council. Each of them individually was to be a justice of

the peace and was to act in the same manner and to have the same powers as the justices

of the peace in England.213A justice of the peace could arrest persons accused of

committing crimes, punish those who were guilty of minor crimes, and commit the rest

to be tried by the quarter sessions. Three justices of the peace collectively were to form

a court of record; they were to have powers of the court of Oyer and Terminer and goal

delivery, and thus hold quarter sessions four times a year to try and punish each and

every criminal offence, except high treason, committed in the Presidency Town and the

subordinate factories.214

Trials at quarter sessions were to be held with the help of grand jury and petty

jury. All technical forms and procedures of the English criminal justice were introduced

in the Presidency Towns as it was explicitly laid down in the Charter that the procedure,

manner and form followed by the justices of the peace and the courts of oyer and

terminer and gaol delivery to try and punish persons accused of crimes were to be the

same or in “the like manner and form, as near as the circumstances and condition of the

place and the inhabitants will admit of”, as the similar courts and justices in England

“do or proceed”215.

213
Supra note 106 at 71
214
Supra note 49, at 25
215
Supra note 50, at45

60
 From the above, the important principle of separation between the judiciary and

the executive was applied only partially so far as the Mayor’s Court was concerned.

Otherwise, the executive was to have a large share in the administration of justice-as a

criminal court and as an appellate court from the Mayor’s Court. Even the Mayor’s

Court was not completely free from the executive influence as the Aldermen were either

the Company’s servants or other English traders who depended upon the Company’s

permission to stay in India and were thus by and large at the mercy of the local

government.216 Another interesting point to note is that justice under the Charter was to

be administered by non-professional judges217.

2.36. Working of Mayor’s Court of 1726

The period from 1726 to 1753 witnessed frequent disputes and clashes between

the Government and the Mayor’s Court. The Mayor’s Courts being the Crown’s Court,

exerted their judicial independence which made the Councils unhappy.218 The Councils

had been divested of their power in matter of appointment and tenure of Aldermen

under the Charter of 1726. They also did not have any voice in the appointment of the

Mayor since he was to be elected by the Corporation independently. Though the

Governor and Council exercised appellate jurisdiction in matters of dismissal of the

Aldermen and civil cases where the subject matter exceeded 1,000 pagodas, but this was

subject to a further appeal to the King-in-Council in England and therefore, the

Governor and Council no longer remained the final Court of Appeals.219

216
Ibid.
217
Ibid.
218
Supra note 176, at 40
219
Supra note 51, at 33

61
 The cumulative effect of the judicial scheme envisaged by the Royal Charter of

1726 was that the Corporation and Mayor’s Courts were completely independent of the

executive government. Thus, the Charter of 1726 adopted the principle of independence

of judiciary to a considerable extent which was a positive development in the legal

history of India.220

The constant assertion of judicial independence by the Judges of the Mayor’s

Court proved irksome to the Governor and Council which resulted into constant conflict

and hostility between the two. The conflicts and clashes between Mayor’s Court and the

Governor and Council created much confusion and chaos in the Presidencies in India.

The Company, therefore, requested the British King to issue a fresh Charter to introduce

suitable amendments in the earlier Charter of 1726221.

2.37. Charter of 1753

The Charter of 1753 was an attempt to improve upon the earlier Charter of 1726 which

suffered from several lacunas and defects. The British King George II granted a new

Royal Charter in 1753 for the Presidencies of Madras, Bombay and Calcutta.

Mayor’s Court were subordinated to the Governor and Council

To end the strained relations between the Mayor’s Court and Corporation on the

one hand and the Governor and Council on the other, the Charter of 1753 brought the

Corporation of each Presidency under the control of the Council by changing the mode

of appointment of Mayor and Aldermen. Under the new Charter, the Governor and

Council was empowered to select the Mayor out of a panel of two names of Aldermen

220
Supra note 106, at 73
221
Supra note 47, at 29

62
submitted to it by the Corporation every year222. The Council also assumed full power

to appoint Aldermen in the Corporation and dismiss them. Thus, the Mayor’s Court was

completely subordinated to the Governor’s Executive Council by the Charter of 1753.223

2.38. Natives were to be governed by their own Laws

The Charter of 1753 provided that the Mayor’s Court were not to try civil actions

between natives, such actions being left to be decided by the natives themselves

according to their own laws, customs and usgaes. However, the Mayor’s court could

decide only those cases of the natives in which both the parties consented to accept the

jurisdiction and decision of the Court.

2.39. Judicial Arrangement under the Charter of 1753

The following courts were established under the Charter of 1753 for the administration

of justice in the Presidencies: -

The Court of Requests – which was to decide summarily the petty civil

cases upto five pagodas.

The Mayor’s Court – this court had jurisdiction to hear civil cases

involving a sum exceeding five pagodas. It had jurisdiction over the

cases of natives provided both the parties to the suit voluntarily

submitted to the jurisdiction of the Court.

The Court of Governor and Council – this court had exclusive

jurisdiction over criminal cases, as the Governor and Council acted as

222
Supra note 176, at 43
223
Ibid.

63
 Justices of Peace and held Quarter Sessions to decide criminal cases. It

was also empowered to hear appeals from the Mayor’s Court.

The Court of King-in-Council- The King-in-Council in England was

empowered to hear appeals from the Court of Governor and Council in

all civil cases involving a sum of 1,000 pagodas or more224.

2.40. Beginning of the Adalat System

The commercial activities of the Company which were hitherto confined to three

Presidencies, extended considerably, and covered new territories. With the grant of

successive royal charters, the Company gradually assumed delegated governmental

powers and introduced effective scheme of judicial administration.225

2.41. Grant of Diwani to the Company

With the victory in the Battle of Plassey and Buxer, the Company became a territorial

sovereign and supreme authority in Bengal, Bihar and Orissa. It however desisted from

taking over the reigns of this region directly for two obvious reasons, namely226

i. Direct assumption of responsibility of administration might invite British

Parliament’s interference because of the provision of the British constitutional

law that no British subject can acquire sovereignty for himself; and

ii. Company’s coming to power might antagonise the indigenous population which

may not be in the interest of the Company. That apart, it might also arouse

jealousy of the French and Portugese who were rivals of the British Company

and jealous of its rising power.

224
Supra note 176, at 44
225
Id. at 47
226
Supra note 106 at 88

64
 To avoid these complications, the Company placed its nominee Mir Jafar as the

Nawab of Bengal227. But he soon lost favour of the Governor and Council of Calcutta

and was therefore replaced by Mir Kasim in 1760. However, Mir Jafar was again made

the Nawab replacing Mir Kasim in 1763. In 1765, Mir Jafar was replaced by his minor

Najm-ud-daula. With every change of Nawab, the power and influence of the

Company’s servants increased. The frequent changing of Nawab by the Company itself

shows that the real power was vested in the Company. It was in 1765 that Moghul

Emperor Shah Alam who still claimed sovereignty, transferred the Diwani of Bengal,

Bihar and Orissa to the British Company in lieu of Rs. 26 lakhs per annum. ‘Diwani’

was a term used for fiscal administration and meant the collection of revenues and

customs and administration of civil justice.228 Thus, by obtaining the grant of Diwani,

Clive gave to the Company’s Government of Bengal a de jure status of an official of the

Moghul Emperor though it had real power to rule over this territory.

Prior to Company’s assumption of diwani in Bengal, Bihar and Orissa, these

territories were under the Moghul system of administration. The Moghul Empire was

divided into several territorial units called the ‘Suba’ or a ‘Province’; the administration

of each Suba was managed by two main departments called the ‘Nizamat’ and the

‘Diwani’. The former was headed by the Nawab who was also known as Nazim while

the latter was headed by an official called “Diwani”. Though both were high dignitaries,

yet the Diwan was below the Nazim in rank, power and status. The Nawab was the

executive head and maintained law and order in the Suba. He was also the head of the

military unit of the Province. He was also responsible for administration of criminal

justice in the Suba. The Diwan, on the other hand, was incharge of revenue functions.

227
Supra note 50, at 62
228
Supra note 49, at 38

65
He also decided civil cases. This scheme of administration ensured a perfect system of

checks and balances by entrusting military and fiscals powers in different functionaries.

However, one was interdependent on the other for the exercise of his functions229. Thus,

the financial expenditures of the Nizamat were maintained by the Diwani whereas the

military power of the Nizamat enabled the Diwani department to realize land revenues.

The transfer of diwani to the Company therefore meant that it assumed the

power of civil and revenue administration while the administration of criminal justice

still remained with the Nawab or the Nizam. The maintenance of army was however

taken over by the Company.

2.42. Company as Diwan (Dual System of Government)

The Company preferred to execute its diwani functions through the natives

under the supervision of its officials instead of appointing its own English servants for

this purpose. It appointed Md. Reza Khan as Company’s Diwan at Murshidabad and

Raja Shitab Roy was appointed as Company’s Diwan at Patna.230 The English officers

were appointed at both the places to supervise the working of these two native Diwans.

These Diwans were to discharge the functions of revenue collection and administration

of civil justice. But, unfortunately, the system failed miserably because of the fact that

public welfare was totally ignored and everyone tried to exploit the situation to his best

advantage.231The main reason for the deteriorating condition was that the English

servants of the Company had power but no obligation. This resulted into a state of utter

confusion and chaos. The Company shrewdly attributed this failure to the inefficiency

of the native officers.232

229
Supra note 47 at 34
230
Supra note 176, at 48
231
Supra note 106, at 89-90
232
Supra note 47, at 34

66
 The dual system of government introduced in 1765 by Clive, consequent to

taking over of diwani by the Company, did not prove to be a successful venture.233 The

reasons were obvious. The Indian officials had no effective power to enforce their

decisions nor could they dare to take action against the English servants of the

Company. The English servants of the Company, on the other hand, misused power for

their own selfish ends234. Corruption and bribery was rampant.

In 1767, Governor Clive left India and Verlest was appointed as Governor of

Calcutta in his place. He tried to improve the Diwani administration by appointing

English servants of the Company as supervisors in districts but there was no significant

improvement because these supervisors misused their powers for their selfish ends and

exploited the people.235 They also did not have adequate training and experience to

perform their duties efficiently. The natural calamities like famine during 1770-71 made

the situation worse. The Company put the blame squarely on the Indian officials and

decided to perform its diwani functions through its own English officials of the

Company.

Thus, the revenue collection and administration of civil justice were brought

under the direct control of the Company’s servants. The administration of criminal

justice, however, continued to be in the hands of Nawab or the Nizam for two obvious

reasons. Firstly, because administration of criminal justice was not beneficial to the

Company in any way, and secondly, it was likely to arouse the sentiments of the

indigenous native population against the Company’s mal-intentions.236 The Company

233
Supra note 50, at 62
234
Supra note 176, at 49
235
Supra note106, at 90
236
Supra note 47 at 34

67
appointed Warren Hastings as Governor of Bengal to execute its changed policies

regarding diwani functions.

2.43. Hasting’s Judicial Plan of 1772

The administration of justice at the time Warren Hastings took over as Governor

of Bengal was in bad shape. It was almost verging on a total collapse. The dual system

of government proved very defective and unsatisfactory. The courts had become the

instruments of power rather than of justice. Warren Hastings who assumed office of

Governor of Fort William on April 13, 1772 made strenuous efforts to eradicate the

evils in the existing judicial administration and revenue collection237. For this purpose,

he appointed a Committee consisting of the Governor and four members of the Council

called the “Committee of Circuit”: The Committee prepared a Judicial Plan on August

15, 1772 to regulate the administration of justice and revenue collection. This plan was

popularly known as the Hasting’s Plan of 1772238

The Judicial Plan of Warren Hastings consisted of 37 regulations dealing with

the administration of civil and criminal justice. He divided the diwani area of Bengal,

Bihar and Orissa into several districts, each having an English officer called the

‘Collector’ as its head. Thus ‘district’ was the unit of administration for justice and

revenue collection. The Collector was primarily responsible for collection of revenue.239

2.44. Administration of Criminal Justice

The administration of criminal justice in Bengal, Bihar and Orissa prior to the

introduction of judicial reforms by Warren Hastings in 1772 was carried on by the

Nawab or the Nazim who was the highest official in-charge of criminal judicature. He

also performed police functions of maintain peace and order in the Province which was
237
Supra note 176 at, 49
238
Supra note 106 at 91
239
Supra note 50, at 67

68
called ‘Suba’. He personally presided over the trials involving capital punishment. The

criminal justice was to be administered in accordance with the Mohammedan law of

crimes.240

The Judicial Plan 1772 provided for establishment of a Court of Criminal

Judicature called the FauzdariAdalat in each district which tried serious offences

including murder, robbery, theft, fraud, perjury etc. This Court was assisted by a Kazi or

Mufti and two moulvies who expounded the Mohammedan Law of crimes. The mufti

was supposed to be a person well versed in the Mohammedan Law of crimes and his

function was to expound the law and give ‘futwa’ after hearing the parties in evidence.

But the Collector exercised overall supervision on the working of the FouzdariAdalat241.

He was enjoined to see that all necessary witnesses were summoned and examined, and

the decision was fair and impartial in accordance with the well settled principles of law

and procedure.242

Besides, FouzdariAdalats in the districts, a superior court called the

SadarNizamatAdalat was also established at Calcutta which exercised control over

FouzdariAdalats. It was presided by an Indian Judge known as the Daroga-i-Adalat who

was to be assisted by the Chief Kazi, Chief Mufti and three Moulvies243. These persons

were appointed by the Nawab on the advice of the Governor. The Court was to revise

all the proceedings of the FouzadriAdalats and signify its approbation or disapprobation

in capital cases with reasons, and prepare the sentence for the warrant of the Nizam.244

The Governor and Council exercised general supervision over the proceedings of

240
Supra note 176, at 51
241
Supra note 49, at39
242
Ibid.
243
Supra note 106 at 92
244
Ibid.

69
SadarNizamatAdalat so that even-handed justice could be ensured without fear or

favour.245

The FouzdariAdalats were not empowered to award death sentence but they

were required to transmit the evidence in capital cases with their opinion to the

SadarNizamat Court for final decision. Again, fines over one hundred rupees were to be

confirmed by the Sadar Court, which alone could decree forfeiture or confiscation of

property. The dacoits were to be executed in their own village and the entire village was

to be fined. The family members of the dacoits were made State-slaves.246

Perhaps, Warren Hastings himself was conscious of the defects of his Judicial

Plan but to begin with, he preferred to introduce simple and moderate scheme of judicial

administration which could be modified later. The working of the judicial scheme under

the Plan of 1772 resulted into a considerable loss of revenue earnings of the Company’s

government247. Consequently, in 1773, the Court of Directors directed the Governor and

Council in Calcutta to withdraw Collectors from districts. Obviously, this needed a

fresh Plan which Warren Hastings introduced in 1774 to be known as the “System of

Provincial Council”.248

2.45. Judicial Plan of 1774

The abolition of the institution of Collector in 1773 on the advice of the Court of

Directors of the Company in England upset the judicial arrangement of 1772 and a new

Plan became an urgent need of the time. Warren Hastings prepared a new Plan on

November 23, 1773 which was implemented in January 1774.

245
Supra note 51, at 44
246
Supra note 47 at 37
247
Supra note 176, at 53
248
Supra note 50, at 70-71

70
2.46. Administration of Criminal Justice

Under the Judicial Plan of 1774, the supervision of the Collector on the working

of the Mofussil FouzdariAdalats and that of the Governor and Council over the

SadarNizamatAdalat, came to an end. Consequently, SadarNizamatAdalat was shifted

from Calcutta to Murshidabad and placed under the supervision and control of the

Nawab. A new office of Naib Nazim was created who controlled the working of the

SadarNizamatAdalat on behalf of the Nawab and Mohammed Raza Khan was appointed

as Naib-Nazim.249

The officers of the FouzdariAdalats were not permitted to hold farms or any

other office in the mofussil. They were to reside in their district. Complaints against

them could be lodged with Governor-General, who would refer them to the

SadarNizamatAdalat for inquiry and investigation250.

2.47. Regulating Act 1773 and Establishment of Supreme Court of Judicature at

Calcutta

The Company had assumed real power of the government of Bengal, Bihar and

Orissa after the Battle of Plassey and Buxer in 1764 but it never asserted its authority

and retained Nawab as its nominee.251 The Nawab, however, failed to give a clean

administration, with the result there was corruption, inefficiency and mismanagement

all over the region. The servants of the company took undue advantage of the situation

and exploited their powers for selfish gains. Consequently, the economy of the country

249
Supra note 49, at 43
250
Supra note 47, at 41
251
Supra note 176, at 57

71
suffered a major setback.252 To add fuel to the fire, the famine of 1770 reduced the

population by about one fifth which added to the miseries and misfortunes of the people

of Bengal, Bihar and Orissa. The administrative turmoil in the Bengal region reached its

climax when there was a financial crisis and the Company approached the Government

of England for loan.253

The territorial possessions of the Company in India had attracted the attention of

the British Parliament and it had taken serious note of the Company’s assumption of

territorial sovereignty in this region.254 The demand of a loan by the Company

cautioned the British Government further and a Select Committee was appointed to

enquire into the details of company’s affairs in Bengal. A Secret Committee was also

appointed by the British Parliament to investigate into the affairs of the Company and

administration of justice of Bengal.255 The reports of the Secret Committee revealed

serious defects in the working of the Company, its government and judicial

administration in India256. In its report of 1773 about the working of courts established

by the Company in the Moghul Government of Bengal, the Secret Committee observed

that on the basis of information available with them, they could say that the subjects of

Moghul Empire in the Province of Bengal “derived little protection or security from any

of these courts; and that in general, though forms of Judicature were established and

preserved, the despotic principles of the government rendered them the instruments of

power rather than of justice; not only unavailing to protect the people, but often the

means of the most grievous oppressions under the cloak of the judicial character”. These

252
Supra note 50 at 74-75
253
Supra note 106, at 106-108
254
Supra note 47, at 47
255
Supra note 106, at 108
256
Ibid.

72
reports ultimately led to the enactment of the Regulating Act of 1773 which is a

landmark in the development of legal and constitutional history of India.257

The Regulating Act was passed by the British Parliament for establishing certain

regulations for the better management of the affairs of the Company in India. With the

enactment of the Regulating Act, 1773, the provisions of the earlier Charter of 1753

were superseded and the Act empowered the Crown to establish a Supreme Court at

Fort William.258The British King George III issued a Charter on March 26, 1774 which

established a Supreme Court at Calcutta. It was a Crown’s Court259. The Court of

Requests were however, allowed to continue. The Governor-General, members of the

Council and the Judges of the Supreme Court were appointed as Justice of Peace and

were empowered to hold Quarter Session for administering criminal justice.260 Sir

Elijah Impey was appointed as the first Chief Justice of the Supreme Court at Fort

William (present Kolkata).261

The Supreme Court established under the Charter of 1774 was a Court of

Record. It was conferred extensive jurisdiction over civil, criminal, admiralty and

ecclesiastical cases. It was also a Court of equity and therefore it was given power to

administer justice according to the principles of equity and good conscience. It could

regulate its own procedure and make rules for this purpose262. The rules so made by the

Supreme Court were required to be approved by the King-in-Council.

257
Supra note 176, at57
258
Id. at 57,
259
Id. at 60
260
Supra note 176, at 60
261
Id.
262
Supra note 51, at 58

73
 The Supreme Court was to nominate three persons annually to the Governor-

General and Council who would select one of them as Sheriff. The functions of the

Sheriff were to execute the orders of Supreme Court and detain in prison the persons

committed by the Court.263The Supreme Court was authorised to enroll attorneys and

advocates. It could appoint subordinate officers, but their salaries required the approval

of the Governor-General and Council. The Supreme Court was also authorised to

regulate court-fee with the approval of the Supreme Council. It was to exercise

supervision and control on subordinate courts. It could also issue writs of certiorari,

mandamus error or procedendo to these Courts.264

2.48. Jurisdiction in Criminal Cases

In matter of criminal cases, the Supreme Court was constituted as a Court of Oyer and

Terminer and goal Delivery far the town of Calcutta, the factory of Fort William and

factories subordinate thereto.265 It employed the services of Grand Jury and Petty Jury

for trial of criminal cases of British subjects. The Supreme Court did not have

jurisdiction over the native inhabitants of Calcutta and territory of Bengal, Bihar and

Orissa. Its jurisdiction extended to His Majesty’s subjects and persons in the service of

the Company.266

Significantly, the Supreme Court did not have jurisdiction over Governor-

General and members of the Council for any offence excepting treason or felony. The

263
Ibid.
264
Supra note 49, at 51
265
Supra note 47 at51
266
Id. at 52

74
Governor-General, the Councillors and the Judges of the Supreme Court acted as

Justices of Peace and held Quarter Sessions267.

The Supreme Court was also empowered to reprieve or suspend the execution of

any capital sentence if in its opinion it was a fit case for mercy. In that case, it could

refer the case to the British Crown with reasons for recommending mercy. The final

decision in this regard was, however, left to the pleasure of the Crown.

In criminal cases, the Supreme Court enjoyed absolute discretion to allow or not

to allow appeal to the King-in-Council. Besides, the King-in-Council reserved the right

to refuse or admit an appeal as a special case upon the terms and conditions which it

deemed fit268.

2.49. Recorder’s Court and Supreme Court at Madras and Bombay

The Regulating Act, 1773 had introduced major changes in the judicial

administration of the Presidency of Calcutta and the territories of Bengal, Bihar and

Orissa; but the system of administration of justice in Madras and Bombay remained the

same as was introduced by the Charter of 1753 and the Court of Requests were still
269
functioning in these Presidencies. The existing Mayor’s Courts in Madras and

Bombay were found inadequate to cater to the needs of administration of justice in view

of rapid increase in population and development of trade and commerce in these

Presidencies.270

267
Id. at 53
268
Ibid
269
Supra note176 at 87
270
Ibid.

75
 The British Parliament, therefore, authorised the Crown to replace the Mayor’s

Courts by the Recorder’s Courts in Madras and Bombay271. The need for replacing

Mayor’s Court by a new Court became all the more necessary because the Judges of the

Mayor’s Court were non-professionals who had little knowledge of law and they were

not in a position to settle complicated cases which came up before them for

adjudication. 272

Therefore, the British Parliament passed an Act in 1797 authorising the Crown

to supersede the Mayor’s Court at Madras and Bombay.273 As a result of this Act,

Recorder’s Courts were established at Madras and Bombay by the Charter issued by

King George III on February 1, 1798. The Recorder’s Court in Madras started working

from November 1, 1798 and also in Bombay around the same time.274However, the

Court of Requests were continued to function in these Presidencies with some minor

changes as they were found quite beneficial for quick disposal of petty cases. The

jurisdiction of Court of Requests was enhanced to rupees eighty by the Act of 1797.

2.50 Recorder’s Court at Madras and Bombay:

The Recorder’s Court established in Madras and Bombay in place of the Mayor’s Court,

consisted of the mayor, three aldermen and a Recorder who was to be a professional

lawyer of not less than five years standing. The appointment of the Recorder was made

by His Majesty. The Recorder acted as the President of the Court. Sir Thomas Strange

271
Supra note 47, at 96
272
Supra note50, at 116
273
Supra note 47, at 96
274
Supra note 272

76
was appointed as the first Recorder in the Recorder’s Court of Madras and Sir William

Syer was appointed as a Recorder in Bombay.275

2.51. Jurisdiction

The Recorder’s Court was a Court of Record and it exercised civil, criminal,

equity, ecclesiastical and admiralty jurisdictions.276 It was a Court of Oyer, Terminer

and Gaol Delivery like the Supreme Court of Calcutta. This Court, however, did not

have jurisdiction over revenue cases. The Governor and Council of the Presidencies of

Madras and Bombay were immune from the jurisdiction of the Recorder’s Court.277

The jurisdiction of the Recorder’s Court extended over British subjects or His

Majesty’s subjects residing in the Presidency of Madras and Bombay or in the native

states which were in alliance with the Company’s Government of Madras and

Bombay278. It also extended over all the employees of the Company or those who were

directly or indirectly in the service of the Company.279

The matters relating to succession, inheritance, contracts etc of the natives, were

to be decided according to their personal laws, namely, Hindu law for Hindus and the

Mohammedan law in case of Muslims. However, if the parties happened to belong to

different communities, then the case was to be decided according to the law of the

defendant.280

The judicial officials of the lower courts were immune from the processes of the

Recorder’s Court for acts done by them in their judicial capacity. Appeals from the
275
Supra note106, at144
276
Ibid.
277
Ibid.
278
Supra note 50, at 116
279
Ibid.
280
Id. at 116-117

77
Recorder’s Court lay to the Judicial Committee of the Privy Council as in case of

appeals from the Supreme Court of Calcutta. With the establishment of the Recorder’s

Court in Madras and Bombay, the existence of the Mayor’s Court came to an end.281

2.52. The Supreme Court at Madras and Bombay

In 1800, the British Parliament passed an Act authorizing the British Crown to

establish a Supreme Court at Madras in place of the Recorder’s Court. Consequently, a

Supreme Court was established at Madras by the Royal Charter on December 26, 1800

and this Court started functioning from September 4, 1801. With the establishment of

the Supreme Court in Madras, the Recorder’s Court was abolished by the Parliament.

Thus, Recorder’s Court functioned in Madras only for a very short time. The powers

vested in the Recorder’s Court were transferred to the newly established Supreme

Court, which exercised the same jurisdiction and was subject to same restrictions as that

of the Supreme Court of Calcutta282.The Supreme Court of Madras consisted of a Chief

Justice and two pusine Judges. It was to be a Court of Record. It was an improvement

over the Recorder’s Court in the sense that it had all the Judges well-versed in law as

they were Barrister’s of at least five years standing whereas the Recorder Court had

only one legal expert, namely, the Recorder while his colleagues (Aldermen) were

laymen in law. The Supreme Court at Madras functioned till the establishment of the

High Court of Judicature in its place under the Indian High Courts Act, 1861.

The British Parliament passed an Act in 1823 empowering the British Crown to

abolish Recorder’s Court at Bombay and establish a Supreme Court in its place. The

Supreme Court at Bombay was formally inaugurated on May 8, 1824. The Court had

281
Id. at 117
282
Supra note 106, at145

78
the same powers and it was subject to same restrictions as that of the Supreme Court of

Calcutta.

The powers of the Supreme Court of Bombay were slightly restricted mainly in two

aspects, namely, it was prohibited from exercising its jurisdiction in matters concerning

the revenue even within the town of Bombay; and its jurisdiction in maritime cases was

restricted to only such persons as would have been amenable to it in its ordinary

jurisdiction.

The Supreme Courts of Calcutta, Madras and Bombay were empowered to

exercise jurisdiction in civil, criminal, equity, ecclesiastical and admiralty matters283.

The different laws which were administered by the Supreme Courts of Presidencies

included the common law as it prevailed in England prior to 1726; the English Statutory

Law of 1726; the civil law as practised in ecclesiastical and Admiralty Courts; the

regulations made by the Governor-General and Council and Governors and Council,

and the personal laws of Hindus and Mohammedans on matters relating to inheritance,

succession, sale of goods and contracts.

The Supreme Courts in all the three Presidency towns functioned until 1862

when they were abolished by the setting up of High Courts under the Indian High

Courts Act, 1861284.

2.53. Modern Judicial System in India

Having discussed the origin and development of various types of courts for the

administration of justice in British India, it would be in the fitness of things to give a

283
Supra note 176, at 91
284
Supra note49, at89-90

79
brief account of the different courts functioning under the modern judicial system in this

country. The hierarchy of courts functioning in modern India is as follows-

2.54. The Supreme Court of India

The Supreme Court has been declared as the highest Court of the land by the

Constitution of India. It is at once the interpreter and guardian of the Constitution. It is

the highest appellate court of the country. It has original, appellate and advisory

jurisdiction. It is empowered to frame rules with the approval of the President, relating

to the practice and procedure of the Court.

The Supreme Court being a court of record can punish for its contempt. Such

power is necessary for maintain the sanctity of the Court and its authority. It is

independent of the control of the executive and legislature i.e. Parliament as is evident

from the provisions relating to the appointment and removal of the judges of the

Supreme Court285.

2.54. The High Courts

In the hierarchy, immediately below the Supreme Court, there are High Courts

in different States, which constitute the highest Court of Appeal and revision in the

State, both for civil and criminal matters. The High Courts are also the courts of record

in the State and have to perform the general functions of superintendence and control

over the subordinate courts within its territorial jurisdiction. The High Court exercises

285
Supra note 176 at 172

80
original jurisdiction in matters relating to issue of writs for violation of fundamental

rights of persons and for any other purpose286.

2.55. Subordinate Courts

In the hierarchy, below the High Courts of the State, there exists a network of

subordinate Courts comprising criminal and civil courts. The various categories of

subordinate criminal courts are discussed below:-

2.56. Courts for Criminal Justice

The subordinate courts administering criminal justice function uniformly throughout

the country under the Code of Criminal Procedure, 1973. These consist of Courts of

Magistrates of different categories and the Sessions Court.The Code of Criminal

Procedure, 1973 provides that there shall be, in every State, the following classes of

criminal courts287, namely:-

i. Court of Session

ii. Judicial Magistrates of the First Class and in any metropolitan area,

Metropolitan Magistrates

iii. Judicial Magistrates of the Second Class; and

iv. Executive Magistrates

The Court of Session – Each district of the State has a Court of Session which

is presided over by a District & Sessions Judge. Additional Session Judges may

also be appointed for assisting the Session Judge in his work. They are equal in

rank and not subordinate to the Sessions Judge. The criminal cases of a grave

286
The Constitution of India, art. 226
287
The Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 6

81
 nature are tried in the Sessions Court and the Session Judge can pass any

sentence. However, the sentence of death passed by him requires confirmation

of the High Court concerned for final execution288. The Sessions Court also

hears appeals from the Courts of District Magistrates and those of Special

Magistrates.

Judicial Magistrates – The Code of Criminal Procedure, 1973 provides to the

appointment of a Chief Judicial Magistrate in every district289. He is assigned the

powers of the Magistrate of the First class. The appointment of the Chief

Judicial Magistrate is made by the High Court of the State concerned. Every

Chief Judicial Magistrate shall be subordinate to the Session Judge. He can pass

any sentence authorised by law except a sentence of death or of imprisonment

for life or imprisonment for a term not exceeding seven years290.

Besides the Chief Judicial Magistrate, there are also the Courts of Magistrates which are

further classified as Judicial Magistrates and the Executive Magistrates. There are two

grades of Judicial Magistrates, namely, the Judicial Magistrate of the First Class and the

Judicial Magistrate of the Second Class.

The Court of Magistrate of the First Class may pass a sentence of imprisonment not

exceeding three years or fine not exceeding Rs. 5000/- or both291.

The Court of Magistrate of the Second Class may pass a sentence of imprisonment for a

term not exceeding one year, or fine not exceeding Rs. 1000/- or both292.

288
Id, s. 28(2)
289
Id, s. 12
290
Id, s. 29
291
Id, s. 29(2)
292
Id, s. 29(3)

82
 In Metropolitan areas, the Court of a Chief Metropolitan Magistrate shall have

the powers of a Chief Judicial Magistrate and the Metropolitan Magistrate shall have the

powers of the Magistrate of the First Class. The Chief Metropolitan Magistrate shall be

subordinate to the Sessions Judge293.

Executive Magistrates - In every district and in every Metropolitan area, the

State Government may appoint as many persons as it thinks fit to be Executive

Magistrates and shall appoint one of them to be District Magistrate294. The State

Government may appoint any Executive Magistrate to be an Additional District

Magistrate who shall also have the same powers as those of a District

Magistrate. The State Government may place an Executive Magistrate in charge

of a Sub-Division and the Magistrate so placed in charge of a Sub-Division shall

be called a Sub-Divisional Magistrate.

The State Government may also appoint Special Executive Magistrate for

particular areas or for performing particular functions.

All Executive Magistrates, other than the Additional District Magistrate, shall be

subordinate to the District Magistrate and every Sub-Divisional Magistrate shall be

subject to general control of the District Magistrate295.

The jurisdiction of the Executive Magistrate shall extend to local limits of the

areas defined by the District Magistrate and they shall exercise all or any of the powers

with which they may be invested by the Code of Criminal Procedure296.

To maintain efficiency in the administration of law and justice in the country, it

is necessary for the State to exercise effective control on the subordinate courts. This

293
Id, s. 19
294
Id, s. 20(1)
295
Id,s. 23
296
Id, s. 22

83
has been ensured by the constitutional provision contained in Article 227 of the

Constitution which vests the power of superintendence over the subordinate judiciary in

the High Courts. They have been empowered to make rules for controlling the

organisation of the subordinate courts. The power of postings and promotion of and the

grant of leave to persons in the State Judicial Service other than the District Judges, are

vested in the High Courts so that they can exercise effective control on these

subordinate judicial officers297.

297
Supra note 176, at 180

84