LL.B. (Hons.

) II Semester
Paper III, History II
UNIT-III EVOLUTION OF LAW AND LEGAL INSTITUTIONS

i. Development of Personal Laws

ii. Development of Law in Presidency Towns
iii. Development of Civil Law in Presidency Town with special reference to Equity, Justice and Good Conscience
iv. Codification of Laws. Charter of 1833. The first Law Commission, the Charter of 1853, the second law Commission
v. Establishment of High Courts, 1861 C.E.
vi. Appraisal of Privy Council and Features of the Federal Court
vii. Racial Discrimination in British Legal System

2015
1. Discuss the establishment, constitution and appellate jurisdiction of High Courts in India.
2. Critically evaluate the racial discrimination in legal system of British India
2016
1. Focus on the first Law Commission in India.
2. Discuss the Development of Civil Law in Presidency towns and Mufassil Area.
2017
1. Focus on the importance of recommendation of Second Law Commission.
2. Discuss the composition and Jurisdiction of Federal Court.
Topic: 1. Development of Personal Law

Personal Law: Meaning

• A Law that applied to a certain class or group of people or a particular person, based on the religions, faith and culture.
• Personal law governs and regulates subjects or areas of personal sphere such as: Marriage, Divorce, Maintenance,
Succession, Minority & Guardianship etc.
• With the passage of time, these norms were given statutory recognition with several enactments in the area of Marriage,
Divorce, Maintenance, Inheritance & Succession, Guardianship and Custody matters.
Personal Law in India
• Hindu Personal Law • Muslim Personal Law
• Based on Srutis, smritis and customs • Quran, Sunnat,Ijma and Qiyas are main sources.
• Applied on Hindus in case of inheritance, succession, • Applied on Muslims in case of inheritance, will, succession,
marriage, adoption, coparenting, the partition of family legacies, marriage, dowry, divorce, gifts, wakfs, guardianship and
property, obligations of sons to pay their father’s debts, pre- emption.
maintenance and religious and charitable donations. • Muslim Law is traced by the holy ‘Kuran’ which clearly demarcated
between Public law (Huqullah) and private Law (Huququl Ebad).

Development of personal law

• With the progress of time, the personal laws were reformed, amended, given shape, edited and omitted.
• Though in the initial years of British rule they had maintain a policy of non-interference with religious practices in India.
• The real evolution of personal law in India was marked by the Charter of 1726 which introduced English Law in India.
• The Dissolution of Muslim Marriage Act, 1939 gave the Muslim Wife the right of judicial separation from her husband
which was uncertain in Muslim Law.
• Through the Charter of 1753, The British gave both Hindus and Muslims freedom to practice their personal laws.
• It was clearly established that there will be no interference from the British unless the two parties in a dispute willingly
submitted to the jurisdiction of the court.
• In 1772, the Governor General of India, Warren Hastings had laid down that the laws of Quran will be applied to
Muslims and those of the Shastras to the Hindus.
• 11 Brahmins were called at Calcutta from different part of Bengal to codified Hindu law; work had been started in 1773,
finished in February 1775.
• It was published in London in 1776 as “The code of Gentoo Law”, in which substantive and adjective laws are mixed
up.(Civil and criminal)
• This stance was again re-established in the Cornwallis Code of 1793, similar provisions were enacted by an Act of 1797
and by the Government of India Act, 1915.
• First and Second Law Commission left the personal laws untouched but this situation changed with the appointment of
the Third Law Commission.
• From 1862 to 1872, there was a wide spread call for social reforms in India and several landmark legislations were
enacted. They include:
i. The Indian Divorce Act, 1869;
ii. Hindu Wills Act, 1870;
iii. Special Marriage Act, 1872;
iv. Married Women's Property Act 1874;
v. Divorces Registration Act 1876
• Changes were also made in the Muslim Personal Law with the enactment of The Avadh Laws Act of 1876. The
important laws that followed this were:
i. Transfer of Property Act 1882;
ii. The Guardians and Wards Act 1890;
iii. The Bengal Protection of Mohammadan's Pilgrim Act 1896.
 Topic: 2. Development of Law in Presidency Town

• In the Presidency Towns, law and judicial administration were English in characteristics at a very early stage
of their development.
• 1726: The Common law as it prevailed in England and which had not been altered or amended by the statutes
of British Parliament specially extending to India.
• 1726: The statute law extended to India either expressly or by necessary implication, and was
not repealed; in the Ecclesiastical and Admiralty
• 1774 (Regulating Act): The British barristers had made their appearance on the scene as judges and lawyers
in Supreme Court.
• 1781(Act of Settlement): To remove certain difficulties which had arisen as a result of the working of the
Supreme Court in the initial stages.
• The Act of 1781 directed application of personal laws to Hindus and Muslims in certain cases.
• Similar provisions were made for the Presidency Towns of Bombay and Madras when the Recorders' Courts
and then the Supreme Courts were established there.
• These various heads require some explanation. The first three heads have a bearing on the fundamental
question regarding the introduction of English law in to the Presidency Towns.
Topic: 3. Development of Civil Law in Presidency Town with special reference to Equity, Justice
and Good Conscience

• Civil law is the part of a country's set of laws which is concerned with the private affairs of citizens,
for example marriage and property ownership, rather than with crime.
• There are two essentials, requisites for any sound and effective system of administration of
justice.
i. a well organized system of courts, and,
ii. a well developed system of law.
• British evolved a system of judicature in accordance with their own liberal traditions, and in
conformity with the exigencies and demands of the Indian situation.
• To begin with, the British administrators concentrated on the development of a system of
courts.
• From 1661 to 1833, they made and unmade various schemes of courts in an endeavor to
achieve a viable system of judicature.
• The efforts in the direction of creating a body of law began quite late in the day.
• For all this period, therefore, India remained singularly devoid of law.
• The task of developing a body of substantive civil law was left by and large to the courts.
• The courts administered justice between man and man without any adequate, certain and
well-defined body of law.
• A differentiation was made in matters of jurisdiction and legislation between the Presidency
Towns and the mofussil.
• The scheme of law lacked coherence, uniformity and certainty.
• The lack of system in law threw a great burden on the courts which had to find and ascertain
the law in every case before they could decide the controversy.
• In course of time, these difficulties came to be appreciated, and steps to ascertain, define and
simplify the law were undertaken.
• India came to have a number of codes on fundamental and basic areas of human relationship.
• Law has been transformed from 'personal' law into 'territorial' law.
• Except for the few topics reserved for decision according to the personal laws of the Hindus and
the Muslims, the codified law does not vary from person to person; it is territorial and applies to
all irrespective of class, creed or religion.
• This is a significant achievement in the field of law and justice.
• From uncertainty to certainty, from diversity to uniformity, from confusion to coherence, the law in
India has travelled a long way in course of time.
• Though the courts still continue to play their role in interpreting, defining and ascertaining the
law, scope for this kind of activity is limited.
• Legislation is an effective instrument of creating new law to meet new demand? of a developing
society.
 Topic. iv. Codification of Laws: Charter of 1833. The first Law Commission, the Charter of 1853, the
second law Commission

1. The Charter Act(1833)

➢ Background

• Result of the Industrial Revolution.

• The principle of laissez-faire was accepted as the government's attitude toward the industrial enterprise.
• Liberal movement.
➢ Objective
• Abandoning its trade entirely
• Permitting Europeans to settle freely In India.
➢ Key provisions
1) Office of Governor-General
 Governor-General of Bengal was made the Governor-General of India.
 Centralization in Administration.
 Governor-General of India now had exclusive legislative powers.
 Bombay and Madras presidencies were drained of their legislative powers.
 Civil and military powers were granted to India's Governor-General.
 Lord William Bentick became the first governor-general of India.
2) Powers of Governor-Generals Council
 Council could repeal, amend and alter any laws or regulations enforced in British India.
 Civil, military, and revenue matters were controlled by Governor-general in consultation with the councils.
 Power to repeal, alter or amend any laws or regulations for all persons in the British territory of India.
 Appointment of 4th member in the Governor-General in the council (no power to sit or vote in council except
for the purpose of making law).
3) Abolition of Commercial Privileges of the East India Company
 Commercial Privileges (monopoly of China trade) of the company were abolished.
 Restrictions on the entry of Europeans and British were abolished.
 Europeans and British could now freely acquire, hold or dispose of any property in India.
 India was made a British colony.
 Replacement of Board of Control as Minister for Indian Affairs
 Creation of the presidency of Agra and Fort William by the division of the Bengal presidency.
4) Financial Centralization
 Centralization of financia resources was also provided by the act.
 The power of presidency governments to raise revenues and incur expenditure was curtailed.
 The Governor-General’s council took over all the financial matters including the raising of Revenues and
expenditure
.
5) Attempt to open Civil Services on the Basis of System of Merit
 It has made merit the only criteria for the selection not religion, color, caste, and creed.
 The natives of India can share an administration in the country.
 Power to the Court of Directors to nominate annually 4 times as many candidates as there were vacancies
through the process of competitive examination.
6) Abolition of Slavery
 Diminution of slavery existing in British India.
 Slavery was abolished in India with the Act of 1843
❖ Significance of The charter act 1833:
 Unification of British India
 Establishment of a strong central government.
 Indian could freely participate on the administration.
 The legislative functions of the Governor General in Council were separated from the executive functions
for the first time.
 Codification of laws
 ❖ The Charter Act 1833: Defects
 The over-centralization burdened the work of the government-in-council.
 The government was no table to meet the needs, urgency, and requirements of the local government.
 Dissatisfaction among the presidencies.
❖ Formation of First Law Commission
 An attempt to codify laws was made with the charter act of 1833.
 A Commission (Law Commission) was appointed under Section 53 in 1834.
 Main aim: codification and consolidation of Indian law.
 Chairman: Lord Macaulay,
 Other members: J.M. Madeira (Calcutta), G.W. Anderson (Madras), and C. H. Cameron (Bombay).
 The Law Commission submitted the draft of the Penal Code (“Macaulay Code”) to the government in 1837.
 As a result of the recommendations, the code of civil procedure was introduced in 1859 followed by the
Indian penal code in 1860 and the criminal procedure code in 1862.
➢ Contribution of the First Law Commission
 Started with the codification of criminal law.
 Finally submitted the penal code draft to the government in 1837.
 Lord Macaulay mainly prepared this draft (Macaulay Code). However, the draft could not be enacted in to
law until 1860.
 Andrew Amore was new Chairman of the Law Commission.
 The commission was assigned the following tasks:
1. Codification of penal law;
2. The law applicable to non-Hindus andnon-Muslims in respect of theirb various rights (Lex Loci
Report);
3.Codification of civil and criminal procedural law etc.
Lex Loci Report
• law regarding other Europeans, which were called the laws of Lex Loci (law of the land).
• several Europeans settled in India and were authorized to buy and sell land in India under open-door policy.
• It is based on the Substantive Law of England.
• There were some restrictions, the law of the land should not be applied in marriage, divorce, succession, or
adoption.
• Only that much of English substantive law was declared Lex Loci, which suited Indian Conditions.
2. CharterAct1853
• The Charter Act 1853 was passed in the British Parliament to renew the East India Company’s charter.
Features:
1. The Charter Act of 1853 empowered the British East India Company to retain the territories and the
revenues in India in trust for the crown not for any specified period, Unlike the previous charter
acts of 1793, 1813 and 1833 which renewed the charter for 20 years.
2. This Act was passed when Lord Dalhousie was the Governor-General of India.

Governor-General’s office :

• Separated legislative and executive functions of the Governor- General’s council.

• Addition of six new members called legislative councillors to the council {12 in total}.
• The Governor-General could nominate a vice president to the council.
• Established a separate Governor-General’s legislative council which came to be known as the
Indian (Central) Legislative Council.
• This legislative wing of the council functioned as a mini-Parliament, adopting the same procedures
as the British Parliament.
• The Law member (fourth member) became a full member with the right to vote.
• The 12 members were –
1 Governor-General,
1 Commander-in-Chief,
4 members of the Governor-General’s Council,
1 Chief Justice of the Supreme Court at Calcutta,
4 regular judge of the Supreme Court at Calcutta,
4 representative members drawn from company’s servants with at least 10 years tenure,
 • Open competition system of selection and recruitment of civil servants.
• The Macaulay Committee (the Committee on the Indian Civil Service) was appointed in 1854.
• The number of Board of Directors was reduced from 24 to 18 out of which 6 people were to be
nominated by the British Crown.

Second Law Commission of India

• Appointed on November 9,1853, for three years,chairmanship of Sir John Romilly.

• Comprised a total of seven members.
• This Commission held its meetings in London till the middle of 1856 and submitted its four reports after
examining the proposal of the first law commission of India.
Following are the four reports of this Commission-
First Report
• The second commission submitted its first report in 1885, in which it proposed the unification (amalgamation)
of the Supreme Court with Sadar Adalats.
• It also suggested that High Court should be established in the place of these three courts.
SecondReport
• In this report, the law commission agreed with the Lex Loci report of the first law commission that there
should be substantive Civil Law for the inhabitants of the Mufassils.
• The Commission also expressed a view that only so much portion of the English Law should be adopted in
India, which did not offend the sentiments and emotions of the natives.
Third report
• The law commission suggested the judicial system and procedure for the courts in North-Western
provinces.
Forth report
• In the fourth report, the Commission proposed the Judicial Plan for the presidencies of Bombay and
Madras at a uniform pattern.
Code speared by the Second Law Commission
• The Second Law Commission submitted four draft codes on Civil Procedure which were finally introduced
as codified civil law under the Act of 1859. But, this code was abolished in 1877 and 1882.
• Finally, the parliament enforced the Civil Procedure Code of 1908. The Penal Code drafted by Lord
Macaulay in 1837 was revised by Sir Barnes Peacock, one of the second law commission members.
• It was finally enacted in 1860.
• The Indian High Court Act was passed in 1861, whereby the Supreme Court and Sadar Adalats were
abolished, and in their place, a High Court was established in each of the presidencies
Topic.v. Establishment of The Indian High Courts/Indian High Courts Act,1861

➢ Features of the Act

• The Indian High Courts bill was moved by the secretary of State Sir Charles Wood in the House of
Commons on 6th June, 1861.
• The Indian High Courts Act was passed by the British Parliament on 6th August,1861.
• It was titled as "An Act for establishing High Courts of Judicature in India".
• The Act consists of 19 sections only.
• This Act abolished the Supreme Court and Sadar Adalat's in the Presidencies.
• This Act empowered the crown to issue letter's patent under the great seal of the United Kingdom, to erect
and establish high court of Judicature at Calcutta, Madras and Bombay.
➢ Composition of High Courts:
❖ A Chief Justice and other puisne judges not exceeding 15 in numberas.
➢ Qualification of judges of High Court:
i. A Barrister of not less than five years standing;
ii. A member of the Covenanted Civil Service of at least 10 year's standing who had served as Zila judge
for at least 3 years in that period;
iii. A person having held judicial officer not inferior to that of principal Ameen or judge of a small cause court
for at least 5 years;
iv. A person who had been a Pleader of a Sadar Court or a High Court for at least10years.
v. At least one third of the judges of the High Court, including the Chief justice had to be Barristers and the
other one third of the judges had to be members of the covenanted Civil Service.
vi. The judges hold their office during the pleasure of her Majesty. Laws to be applied: The law which the
high court applied was same as applied by the Supreme Court i.e. English law.
Jurisdiction of the High Court’s:

1. Original jurisdiction:
(a) Civil Jurisdiction: The Original Civil Jurisdiction of the court was of two types: -
❖ Ordinary Civil Jurisdiction:
• Extended to the town of Calcutta, Madras and Bombay and such local limit as from time to time
could be prescribed by law of a competent legislature in British India.
• All suits of the value of Rs.100, Madras and Bombay were cognizable under High Courts.
• Further, the ordinary civil jurisdiction could be invoked only if:

The movable property was situated with in the town of Calcutta, Madras and Bombay;
The cause of action wholly or partly arose in Calcutta, Madras and Bombay;
The defendant was carrying on business or working for gain in Calcutta, Madras and
Bombay.
❖ Extra Ordinary Civil Jurisdiction:
• High Court could call a case pending in any lower court subject to its superintendence and could
decide that case itself.
• This jurisdiction could be exercised in a case where the parties agreed to such exercise or the
High Court thought it proper to impart justice.
(b) Criminal Jurisdiction:
❖ Ordinary Original Criminal Jurisdiction:
• High Court was empowered to try all persons brought before it in due course of law.
❖ Extra Ordinary Original Criminal Jurisdiction:
• The High Courts were to have extra Ordinary Original Criminal Jurisdiction which was not
enjoyed by the High Court.
(c) Revenue Jurisdiction:
• The High Court was given jurisdiction to here revenue cases also which were precluded from the
jurisdiction of the Supreme Court by the ActofSettlement,1781.
(d)Admiralty Jurisdiction:
• The admiralty and vice-admiralty jurisdiction were also given to the High court.
(e)Testamentary and miscellaneous jurisdiction: The High Courts were given similar testamentary, in testate
 and probate jurisdiction as was enjoyed by the Supreme Court.
(f) Appellate Jurisdiction: The appellate jurisdiction of the High Court was of two types:-
i. Civil Jurisdiction:The High Court could hear appeals in all cases authorised by any law or
regulation.
ii. Criminal Jurisdiction: The High Court had criminal jurisdiction in all cases decided by the sub
ordinate courts to it.
It could also entertain revisions against the decision of the lower court and reference from them.
Appeals from High Court: An appeal to Privy Council lay from judgement of High Court in civil cases when the
amount involved is Rs. 10,000 or more or if the High Court certified that the case is fit one for appeal.
And in case of criminal cases from its original jurisdiction or if the High Court certified that the case
is fit one for appeal.
 Topic.vi. Appraisal of Privy Council and Features of the Federal Court

1. Privy Council:
• The Privy Council was nothing but the judicial body, which heard appeals from various courts of the British
colonies including India.
• It is the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’.
• It has played a significant role in shaping the present legal system in India.
Establishment of Privy Council:
• The Privy Council was nothing but the judicial body, which heard appeals from various courts of the British colonies
including India.
Composition of Privy Council:
• Earlier, the Privy Council used to do its work by means of a system of committees and sub committees.
• These committees did not have permanent existence and membership and mostly members were the
persons with little judicial experience.
• Officially the Privy Council was created on permanent basis thorough the Act of 1833 Judicial Committee of
British Parliament.
• The Act empowered the Privy Council to hear appeals from the courts in British Colonies.
• The quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord
Chancellor and other eminent judges working in English courts.
Appeals from Courts in India to the Privy Council:
This can be discussed under following sub-headings.
Charters of 1726 and 1753:
• The Charter of 1726 granted the right to appeal from the Courts in India to Privy Council.
• The provision was made as to first appeal from the decisions of Mayor’s Court to the Governor-in-Council in
respective provinces and the second appeal from to the Privy Council in England.
• Charter of 1757, which re-established the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council
from Mayor’s Courts.
The Regulating Act,1773:
• This Act empowered the Crown to issue a Charter for establishment of Supreme Court at Calcutta.
• The Charter of 1774 was issued by the Crown to establish a Supreme Court at Calcutta and it abolished the
respective
• Mayor’s Court Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to
Privy Council.
• ln Civil matters if following two conditions were followed;
i) Where the amount involved exceed 1000 pagodas.
ii) Where the appeal is filled with in six months from the date of
decision.
• The Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the Recorders Court and
provided for direct appeals from these Courts to the Privy Council.
• The Act of Settlements,1781provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.
2. Features of the Federal Court
• Part IX, Chapter 1 of the Government of India Act (1935) made provisions for the Federal Court of India.
• Section 200-218 of Part IX made a detailed description of the Federal Court of India.
• Section 200 established the Federal Court of India.
Composition of this court. A Chief Justice of the Court with the aid of six judgesFor being appointed as a judge,
Qualifications :

✓ He/she should have been a High Court judge in any province or of the federal state, or
✓ He/she was a barrister in England or Northern Ireland for 10 years or had been a member of the Faculty of
Advocates in Scotland for 10 years, or
✓ He/she has been a pleader in any High Court of India.
• A person was disqualified from being the Chief Justice of the Federal Court if:
o He/she was not a barrister, a member of the Faculty of Advocates or a pleader during his first judicial appointment, or
o He/she has not been a barrister in England or Northern Ireland for 15 years or has not been a member of the Faculty
of Advocates in Scotland for 15 years.
 o A person qualified and appointed to the Federal Court of India must take an oath and affirmation to the Governor-
General of India before subscribing to his office, as per the Fourth Schedule of the Act.
Jurisdiction:
❖ Original jurisdiction (Section 204): to the Court on disputes between the provinces and the federal state on
determining the legal rights with respect to the questions of law and question of fact.The Court’s judgement under
original jurisdiction was considered declaratory in nature.
❖ Appellate jurisdiction (Sections 205-209) to the Court on matters arising from disputes as appeals from the High
Courts of British India. These sections determined the scope and powers of the Court under appellate jurisdiction. It
also gave power to the Federal Legislature to expand the appellate jurisdiction of the Court to matters at the
discretion of the Governor-General of India. The appellate jurisdiction could be decided by the Federal Court in the
form of stay orders, decrees, and costs as the case may be. This was facilitated by the provisions of Section 209.
• Section 210 spoke about the enforcement of the orders and decrees of the Federal Court. All directed
authorities in India were mandated to abide by and facilitate the judgement passed by the court which required their
involvement.
• The Federal Court could send letters of request to the Ruler of State for the institution or reopening of special cases
in the Federal Court or any High Court of India. The Ruler of State then facilitated this case by making orders to the
appropriate courts under Section 211, if deemed necessary.
• Section 212 gave vast powers to the Federal Court by stating that the decisions of the Court ‘shall be binding all
across the country and on all subordinate courts.’
• Section 213 granted powers to the Governor-General of India to consult the Federal Court in matters of public
importance on questions of law and fact.
• Section 214 granted powers to the Federal Court to make rules for the conduct of its business with the Governor-
General’s approval and monitoring.
• The Federal Legislature could grant ancillary powers to the Federal Court of India by the provisions of Section 215 of
the Government of India Act (1935). Such ancillary powers were to be exercised in consonance with the law of the
land.
• Section 216 stated that the charges and expenses of the Federal Court were to be taken by the Federation of India.
The Governor-General enjoyed discretion in determining and granting administrative expenses.
The Federal Court of India ran according to these provisions of the Government of India Act (1935) until 1950, when
it was replaced by the Supreme Court of India

.
Topic. vii. Racial discrimination in British legal system
• After assuming power to rule over India, the British considered themselves to be superior to the natives.
• This superiority complex in them sowed the seeds of social discrimination which was clearly discernable in
the system of judicial administration introduced by them.
• The element of social discrimination prevailed both in civil as well as criminal judicature.
• The Regulating act,1773 contained a provision that the British subjects shall be immune from the jurisdiction of
the company's courts but instead, they shall be amendable to the jurisdiction of the Supreme court.
• In 1787, it was provided that a British subject could institute a suit in the company's court on execution of an
undertaking to the effect that he shall be bound by the authority and decision of that court in respect of his suit.
• Lord Cornwallis to minimise the social discrimination, prohibited the British subjects from residing beyond ten
miles from Calcutta so that all of them would necessarily fall within the jurisdiction of the supreme court at
Calcutta.
• The charter of 1813 provided that the natives could bring a suit of civil nature against the British subjects
residing in mofussils in the company's courts. British could file an appeal in the crown's court.
• Lord Hastings in his judicial reforms of 1814 specifically laid down that the Indian commissioners, munsifs and
ameens were not empowered to take cognizance of any case in which a foreigner, British subject, European or
American was involved.
• In 1827, on a petition from some of the British subjects in the province of Bengal, the government extended the
jurisdiction of the sadar ameen to Europeans and Britishers.
• But the position was again altered by lord william Bentinck who prohibited munsifs, sadar ameens and principal
sadar ameens from exercising jurisdiction over Europeans and foreigners in civil cases.
• The Indian Presidency Magistrate could try British subjects in the Presidency town but if the same magistrate
was transferred to a Mofussil Court, he had no jurisdiction over British Subjects and hence could not hold trial in
their case.
• In order to do away with this anomaly, Lord Ripen, the then Governor-General of India proposed that all the
Magistrates and Sessions Judges should be empowered to try the cases of Europeans and British subjects.