NOTES

SECOND YEAR B.L.S LL. B

SEMESTER: III

HISTORY OF COURTS
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MODULE 1: ADMINISTRATION OF JUSTICE (1600-1780),
REGULATING ACT OF 1773 & SETTLEMENT ACT OF 1781

1.1 ADMINISTRATION OF JUSTICE IN THE PRESIDENCY TOWNS

AND DEVELOPMENT OF COURTS UNDER EAST INDIA
COMPANY (1600- 1773)
⎯ In 1583 C.E., three English merchants, Ralph Fitch, James Newsberry, and William Heeds
visited India. Ralph Fitch’s writings about India’s wealth inspired British interest in trade
relations.
⎯ On 24th September 1599, London merchants, led by the city mayor, gathered to form a
company for trade with the East Indies. They established “The Governor and Company of
Merchants of London trading into the East Indies,” known as the East India Company
(EIC).
⎯ Seeking permission from Queen Elizabeth, the EIC received a Charter on December 31st,
1600, granting trade rights in Asia (including India), Africa, and America. The Company’s
leadership comprised of a Governor and 24 Directors elected annually.
⎯ The Court of Directors managed the Company’s business and could be elected or removed
by the General Court.
⎯ Finding Indian kings disunited and lacking modern political awareness, the EIC gradually
sought to dominate territories in India to create markets for its goods.
⎯ Initially, the Company’s focus was commercial, but it expanded politically over time. The
administration of justice within the EIC’s settlements lacked separation between executive
and judiciary, impacting fair justice and the rule of law.
⎯ The development of courts and judicial institutions during this period can be categorised
into two periods: 1600 to 1726 as the first period and 1726 to 1773 as the second period.
⎯ The East India Company established its first factory in Surat in 1612.
⎯ The British Crown dispatched Sir Thomas Roe as an ambassador to the Mughal Emperor,
seeking certain privileges for English individuals in India.
⎯ In 1615, the Mughal Emperor, influenced by Sir Thomas Roe’s plea, issued a Firman
(decree) granting English settlers the right to follow their religion and laws. They were also
permitted to resolve disputes among themselves through their president. However, disputes
involving an English person and an Indian were to be settled by native judges.

2
⎯ The President and Council in Surat formed a court to settle disputes among English interests
based on their laws and customs, handling both civil and criminal cases.

1.1.1 PERIOD FROM 1600- 1726, ESTABLISHMENT OF MAYOR’S

COURT (1726)

⎯ Administration of Justice in Madras (1600-1726):

o In 1639, Francis Day acquired a piece of land from a local Hindu ruler for the EIC and
built a fortified factory where English and other Europeans settled. This area known as
Fort George was called the “White Town”.
o Nearby, the village of Madras Patnam housed mostly Indian residents, leading to its
nickname, the “Black Town”.
o The entire settlement, comprising of White Town and Black Town, eventually came to
be known as Madras.
o The judicial administration and its development in Madras can be studied in the
following three stages:
o First Stage (1639-1665):
▪ The White Town:
• Before 1665, the White Town was not a presidency and was subordinate
to Surat. Its administrative head, known as the “Agent,” administered
the criminal and civil justice along with his Council. Serious criminal
cases were sent to England for advice.
• Defects:
• The Agents and the Council lacked clear judicial power and
knowledge.
• They had no basic legal knowledge, being merchants and they
used to decide cases based on their common sense and wisdom.
• Cases referred to England caused delays in administering justice.
• Additionally, there was no separation between executive and
judiciary functions.
• Native judges were corrupt, bribery was common, and justice
wasn’t a priority.

3
▪ The Black Town:
• An old judicial system operated with a village head known as Adigar or
Adhikari overseeing the law and order.
• The Adigar administered justice at the Choultry Court for native
residents, mostly for petty cases.
• An Indian native named Kannappa was appointed as Adigar but he
abused his power, leading to his dismissal. English Company servants
then took over the Choultry Court’s duties.
• Appeals from the Choultry Court were heard by the Agent and the
Council.
• Defects:
• Under the Charter of 1600, the Company lacked the power to
impose death sentences. Only the local sovereign’s authority,
granted to the Agent-in-Council, granted such sentences.
• The judges of the Choultry Court were laymen.
• There was no fixed procedure for the trials of serious cases and
the procedure varied from case to case.
• The Agent and the Council constituted both executive and
judiciary as there was no separation of powers.
▪ The Charter of 1661:
• This Charter authorised the Governor and the Council to handle various
civil and criminal cases of Indians, Englishmen, and Europeans, even
those involving capital offences with the authority to impose death
sentences in the Company’s settlements, including each factory.
• According to this Charter, cases involving Indians residing in the
Company’s settlements were to be judged based on English law. The
powers granted under this Charter were specifically vested in the
Governor, while the Chief Factor and the Council had the authority to
send offenders for punishment either to a location with a Governor and
a Council or back to England.

4
 • Defects:
• The Governor and the Council comprised both the executive and
the judiciary and therefore there was still no separation of
powers.
• The Governor and the Council were still laymen and not law
professionals.
• The Charter granted justice to Indians based on English law
thereby neglecting Indian laws and customs.
o Second Stage (1665 – 1683):
▪ In 1665, Mrs. Ascentia Dawes was accused of murdering her slave girl. The
Agent and the Council at the factory in Madras sent the case to the Company’s
authorities in England for guidance.
▪ The status of the Agent and the Council in Madras was elevated to that of the
Governor and the Council under the Charter of 1661.
▪ The new Governor and the Council conduct Mrs. Dawes’ trial with a jury.
Surprisingly, an unexpected “not guilty” verdict was reached, leading to Mrs.
Dawes’ acquittal.
▪ Later, in 1678, a comprehensive reorganisation of the entire judicial
administration occurred, leading to improvements in both towns’ judicial
systems to some extent.
▪ The Court of Governor and the Council was established as the “High Court of
Judicature” along with 12 juries empowered to hear all criminal and civil cases.
It had jurisdiction over cases involving residents of both towns, employing
juries and handling appeals from the Choultry Court.
▪ This Court operated based on English Law and convened twice a week to hear
and decide cases.
▪ The Choultry Court underwent reorganisation, expanding its judges from 2 to
3, all of whom were Englishmen. At least 2 judges were mandated to preside
over the Court for 2 days per week.
▪ Choultry Court gained authority to handle petty criminal cases and was
empowered to hear civil cases up to 50 pagodas (1 pagoda equalled Rs. 3).
Additionally, for cases exceeding this value, the Court required consent from
the involved parties to proceed.

5
o Third Stage (1683 – 1726):
▪ During this period two important courts were established – an Admiralty Court
under the Charters of 1683 and 1686 issued by the Crown and a Mayor’s Court
under the Charter of 1687 issued by EIC.
▪ Between 1686 and 1726, three courts operated in Madras: the Mayor’s Court,
Choultry Court, and Admiralty Court.
▪ Admiralty Court:
• On 9th August 1683, Charles II granted the Company a Charter to
establish the Admiralty Court. This court included a learned judge in
civil law and two merchant experts.
• The Court was empowered to hear all types of maritime and mercantile
cases, along with cases of forfeiture of ships, piracy, trespassing,
injuries, and wrongs.
• A new Charter with similar provisions was issued on 12th April 1686 by
James II with a new provision to empower the Company to raise naval
forces and appoint naval officers.
• An Admiralty Court was established in Madras on 10th July 1686 with
John Gray as its judge and two Englishmen as his assistants.
• The Chief Judge of the Admiralty Court was termed the “Judge
Advocate”.
• On 26th July 1687, Sir John Biggs, a proficient lawyer versed in civil
law, was appointed as the Judge Advocate. He handled civil, criminal,
and maritime cases as the Governor and the Council were now
relinquished of their role as the judiciary. In certain cases, the appeals
from the Mayor’s Court were also heard by this Court.
• The Governor resumed the judicial role after the death of Sir Biggs in
1689.
• In 1692 John Dolben succeeded Sir Biggs as the new Judge Advocate
but was dismissed in 1694 due to bribery allegations.
• In 1696, the Company directed Council members to serve sequentially
as the Judge Advocate. Eventually, Sir William Frazer was appointed.
However, after his resignation, no one accepted the role, leading the

6
 Company to appoint the Court Registrar as the Judge Advocate.
Consequently, it turned into a General Court of the Settlement.
• The Admiralty court worked routinely till 1704 and from there on, it
stopped sitting regularly. Its powers were later transferred to the
Governor and Council.
▪ Mayor’s Court:
• In England, the London Corporation and Mayor’s Court held judicial
authority under British law. The Company, utilising powers from the
British Crown, established the Madras Corporation and its Mayor’s
Court.
• An attempt to levy a house tax faced resistance from local Madras
residents, prompting the Company to form a body comprising both
English and local Indians to ease tax collection.
• The Corporation was established on 29th September 1688 under the
Charter of 1687 issued by the Company. It included a Mayor, 12
Aldermen, and 60 to 120 Burgesses. Aldermen were elected annually
from among themselves, and they had the power to remove an inefficient
Mayor, who was necessarily an Englishman.
• The Mayor retained the office for a year. The outgoing Mayor could be
re-elected by the electorate.
• Aldermen held office as long as they stayed in Madras City, essentially
for life. The Mayor, Burgesses, and other Aldermen could also remove
an Alderman for poor performance.
• 3 out of 9 Aldermen were required to be British Company servants,
while others could belong to any nationality or religion. 3 Aldermen and
the Mayor belonged to the Governor and the Council.
• 30 Burgesses were to be the heads of several castes. The Mayor,
Burgesses, and 29 Burgesses were nominated by the Company.
• Vacancies amongst the Aldermen were filled by the Mayor from the
Burgesses.
• The Governor and the Council also had powers to remove the Mayor,
Aldermen, and Burgesses.

7
 • The Mayor’s Court, consisting of the Mayor and Aldermen, served as a
“Court of Record” trying both civil and criminal cases, capable of
imposing fines, imprisonment, and corporal punishment.
• The Admiralty Court provided redressal for civil cases of >3 pagodas
and serious criminal cases. But after 1704, the appeals were referred to
the Governor and the Council.
• However, the Mayor’s Court lacked consistency in sentencing due to the
limited legal knowledge of its members.
• Hence, the Recorder, a Company servant with legal knowledge was
appointed to aid the Mayor in legal matters and had voting rights like
Aldermen. Initially, Sir John Biggs served as the Recorder.
• In 1712 the Mayor’s Court was granted the power to award capital
punishment for locals but not for Englishmen.
▪ The old Choultry Court continued with the Governor’s permission. It could only
hear cases of petty offences and civil matters of up to 2 pagodas. Two Aldermen
were to reside twice a week to exercise the court’s jurisdiction.
o In conclusion, the administration of justice in Madras faced significant challenges and
drawbacks in its early stages, notably:
▪ The system lacked structure and organisation.
▪ The Courts and individuals were unaware of applicable laws, leading to
confusion in dispute resolution.
▪ Inmates endured inhumane living conditions due to inadequate facilities.
▪ English principles of fair trial, including natural justice and giving the benefit
of the doubt to the accused, were not upheld.
▪ Punishments tended to be brutal and inhumane, aiming for deterrence and
prevention without considering fairness or humanity.
⎯ Administration of Justice in Bombay (1600-1726):
o The Portuguese were the first Europeans to possess Bombay Island in 1534,
acquiring it from the King of Gujarat.
o In 1662, King Alfonsus VI of Portugal transferred the island of “Bom Bahia” to
Charles II of England as part of the dowry for his sister Catherine of Braganza’s
marriage to the British Monarch.

8
o Charles II leased the island to the East India Company for a nominal annual rent of
10 pounds as per the Charter of 1668.
o Under this Charter, the Company could enact laws and ordinances for good
governance of the Island. The new laws were brought to Bombay in 1670.
o Before 1726, the judicial system on Bombay Island evolved through the following
three stages:
o First Stage (1668-1683):
▪ Initially, Bombay fell under the governance of the Surat Presidency, with
the Governor of Surat being ex-officio the Governor of Bombay.
▪ Following orders from the Company, Sir George Oxenden, the President of
Surat, visited Bombay in 1669 to establish the executive government under
a Deputy Governor and Council.
▪ Mr. Gerald Aungier, the subsequent Governor of Surat and ex officio
Governor of Bombay, was keen on establishing a robust judicial system in
Bombay. His efforts led to the creation of judicial plans in 1670 and 1672
aimed at enhancing Bombay’s judicial system.
▪ Judicial Plan of 1670:
• The Island of Bombay was divided into two divisions: one
comprising Bombay, Mazagaon, and Girgaon, while the other
included Mahim, Parel, Sion, and Worli.
• Separate courts were established for each division, each consisting
of 5 judges, with a quorum of 3 judges required for proceedings.
• English customs officers from each division presided over their
respective courts.
• Some Indians were appointed as judges without receiving any
payment.
• These courts handled cases of small thefts and civil actions up to 200
xeraphins (a Portuguese coin; Re. 1 equalled 2 xeraphins), with
appeals directed to the Deputy Governor and the Council,
constituting a superior court that had both original and appellate
jurisdiction.
• Matters beyond the jurisdiction of the divisional court, such as civil
cases over 200 xeraphins and serious criminal cases like felony,

9
 murder, and mutiny, were decided by the Deputy Governor and the
Council.
• Appeals from the Deputy Governor and the Council’s court were
permitted only in cases of absolute necessity and were directed to
the Governor and the Council at Surat.
• This judicial system lacked sophistication and was quite basic. There
was no clear separation between the executive and judiciary
branches. The courts were managed by traders who lacked even
fundamental knowledge of English law.
• Mr. Aungier recognised these shortcomings and urged the Company
to send a legal expert from England. However, the Company
instructed him to select an expert from the Company’s servants in
India. Mr. Aungier chose Mr. George Wilcox and, with his guidance,
formulated the 1672 judicial plan to enhance Bombay’s existing
judicial system.
▪ Judicial Plan of 1672:
• On 1st August 1672, a government proclamation replaced Portuguese
laws in Bombay with English laws, completely restructuring the
judicial system.
• A new “Court of Judicature” was established, and George Wilcox
was appointed as its Judge.
• This court had jurisdiction over civil, criminal, probate, and
testamentary cases. It sat weekly for civil cases with jury assistance.
• Judges in the Court of Judicature received an annual salary of Rs.
2000 to prevent involvement in private trade or business.
• Appeals from the Court of Judicature were directed to the Deputy
Governor and the Council of Bombay.
• Litigants were charged a fee of 5% of the suit’s valuation, but
provisions allowed those with limited means (worth less than 60
xeraphins) to sue as paupers without fees.
• Attorneys were permitted to practice, and English legal procedures,
including arrest and imprisonment, were adopted.

10
 • Efforts were made to apply English substantive law and statutory
law whenever possible. Aungier’s main goal was a prompt and fair
justice administration.
• For criminal justice, Bombay was divided into four divisions -
Bombay, Mahim, Mazagaon, and Sion; each with an English
“Justice of the Peace”. They served as committing magistrates,
arresting suspects, and examining witnesses. The Court of Judicature
convened monthly to decide criminal cases, assisted by these
Justices of the Peace acting as assessors. Appeals from the Court of
Judicature went to the Deputy Governor and the Council of Bombay.
• Additionally, a Court of Conscience for petty civil cases was
established. It settled cases of up to 20 xeraphins without a jury,
sitting weekly. Decisions were final with no further appeals
permitted. No court fees were charged for poor individuals, earning
it the name “Poonam’s Court.”
• In 1673-74, several panchayats were established. These groups
could settle disputes within their caste if both parties agreed;
otherwise, cases went to the Court of Judicature.
• George Wilcox, the first Judge of the Court of Judicature, passed
away in 1674. James Adams succeeded him briefly, but lacking legal
expertise, he was replaced by Niccolls in 1675. Niccolls faced
dismissal in 1677 due to various charges, and Gary took over as
Judge until 1683.
• During Gary’s tenure, a reduction in a Judge’s salary and rank
occurred, while the Council gained superiority in power and
position.
• Keignwin’s rebellion from December 1683 to November 1684
significantly affected Aungier’s judicial system in Bombay, dealing
it a severe blow.
o Second Stage (1684-1690):
▪ In 1684, an Admiralty Court was formed under the Charter of 1683 (by
Charles II), initially focusing on maritime and mercantile cases but later
expanding to cover civil and criminal cases.

11
 ▪ The Admiralty Court required a judge knowledgeable in civil laws who
would be assisted by two Englishmen. Dr. St. John, an expert in civil law,
became the Judge-Advocate.
▪ Due to the Admiralty Court’s limitations, a Court of Judicature was
established, with Dr. John appointed as Chief Justice.
▪ Dr. John’s efforts for an independent judiciary clashed with Governor John
Child’s disdain for the judiciary. Conflict arose when Dr. St. John collected
evidence against Mr. Child, who ordered him not to do so. Dr. John refused,
citing his oath to disclose information against anyone.
▪ The Governor’s disregard for equality before the law led to a conflict. Dr.
John’s powers as Chief Justice were revoked in 1685, and the Admiralty
Court lost its civil and criminal jurisdiction.
▪ A new judge, Vaux, was appointed to handle civil and criminal cases,
sparking criticism from Dr. John due to Vaux’s lack of council membership
and legal expertise.
▪ Another conflict arose over whether the Bombay Council could hear appeals
from the Admiralty Court, lacking provisions in the Charter of 1683.
▪ Subsequently, Sir J. Wyborne, the Deputy Governor of Bombay, took over
as the Judge of the Admiralty Court.
▪ In 1690, Siddi Yakub, a Moghul Emperor’s Admiral, invaded Bombay,
rupturing the judicial system. From 1690 to 1718, the Governor-in-Council
roughly handled civil and criminal cases in the absence of a court in Bombay
marking a bleak period in the city’s legal history.
o Third Stage (1718-1726):
▪ On 25th March 1718, the Court of Judicature was reinstated by Governor
Charles Boone and later ratified by the Company. It comprised an English
Chief Justice, five English Judges, and five Indian Judges.
▪ The five Indian Judges represented significant communities in India: Hindu,
Muslim, Christian, Portuguese, and Parsis.
▪ The Chief Justice and the English Judges were part of the Governor and the
Council and held a superior position compared to Indian Judges. A minimum
of three English Judges formed a quorum. This court convened weekly.
▪ The Indian Judges, often termed “Black Justice,” primarily acted as
assistants or assessors to the English Judges. Their role aimed to enhance
12
 the Court’s efficiency but didn’t grant them equal status to the English
Judges.
▪ The Court had jurisdiction over civil, criminal, probate, and testamentary
cases, making decisions based on principles of equity, good conscience,
Company rules, ordinances, and to some extent, Indian customs and usages.
▪ Interestingly, jury trials were not permitted in this Court. Appeals from its
decisions were heard by the Governor and the Council for cases involving
amounts of Rs. 100 or more.
▪ A crucial requirement for filing an appeal was providing notice to the Chief
Justice within 48 hours of the Judgment.
▪ The authority to issue capital sentences rested with the Court of Governor
and the Council. Additionally, the court fee for proceedings was moderate
such as Rs. 5 for filing an appeal.
o Demerits:
▪ The entire judicial system was under executive control, leading to conflicts.
Chief Justices Parker and Braddyll were dismissed in 1720 and 1721,
respectively, due to disagreements with the Bombay Council. Their
dismissal resulted from their refusal to subordinate their judgments to
executive wishes, highlighting a lack of judicial independence.
▪ Lack of clarity in the laws and procedures led to inconsistencies and
injustices in legal decisions. The absence of settled guidelines resulted in
disparate punishments for criminals and further exacerbated the lack of
uniformity in the judicial system.
▪ There was no provision for jury trials, which could have ensured fairer trials
by including community perspectives in decision-making.
▪ Indian Judges were not regarded as equals to their English counterparts.
They functioned more as assistants or assessors to the English judges.
▪ This system was eventually replaced by the Mayor’s Court in 1728.
⎯ Administration of Justice in Calcutta (1600-1726):
o On 24th August 1690, Job Charnock, a servant of the East India Company, laid the
foundation of the British settlement in Calcutta, establishing a factory (Fort
William) in Sutanati along the Hooghly River.

13
 o The Subedar of Bengal granted Zamindari rights of Calcutta, Sutanati, and
Govindpur to the EIC in 1698 for an annual revenue of Rs. 1195.
o In December 1699, Calcutta evolved into a Presidency town with the appointed
Governors and the Council overseeing the settlement. As Zamindars, the Company
wielded extensive powers similar to other Zamindars of that time, holding judicial
authority, revenue collection, and law enforcement under the Mughal
administration.
o Within the Mughal Empire, Zamindars had judicial powers, maintaining law and
order, and overseeing civil and criminal matters within their areas. The system was
simple, relying on village panchayats to resolve disputes. However, corruption was
rampant with the highest bidder often obtaining the position of Kazi. Judicial
transactions were informal, with no organised structure or royal oversight.
o In 1700, the appointment of a Collector empowered the English officer to act as
Zamindar on behalf of the Company.
o The Collector had jurisdiction to adjudicate civil and criminal cases concerning
Indian inhabitants and was also responsible for revenue collection. Civil cases were
resolved by the Collector based on Indian customs or, in their absence, principles
of natural justice and equity.
o While other Zamindars’ death sentences were appealed to the Nawab of
Murshidabad, the Company’s Zamindar - Collector’s Court’s appeals went to the
Governor and the Council in Calcutta.
o The Collector presided over revenue cases and decided punishments for natives,
including whipping, road work, imprisonment, or fines. Death sentences required
confirmation by the Governor and the Council.
o The administration of justice was not of a high order because the Collector was
given much burden and powers beyond his capacity.
o The whole judicial system was executive oriented. The Collector, an executive
officer was vested with judicial powers.
o This judicial system continued till 1727 when the Mayor’s court was established
under the Charter of 1726, a Royal Charter (by George I) that empowered the courts
under British Crown authority.
⎯ ESTABLISHMENT OF MAYOR’S COURT (1726):
o Lay judges lacked adequate knowledge of English Law, resulting in decisions based
on personal understanding of justice.
14
o Dissatisfaction prevailed regarding the judicial administration in the three
Presidency Towns.
o Increased population in British settlements led to a rise in court cases requiring
adjudication. Settlement issues arose due to the deaths of English settlers, leaving
behind substantial assets.
o Inspired by the success of the Corporation in Madras, the Company sought similar
Corporations in Bombay and Calcutta.
o The Company petitioned King George I, highlighting the necessity for an efficient
system of civil and criminal justice.
o The Mayor’s Court in Madras (established in 1687) handled testamentary cases but
lacked recognition from the Court of England, prompting the need for Crown-
authorised courts in each Presidency.
o Subsequently, the Judicial Charter of 1726 was granted by King George I on 24th
September 1726.
o Provisions of the Charter:
▪ The Charter outlined the formation of Corporations in Bombay and
Calcutta, similar to the one established in Madras, comprising 1 Mayor and
9 Aldermen.
▪ Among these officials, the Mayor and 7 Aldermen were mandated to be
natural-born British subjects. However, 2 Aldermen could hail from
territories governed by the friendly Indian Princely States.
▪ The first Mayor and Aldermen were appointed directly by the Charter itself.
Subsequently, the Mayor was to be elected annually by the Aldermen.
▪ Aldermen held office for life or until their residency in the Presidency towns
ceased, and they could be removed by the Governor-in-Council for valid
reasons.
▪ Any appeal against such removal could be directed to the King-in-Council
in England.
▪ The Charter allowed appeals from the courts in India to the Privy Council
in England.
▪ Although the Charter didn’t explicitly specify the laws to be followed, the
preceding Charter of 1661 stipulated that justice was to align with English
Law, implying the likelihood of the same legal framework being adhered to.

15
▪ The Mayor’s Court, composed of the Mayor and Aldermen, serving as a
“Court of Record” with the authority to adjudicate all civil cases originating
within the town and its subsidiary factories. The quorum constituted of the
Mayor and two other English Aldermen.
▪ This Court possessed testamentary jurisdiction, enabling it to grant probates
for wills and Letters of Administration in cases of intestacy. A primary
appeal within 14 days could be made to the Governor and the Council.
▪ In instances where the case involved a subject matter valued above 1000
pagodas, a further appeal was admissible to the King-in-Council.
▪ The Court was empowered and possessed the authority to penalise
individuals for contempt.
▪ The Sheriffs, initially nominated and subsequently chosen annually by the
Governor and the Council, were responsible for executing the Court’s
processes and operated as law enforcement officers.
▪ The civil procedure followed was notable: the Court could issue warrants,
permit bail, detain defendants in custody, imprison them until judgment
satisfaction, and seize and auction property if required.
▪ The Mayor’s Court lacked criminal jurisdiction. To handle criminal matters,
the Governor and five senior Council members were appointed as “Justices
of Peace” in each Presidency.
▪ These officials formed the Court of Oyer, Terminer, and Gaol (Jail) Delivery
and were responsible for conducting quarter sessions, thus possessing
complete criminal jurisdiction.
▪ The Charter stipulated the use of juries in criminal cases, utilising both a
Grand Jury and a Petty Jury.
▪ The Grand Jury, composed of 23 individuals, tasked with presenting
individuals suspected of committing a crime hence known as the “Jury of
Presentment.”
▪ Upon apprehension of an offender, a preliminary inquiry occurred before a
Justice of Peace, who then forwarded evidence to the Court of the Governor
and the Council for trial. The Grand Jury reviewed this evidence and could
acquit the accused if they found no prima facie case.

16
 ▪ If the Grand Jury found a case fit for trial, the accused would face trial by
the Petty Jury. A guilty verdict by the Petty Jury led to sentencing by the
Court of Quarter Sessions (the Governor and the Council).
▪ As per the Charter, the Company sent statutes, law books, and instructions
to each Presidency, aiming to ensure consistency and adherence to English
Law across all Law Courts in the Presidencies.
▪ Before 1726, the Court of Directors in England held the authority to make
laws. They lacked substantial knowledge of Indian conditions, resulting in
ineffective laws for the region. The Charter of 1726 granted the Governor
and the Council of each Presidency the power to establish bylaws, rules, and
ordinances for regulating the Corporations and inhabitants within the
Presidencies. This authority included prescribing penalties for violating
these laws. However, for these rules to be effective, they needed approval
from the Company’s Court of Directors in England.
o Conflicts among the Mayor’s Court and the Governor and the Council:
▪ In Bombay:
• Conflict arose in Bombay between the Mayor’s Court and the
Governor and the Council regarding the jurisdiction of the former
over matters concerning the caste and religion of natives.
• A Hindu woman of the Shimpti caste converted to Roman
Catholicism and on account of it, her 12-year-old son left her and
chose to live with his Hindu relative. She filed a suit in the Mayor’s
Court against the relative for detaining the boy and some jewels. The
court ordered the boy to be handed over to his mother.
• The heads of the caste complained to the Governor, who brought the
issue before the Council, arguing that the Mayor’s Court had no
authority under the Charter of 1726 to decide cases related to natives’
caste and religion.
• The Mayor’s Court disagreed, asserting that the dispute wasn’t
primarily religious and fell under its jurisdiction according to the
Charter.

17
 • The Governor and the Council maintained their stance, viewing the
Mayor’s Court actions seriously. The Mayor was removed from the
post of Secretary of the Council due to the Court’s bold stance.
• The conflict was reported to the Court of Directors in England, who
criticised the Governor and the Council’s approach and issued orders
to prevent similar acts of tyranny.
• Another conflict emerged when an Arab merchant, rescued from a
burning boat, filed a suit in the Mayor’s Court to recover the alleged
extortion of pears by the rescuers.
• The Governor and the Council suggested that the claim was invalid,
but the Mayor’s Court, feeling its independence threatened,
disregarded the Council’s advice and upheld the merchant’s claim.
On appeal, the Governor and the Council reversed the decision with
the Governor’s casting vote.
▪ In Calcutta:
• Calcutta witnessed similar tensions between the Mayor’s Court and
Zamindari courts, as well as between the Mayor’s Court and the
Governor and the Council.
• The conflicts were exacerbated by mistakes made by the Courts,
including the violation of religious sentiments held by the Indian
population.
▪ In Madras:
• Conflict arose between the Governor and the Council and the
Mayor’s Court, originating from a dispute over the oath.
• The Mayor’s Court directed Hindu witnesses to take the “Pagoda
oath” instead of the traditional “Geeta oath.” Many Hindu witnesses
opposed this change and refused to take the pagoda oath, leading the
Mayor’s Court to imprison those who refused.
• In response, Hindus invaded the Fort and lodged a complaint with
the Governor. The Governor ordered the release of the imprisoned
individuals on parole and instructed the Court to respect the religious
rites and ceremonies of the natives while adhering to the boundaries
specified by the Charter of 1726.

18
 • Another conflict emerged when the Mayor’s Court expressed the
view that an outgoing Mayor could be re-elected.
• Naish, an outgoing Mayor, was re-elected in 1734, but the Governor
declined to allow him to take the oath of the office, citing that
according to the Charter of 1726, an outgoing Mayor couldn’t be re-
elected and ultimately, another Mayor was appointed.
• Terrain, the Secretary to the Madras Government, and Mayor Naish
engaged in a bet. Naish lost but refused to pay, and when Terrain
sued him in the Mayor’s Court, the Court ruled that the Mayor was
immune from prosecution. The Governor later protested that its
Secretary had been treated with disrespect by the Court.
• In nearly all these conflicts, the Governor and the Council sided with
the Indian population. This move was likely intended to garner
sympathy from the Indian community, given their significant
importance in opposing the Mayor’s Court, which was seeking
judicial independence and challenging the executive authority.
▪ Causes of conflicts:
• Lack of clarity regarding the law to be applied by the Mayor’s Court
led to the application of British Law principles. No provision was
made for the appointment of qualified legal individuals as judges,
resulting in the absence of proper legal expertise.
• The Governor and the Council demonstrated despotic tendencies and
did not respect the autonomy of the judiciary. They frequently
interfered with the judicial functions of the Mayor’s Court. Any
resistance from the Mayor’s Court was viewed as a violation of their
authority, leading to attempts to undermine the judiciary and punish
its judges.
• Judges in the Mayor’s Court, appointed under Royal authority, often
considered themselves superior and independent of the executive.
However, many lacked legal training or expertise, which affected the
discipline and conduct of the Court.

19
 • Conflicts arose due to personal hatred, jealousy, and prejudices
among the Company’s servants. These conflicts manifested in the
clashes between the executive and the Mayor’s Court.
• As the Indian population was unfamiliar with British laws and faced
difficulties with the Mayor’s Court, the executive tended to side with
the Indians. They advocated for non-interference in Indian customs
and religions, suggesting that any disputes among Indians should be
resolved according to their own customs.

Comparison between the Company’s Charter of 1687 and the Crown’s Charter of 1726:

Charter of 1687 (Company’s) Charter of 1726 (Crown’s)

Mayor’s Court was established in Madras Mayor’s Court was established in Madras,
only. Bombay, and Calcutta.
It was the Company’s Court. These Courts were the King’s Court (Royal
Court).
Decided all civil and criminal cases. Appeals Decided only civil cases. The Governor and
were allowed in the Admiralty Court. the Council were the appellate authority.
No specific rules of laws and procedures. Followed English Law.
A learned person appointed in the Court No such officer in this Court.
called the Recorder’s Court.
Out of 9 Aldermen, 7 were British subjects, Not specified.
and 2 were required to be subjects of friendly
Indian Princely states.
The administration of justice was entrusted The Charter mixed executive and judiciary.
only to the Mayor’s Court and the Admiralty It granted original criminal jurisdiction and
Court in Madras. The executive had no power appellate civil jurisdiction to the Governor
in this respect. and Council who were already entrusted with
executive powers of Presidencies.

20
1.1.2 CHANGES INTRODUCED BY THE CHARTER OF 1753, WARREN
HASTINGS PLAN OF 1772, REFORMS UNDER THE PLAN OF 1774 AND
RECOGNITION IN 1780.

⎯ CHANGES INTRODUCED BY THE CHARTER OF 1753:

o The events leading to the French takeover in 1746 and the subsequent reinstatement
of British control in Madras in 1749 marked a pivotal period for governance. King
George II issued a new Charter in 1753, aiming to address the flaws of the previous
Charter of 1726 and reform the Madras Corporation.
o The new Charter altered the process of appointing the Mayor and Aldermen. While
the Corporation would nominate two candidates for Mayor, the Governor and the
Council were granted the authority to select the Mayor from these choices. This
shift in selection made the Mayor and Aldermen more susceptible to influence by
the government, ultimately giving the government full control over the Corporation.
o With this change, the Mayor and Aldermen became the government’s nominees,
stripping them of their independence. The Mayor’s Court, once autonomous, lost
its authority, now requiring government approval for its judges and risking removal
if they disobeyed the government.
o The Charter introduced the “Court of Request,” designed to swiftly handle cases
valued up to 5 Pagodas. This Court aimed to assist impoverished Indian litigants
who couldn’t afford the costs of the regular court. Commissioners, appointed by the
government, rotated weekly in this Court, ensuring efficient and inexpensive
handling of minor cases.
o The Charter established a hierarchy of courts, including the Court of Request, the
Mayor’s Court, and the Jurisdiction Court of Governor and Council. Appeals from
the Mayor’s Court in criminal cases went to the Justice of the Peace and Court of
Quarter Sessions, whereas the Privy Council in England had the final authority for
civil cases.
o However, despite these reforms, the Charter compromised the Mayor’s Court’s
independence, a significant shift from the autonomy granted by the 1726 Charter.
The Company’s servants were appointed as judges, aligning their decisions with
executive interests.
o The Charter brought clarity by stipulating that the Mayor’s Court couldn’t
adjudicate cases involving both native parties unless both consented to its

21
 jurisdiction. It specifically empowered the Mayor’s Court to handle suits against
the Mayor, Aldermen, or the Company.
o The judiciary’s reliance on the Company and the Governor-in-Council for
appointments, control, and disciplinary actions against judges further undermined
the Court’s autonomy and impartiality. This dependence compromised the
judiciary’s independence and integrity.
o The House of Commons’ Committee of Secrecy in 1772 scrutinised the EIC’s
affairs and criticised the Calcutta judicial system. The Mayor’s Court, as per the
committee’s report, was accused of disregarding English law and acting according
to its own discretion. This criticism led to the establishment of the Supreme Court
of Judicature at Calcutta in 1774, beckoning a major change in the judicial
landscape of British India.
⎯ The East India Company secured victories in the Battle of Plassey (1757) against Siraj-ud-
Daula (Nawab of Bengal) and in the Battle of Buxar (1764) against a coalition force of Mir
Qasim (Nawab of Bengal), Shuja-ud-Daula (Nawab of Oudh), and Emperor Shah Alam.
These victories established the Company’s authority.
⎯ In 1765, Lord Robert Clive negotiated a treaty with the puppet Mughal Emperor Shah
Alam, securing the Diwani rights over Bengal, Bihar, and Orissa for an annual payment of
26 lakhs.
⎯ During the Mughal era, the Nawab was responsible for criminal justice and military upkeep,
while the Diwan managed civil justice and land revenue.
⎯ A strategic agreement between the Company and the Nawab transferred the responsibility
of maintaining the army to the Company for an exchange of Rs. 56 lakhs to the Nawab
annually. This period, marked by the treaty of 1765, was a pivotal juncture in Anglo-Indian
history.
⎯ The Company delegated its Diwani duties to local representatives under the oversight of
English officials.
⎯ Mohammed Reza Khan and Raja Shitab Roy were appointed as the Company’s Diwans in
Murshidabad and Patna, respectively, with two English supervisors each overseeing their
work.
⎯ However, the dual administration system proved ineffective as Indian officials lacked the
power to enforce their decisions, especially against the Company’s English servants.

22
⎯ The English Company servants exploited their authority, fostering corruption and bribery
throughout Bengal, Bihar, and Orissa.
⎯ After Clive’s departure in 1767, Verelst became Bengal’s Governor, attempting to improve
conditions by appointing English supervisors for revenue collection and justice
administration, yet these efforts were unsuccessful.
⎯ The appointed supervisors, lacking legal expertise and administrative acumen, abused their
powers and exacerbated exploitation.
⎯ A famine in 1771 led to widespread hunger and suffering, with the Company blaming
Indian officials for the crisis.
⎯ Warren Hastings assumed the role of Governor of Bengal in 1772. Upon appointment, he
initiated efforts to identify and eliminate the prevalent issues in Bengal, Bihar, and Orissa.
⎯ One of his significant reforms was the elimination of the dual government system, opting
instead to have the Company’s Diwani functions managed directly through its own
appointed servants while retaining criminal justice under the Nawab.
⎯ Hastings established a committee comprising the Governor and four council members. The
committee’s primary task was to investigate and identify the root causes of the prevailing
problems in the existing administration and revenue collection methods.
⎯ The committee devised an initial plan in 1772, known as Warren Hastings’ Plan of 1772,
aimed at addressing the identified issues and implementing reforms within the
administrative and revenue collection frameworks.
⎯ WARREN HASTINGS’ PLAN OF 1772:
o Under this plan, the territories of Bengal, Bihar, and Orissa were divided into
districts, with each assigned an English officer known as the Collector. These
districts served as units for revenue collection and administration, with separate
provisions for civil and criminal justice administration.
o In each district ‘Moffusil Diwani Adalat’ was established which was presided over
by the Collector. It had jurisdiction over civil cases like property disputes,
inheritance, debts, marriages, caste, partnerships and contracts. Religious affairs
were decided according to the Koran for Muslims and Shastras for Hindus. Appeals
for cases over Rs. 500 went to the ‘Sardar Diwani Adalat’.
o The ‘Sardar Diwani Adalat’ was located in Calcutta. It was presided over by the
Governor and the Council and was considered a superior jurisdiction court. A court
fee of 5% was required for appeal petitions.

23
o Apart from this, there was a Small Causes Court that heard petty cases up to Rs. 10.
Head farmers of the Parganas (a group of villages or a subdivision of a district)
could decide the civil cases.
o ‘Moffusil Faujdari Adalat’ was established in each district. This court handled all
criminal cases. It was presided over by a Kazi and a Mufti assisted by two Maulvies.
The Court was supervised by the Collector. They couldn’t pass capital sentences
without approval from the ‘Sardar Nizamat Adalat,’ the highest criminal court.
o Sardar Nizamat Adalat was based in Calcutta. It heard appeals from the Moffusil
Faujdari Adalat. Presided over by an Indian ‘Daroga-i-Adalat’ and assisted by
Chief Kazi and Chief Mufti who were assisted by three Maulvies. appointed by the
Nawab on the advice of the Governor. It required the Nawab’s signature for death
warrants as he was the head of the Nizamat Adalat.
o The Board of Revenue, consisting of the Governor and the Council was established.
Collectors were responsible for collecting land revenue under the supervision and
control of the Board.
o Merits of the Plan:
▪ Hastings prioritised the preservation of personal laws for Hindus and
Muslims, ensuring that matters were decided according to the Shastras and
Koran, respectively. Recognising the sentiments tied to these customs,
Hastings aimed to respect and protect these traditions without disregarding
local customs and correcting defects in the ancient judicial and revenue
system. He contributed to creating a digest of Hindu law for the guidance of
civil courts.
▪ Designating districts as the unit of administration proved cost-effective and
efficient.
▪ The delineation between civil and criminal administration was well-defined
under this plan thus avoiding confusion.
▪ To address the deficiency of English judges’ awareness of personal laws,
Hastings appointed native law officers to expound on these laws, rectifying
the issue.
▪ The replacement of the commission basis with a court fee, deposited with
the Government rather than judges, ensured a fair and impartial judiciary.
▪ Overall, this plan laid the groundwork for an impartial and fair justice
system, setting a foundation for a sound judicial system in India. Hastings’
24
 efforts were recognised as significant, earning him the moniker “Infant
Administrator”. Subsequent administrators, notably Lord Cornwallis, built
upon this sound judicial foundation.
o Demerits of the plan:
▪ Personal laws were only applied to specific matters like inheritance, caste,
and marriages, leaving gaps in their comprehensive application.
▪ The facility of applying personal laws was limited to Hindus and Muslims,
excluding other communities like Christians and Parsis.
▪ English judges lacked sufficient knowledge of the Koran and Shastras,
relying on native assistants for interpretation, which led to potential
misinterpretations and misguided decisions.
▪ Collectors were overloaded with responsibilities, managing revenue
collection, civil cases, and overseeing criminal courts simultaneously. This
overlap hindered proper attention to these varied affairs.
▪ The intertwining of revenue collection with judicial administration caused
conflicts of interest. Hastings faced criticism for not effectively separating
these functions, which led to clashes between revenue goals and impartial
judicial administration.
▪ Although acknowledged as a challenge by Hastings and his successor Sir
John Shore, the necessity of separating judicial administration from revenue
collection was recognised. However, implementing this separation was
deemed challenging yet necessary.
▪ Overall, these limitations highlighted the need for modification and a new
plan. Hence, a revised plan was devised in November 1773 and put into
effect in January 1774 under the guidance of Lord Cornwallis.
⎯ REFORMS UNDER THE PLAN OF 1774:
o Bengal, Bihar, and Orissa were divided into six divisions, each with its headquarters
at Calcutta, Burdwan, Dinajpur, Dacca, Murshidabad, and Patna, containing several
districts.
o Each division had a Provincial Council, comprising four or five English EIC
officials.
o In every district, an Indian officer titled Diwan or Amil was appointed by the
Governor General and his Council upon the Provincial Council’s recommendation.

25
o The Diwan acted as the judge of the ‘Moffusil Diwani Adalat’. Appeals from this
court were to be heard by the respective Provincial Council.
o The Provincial Council’s decisions were final for cases up to Rs. 1000. Appeals for
suits beyond this amount were directed to the ‘Sardar Diwani Adalat’ at Calcutta.
o The Provincial Councils were also empowered to hear cases of original jurisdiction.
o The Diwan collected revenue within the districts under the supervision of the
Provincial Council, while the Provincial Councils were responsible for revenue
collection in their respective divisions.
o The Provincial Councils were under the oversight of the Board of Revenue.
o The existing ‘Moffusil Faujdari Adalat’ and ‘Sardar Nizamat Adalat’ operating
under the supervision of the Collector and Governor-in-council ceased to exist.
o The Sardar Nizamat Adalat was relocated from Calcutta to Murshidabad, now
operating under the control of the appointed Nawab Mohammed Reza.
o This plan aimed to restructure both civil and criminal justice, establish a new
administrative hierarchy, and redefine the revenue collection system.
o Merits:
▪ The English Collectors were replaced with Indian Officers (Diwan). This
transition placed the judicial administration in the hands of Indian officers,
both in civil and criminal courts. It was a significant step towards
empowering locals and decentralisding judicial power.
▪ The establishment of Provincial Council lessened the load on the Sadar
Diwani Adalat. Earlier, the Sadar Diwani Adalat had to hear all appeals
valued over Rs.500. However, with this new plan, cases valued up to
Rs.1000 could be dealt with by the Provincial Council, relieving the higher
court of a considerable number of cases.
▪ The Provincial Council’s setup made justice more accessible and cost-
effective. Litigants from inferior districts could now appeal to the Provincial
Council without the necessity of going to Calcutta, reducing the hardship
and expenses involved in the appeal process.
▪ All cases decided by the Moffusil Diwani Adalats became appealable to the
Provincial Council, irrespective of their value. In contrast, the previous plan
(1772) only allowed appeals up to Rs.500, limiting appeal opportunities.
This expansion of appeal options ensured a fairer system.

26
 ▪ These aspects collectively improved accessibility, lowered the burden on
higher courts, and empowered local officers in the judicial system,
indicating a move towards a more inclusive and efficient judiciary.
o Demerits:
▪ The Provincial Councils were granted considerable authority but lacked
proper checks and balances. Their autonomy made them less accountable to
the Governor and the Council at Calcutta, potentially leading to arbitrary
decisions or misuse of power.
▪ The intended separation between the functions of civil justice and revenue
collection was not effectively maintained. Both the Diwans and the
Provincial Councils were responsible for collecting revenue and handling
civil justice, blurring the distinction between these domains.
⎯ RECOGNITION [reorganisation] IN 1780:
o The Provincial Council’s role was revised to focus solely on revenue collection and
the handling of revenue-related cases. Judicial functions were removed from their
purview.
o A new court, the Provincial Court of Diwani Adalat, was established to handle civil
cases. This court was overseen by an English officer designated as the
Superintendent of Diwan Adalat.
o The Superintendent of Diwan Adalat was appointed by the Governor-General-in-
Council and held the position for their lifetime. They could be dismissed from their
role on grounds of misconduct or misbehaviour.
o The Provincial Council of Diwani Adalat was authorised to adjudicate civil cases
involving matters such as property, inheritance, and contracts.
o The Provincial Court had the authority to refer small cases, specifically those
involving Rs.100 or less, to the local Zamindars or Public Officers residing near the
parties involved.
o In suits with values up to Rs.1000, the Provincial Court of Diwani Adalat had the
final say. Appeals from its decisions could be made to the Sardar Diwani Adalat,
which comprised the Governor-General and the Council.
o The limited number of six Provincial Courts across Bengal, Bihar, and Orissa fell
short of meeting the demand. This inadequacy led to accessibility issues and
potentially increased the backlog of cases.

27
o Judges serving in the Moffusil Diwani Adalats and the Provincial Court of Diwani
Adalat were often not well-versed in legal matters or adequately trained for their
judicial roles. This lack of expertise raised concerns about the quality and fairness
of judgments.
o Referring cases involving amounts of Rs.100 or less to the Zamindars or public
officers without remuneration led to potential exploitation. These individuals,
acting as judges, could demand fees from the parties involved, thus misusing their
power for personal gain.
o Empowering Provincial Councils responsible for revenue collection to also decide
revenue-related cases was criticised. This setup essentially allowed those collecting
revenue to make decisions about revenue cases, creating a conflict of interest.
o Despite attempts to separate the judiciary from the executive, the reorganisation fell
short in achieving a complete separation between these branches, leading to
ongoing issues regarding their autonomy and independence.

28
1.2 REGULATING ACT OF 1773: PROVISIONS OF THE ACT,
ESTABLISHMENT OF SUPREME COURT AT CALCUTTA UNDER THE
CHARTER OF 1774, WORKING OF SUPREME COURT AT CALCUTTA
CASES: TRIAL OF RAJA NANDKUMAR, TRIAL OF RADHA CHARAN,
PATNA TRIAL, KAMALLUDDIN’S CASE, COSSIJURAH CASE,
SAROOPCHAND’S CASE, GORA GOPICHAND’S CASE.

⎯ The EIC’s operations and the wealth accumulation of its servants in India became a matter
of concern in the UK. These individuals returned to the UK and lived extravagant lifestyles
and some even purchased seats in the House of Commons.
⎯ Shareholders of the Company began receiving substantial dividends from 1676. However,
as the Company made profits, its servants amassed wealth, resulting in financial losses for
the Company. To alleviate these losses, the Company sought a loan from the British
Government.
⎯ In response to this, the House of Commons formed ‘Select and Secret Committees’ to
investigate the Company’s affairs before granting the loan. These committees revealed the
mismanagement and misconduct within the Company. As a solution, the British Parliament
introduced the Regulating Act of 1773 to address these prevalent issues.
⎯ This Act aimed to reform the EIC by subjecting it to parliamentary oversight and control.
It marked the beginning of an era where parliamentary enactments governed the Company’s
affairs.
⎯ PROVISIONS OF THE REGULATING ACT OF 1773:
o The Act extended the term of EIC directors from 1 to 4 years.
o One-fourth of the directors were to be elected annually, rotating the voting power
of shareholders.
o Voting rights of shareholders were limited under this Act.
o Directors were mandated to submit Indian revenue-related correspondence to the
Treasury and civil/military affairs reports to the Secretary of State.
o It established a Governor-General and a Council of 4 in Calcutta with extensive
powers over Bihar, Bengal, and Orissa.
o Warren Hastings became the first Governor-General, alongside three members from
England.
o Their term was set at 5 years subjected to removal by King based on the
recommendations of the Court of Directors.
29
 o The Governor-General initially had one vote, later acquiring a casting vote in case
of a tie.
o For the first 6 years, policy implementation faced opposition from the Council,
making it challenging for Hastings to introduce new laws.
o By 1776, with one Council member’s demise, Hastings gained power due to the
casting vote. In 1786, the Governor-General obtained the right to override the
Council’s decisions with a vote, enabling effective policy implementation.
o Madras and Bombay presidencies were placed under Calcutta’s supervision in
matters of war and peace.
o Subordinate presidencies were to report revenue and significant matters to the
Governor-General, with emergency decision-making allowed only when necessary.
o Merits:
▪ It enhanced the regulation and governing of the EIC.
▪ It strengthened the British Government’s control over the Company, making
the decision-making more effective.
▪ Provisions were included to ensure fair and impartial administration in the
Company’s settlements in India.
o Demerits:
▪ The Act appointed a Governor General and four Council members,
including those with limited experience in Indian affairs. This led to
disagreements and conflicts among the Council members, particularly due
to the prejudice against Warren Hastings and the existing Company officials
in India. The factional differences often resulted in the outvoting of Warren
Hastings by a prejudiced majority, causing constant conflicts within the
Council.
▪ These conflicts and constant frictions negatively impacted the efficient
functioning of the Governor-General and the Council. The biased decisions
and internal disputes hindered effective governance and decision-making.
⎯ ESTABLISHMENT OF SUPREME COURT AT CALCUTTA UNDER THE CHARTER
OF 1774:
o King George III issued a Charter in 1774, creating the Supreme Court of Judicature
in 1774 in Fort William (Calcutta).

30
 o It comprised of a Chief Justice (First – Sir Elijah Impey) and three puisne judges,
all appointed by the Crown. The judges had to be barristers with at least five years
of standing and served at the pleasure of the Crown.
o The Charter of 1774 aimed to establish the Supreme Court as independent from the
Executive Council. This move aimed to prevent undue influence and maintain the
integrity of the judicial system.
o The Supreme Court had oversight over various subordinate courts and the Sheriffs.
It could issue writs indicating a broader jurisdiction and authority over these
subordinate entities.
o The establishment of the Supreme Court ensured a clear separation between the
judiciary and the executive, fostering an independent judicial system.
⎯ WORKING OF THE SUPREME COURT AT CALCUTTA:
o The Court could establish its procedural rules, subject to approval, modification, or
rejection by the King-in-Council.
o It exercised supervision and control over subordinate courts such as the Court of
Collector, Quarter Sessions, Court of Requests, and Sheriffs.
o Unlike the Mayor’s Court, which had English servants of the Company as judges,
the Supreme Court comprised professional lawyers appointed by His Majesty. This
enhanced the quality and expertise within the judicial system.
o Unlike England, which had separate courts for various matters, the Supreme Court
at Calcutta handled criminal, civil, admiralty, and ecclesiastical cases in India.
o It acted as a Court of Record and had equity jurisdiction to administer justice
according to principles of fairness and conscience.
o The Supreme Court held broad original jurisdiction in civil matters over the EIC,
the Mayor, and Aldermen of Calcutta; over His Majesty’s subjects and British
residents in Bengal, Bihar, and Orissa; over individuals directly or indirectly
employed by the EIC; over inhabitants of Bengal, Bihar, and Orissa if they
consented in writing, provided the dispute’s value exceeded Rs. 500.
o The Court also acted as a Court of Oyer, Terminer, and Gaol Delivery for Calcutta
and the Fort William factory, as well as subordinate factories.
o Its criminal jurisdiction did not extend uniformly across Bihar, Orissa, and Bengal.
It extended to His Majesty’s subjects and individuals in the Company’s service but
excluded cases against the Governor General and the Council except for crimes of
felon or treason. It also lacked jurisdiction over native inhabitants.
31
o It utilised Grand and Petty juries for the trial of criminal cases involving British
subjects.
o The Governor General, Councillors, and Supreme Court judges acted as Justices of
the Peace and held Quarter Sessions.
o Additionally, the Supreme Court could reprieve or suspend the execution of capital
sentences, forwarding cases with recommendations for mercy to the British Crown.
However, the final decision rested with the Crown.
o The Supreme Court served as the Court of Admiralty for Bengal, Bihar, and Orissa,
handling civil, maritime, and criminal cases related to vessels, ships, ferries, high
seas, and off-shores within these territories. This jurisdiction covered all British
subjects, including those directly or indirectly employed by the Company, residing
in Calcutta and the specified territories.
o The Court’s ecclesiastical jurisdiction extended to British subjects in Bengal, Bihar,
and Orissa, following the ecclesiastical law prevailing in the Diocese of London. Its
responsibilities included granting probates of wills and Letters of Administration
for intestate British subjects, appointing guardians for infants and persons with
mental incapacities, and following English regulations.
o The Court in its equity jurisdiction administered justice according to the rules and
proceedings of the Chancery Court of England. The Court could act based on
principles of equity and conscience, not bound by strict legal technicalities.
o The Supreme Court could issue writs to subordinate courts and officers (Court of
Collector, Court of Requests, Quarter Sessions, Sheriff, etc.). Issuance included
writs of certiorari, mandamus, error, or procedendo or Quo-warranto.
o In civil cases, appeals from the Supreme Court’s decisions could be made to the
King-in-Council. Final decisions in England were made if the dispute exceeded
1000 pagodas, with a 6-month window for appeal.
o In criminal cases, the Supreme Court had discretion to allow appeals to the King-
in-Council. The King-in-Council retained the right to refuse or admit an appeal as
a special case based on its discretion and conditions.
o The Governor General and the Council were empowered to make laws and rules,
but these only became effective after registration and publication in the Supreme
Court. Any person in India or England had the right to appeal against these rules
within stipulated timeframes.

32
 o The Supreme Court reviewed laws before enactment, which expedited the
introduction of new laws and rules without seeking permission from the England
head office of the Company.
o Notably, the Governor General, Council, Supreme Court judges, and officers were
barred from engaging in private trade or accepting gifts.
o The Supreme Court had a role in nominating individuals annually to the Governor
General and the Council for the position of Sheriff.
o The Sheriff’s primary responsibility was to execute the Court’s orders and detain
individuals committed by the Court. Additionally, the Court could enrol attorneys
and advocates.
o While having the authority to appoint subordinate officers, their salaries required
approval from the Governor General and the Council. The Court was also
empowered to regulate court fees with the Council’s approval.
o This setup of the Supreme Court in Calcutta established a significant judicial
authority with jurisdiction over various matters.
⎯ TRIAL OF RAJA NANDKUMAR (1775):
o Raja Nandkumar was a respected Hindu Brahmin and influential zamindar in
Bengal who was loyal to the Company since the days of Clive and hence was known
as “Black Colonel”.
o He was urged by Francis, Clavering, and Manson - the three opponents of Warren
Hastings in his Council, to accuse Hastings of bribery and corruption.
o In March 1775 Nandkumar gave a complaint letter to Francis alleging that Hastings
accepted bribes of more than Rs. 100000 for appointing his son Gurudas as Diwan.
o Nandkumar also alleged that Hastings took bribes of Rs. 2.5 lakhs for appointing
Munni Begum as the guardian of minor Nawab Mubarak-Ud-Daullah.
o The Council led by Hastings was dissolved due to disagreements over these
allegations.
o Clavering was appointed as the new President of the Council after the Council
decided that the charges Hastings were proven. The Council ordered him to deposit
a sum of Rs. 3,54,105 in the Company’s treasury.
o Nandkumar, along with Fawkes and Radhacharan, was later arrested on conspiracy
charges. During the trial, Fawkes was fined, but judgment on Nandkumar was
reserved as he faced additional charges of forgery alleged by Mohan Prasad
manipulated by Hastings.
33
 o The Supreme Court, led by Chief Justice Impey, sentenced Nandkumar to death
under the English Act of 1729 for forgery based on a bond related to a debt in 1770.
o Several attempts were made by the defence counsel to appeal to the King-in-
Council and seek mercy from the British Council between 16th June 1775 and 4th
July 1775 but these appeals were rejected by the Supreme Court.
o Nandkumar was executed on 5th August 1775 at 8 AM at Cooly Bazar of Fort
William, causing shock and outrage among Indians and foreigners in India.
o The judgment’s severity led to Impey and Hastings facing impeachment by the
House of Commons upon their return to England for the execution of Nanda Kumar
as it was deemed unjust under both Hindu and Muslim laws where forgery was not
a capital crime.
⎯ THE RADHA CHARAN MITRA’S CASE (1775):
o In 1775, following the relocation of the Sadar Fauzdari Adalat from Calcutta to
Murshidabad, the administration of criminal justice fell under the control of Nawab
Mubarak-ud-Daula, a sovereign Prince with complete autonomy from the Supreme
Court.
o Hastings filed a conspiracy complaint against several individuals, including Radha
Charan, the Vakil of the Nawab. The Council members highlighted to the Supreme
Court that as the Nawab’s representative, Radha Charan was entitled to rights,
privileges, and immunities as per the “laws of nations”.
o On 28th June 1775, the case was heard. Arguments and evidence were presented
asserting the Nawab’s sovereignty in administering justice, having a royal mint for
coinage, and maintaining troops. Despite these claims, the Court dismissed the plea,
accepting the arguments from Governor General Hastings and others that the
Nawab operated fully under the Company’s control and did not exert sovereign
authority.
o This case foreshadowed the more famous Raja Nandkumar case. Radha Charan
faced a death sentence for forgery. However, due to representations from Calcutta’s
inhabitants, he was pardoned. This instance highlights the adverse impact of
introducing English law in India, setting the stage for the sacrifice of Nandkumar
under the same process.

34
⎯ THE PATNA TRIAL (1777-1779):
o Shahbaz Beg Khan, a former Company soldier settled in Patna and intended to
adopt his nephew, Bahadur Beg, as his heir but died before formalising the adoption
in December 1777.
o Dispute arose between Nadirah Begum (Khan’s widow) and Bahadur Beg over the
estate, Nadirah claiming based on deeds (dower deed, gift deed, and
acknowledgement by Khan) by her late husband, while Bahadur Beg asserted his
status as the adopted son.
o Bahadur Beg initially took the case to the Provincial Court at Calcutta where
Mohammedan law officers (Kazi and Mufti) heard the case and divided the estate
between Nadirah and Bahadur Beg where Nadirah got ¼ (one-fourth) of the
property and Bahadur Beg got ¾ (three-fourth).
o Nadirah appealed to the Sadar Diwani Adalat (Governor General and Council) after
the delay in the case. She filed a suit in the Supreme Court against Bahadur Beg and
law officers for assault, for forcibly entering her house, and other personal injuries,
seeking damages worth Rs. 6 lakhs.
o The Supreme Court ruled in Nadirah’s favour, issuing arrest warrants against law
officers and Bahadur Beg and awarded damages of Rs. 3 lakhs to Nadirah, with
imposed costs of Rs. 9208.
o Due to their inability to pay damages, they were imprisoned in Calcutta until the
enactment of the Settlement Act of 1781, which ordered their release; the elderly
Kazi died in transit to Calcutta.
o The judicial process was managed by native law officers as English judges lacked
knowledge of local languages, laws, and customs.
o The Sadar Diwani Adalat couldn’t prioritise judicial matters due to their
engagement in other tasks and internal rivalries.
o The Supreme Court’s claim of jurisdiction over Bahadur Beg as a farmer of land
revenue caused distress among native farmers, leading to attempts to relinquish
their farms out of fear of control by the Court.
⎯ KAMALLUDDIN’S CASE (1775):
o Kamaluddin was holding a salt farm at Hijili on behalf of Kant Babu and was
arrested in 1775 by the Revenue Council for alleged arrears in revenue payment.

35
 o He sought relief from the Supreme Court through a writ of Habeas Corpus, which
granted him bail and directed that he not be imprisoned until Kant Babu was called
upon to clear the arrears.
o The Council objected to this decision, asserting their exclusive jurisdiction
confirmed by the Regulating Act, as the Company is the Diwan of Bengal.
o The Council ordered Kamaluddin’s imprisonment, but Governor General Warren
Hastings did not support their decision.
⎯ THE COSSIJURAH CASE (1779-1780):
o Conflict between the Supreme Court and the Council arose over the Court’s
jurisdiction regarding Raja Sundaranarayan, the zamindar of Cossijurah in the
Midnapore district of Orissa.
o The Raja owed a debt to Kasinath Babu and having failed to recover money from
Raja through the Board of Revenue, he filed a debt suit against the Raja in the
Supreme Court, arguing that as a revenue collector for the company, the Raja fell
under the Court’s jurisdiction.
o The Supreme Court issued a writ of Habeas for the Raja’s arrest, but he fled before
it could be executed.
o The collector of Midnapore informed the Governor General and the Council that
the absence of the Raja was disrupting revenue collection in the district. The
Supreme Council advised the zamindar to disregard the Supreme Court’s orders.
o The Supreme Court sent the Sheriff and 60 other men to execute the warrant, but
the zamindar resisted. He alleged that the officers had forcibly entered his home,
causing harm, and desecrated a place of worship. The Sheriff and his team were
detained for three days.
o The Supreme Court summoned the Councillors over charges related to the Sheriff’s
arrest and impeding the debt recovery, but the Attorney-General advised them
against appearing.
o In response, the Supreme Court imprisoned the Attorney-General, North Naylor,
leading to his death in prison.
o Eventually, Kasinath Babu withdrew his suit against the Raja and the Governor
General and the Council due to the escalating tensions and serious consequences
resulting from the case.

36
 o Conflict between the Supreme Court and the Council stemmed from vague terms
like “British Subjects”, “His Majesty’s Subjects”, and others, causing uncertainty
in jurisdiction.
⎯ SAROOPCHAND’S CASE:
o Saroopchand served as a surety responsible for paying the Company’s revenue from
Dacca. A dispute arose regarding a fixed balance of Rs. 10,000, which Saroopchand
contested.
o He claimed to have lent Rs. 10,000 to John Shakespeare, a Council member.
Although John acknowledged financial dealings with Saroopchand, he denied this
specific transaction.
o Saroopchand, in his role as treasurer of Dacca’s Provincial Division, was found
liable to the treasury for Rs. 66,745 due to default.
o Due to non-payment, the Provincial Council imprisoned Saroopchand until he
settled the dues. In response, Saroopchand filed a writ of Habeas Corpus with the
Supreme Court.
o The Supreme Court released Saroopchand, provided he furnished security to
address any potential lawsuits against him. During this action, the Court made two
key observations:
▪ Imprisoning a person without bail for revenue dues was seen as an arbitrary
abuse of power.
▪ Regarding Saroopchand’s liability as treasurer, the Council needed to pursue
appropriate civil proceedings, as it couldn’t act as a judge in its own case to
decide its demands.
⎯ GORA GOPICHAND’S CASE:
o Gora Chand filed a lawsuit against Mirza Jalleel for the recovery of a sum.
o Hosea, the Superintending member of the Murshidabad Council, not only dismissed
Gora Chand’s claim but also issued a decree favouring Mirza Jalleel based on a
counterclaim made by Mirza before Hosea.
o Additionally, Hosea seized Gora Chand’s properties without any lawsuit filed by a
Mirza.
o Gora Chand, in response, sued Hosea for the irregularities committed.
o The Company’s Advocate General viewed these irregularities as serious and
indefensible.

37
 o However, the Council held a different perspective, stating that it was the first
instance where an action had been taken against acts performed in a judicial
capacity, i.e. as the Diwani Adalat. Hence, they questioned the maintainability of
such an action.
o The Supreme Court declined interference in this matter unless there were clear
complaints of manifest corruption. The Court highlighted that the sole recourse
against such irregularities in the Diwani Adalat was an appeal to the Sadar Adalat.
o Despite the decision favouring the Company’s Court, the case highlighted
significant irregularities within their proceedings.
⎯ The historical overview spanning seven years, from 1774 to 1780, revealed numerous
issues arising from the Regulating Act of 1773 and the Charter of 1774, resulting in
conflicts and problems.
⎯ Ambiguity existed regarding the application of Hindu, Muslim, Christian, or English law,
while the judges were only familiar with English law.
⎯ The Supreme Court also asserted jurisdiction over revenue collectors, as seen in the
Kamaluddin case.
⎯ Events such as the Cossijurah case demonstrated a clear escalation of conflicts between the
judiciary and the executive branches.
⎯ The legal proceedings in the Supreme Court were expensive, involving costs for litigants
engaging English Barristers and travelling long distances.
⎯ The Court’s application of British criminal law, with harsh penalties for minor offences,
generated resentment among Indians, notably in cases like Raja Nandkumar’s.
⎯ Technical procedures in civil cases, like issuing writs of habeas, often resulted in high bail
amounts, causing oppression to defendants unable to pay and remaining in prison
⎯ Confusion prevailed regarding the relation and jurisdiction of the Supreme Court and the
Company’s Adalats.
⎯ Petitions were submitted to the King in England by the Governor General, Council, and
Bengal’s inhabitants, expressing concerns.
⎯ The Executive resisted the Supreme Court’s interference in revenue collection, while
officers disliked its intervention in cases against oppressive actions.
⎯ Consequently, a reform in the administrative structure by the British Parliament became
necessary, leading to the appointment of a Select Committee chaired by Burke to
investigate Bengal’s justice administration.

38
⎯ Based on the Select Committee’s report, the British Parliament intervened again, passing
the Act of Settlement in 1781 to address the uncertainties concerned with the writ
jurisdiction of the Supreme Court and the defects of the Regulating Act of 1773.

39
1.3 SETTLEMENT ACT OF 1781

⎯ Needs and Objectives:

o Aimed at supporting the lawful government of Bengal, Bihar, and Orissa while
safeguarding the inhabitants’ ancient laws, usages, rights, and privileges.
o It was enacted to address the deficiencies of the Regulating Act.
o The primary flaw of the Regulating Act of 1773, was its vagueness, leading to
conflicts between the Supreme Court and Supreme Council as both interpreted
provisions in their favour.
o The Regulating Act failed to precisely define the jurisdiction of the Supreme Court,
its relation with the Supreme Council, and the company’s court, allowing different
interpretations benefiting each party.
o The intense conflict between the Supreme Court and Supreme Council led to a
petition against the Supreme Court’s actions in Bengal, submitted to the British
Parliament by the Supreme Council.
o Besides the Supreme Council’s petition, a petition signed by Zamindars, the
Company’s servants, and other British inhabitants in Bengal was sent to the British
Parliament against the Supreme Court.
o The British Parliament appointed a Parliamentary Committee to investigate and
compile a report on the conflict.
o In 1781, based on the Committee’s report on the Supreme Council-Supreme Court
conflict, the British Parliament passed the Act of Settlement, 1781.
o The Act of Settlement, 1781, aimed to resolve disputes regarding the jurisdiction of
the Supreme Court and its relationship with the Supreme Council and company’s
court.
o The Act’s preamble explicitly states its purpose to amend the Regulating Act, 1773,
and provide relief to individuals imprisoned in Calcutta under the judgment of the
Supreme Court in the Patna case. Additionally, it aimed to indemnify the Governor-
General-in-Council of Bengal and other officers acting under their orders or
authority.
⎯ Provisions of the Act:
o The Act stipulated that the Supreme Court had no jurisdiction in revenue-related
matters or actions undertaken as per local customs or the Governor-General

40
 regulations. The Act explicitly barred the Supreme Court from interfering in
revenue collection activities.
o No person solely based on their status as a landowner, holder, farmer of land
revenue, or zamindar collecting revenue for the company, could fall under the
jurisdiction of the Supreme Court.
o The Act shielded the Governor-General and the Council from the Supreme Court’s
jurisdiction for acts performed in their public capacity as part of their official duties.
o No immunity for Governor-General, Council Members, or individuals acting under
their orders before English Courts.
o The Act confined the Supreme Court’s jurisdiction primarily to matters within the
town of Calcutta. It outlined that inheritance, successions, contracts, and dealings
between parties would be determined according to Muslim or Hindu laws.
o Cases involving parties of different religions to be decided based on the laws and
usages of the defendant.
o The Supreme Court was granted jurisdiction in cases of trespass and civil cases
upon parties’ written agreement.
o Release of defendants arrested in the Patna case, with the Governor-General and
Council providing security for damages and allowing an appeal to the King-in-
Council against the Supreme Court’s judgment.
o The Act acknowledged the Company’s Provincial Courts, granting appellate
jurisdiction to the Sardar Diwani Adalat to hear appeals from decisions made in
civil cases by Mofussil courts.
o Judgments by the Sardar Diwani Adalat were deemed final and conclusive, except
in civil suits valued at £5000, allowing an appeal to the King-in-council.
o This provision elevated the status of the Sardar Diwani Adalat to match that of the
Supreme Court, empowering it to handle offenses, abuses, and extortions in revenue
collection and impose suitable punishments.
o The Act authorised the Governor-General-in-Council to create rules and regulations
for Provincial Courts and Councils. Copies of these regulations had to be submitted
within 6 months to the Court of Directors and the Secretary of State. The King-in-
Council held the authority to disallow or amend any regulation within 2 years.
o Indemnification provided for disobedience of Supreme Court orders between 1770
and 1780.

41
 o The Act recognised the family heads’ right to administer certain punishments within
the family.
⎯ Major defects of the Act:
o The Act showcased the British Parliament’s political preference for supporting the
Governor General and the Council over the Supreme Court. It was a strategic
decision aimed at acquiring territory and establishing the British Empire in India.
o The Parliament’s refusal to allow the Supreme Court to introduce English principles
of judicial independence and the Rule of Law was criticised as a legislative
hindrance, delaying justice and incurring high expenses.
o While the Act resolved several defects from the Regulating Act, it failed to provide
clarity on the relationship between Indian territories and the British Crown. There
was no policy statement or provisions addressing territorial acquisition by the
English Company in India which was intentionally left ambiguous by the British
Parliament.
o The Act referred to “British Subjects” without defining this term. It remained
unclear whether Indian natives fell under this categorisation, leaving an impression
that Hindu and Muslim inhabitants might have been excluded from the definition
of British Subjects.
o The Act did not specify whether Provincial Courts had concurrent or exclusive
jurisdiction with the Supreme Court.
o The distinction between Presidency Town and Mofussils persisted due to historical
factors hauling from the Mughal Empire and the Company’s factories, leading to a
prolonged existence of unresolved issues. The Act’s resolution of problems was
considered crude and unsatisfactory due to this ambiguity.

42
1.4 JUDICIAL REFORMS OF LORD CORNWALLIS – JUDICIAL PLAN
OF 1787, JUDICIAL PLAN OF 1790, JUDICIAL PLAN OF 1793,
PROGRESS OF ADALAT SYSTEM UNDER SIR JOHN SHORE

⎯ Lord Cornwallis (1787-93) succeeded Warren Hastings in 1786, and his tenure is
considered a pivotal and highly innovative period in Indian legal history.
⎯ He arrived with directives from the Court of Directors, aimed at achieving Parliament’s
objectives, including the welfare of the native population.
⎯ Lord Cornwallis implemented significant reforms across revenue, military, civil, and
criminal judicial systems during his time in office.
⎯ He is credited with introducing the concept of administration according to law for the first
time in India. His commitment to justice led him to recognise and revamp the Adalat system
established by his predecessor, earning him widespread acclaim for his efforts.
⎯ JUDICIAL PLAN OF 1787:
o Dissatisfied with the existing justice system, Cornwallis reformed the civil and
criminal justice systems through a trial and error method.
o Cornwallis introduced reforms in three phases, namely, 1787, 1790, and 1793,
aiming to bring simplicity and purity into the judicial system, as instructed by the
Directors.
o Districts reduced from 36 to 23, each managed by an English collector responsible
for revenue collection, acting as a judge in Mofussil Diwan Adalat for civil cases,
and wielding magisterial powers. Revenue functions were conducted in the revenue
court known as the Mal Adalat.
o Appeals from the collector’s revenue court went first to the Board of Revenue at
Calcutta, and the final appeal was made to the Governor-in-Council on the
executive side.
o Collectors followed local customs and usages, especially in matters concerning
zamindari successions. Appeals from Mofussil Diwani Adalat were directed to
Sadar Diwan Adalat for cases of more than Rs. 1000.
o Sadar Diwani Adalat consisted of the Governor General and the Council members,
assisted by native law officers. Further appeals were allowed to the King-in-Council
in England for cases valued at £5000 or more.

43
 o The collector served as the district’s magistrate, arresting criminals and sending
them to Mofussil Diwani Adalat for trial.
o The collector handled breaches of peace (affray) and imposed punishments of up to
15 strokes or 15 days of imprisonment. Serious cases were transferred to Mofussil
Diwani Adalat.
o Each district civil court had an Indian Registrar handling petty cases up to Rs. 200.
Decrees passed by the Registrar required the collector’s countersignature.
o Cornwallis unified judicial office and administration under one Englishman, the
Collector, as part of this judicial reforms.
o Defects:
▪ The collector, given multiple roles in revenue collection, judiciary, and
magistracy, was deemed over-empowered. This concentration of authority
led to imbalances or misuse of power.
▪ Collectors seemed more inclined towards revenue collection than the
administration of justice. This imbalance potentially undermined the
fairness and efficiency of the justice system.
▪ The primary focus on revenue collection often overshadowed the
importance of dispensing justice fairly. The justice system appeared to serve
the needs of revenue collection, compromising its impartiality and
effectiveness.
⎯ JUDICIAL PLAN OF 1790:
o Cornwallis aimed to reform criminal administration due to the rise in crimes against
life and property among the native population.
o Identified two primary causes: deficiencies in Mohammedan criminal law and
shortcomings in trial court constitutions, hindering effective handling of criminals.
o Cornwallis eliminated the Nawab’s jurisdiction over criminal judicature. The Sadar
Nizamat Adalat was now presided over by the Governor General and the Council
members.
o Governor General and the Council members were assisted by the Chief Kazi of the
province and two Muftis, maintaining a detailed court record. Parties and their
lawyers were not allowed to plead directly; decisions on appeal were made based
on trial magistrate reports, written pleadings, and defence.
o Mofussil Faujdari Adalats were abolished and the Diwani area was divided into
four divisions: Calcutta, Murshidabad, Dacca, and Patna, each with a criminal court
44
 known as the Court of Circuit presided over by two English covenanted servants of
the Company.
o Reforms in Mohammedan Criminal Law:
▪ Cornwallis’ government introduced reforms showing humane
considerations in criminal justice.
▪ It emphasised considering the parties’ intentions rather than the manner of
the instrument used in determining punishment for murder.
▪ The punishment of mutilation was abolished and replaced with
imprisonment and hard labour for 14 years for the loss of two limbs and 7
years for one limb.
▪ Modified the law of evidence to remove religious barriers to witness
testimony, abolishing the rule that prevented a Hindu from being a witness
against a Muslim.
▪ Victims’ relatives were prohibited from granting pardons to offenders to
prevent trial dismissal.
▪ The Sadar Nizamat Adalat was given the authority to impose the death
penalty instead of granting blood money to heirs as per Muslim law.
▪ Abolished the practice of attaching property for those undergoing trial for
criminal offences.
⎯ JUDICIAL PLAN OF 1793:
o A set of regulations known as “the Code” were prepared by Cornwallis that dealt
with commercial, civil and criminal justice along with land revenue and police.
o Mal Adalat (revenue court) was abolished, transferring suits to Mofussil Diwani
Adalat, granting judicial powers to the Diwani Adalat, and maintaining revenue
under the collector’s authority.
o 28 judges in district civil courts were appointed and four Provincial Courts of
Appeal (Courts of Circuit) each presided over by three Company covenanted
servants in Patna, Dacca, Calcutta, and Murshidabad were established.
o Courts of Circuit were empowered to hear appeals from district Diwani Adalats.
Their decision was final for cases less than of Rs. 1000, while cases above Rs. 1000
were allowed a second appeal to Sadar Diwani Adalat and further appeal to the
King-in-Council for amounts over £5000.

45
 o Sardar Amins and Commissioners (Munsifs) were appointed in districts to handle
cases up to Rs. 50. The Munsifs were selected from landholders or agents working
as honorary officials on some commission from litigation sum.
o Native law officers were appointed to assist courts in Hindu and Mohammedan law
interpretation for cases like marriage, inheritance, caste, religion, wages, and
institutions.
o The Court had jurisdiction over executive machinery. Provision for injured parties
to approach the court against corruption or excesses by executive officers were
made.
o Court fees for litigants were abolished.
o The magisterial powers were transferred from the collector to judges of the Diwani
Adalat, empowering them with jurisdiction in both civil and criminal matters.
o Establishment of regulations for joining the legal profession, ensuring minimal
education and honesty requirements. Sanad certificates were granted upon
qualification.
o Implementation of a uniform structure for regulations, requiring divisions into
sections, sub-sections, and clauses, each numbered sequentially. This structured
format facilitated ready reference and increased certainty and uniformity in law.
o Recognition of zamindars as landowners responsible for paying 9/10th of revenue
through collectors, with talukdars directly paying through sub-collectors. Efforts
were made to protect cultivators and ryots from revenue officer’s oppression and
corruption.
⎯ Merits:
o Preserved the distinction between judicial and revenue functions.
o Maintained a degree of separation between executive and judicial roles.
o Enhanced the structure and organisation of courts.
o Established Provincial Courts of appeal for initial appeals.
o Initiated the organisation of the legal profession in India.
o Abolished court fees, facilitating access to justice.
⎯ Demerits:
o Expected to add an extra expenditure of Rs. 4 lakhs to the Company.
o English judges’ appointment led to a lack of understanding of local customs and
traditions, hindering justice.

46
 o The pursuit of perfection led to a complex and cumbersome system.
⎯ PROGRESS OF ADALAT SYSTEM UNDER SIR JOHN SHORE:
o The Charter of 1793:
▪ The Charter of 1793 followed the initial grant of a 20-year trade monopoly
to the East India Company, which ended in 1793.
▪ Seeking renewal, the Court of Directors petitioned Parliament, resulting in
the Charter Act of 1793.
▪ The Charter renewed the Company’s East trade monopoly for 20 years but
allowed private individuals limited trade up to 3,000 tons of shipping.
▪ It mandated payment of the Board of Control and staff from Indian revenues.
▪ Limited the Governor-General and Governors’ councils to three members
with 12 years of residence in India.
▪ It also removed the Commander-in-Chief as a council member unless
appointed by the Directors.
▪ It empowered veto rights for safeguarding British interests in India.
▪ Granted extensive powers to the Governor-General-in-Council for
overseeing the presidencies.
▪ It restricted high officials from leaving India while in office.
▪ It authorised the appointment of Justices of the peace by the Governor-
General and Council.
▪ Extended the Calcutta Supreme Court’s Admiralty jurisdiction to the high
seas.
▪ It upheld non-intervention in India, discouraging conquest and expansion
contrary to national policy.
▪ It declared receiving gifts by Company servants as a misdemeanour.
▪ Ranked civil servants based on seniority and limited posts above £500 a year
to Company’s covenanted servants.
▪ Regulated liquor sale through licensing and empowered the Governor-
General to levy a sanitary tax in presidency towns.
▪ The Act consolidated previous provisions and expanded their application,
focusing on finer details.
o Sir John Shore succeeded Lord Cornwallis in 1793 as Governor-General of India.
o In 1794, the authority of the Court of Registrar was amplified. Registrar held thrice-
weekly sessions for cases up to Rs. 200, with decisions final for sums up to Rs. 25.
47
o The judge of Diwani Adalat could intervene if the Registrar’s decision was deemed
wrong for cases below Rs. 25.
o Appeals for cases exceeding Rs. 25 went directly to Provincial Courts of Appeal.
o To strengthen control, Registrars tracked case details and pending matters in the
Mofussil Diwani Adalat.
o Partial judicial powers were granted to collectors Diwani Adalat could delegate
revenue cases for rent-related accounts to Collectors.
o Cases involving the Collector, their officers, or the Government weren’t referred to
Collectors. Collectors gained minor judicial tasks, expediting revenue case
decisions and aiding the Diwani judge’s workload.
o In 1795, Sir John reformed the appeal system. Appeals from the Courts of Registrar
were redirected to Mofussil Diwani Adalat instead of the Provincial Court of
Appeal.
o Single appeal was permitted from Munsiff Court to Mofussil Diwani Adalat,
abolishing appeals to Provincial Courts.
o Decisions of the Provincial Court of Appeal were final for personal property up to
Rs. 5000.
o Registrar’s register and court fees were introduced. The registrar was mandated to
maintain a case register, reinforcing control over lower Courts.
o Court fees were introduced to deter litigation, applicable to pending and future
cases. The imposition of court fees, though reducing lower court suits, faced
criticism for depriving some of justice due to fee inability. The revised fee schedule
in 1797 faced further critique for favouring wealthier litigants.
o Pending cases were dismissed if litigants failed to pay court fees.
o Sir John Shore introduced Adalat system in Banaras, divided into four districts.
o Each district had a Mofussil Diwani Adalat; Banaras hosted a Provincial Court of
Appeal. Adalat system aligned with Bengal’s judicial framework, extending the
jurisdiction of Sardar Adalats to Banaras.
o Special provision safeguarded Brahmins from death penalty, sentencing them to
transportation instead.
o Registrars gained authority to act as Judges in absence of Diwani Adalat judges.
o Various punishments were set for evading Magistrates’ process and adherence to
specific laws in certain cases.

48
o Further adjustments were made in 1797, increasing court fees and defining appellate
jurisdiction based on suit values.
o British Parliament’s Act of 1797 banned the practice of Europeans lending money
to native princes at high rates.
o It also reduced the number of Supreme Court Judges in Calcutta and empowered
local legislation in Bengal.
o It required all regulations affecting natives to be registered systematically, binding
the Provincial Courts to these regulations.

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MODULE II: CONFLICT ARISING OUT OF THE DUAL JUDICIAL
SYSTEM & JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
2.1 CONFLICT ARISING OUT OF THE DUAL JUDICIAL SYSTEM
⎯ Before the introduction Indian High Courts Act of 1861, India had two court systems: the
Crown’s Courts and the Company’s Courts which caused confusion.
⎯ The Supreme Courts in Calcutta, Madras, and Bombay were British Crown courts, while
the Adalats in Mofussil areas belonged to the East India Company, leading to differing
organisations, jurisdictions, and powers.
⎯ The Supreme Courts had professional Barristers as Judges, while the Company’s Adalats
had mostly inexperienced laypersons as Judges.
⎯ Supreme Court Judges served at the Crown’s preference, whereas Adalat Judges served at
the Company’s pleasure.
⎯ The Crown’s courts lacked a hierarchy, unlike the Company’s courts, which had a clear
civil and criminal court structure. The Supreme Courts had both original and appellate
jurisdiction, while the Company’s courts mainly had appellate jurisdiction.
⎯ Initially, the Supreme Courts applied English Law, whereas the Company’s courts used
native laws for cases on inheritance, succession, contracts, etc. Later, the Supreme Court
was also bound by regulations from the Governor-General-in-Council after the Charter Act
of 1833.
⎯ The Supreme Court primarily followed English law of evidence, while the Company’s
courts used customary law from Hedaya and Anglo-Mohammedan law for criminal cases.
⎯ This uncertainty led Sir Charles E. Grey, the Chief Justice of the Supreme Court at Calcutta,
to advocate the fusion of these courts.
⎯ The unification occurred across three distinct phases:
o Under the Charter Act of 1833, a central legislative council in India made laws
binding on all courts, diminishing the Supreme Court’s exclusivity. It established a
Law commission to create a uniform legal and policing system for the country.
o The Law commission emphasised the necessity of codified procedural law before
fusion. Sir Charles Worel introduced the fusion bill in 1853, leading to the
enactment of a civil procedure in 1859 and a Penal Code in 1860.
o The Crown’s Act (GOI Act) of 1858 dissolved the East India Company, transferring
India’s governance to the British Crown. The Indian High Courts Act of 1861

50
 merged the Supreme Court and Sadar Adalats into the High Court of Judicature at
Calcutta, Madras, and Bombay.

2.1.1. INDIAN HIGH COURT ACT1861, HIGH COURT UNDER GOI ACT
1915, HIGH COURT UNDER GOI ACT 1935.
⎯ INDIAN HIGH COURT ACT 1861
o The Indian High Courts Act of August 1861 passed by the Brtish Parliament
established High Courts in the Presidency towns by abolishing existing courts.
o The abolished the existing Supreme Court and the Courts of Sardar Diwani Adalat
and Sardar Nizamat Adalat.
o Each High Court was a Court of Record, comprising of a Chief Justice and up to 15
puisne judges, with specific qualifications:
▪ At least 1/3 of judges required to be barristers with 5 years’ standing.
▪ Another 1/3 needed to be civil service members with 10 years’ standing,
including 3 years as a Zila Judge.
▪ Remaining judges could be either experienced pleaders or judges with
specific tenure in judicial roles.
o Judges from the abolished Supreme Court and Sardar Adalat automatically
transitioned to the new High Court.
o The Chief Justice of the Supreme Court became the Chief Justice of the High Court
of Calcutta.
o High Courts had appellate jurisdiction, allowing them to:
▪ Request returns
▪ Establish rules and forms for court practice and proceedings
▪ Prescribe forms for record-keeping and accounts
▪ Determine fee tables for court officers, subject to law and Governor’s
approval.
▪ No High Court had original jurisdiction concerning revenue without prior
Governor-General or Governor sanction.
▪ Proceedings were conducted in English, and expenses were covered by
provincial revenues.
▪ His Majesty, through Letters Patent, could establish, reconstitute,
amalgamate, or extend a High Court’s jurisdiction beyond its province.

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o Civil Jurisdiction of High Courts:
▪ Ordinary, Original Civil Jurisdiction confined to the Presidency towns. Ex.
handling suits concerning causes of action within Calcutta’s limits or
involving defendants residing or working there.
▪ Extraordinary, Original Civil Jurisdiction permitted the transfer of suits to
the High Court based on expediency, parties’ agreement, or justice.
▪ Appellate Civil Jurisdiction heard appeals from inferior Civil Courts, akin
to the previous Sardar Diwani Adalat.
▪ Managed matters concerning infants, idiots, and lunatics.
▪ It functioned as an insolvency court for insolvent debtors.
o Criminal Jurisdiction of High Courts:
▪ Ordinary, Original Criminal Jurisdiction covered the Presidency town and
European/British subjects.
▪ Extraordinary, Original Criminal Jurisdiction tried offences committed by
individuals residing within its superintendence’s jurisdiction.
▪ Appellate Jurisdiction acted as an appellate and revisional court for lower
criminal courts, applying the Indian Penal Code.
▪ Admiralty and Vice Admiralty Jurisdiction mirrored the abolished Supreme
Court’s authority in civil, criminal, and maritime matters.
▪ Matrimonial Jurisdiction over Christians involved creating rules and orders
aligning with the Code of Civil Procedure of 1859 for civil cases and
following the Code of Criminal Procedure of 1861, for criminal cases.
▪ High Courts managed the enrolment of Advocates and vakils, holding the
power for disciplinary actions against them.
▪ Appeals to the Privy Council were permissible in civil cases with a
pecuniary value above Rs. 10,000 or if certified by the High Court.
▪ Testamentary and Interstate Jurisdiction allowed the High Court to grant
probates of wills and Letters of Administration for deceased individuals who
died intestate, inheriting this authority from the Supreme Court.
o Impact:
▪ Abolition of the distinction between law and equity that aimed to fuse both
aspects.
▪ Uniformity in procedural law was attained through the adoption of a
singular Code of Civil Procedure.
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 ▪ High Courts applied the same law as the Supreme Court on the original side,
employing English law, while on civil appellate matters, they followed the
laws applied by the Mofussil Adalats. Uniformity prevailed in Criminal
Administrative Substantive law, applying the IPC 1860.
⎯ HIGH COURT UNDER GOI ACT 1915
o Under this act, the number of High Courts in British India were increased from 3 to
6, established in Lahore, Allahabad, and Rangoon.
o It reinstated provisions from the Indian High Courts Act of 1861 and 1911,
establishing the High Court of Judicature at Lahore through Letters Patent dated
20th March 1919.
o A High Court was established in Agra in 1866 and later shifted to Allahabad in
1869.
o High Courts were established in Patna (February 1916), and Nagpur (1916).
o Notably, the Act restricted High Courts’ original jurisdiction over matters related to
revenue or acts linked to it, a change from the 1861 Act, raising questions about this
shift in jurisdiction.
o Speculation arose suggesting that removing revenue matters from the original
jurisdiction could empower the British to enforce harsher revenue collection tactics
without scrutiny.
o Appellate jurisdiction was granted to these courts on revenue matters, but the reason
behind restricting their original jurisdiction remains a mystery.
o The Act also revived provisions from the Regulating Act of 1773 and the Act of
Settlement 1781, exempting high-ranking officials from the courts’ jurisdiction,
which indicates a deliberate attempt to evade liability and create a distinction
between the British and Indians.
o Notably, Chief Justices and judges were also exempted from High Court liability,
except in cases of felony or treason.
o The Act’s application of customs and laws depended on the parties’ customs,
suggesting a regression towards retrospective laws, potentially hindering progress
during a time when future development was crucial.
o The Act increased High Court judges from 15 to 20 and empowered the
appointment of additional judges by the Governor-General-in-Council for two
years.

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 o All High Courts retained record status and superintendence power over lower
courts, framing rules for their functioning.
⎯ HIGH COURT UNDER GOI ACT 1935
o This Act replaced earlier enactments and established High Courts as Courts of
Record, each with a Chief Justice and a designated number of judges appointed by
the Governor-General-in-Council.
o Formerly restricted to English barristers or Scottish advocates, the Act allowed
Indian judges with at least three years’ service in a High Court to become Chief
Justices, opening opportunities for Indian bar members.
o Salaries and pensions for judges required the King’s approval and couldn’t be
reduced without it.
o High Courts maintained their jurisdiction, lacking original authority in revenue
matters but gaining the power to transfer cases from subordinate courts either
voluntarily or upon parties’ requests.
o Pre-Constitution, all High Courts could issue habeas corpus writs across their
original and appellate jurisdictions, with Calcutta, Madras, and Bombay High
Courts possessing wider writ issuance powers than other Presidency High Courts,
limited to their civil jurisdiction’s territorial bounds.
o Under this Act, the Federal Court was established with a Chief Justice and up to six
puisne judges appointed by the British Crown.
o Judges could serve until sixty-five of age and could be removed on grounds of
misconduct or physical or mental incapacity upon Privy Council recommendation.
o Eligibility for judgeship in Federal Court required experience in a High Court in
British India or a federal state for at least 5 years, or as a barrister in England or
Northern Ireland for 10 years, or as a member of the Scottish faculty of advocates
for 10 years, or as a pleader in a High Court for 10 years.
o The Chief Justice needed at least 15 years’ standing as a barrister, advocate, or
pleader and had to be practicing in the Federal Court’s jurisdiction at appointment,
which covered original, appellate, and advisory roles.
o Original Jurisdiction of Federal Court :
▪ The Federal Court had exclusive jurisdiction in disputes between the
federation or federated states if they involved legal rights’ existence or
extent.

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 ▪ This jurisdiction didn’t cover disputes where a state was involved unless it
concerned the interpretation of the Government of India Act, 1935.
▪ Agreements explicitly excluding this jurisdiction led the Federal court to
issue declaratory judgments.
o Appellate Jurisdiction of Federal Court:
▪ It heard appeals from High Court in British India if the case involved
substantial legal questions related to Act interpretation.
▪ The federal legislature, with the Governor-General’s sanction, could allow
civil case appeals worth Rs.50,000 or more without the High Court’s
certification.
▪ Appeals from High Courts in federated states were permitted if they
involved wrongly decided legal questions regarding Act interpretation.
o Advisory Jurisdiction of Federal Court:
▪ The Governor-General could seek the Federal Court’s opinion on legal
matters, which the court would publicly pronounce.
▪ Appeals from the Federal Court to the Privy Council were allowed without
leave if the judgment involved Act interpretation, legislative or executive
authority, or agreements between the federation and federating states.
Otherwise, appeals required leave from the federal court or King-in-
Council.

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2.2. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
⎯ Privy Council originated post-Norman conquest in 1066 C.E. establishing a central
government. Curia Regis (King’s Court) was formed to advise the King in legal matters.
⎯ In the 15th century, Curia Regis separated executive from judicial functions.
⎯ The executive branch attended the King, while the Judicial Committee operated at
Westminster as part of the Privy Council.
⎯ Privy Council extended as highest appellate body for British colonies overseas.
⎯ Privy Council served as final court of appeal for colonies but advised the King. Decisions
were advisory reports guiding His Majesty.
⎯ Judicial Committee’s reports were always accepted by the King-in-Council.
⎯ Challenge lay in diverse laws across colonies, from Mohammedan to Hindu to English
jurisprudence.
⎯ Under the Parliamentary Act of 1833, Judicial Committee became a Court of Appeal
including experienced overseas jurisprudence members.

2.2.1. APPEALS TO PRIVY COUNCIL BETWEEN1726-1860, APPEALS

TO PRIVY COUNCIL BETWEEN 1861-1949.
⎯ APPEALS TO PRIVY COUNCIL BETWEEN 1726-1860
o From Mayor’s Court:
▪ The Charter of 1726 established Mayor’s Courts in each Presidency town
under British Crown that heard civil suits within the town and Company’s
subordinate factories.
▪ Appeals of cases up to 1000 pagodas to the Governor and the Council.
▪ Cases over 1000 pagodas appealed to King-in-Council within 14 days of
judgment.
o From Supreme Court of Calcutta:
▪ Regulating Act of 1773 & Judicial Charter of 1774 introduced Supreme
Courts, abolishing Calcutta’s Mayor’s Court.
▪ Appeal to Privy Council for disputes worth 1000 pagodas or more.
▪ Civil case appeals made via petition within 6 months of judgment.
▪ Supreme Court had power over allowing appeals in criminal cases.

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o From Recorder’s Court under the Act of 1797:
▪ Mayor’s Courts in Madras and Bombay replaced by Recorder’s Court in
1797.
▪ Privy Council appeals in cases up to 1000 pagodas.
▪ Recorder’s Courts succeeded by Supreme Courts.
o From Company’s Court and Sadar Adalats:
▪ Sadar Diwani Adalat heard appeals from Company’s lower courts in Bengal.
▪ Act of Settlement (1781) allowed appeals if subject matter exceeded £5000.
▪ Regulation XVI (1797) limited appeals to disputes above £5000 within 6
months of judgment.
o From Sadar Adalats in Bombay and Madras:
▪ Sadar Diwani Adalats established in Madras (1802) and Bombay.
▪ Appeals criteria varied:
• Madras: Rs. 45,000 and above for civil suits.
• Bombay: Initially limited to £5000 but later removed in 1818.
▪ In Calcutta, relinquished authority for Madras Adalat appeals to King-in-
Council without monetary restriction.
▪ Bombay Code of 1818 withdrew monetary value restrictions for appeals.
▪ Elphinstone Code (1827) allowed appeals without any limit.
o The Judicial Committee Act of 1833 aimed to regulate appeals to the Privy Council,
allowing appeals from Indian courts within 6 months of a judgment exceeding Rs
10,000.
o Both the Crown’s Court and Company’s Court were treated equally concerning
valuation for appeals to the Privy Council.
o The Privy Council held the authority to admit appeals from these courts based on
conditions set by the Crown.
o The Judicial Committee expedited pending appeals by directing the Company to
bring cases from the Sadar Diwan Adalat before the Privy Council.
o The Company was mandated to appoint solicitors or agents to act as councils for
various parties with pending appeals.
o Additionally, the Company was authorised to recover costs incurred in bringing
appeals through agents in the Privy Council.

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 o The Judicature Act of 1845, enacted by the British Parliament, shifted appeal
management away from the Company due to substantial expenses incurred,
amounting to 1,51,537 pounds, with minimal recovery from parties.
o Consequently, the Act of 1845 transferred the responsibility of managing appeals
from the Company to the concerned parties themselves.
⎯ APPEALS TO PRIVY COUNCIL BETWEEN 1861-1949
o From High Courts:
▪ Following the Indian High Courts Act of 1861, the Supreme Courts and
Sadar Adalats in Calcutta, Bombay, and Madras were replaced by High
Courts.
▪ An appeal to the Privy Council was permitted in non-criminal cases if the
subject matter’s value exceeded Rs 10,000 or if the High Court deemed the
case suitable for such an appeal.
▪ In criminal cases, an appeal to the Privy Council was possible from any High
Court judgment made under its original jurisdiction or if the High Court
considered the case appropriate for Privy Council appeal.
o From Federal Court:
▪ The Government of India Act 1935 established the Federal Court in India.
▪ Appeals from the Federal Court to the Privy Council were allowed without
leave in cases involving the Federal Court’s original jurisdiction, while in
other cases, appeal required leave from either the Federal Court or the Privy
Council.
▪ Notably, despite the establishment of the Federal Court, the traditional
system of appealing from the High Court to the Privy Council remained in
place.
o From 1947-49:
▪ Restrictions on appeals from the Federal Court to the Privy Council began
in 1948 through the Federal Court (Enlargement of Jurisdiction) Act,
initially limiting appeals in civil matters without affecting criminal cases.
▪ The Abolition of Privy Council Jurisdiction Act of 1949 was passed by the
Indian Constituent Assembly before the new Constitution’s implementation
This Act ceased the Privy Council’s jurisdiction for appeals from India.
▪ Despite the cessation of Privy Council jurisdiction, certain clauses in the Act
protected ongoing cases and judgments already in process or reserved by the
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 Privy Council before the specified date. Pending appeals, except those
expected to conclude before the new Constitution, were to transfer to the
Federal Court.
▪ The final Indian case adjudicated by the Privy Council was N.S
Krishnaswamy Ayyangar v. Perumal Goverdan from Madras, marking the
end of the Privy Council on 15th December 1949.
▪ The Supreme Court, as the highest court in India, inherited the jurisdictions
previously held by both the Privy Council and the Federal Courts.
o Role of Privy Council in Indian Judicial System:
▪ Comprising judges with extensive legal expertise, the Privy Council
delivered high-quality decisions that significantly influenced Indian law and
the administration of justice, infusing English legal concepts into Indian
jurisprudence.
▪ Serving as a conduit between Indian and English legal systems, the Privy
Council facilitated the transfer of legal ideas from England to India. This
contributed to the acceptance of the Common Law of England as the
foundation for law codification in India.
▪ During a period when various courts in India interpreted the law differently
without cohesion, the Privy Council acted as a unifying force. It played a
pivotal role in consolidating laws, establishing legal principles, and shaping
the legal landscape by providing a cohesive approach.

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MODULE III: COURT SYSTEM UNDER THE CONSTITUTION OF
INDIA & RULE OF LAW, INDEPENDENCE OF JUDICIARY &
SEPARATION OF POWERS:
3.1 COURT SYSTEM UNDER THE CONSTITUTION OF INDIA:
SUPREME COURT, HIGH COURT, SUBORDINATE COURTS &WRIT
JURISDICTION
⎯ COURT SYSTEM UNDER THE CONSTITUTION OF INDIA
o India’s judiciary functions as a unified system with a hierarchical structure, where
the Supreme Court tops the pyramid, followed by High Courts, District, and
Subordinate Courts.
o Hierarchy of Courts:
▪ Supreme Court: It’s the top court in India, handling original suits and
appeals from High Court judgments. Its authority is outlined in Articles 124-
147 of the Constitution.
▪ High Courts: These courts operate at the State level. They handle civil or
criminal matters that aren’t under the jurisdiction of lower courts.
▪ District Courts: Set up by State Governments, these courts operate at the
district level under High Court authority (including Civil and Criminal
Courts). They’re presided over by District Judges, with additional
appointments based on caseloads, and appeals from their judgments lie with
the High Court.
▪ Lok Adalats/Village Courts: Subordinate courts at the village level
facilitating alternate dispute resolution.
▪ Tribunals: Specialised bodies set up by the government for specific matters
like tax, land, or consumer cases.
o The legal system branches into criminal law, addressing crimes reported by local
police and resolved by courts, and civil law, handling disputes related to
fundamental rights.
o Civil Courts:
▪ Address civil wrongs like property disputes, breaches of contract, and
divorce cases.
▪ They exercise four types of jurisdictions: Subject Matter, Territorial,
Pecuniary, and Appellate, the latter granting higher courts authority to
review lower court decisions.

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 ▪ Governed by the Code of Civil Procedure (CPC) 1908 for procedural
guidelines.
▪ Hierarchy in Districts:
• District Court: The highest civil court, administered by District
Judges who handle both civil and criminal cases as District and
Sessions Judges respectively.
• Sub-judge Court: Deals with suits exceeding Rs. 1 lakh in value.
• Additional Sub-judge Court: Established based on caseload.
• Munsif Court: Handles suits valued at Rs. 1 lakh or less, and serves
as the court of lowest jurisdiction.
o Criminal Courts:
▪ Guided by the Code of Criminal Procedure (CrPC) delineating their powers.
▪ Any offence under the Indian Penal Code can be tried by:
• High Courts
• Courts of Session
• Other specified courts in the First Schedule of the Code of Criminal
Procedure (CrPC).
o The judiciary’s roles encompass administering justice by applying law, determining
facts, and penalising law violators.
o Judges form “case law” in situations where appropriate laws aren’t readily
applicable, relying on precedent decisions guided by “stare decisis”.
o The Supreme Court acts as the Constitution’s guardian, resolving conflicts between
central and state authorities, ensuring laws align with the Constitution through
judicial review.
o Additionally, higher courts supervise lower courts, offer advisory opinions on
constitutional matters, and perform administrative tasks like estate administration,
license granting, and appointing guardians.
o Within India’s federal structure, the judiciary settles disputes between the central
government and states, as well as inter-state conflicts.
o Judicial commissions, often headed by judges, investigate errors or omissions by
public servants.

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⎯ SUPREME COURT
o The Supreme Court of India, established under Part V, Chapter IV of the
Constitution, serves as a federal court, guardian of the Constitution, and the apex
appellate court in the country, located in New Delhi.
o Initially, the Supreme Court consisted of a Chief Justice and 7 puisne Judges,
subject to parliamentary discretion for increasing the count.
o Due to a rise in workload and pending cases, the number of Judges expanded
progressively: 8 in 1950, 11 in 1956, 14 in 1960, 18 in 1978, and 26 in 1986 (max
34).
o Presently, the Supreme Court comprises the Chief Justice and 30 other Judges
appointed by the President, retiring upon reaching the age of 65.
o Eligibility for a Supreme Court Judge includes Indian citizenship, at least five years
of High Court Judgeship or ten years as an advocate in one or multiple High Courts,
or being recognised as a distinguished jurist by the President.
o The Constitution safeguards the independence of Supreme Court Judges, allowing
removal only by the President’s order following specific criteria established by
Parliament.
o Jurisdiction:
▪ Original Jurisdiction: The Supreme Court adjudicates disputes between the
central government and states or among different states, ensuring federal
harmony.
▪ Appellate Jurisdiction: It hears appeals from High Courts in civil, criminal,
and constitutional matters, ensuring uniform interpretation and application
of laws.
▪ Advisory Jurisdiction: It provides opinions to the President on legal matters
referred to it, guiding on constitutional issues and complexities.
o The Supreme Court functions through a system of benches, comprising a minimum
of two judges.
o The proceedings in the Supreme Court are exclusively conducted in English,
governed by the Supreme Court Rules of 1966, framed under Article 145 of the
Constitution to regulate its practices.
o Its decisions and judgments set precedents that serve as legal references for lower
courts, ensuring consistency and uniformity in the interpretation and application of
laws.
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 o The court also possesses the power of judicial review, ensuring the constitutionality
of laws and governmental actions, safeguarding fundamental rights invoking
Article 32 (right to constitutional remedies), and the Constitution’s spirit.
o The collegium system guides the appointment of judges in the Supreme Court,
involving consultations among senior judges and the executive, ensuring
transparency and merit-based selections.
o The Chief Justice of India heads the Supreme Court, overseeing its administration,
allocating cases to benches, and representing the judiciary in various constitutional
and legal matters.
o The court has the authority to interpret the Constitution, ensuring its supremacy and
the protection of citizens’ rights and liberties.
o It operates independently of the executive and legislative branches, upholding the
principles of separation of powers and checks and balances.
⎯ HIGH COURT
o Article 141 of the Indian Constitution mandates that the 29 High Courts at the State
level are obligated to adhere to judgments and orders issued by the Supreme Court,
creating precedence.
o These High Courts possess jurisdiction over a state, union territory, or a cluster of
states and union territories, overseeing a hierarchy of subordinate courts including
civil, family, criminal, and district courts.
o Instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian
Constitution, High Courts serve as principal civil courts alongside subordinate
District Courts within the state.
o While High Courts primarily handle appeals from lower courts and writ petitions
under Article 226, they exert original civil and criminal jurisdiction if the
subordinate courts lack the authority based on pecuniary or territorial limitations.
o Specific matters, like Company law cases, are exclusively instituted in High Courts,
while their jurisdictional scope varies based on precise territorial designations.
o Judges for High Courts are appointed by the President following consultations with
the Chief Justice of India, Chief Justice of the respective High Court, and the state
governor, with the number of judges determined based on case statistics over the
preceding years.

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 o The Calcutta High Court, established on 2 July 1862, holds the distinction of being
the country’s oldest, while the Allahabad High Court boasts the largest sanctioned
judge strength at 160.
o High Courts managing a substantial caseload in a particular region often establish
permanent benches or branches, whereas “circuit benches” serve remote areas,
operating when judges visit on designated days of the month to facilitate litigation
for these regions.
⎯ SUBORDINATE COURTS
o District Courts in India, established by State governments per district or grouped
districts, administer justice at a local level, functioning under the administrative
oversight of the relevant High Court.
o These courts, presided over by a District Judge appointed by the state government,
may include Additional and Assistant District Judges based on workload, holding
equivalent jurisdiction to the District Judge.
o A district judge in a designated metropolitan area operates as the “Metropolitan
session judge,” while the District Court holds appellate jurisdiction over
subordinate courts for both civil and criminal matters.
o The civil hierarchy of subordinate courts includes Junior Civil Judge Court,
Principal Junior Civil Judge Court, and Senior Civil Judge Court (also known as the
sub-court),
o The criminal hierarchy comprises Second Class Judicial Magistrate Court, First
Class Judicial Magistrate Court, and Chief Judicial Magistrate Court.
o Exclusive Family Courts address matrimonial disputes, with the Principal judge of
the family court holding equivalent authority to a district judge.
o Village courts, termed Lok Adalat or Nyaya Panchayat, constitute an alternative
dispute resolution system developed through various legislative acts and
recommendations from the Law Commission.
o Originating from the Madras Village Court Act of 1888, these village courts
expanded across provinces and Indian states post-1935 and 1947, following
different models such as the Gujarat State model (featuring a judge and two
assessors) from the 1970s onwards.
o The Law Commission proposed the establishment of Nyaya Panchayats in rural
areas in 1984, aiming for 5,000 mobile courts under the 2008 Gram Nyayalayas Act
to handle petty civil and criminal cases. However, enforcement faced challenges,
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 resulting in only 151 functional Gram Nyayalayas due to financial constraints and
reluctance among legal and government authorities.
⎯ WRIT JURISDICTION
o The Indian Constitution under Articles 12-35, grants citizens fundamental rights
and ensures their protection.
o Article 32 empowers the Supreme Court to issue writs safeguarding these rights
when violated, paralleled by High Courts under Article 226.
o Writs, once known as prerogative writs, now function as directives by higher courts
for specific actions or inactions.
o Any individual may file a writ petition if their fundamental rights are infringed upon
by the state.
o Writ jurisdictions primarily prioritise upholding natural justice and protecting
fundamental rights.
o Article 32(1) and (2) of the Indian Constitution affirm the right to move the Supreme
Court for the enforcement of these rights and enumerate the types of writs it can
issue.
o The Supreme Court’s authority to issue writs is a non-amendable aspect, a
fundamental element of India’s constitutional framework (L. Chandra Kumar v.
Union of India,1997).
o Designated as the “guarantor” and “defender” of citizens’ fundamental rights, the
Supreme Court exercises authority through five types of writs.
o Article 226 empowers High Courts to issue writs for rights enforcement and broader
purposes, surpassing the Supreme Court’s authority in certain scenarios.
o High Courts exhibit discretion in granting writs, unlike the Supreme Court, offering
additional powers for upholding fundamental rights.
o Writs serve to protect the basic rights of both citizens and aliens, with the Supreme
Court holding original jurisdiction.
o While the Supreme Court has direct access for those aggrieved, High Courts also
possess authority to issue writs in line with fundamental rights.
o Types of writs recognised by the Constitution:
▪ Habeas Corpus: A writ demanding the presentation of a person in custody,
allowing them to prove their innocence within 24 hours; if found innocent,
release follows, otherwise, imprisonment persists.

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 ▪ Mandamus: A command writ issued by higher courts to oversee public
servants’ duties, prompting action or cessation of specific conduct.
▪ Prohibition: A writ preventing lower courts from overstepping their
jurisdiction, exclusively applicable to judicial and quasi-judicial bodies.
▪ Quo-Warranto: Seeks authority verification for public office holders, not
aimed at ministerial offices, enabling redress by others affected.
▪ Certiorari: Empowers higher courts to review and transfer matters from
lower courts or tribunals for careful consideration or appeal.
o The Supreme Court holds broad original jurisdiction, empowered to issue these
writs to uphold fundamental rights
o High Courts possess the authority to transfer civil or criminal cases between State
High Courts or from a subordinate court to another State High Court.
o The Supreme Court can consolidate cases from multiple High Courts if they involve
similar legal questions, resolving them for efficiency.
o High Courts share similar powers to expedite cases before lower courts.

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3.2 RULE OF LAW, INDEPENDENCE OF JUDICIARY & SEPARATION
OF POWERS: BEFORE INDEPENDENCE AND AFTER
INDEPENDENCE
⎯ RULE OF LAW
o The Rule of Law refers to decisions guided by known principles and rules, ensuring
predictability for citizens and clarity in their positions.
o It rejects arbitrariness, advocating for intelligence devoid of passion and reasoning
independent of desire.
o Origins and Development:
▪ British belief in the Divine Theory of State vested the king with authority
from God, asserting the king’s immunity from wrongdoing and supremacy
over the law.
▪ Parliamentary democracy in Britain established equality before the law for
all individuals, a cornerstone of the Rule of Law.
▪ Sir Edward Coke, during King James I’s reign, contested the Divine Theory,
advocating that even the King should be subject to the Rule of Law. A.V.
Dicey further developed this doctrine in his 1885 book, “Introduction to the
Law of Constitution.”
o Dicey’s Principles and Interpretations:
▪ Dicey proposed three principles: absolute supremacy of Law, equality
before the law, and the predominance of legal spirit.
▪ His Rule of Law encapsulates: equality before the law, rejecting arbitrary
powers of the government, and emphasising that constitutional law springs
from legal spirit rather than just written constitutions.
o Core Tenets and Merits:
▪ The Rule of Law, per Dicey, involves no special rights for individuals,
equality in trial and law, prevention of arbitrary executive power, and
protection of individual liberties.
▪ Its merits include averting tyranny, curbing governmental arbitrariness,
safeguarding individuals, reflecting the Magna Carta’s protections,
grounding in national customs, empowering the judiciary to check the
executive, and prioritizing public welfare.

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 o Modern Concept of Rule of Law:
▪ The Rule of Law evolves and isn’t rigid. Explored by the International
Commission of Jurists in 1959, it aims to protect individual political and
civil rights in free societies.
▪ It seeks to enable conditions for individuals to achieve their aspirations
without restricting religious beliefs or freedoms, preventing discrimination
against minority groups, and guarding against executive power abuse.
o Rule of Law in India:
▪ Historically, ancient and medieval India lacked the doctrine of the Rule of
Law, seeing the king as above the law.
▪ Under British rule, the East India Company prioritised trade and expansion,
neglecting the Rule of Law. Dismissals of judges opposed to executive
wishes reflect this.
▪ The establishment of Mayor’s Courts and later the Supreme Court of
Calcutta showcased conflicts between judicial independence and executive
control.
▪ Post-independence, India’s constitution embraced the Rule of Law, ensuring
equality before the law (Article 14), exceptions notwithstanding.
▪ Constitutional provisions safeguard against arbitrary convictions (Article
20(1)), protect life and liberty (Article 21), and regulate discussions about
judges’ conduct in Parliament (Article 14).
▪ The Rule of Law is deemed an intrinsic part of India’s constitutional
framework, beyond alteration by any state organ.
⎯ INDEPENDENCE OF JUDICIARY & SEPARATION OF POWERS
o The doctrine of separation of powers, originating from Aristotle, developed by
Locke, and popularised by Montesquieu, establishes three distinct branches of
government: the legislature, executive, and judiciary.
o Each branch holds specific functions; the legislature creates laws, the executive
executes them, and the judiciary enforces and interprets these laws. Crucially, this
doctrine emphasises the non-interference of these branches to safeguard individual
liberties.
o This doctrine serves as a protector of individual liberty, acting as a defence against
despotism.

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o Its assertion that the concentration of power inevitably leads to dictatorship remains
universally relevant across different times and ages.
o It underlines the imperative nature of judicial independence in securing rights and
freedoms.
o Furthermore, it is seen as essential for efficient administrative functioning, ensuring
that each branch acts as a check on the others.
o Recognising the distinct qualities necessary for the performance of diverse
functions by each branch, it underscores the significance of liberty and adherence
to established laws while cautioning against executive interference in law and
justice processes to ensure societal liberty.
o The judiciary, an integral part of the government alongside the legislature and
executive, applies existing laws with fairness and reasonableness, serving as a
guardian of citizens’ rights against encroachments by government or private
entities.
o The freedom and independence of the judiciary are crucial. It must stand
independent of the legislature and executive, enjoying privileges and protections
from political and economic influences.
o Its autonomy ensures impartial administration of justice and the protection of
individual freedoms and rights.
o Empowered to check despotic tendencies of the executive, it requires conditions
ensuring judges perform their duties impartially, without external influence.
o Crucially, non-interference by the legislature or executive is vital to maintain
fairness and independence within the judiciary.
o BEFORE INDEPENDENCE
▪ During the British period, Separation of Powers wasn’t emphasised; justice
administration was executive-centric, with the Governor-General wielding
extensive executive, legislative, and judicial powers.
▪ The primary controlling authority rested with the British Parliament and the
King, although Britain’s vast global holdings limited Parliament’s focus on
Indian affairs.
▪ The King issued Charters, while Parliament passed only pivotal Acts,
leaving the Governor-General to enact necessary Acts, rules, and
regulations. Essentially, pre-independent India lacked a clear separation of
powers.
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 ▪ Under East India Company rule, the judiciary was subservient to the
executives, displaying a lack of emphasis on judicial independence, fair
justice, and the rule of law.
▪ The executive held authority over judge appointments and removals, with
Governors-in-Council and collectors exercising both judicial and executive
powers. Furthermore, judges were not necessarily legal professionals but
often laymen.
▪ The Company’s interests primarily lay in trade and territorial expansion,
resulting in a rough judicial administration until 1726.
▪ Efforts were made under the Charter of 1726 to instil judicial independence,
particularly in the Mayor’s Courts where judges were not appointed by the
Governor. However, conflicts persisted between the Mayor’s Courts and the
Governor General.
▪ In 1774, the British Crown established the Supreme Court at Calcutta,
appointing the Chief Justice and judges independently, sparking conflict
with the Governor General.
▪ The Indian High Courts Act of 1861 empowered High Court judges with
superintendence over lower courts, with subsequent Government of India
Acts making alterations to High Courts’ constitution and jurisdiction.
▪ The Government of India Act of 1935, facilitated the establishment of a
federal court, marking the judiciary’s step-by-step path towards
independence and reaching a certain level of autonomy in British India.
o AFTER INDEPENDENCE
▪ The Indian constitution doesn’t explicitly state the separation of powers,
though theoretically, different branches execute distinct government
activities.
▪ Parliament legislates, the Executive implements, and the Judiciary interprets
laws, but in practice, a strict adherence to the Separation of Powers is
lacking.
▪ The Indian constitution doesn’t strictly separate powers but fuses them. It
embodies a parliamentary form of government where Parliament serves as
the Union legislature.
▪ The Union executive includes the President and the Council of Ministers, a
subset of Parliament. The President, partially elected by Parliament
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 members, holds authority to issue ordinances, influence legislation, and
remove cabinets via a no-confidence vote.
▪ The judiciary maintains a certain degree of independence, with Parliament
investigating specific allegations against Supreme Court judges for potential
removal, no such action has occurred yet.
▪ Parliament also has the power to approve increases in judges’ salaries and
allowances, and the Union Judiciary assumes certain legislative and
executive functions.
▪ In case Parliament enacts laws conflicting with the Constitution’s core
provisions, the judiciary can declare such laws unconstitutional and invalid.
▪ Although the Constitution doesn’t rigidly adhere to the Doctrine of
Separation of Powers, it effectively differentiates the functions of the three
branches.
▪ The framers aimed to secure judicial independence from the legislature and
executive, employing safeguards to shield the judiciary.
▪ The Constitution employs several measures ensuring judicial independence.
Firstly, judges pledge to defend the Constitution before taking office.
Secondly, their appointments involve consultation with senior judicial
figures and require specific qualifications, attempting to depoliticise the
process.
▪ Furthermore, judges serve based on good conduct, face impeachment for
misconduct, and enjoy fixed salaries and allowances during their tenure,
except during financial emergencies. Retirement at 65 bars them from legal
practice.
▪ India’s judicial hierarchy, comprising the Supreme Court, High Courts,
District Courts, and other minor courts in each state, along with People’s
courts like Lok Adalats, contributes significantly to maintaining judicial
independence. Cases unresolved in these Adalats proceed to regular courts.

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MODULE IV: HISTORY OF LEGISLATURE & HISTORY OF LEGAL
PROFESSION
4.1 HISTORY OF LEGISLATURE
4.1.1 CHARTER OF 1600
⎯ Queen Elizabeth’s Royal Charter of 1600 established the East India Company’s constitution
and defined its powers and privileges.
⎯ The Company operated as a regulated entity, distinct from a joint-stock enterprise.
⎯ All Company members formed the General Court, responsible for annually electing the
Court of Directors.
⎯ The Court of Directors, comprising a Governor and 24 Committee Directors, managed the
Company’s operations.
⎯ These Committees, later becoming Directors, assembled as the Court of Directors to
oversee the Company’s affairs.
⎯ The General Court had the power to establish laws for the Company’s governance and trade
advancement.
⎯ It could enforce these laws through fines or imprisonment for violations.
⎯ Laws and punishments had to align with English laws and customs, ensuring
reasonableness.
⎯ This granted the Company minor legislative power, aimed at self-regulation and
maintaining discipline among its servants.
⎯ However, it didn’t grant governance over specific territories or the authority for severe
punishments like capital sentences.
⎯ Despite its limited scope, granting legislative powers to the Company in 1600 holds
historical significance.
⎯ IIbert in “Government of India” highlighted, the Charter of 1600 as the foundation for the
development of Anglo-Indian Codes.
⎯ Subsequent Charters granting legislative authority:
o Initially, lacking sufficient legislative power, the EIC sought separate royal
commissions for each voyage from Queen Elizabeth in 1601, enabling captains to
enforce laws at sea.
o King James I in 1615 allowed the Company to issue commissions to Captains, with
a jury trial for capital offences.

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 o By 1623, James I extended the Company’s powers to punish offences on land via
commissions issued to its officers in settlements, with capital punishment subject
to jury trials for specific felonies.
o Charles II’s 1661 Charter reconstituted the Company establishing it permanently on
a joint-stock basis, granting voting power based on subscribed shares.
o It granted legislative power for governing territory and settlements, appointing
Governors and Councils for each.
o Charters in 1668, 1676, and 1683 expanded the Company’s authority, transforming
it into a political entity.
o Charter of 1726 issued by George I, shifted legislative power to Governor-in-
Council of residency towns thus enabling the making of by-laws, subject to
approval by the Company’s Directors in England.
o In 1757, after the Battle of Plassey, the Company restructured Bengal affairs.
o Corruption and financial decline led to the Crown assuming greater control under
the Regulating Act of 1773, following the Company’s loan request.
o The Regulating Act empowered the EIC to establish rules and ordinances for
governance in Fort William and its subordinate factories.
o The King-in-Council retained the authority to disapprove or reject regulations
within 2 years of passage and mandatory submission of regulation copies to the
Secretary of State in England was required.
o The Pitt’s India Act of 1784, separated the EIC’s affairs into commercial and
political segments. Commercial affairs under Court of Directors; Political under
Board of Control where Board of Control’s oversight extended to civil, military
governance, and revenues in British Indian territories.
o The Charter Act of 1793 reduced Council members for Governors, altered role of
Commander-in-Chief. Governors gained power to veto for British possessions’
safety and restrictions were put on high officials’ travels outside India.
o Governor-General gained authority to appoint civil servants as Justices of the Peace,
scavengers, and levy sanitary taxes in presidency towns.

4.1.2 CHARTER OF 1813 & 1833

⎯ CHARTER OF 1813
o The Charter Act of 1813 was passed on 21st July 1813.

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 o The Act confirmed British Crown’s sovereignty over the Company’s territorial
gains in India while permitting the Company’s possession.
o The Charter extended the Company’s tenure by 20 years and opened Indian trade to
all British except for the tea, opium, and trade with China, which remained under
the Company’s monopoly.
o It granted jurisdiction to Justices of the Peace for cases involving trespass or assault
by British subjects on Indian natives, and for small debts owed by British subjects
to natives.
o British subjects beyond ten miles from presidency towns fell under the jurisdiction
of Diwani Adalats for civil cases, with a provision for appeal to the Supreme Court.
o The Act outlined specific criminal jurisdiction for British residents over ten miles
from presidency towns, requiring registration with District Courts, and stipulated
penalties for theft, forgery, perjury, and coinage offences.
o It expanded the powers of the Board of Control for supervision and management.
o The Act provided for the training of civil and military servants of the company.
o An Act in 1807 granted Bombay and Madras Governors and Councils the authority
to create regulations independently of the Governor-General-in-Council at Calcutta.
o Each presidency was authorised to create distinct legislation for their territories.
o The 1813 Charter extended legislative powers to all three presidencies, allowing
them to impose taxes within their respective towns.
o To maintain strict control, the 1813 Charter required annual presentation of all
regulations by presidency governments to the British Parliament.
o The Act permitted missionaries to come to India and engage in religious
proselytisation. It also led to the appointment of a Bishop for British India with his
headquarters in Calcutta.
o The act provided financial support for the revival of Indian literature and the
promotion of science.
o Additionally, the Company was tasked with playing a greater role in the education
of the Indians under their governance. For this purpose, Rs. 1 Lakh was allocated.
⎯ CHARTER OF 1833
o The Act closed down the East India Company’s commercial activities and
transformed it into an administrative body for British Indian possessions.
o The act put an end to the Company’s monopoly over trade with China, including
the tea trade and all other trade links were also terminated.
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 o The Governor General of Bengal became the Governor General of British India,
consolidating financial and administrative powers. Lord William Bentinck became
the inaugural “First Governor General of British India.”
o The legislative powers of the Governors of Bombay and Madras were abolished,
giving the Governor-General legislative authority over all of British India.
o The Governor General’s Council was limited to four members, with restrictions on
the fourth member’s role except for legislative matters; first filled by Lord
Macaulay.
o The Act proposed splitting the Bengal Presidency into Fort William and Agra,
which was later suspended.
o The Charter delineated the Governor-General-in-Council’s extensive powers but
allowed the Court of Directors to veto its laws.
o The Act aimed to codify Indian laws, retaining Parliament’s supremacy to legislate
and repeal acts.
o An Indian Law Commission, led by Lord Macaulay, was established to inquire into
jurisdiction, laws, and judicial procedures, with the report to be presented in the
British Parliament.
o The Act ensured equal opportunity for Indians in government roles regardless of
religion or background.
o Directed measures to mitigate slavery and focus on marriage laws and family
authorities were made.
o Stipulated regulations for Christian institutions in India were introduced and the
number of Bishops was increased to 3 due to the growing British population.
o Limitations on European immigration and property purchase in India were
abolished, effectively legalising British colonization of the country.

4.1.3 INDIAN COUNCIL ACT OF 1861, 1892 & 1909

⎯ INDIAN COUNCIL ACT OF 1861
o The Regulating Act of 1773 established centralisation, granting the Governor-
General and the Council both civil and military authority over Calcutta presidency,
Bengal, Bihar, and Orissa’s governance.
o Bombay and Madras presidencies were placed under the Governor-General’s
control for matters of war and peace, except in urgent situations or as directed by
the Court of Directors.

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o They were empowered to create rules and ordinances for Fort William and its
factories, in adherence to English laws, registered with the Supreme Court.
o The Charter of 1833 intensified centralisation, leading to complexities. The Indian
Councils Act, 1861 initiated decentralisation to address these challenges.
o The Charter Act of 1833 allowed laws by Governor-General-in-council for all in
British India but couldn’t address local needs or conditions.
o The 1857 revolution prompted British acknowledgment of Indian cooperation’s
importance, allowing Indian association in legislation.
o Introduction of Provincial Governance
▪ Governors had executive power, setting rules for Council operations and
meeting schedules.
▪ Restoration of legislative powers to Bombay and Madras Governors,
confined to legislative works without executive interference.
▪ Restrictions on local councils’ law-making included needing assent from
local governor and Governor-General.
o Introduction of Central Governance:
▪ Governor-General’s council expanded, including an additional law expert.
▪ Criteria set for ordinary members included civil service affiliation and legal
expertise.
▪ Introduction of the portfolio system by Lord Canning for Council business.
▪ Reorganised legislative council included nominated non-official members,
engaging Indians in legislation.
▪ Governor-General authorised to issue ordinances in emergencies, subject to
Crown disapproval within 7 months.
o By involving Indians in the legislative process, it created the first representative
institutions. Viceroy nominated some Indians to be non-official members of his
expanded council. Raja of Benaras, the Maharaja of Patiala, and Sir Dinkar Rao
were nominated by Lord Canning.
o The Act restored law-making powers to Bombay and Madras, allowing tailored
laws for Bengal, North West Province, and Punjab, addressing local needs.
o Local participation in legislative functions reduced Indian distrust, with many non-
official legislative council members being Indians.

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⎯ INDIAN COUNCIL ACT OF 1892
o The Act was introduced by Richard Assheton Cross, 1st Viscount Cross in the
Parliament of the United Kingdom and got Royal Assent on 20th June 1892.
o The Act increased the number of additional or non-official members in the
legislative councils as follows:
▪ Central Legislative Council: 10 – 16 members
▪ Bengal: 20 members
▪ Madras: 20 members
▪ Bombay: 8 members
▪ Oudh: 15 members
▪ North Western Province: 15
o In 1892, out of 24 members, only 5 were Indians.
o To elect members of the councils, an indirect election system was implemented with
elected members needing government nomination to participate.
o The legislative council members were given the right to ask questions on the budget
(which was barred in the Indian Councils Act 1861) but lacked voting rights or the
ability to divide the House on financial matters.
o Questions on public concerns were allowed with a six-day notice. However, lacked
control over the budget, limited to discussion without division or supplementary
questions.
o The principle of representation was initiated through this Act. The District Boards,
universities, municipalities, chambers of commerce and zamindars were authorised
to recommend members to the Provincial Councils.
o The legislative councils were empowered to make new laws and repeal old laws
with the permission of the Governor-General.
o Provincial Councils were inadequately small, failing to represent the provinces
adequately. Despite its limitations, the Act partly fulfilled some demands of the
Indian National Congress, sustaining the elective principle and expanding
legislative powers to an extent. It laid the groundwork for parliamentary
Government in India.

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⎯ INDIAN COUNCIL ACT OF 1909
o The Indian Council Act of 1909, also known as the Morley-Minto Reforms, was
introduced by the Secretary of State for India, John Morley, and the Viceroy of
India, Lord Minto, in response to growing demands for Indian representation in the
legislative process.
o The Act amended the Indian Councils Acts of 1861 and 1892.
o It increased the size of the legislative councils, both Central and Provincial. The
composition included ex-officio, nominated official and non-official, and elected
members, altering the majority balance in Provincial councils.
o The number of members in the Central Legislative Council was raised from 16 to
60 while the number of members in the Provincial Legislative Councils was not
uniform.
o It retained official majority in the Central Legislative Council but allowed the
Provincial Legislative Councils to have non-official majority.
o The elected members were to be indirectly elected. The local bodies were to elect
an electoral college, which in turn would elect members of Provincial legislatures,
who in turn would elect members of the Central legislature.
o It enlarged the deliberative functions of the legislative councils at both the levels.
For example, members were allowed to ask supplementary questions, move
resolutions on the budget, and so on.
o It provided (for the first time) for the association of Indians with the executive
councils of the Viceroy and Governors.
o Satyendra Prasad Sinha became the first Indian to join the Viceroy’s Executive
Council. He was appointed as the law member.
o Two Indians were nominated to the Council of the Secretary of State for Indian
Affairs.
o It introduced a system of communal representation for Muslims by accepting the
concept of “separate electorate”. Under this, the Muslim members were to be
elected only by Muslim voters. Thus, the Act “legalised communalism” and Lord
Minto came to be known as the Father of Communal Electorate.
o It also provided for the separate representation of presidency corporations,
chambers of commerce, universities and zamindars.

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4.1.4 GOVERNMENT OF INDIA ACT, 1919 & 1935
⎯ GOVERNMENT OF INDIA ACT OF 1919
o The Montagu Chelmsford (or Mont-Ford) Reforms led to the enactment of the
Government of India Act of 1919.
o The sole purpose of this Act was to ensure Indians of their representation in the
Government.
o The Act introduced reforms at the Central as well as Provincial levels of
Government.
o Introduction of Central Level Government:
▪ Subjects:
• The matters, which were of national importance or related to more
than one province such as foreign affairs, defence, political
relations, communication, public debt, were governed at the central
level.
• The Central legislature was made more powerful and more
representative by this Act.
▪ Executive:
• The Act made the Governor-General the chief executive authority.
• The Executive Council of the Viceroy was of 8 members, out of
which 3 were Indians.
▪ Reforms in Legislature:
• The Act introduced bicameral legislature; the Lower House or
Central Legislative Assembly and the Upper House or Council of
State.
• The legislators, under the new reforms, could now ask questions and
supplementary questions, pass adjournment motions, and vote a part
of the budget, but 75% of the budget was still not votable.
• The legislature had virtually no control over the Governor-General
and his Executive Council.
• The Lower House would consist of 145 members, who were either
nominated or indirectly elected from the provinces. It had a tenure
of 3 years.
o 41 nominated (26 official and 15 non-official members)

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 o 104 elected (52 General, 30 Muslims, 2 Sikhs, 20 Special).
• The Upper House would have 60 members. It had a tenure of 5 years.
o 26 nominated.
o 34 elected (20 General, 10 Muslims, 3 Europeans and 1
Sikh).
o Introduction of Provincial Level Government:
▪ Subjects:
• It included the matters which were related to a specific Province such
as public health, local self-government, education, general
administration, medical facilities, land-revenue etc.
▪ Introduction to Diarchy:
• The Act introduced Diarchy (rule of two individuals/parties) for the
executive at the level of the provincial government.
• The Diarchy was implemented in 8 provinces: Assam, Bengal, Bihar
and Orissa, Central Provinces, United Provinces, Bombay, Madras,
and Punjab.
• The Provincial governments were given more powers under the
system of Dyarchy.
• The Governor was to be the executive head in the province.
▪ Division of Subjects:
• Subjects were divided into two lists: ‘reserved’ and ‘transferred’.
• The subjects under reserved list were to be administered by the
Governor through his executive council of bureaucrats. It included
subjects such as law and order, finance, land revenue, irrigation, etc.
• The subjects under transferred list were to be administered by
ministers nominated from among the elected members of the
legislative council. It included subjects such as education, health,
local government, industry, agriculture, excise, etc.
• In case of failure of constitutional machinery in the province the
Governor could take over the administration of transferred subjects.
▪ Reforms in Legislature:
• Provincial legislative councils were further expanded and 70% of the
members were to be elected.

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 • The system of communal and class electorates was further
consolidated.
• Women were also given the right to vote.
• The legislative councils could reject the budget but the Governor
could restore it, if necessary.
• The legislators enjoyed freedom of speech.
o Voting Rights:
▪ There was no universal adult franchise.
▪ Voters should have paid land revenue of Rs. 3000 or have a property with
rental value or have taxable income.
▪ They should possess previous experience in the legislative council.
▪ They should be members of a university senate.
▪ They should hold certain offices in the local bodies.
▪ They should hold some specific titles.
o Indian Council:
▪ There were to be at least 8 and a maximum of 12 members in the council.
▪ Half of the members should have ten years of experience in public service
in India.
▪ Their tenure was to be 5 years.
▪ Their salaries were increased from £1000 to £1200.
▪ There were to be 3 Indian members in the Council.
o Other Provisions:
▪ The Act provided for the establishment of a public service commission for
the first time.
▪ It also introduced an office of the High Commissioner for India in London.
▪ The Act provided for a statutory commission to study the working of the
government after 10 years of implementation of this Act. This resulted in
the Simon Commission of 1927.
⎯ Consequences:
o Public Reaction:
▪ The Congress met in a special session in August 1918 at Bombay under
Hasan Imam’s presidency and declared the reforms to be “disappointing”
and “unsatisfactory” and demanded effective self-government instead.

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 ▪ The Montford reforms were termed “unworthy and disappointing - a sunless
dawn” by Bal Gangadhar Tilak.
▪ Annie Besant found the reforms “unworthy of England to offer and India to
accept”.
▪ Veteran Congress leaders led by Surendranath Banerjee were in favour of
accepting the government proposals.
▪ Bombay and Central Provinces were successful in blocking the majority of
other supplies with the salaries of ministers. Thus governors of both the
provinces were forced to abolish the diarchy regime and took the transferred
subjects under their control.
o Enactment of the Rowlatt Act:
▪ In March 1919 it passed the Rowlatt Act even though every single Indian
member of the Central Legislative Council opposed it.
▪ This Act authorised the government to imprison any person without trial and
conviction in a court of law.
▪ The Act enabled the government to suspend the right of Habeas Corpus.
▪ Several members of the council including Jinnah resigned in protest.
▪ Gandhi launched a nationwide protest against the Rowlatt Acts with the
strongest level of protest in the Punjab.
▪ An apparently unwitting example of violation of rules against the gathering
of people led to the massacre at Jalianwala Bagh in Amritsar on 13th April
1919.
▪ Montagu ordered an inquiry into the events at Amritsar by Lord Hunter.
▪ The Hunter Inquiry recommended that General Dyer, who commanded the
troops, be dismissed, leading to Dyer’s sacking.
⎯ GOVERNMENT OF INDIA ACT OF 1935
o India’s support to Britain in World War I contributed to British recognition of the
need for Indian participation in governance. Growing demands for constitutional
reforms in India led to the Government of India Act, 1935.
o The Act was the longest legislation passed by the British Parliament during their
rule in India.
o It incorporated recommendations from the Simon Commission, Round Table
Conferences, White Paper of 1933, and the Report of the Joint Select Committees.
o Introduction of All India Federation:
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 ▪ Establishment of an All-India Federation comprising provinces and princely
states as units.
▪ Powers divided into Federal List, Provincial List, and Concurrent List.
▪ Residuary powers vested in the Viceroy.
o Introduction of Provincial Autonomy:
▪ Abolished Diarchy and introduced provincial autonomy.
▪ Provinces allowed to act as autonomous units with responsible governments
where governors were required to work with ministers.
▪ The ministers were not absolutely free in decision-making.
o Introduction of Bicameralism:
▪ Six (Bengal, Bombay, Madras, Bihar, Assam and the United Provinces) out
of eleven provinces introduced bicameral legislatures.
▪ Central legislature became bicameral, consisting of Federal Assembly and
Council of States.
▪ The term of the Assembly was five years but it could be dissolved earlier.
o Introduction of Diarchy at the Centre:
▪ The Act abolished Diarchy at the Provincial level but introduced it at the
Centre.
▪ Federal subjects divided into reserved and transferred subjects.
▪ The Governor-General remained over all in charge of both the reserved and
transferred subjects
o The Act extended communal representation with separate electorates for depressed
classes, women, and laborers. Muslims received 33% of seats (1/3rd) in the Federal
Legislature.
o It abolished the Council of India and established a Reserve Bank of India.
o The franchise (voting rights) was extended to 14% of the total population.
o It led to the establishment of public service commissions and a Federal Court
(1937).
o This Act gave the authority and command of the railways in India to a newly
established authority called “Federal Railway”.
o Reorganisation of certain parts, including the separation of Sindh from Bombay
Presidency and Bihar from Orissa and severance of Burma from India.

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4.1.5 INDIAN INDEPENDENCE ACT, 1947
⎯ The Indian Independence Act of 1947 was a crucial legislation that facilitated the transfer
of power from the British Crown to India.
⎯ The Act was passed in the British Parliament on 5th July 1947, and received the Royal assent
on 18th July 1947.
⎯ The Act was based on a plan formulated (Mountbatten Plan or the 3rd June Plan) by Viceroy
Lord Mountbatten and the then Prime Minister Clement Attlee, after consultations with the
Indian National Congress, the Muslim League, and representatives of the Sikh community.
⎯ Lord Mountbatten was appointed as the last Viceroy of India with the specific task of
overseeing the transfer of authority from the British Crown to India.
⎯ Mountbatten initially proposed a plan known as the Dickie Bird Plan, which suggested
declaring the provinces independent and allowing them to decide whether to join the
Constituent Assembly.
⎯ However, this plan was opposed by Jawaharlal Nehru, the leader of the INC, who believed
it would lead to the “Balkanisation” of the country.
⎯ In response to the opposition, Mountbatten presented the 3rd June Plan, also known as the
Mountbatten Plan or the Partition Plan.
⎯ The 3rd June Plan was accepted by all parties involved, including the INC, which reluctantly
recognized the inevitability of the partition.
⎯ The plan was announced on 3rd June 1947, and paved the way for the Indian Independence
Act to be passed in the British Parliament.
⎯ Under the 3rd June Plan, the British government would transfer power to the newly created
dominions of India and Pakistan on 15th August 1947.
⎯ Under this Act, India was declared as an independent and sovereign dominion.
⎯ It eliminated the position of Secretary of State for India.
⎯ The Viceroy’s office was abolished and Governor-General was appointed for each
dominion.
⎯ The Constituent assemblies were empowered to create their constitutions.
⎯ Princely states were given freedom to join either dominion or remain independent.
⎯ Restriction were imposed on British Monarch’s power to veto bills. British Monarch could
no longer use the title “Emperor of India”.
⎯ Indian Constituent Assembly’s constitution was not applicable to future Pakistan areas.

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⎯ Until new dominions’ constitutions took effect, Governor-Generals acted on behalf of the
King.
⎯ Punjab and Bengal Legislative Assemblies voted for partition, based on religion. Sindh
chose to join Pakistan; NWFP and Sylhet held referendums for their choices.
⎯ The Act introduced the Boundary Commission tasked to demarcate new India-Pakistan
boundaries.
⎯ The Act ended British suzerainty over princely states.
⎯ Pakistan gained independence on 14th August 1947, with Muhammad Ali Jinnah as the
Governor-General.
⎯ India gained independence on 15th August 1947, with Lord Mountbatten as the Governor-
General.

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4.2. HISTORY OF LEGAL PROFESSION:
4.2.1. LEGAL PROFESSION IN PRE-BRITISH INDIA
⎯ There is an uncertainty surrounding the existence of a legal profession in pre-British India,
yet it is certain that it was less organised than it is today.
⎯ It witnessed a diverse legal landscape which was influenced by religion, custom, and local
traditions, devoid of a unified legal system.
⎯ In ancient India, communities lived in small groups where the leaders or heads of tribes
administered justice openly to all members without specialised legal professionals.
⎯ As kingship emerged, the king became responsible for dispensing justice, guided by their
councillors.
⎯ Sufferers brought their grievances before the king, and the king delivered judgments with
the assistance of religious leaders and wise courtiers.
⎯ The legal system was influenced by Hindu religion and customs, governed by the
Dharmashastra texts like Manusmriti, prescribing laws for personal, family, and social
conduct.
⎯ The institution of lawyers, as seen today, didn’t exist during that time, as noted by R.P.
Kangle, who found no mention of it in Kautilya’s Artha Shastra.
⎯ Islamic law, or Sharia, was practiced in regions under Muslim rule during medieval era
which included family, inheritance, and civil matters based on Quranic principles.
⎯ During the Mughal rule, courts were established and managed by the Mughal emperors.
⎯ The Mughal Empire’s legal system saw the integration of Islamic law with local customs,
employing Qazis for dispute resolution in civil cases.
⎯ Litigants were represented by a group known as “vaqils,” who received a percentage of
the suit amount. However, no governing institution for lawyers existed then.
⎯ Village panchayats acted as grassroots forums for conflict resolution, applying customary
laws and community-based practices.
⎯ The administration of justice largely rested with local rulers, landlords, or zamindars,
adjudicating based on customary laws and their own decrees.

4.2.2. LAW PRACTITIONERS IN THE MAYOR’S COURT 1726

⎯ The Charter of 1687 established a single Mayor’s Court in Madras without impacting legal
frameworks in other settlements under the Company.

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⎯ The Charter of 1726 expanded Mayor’s Courts to Madras, Calcutta, and Bombay,
establishing a unified legal system for the first time being Royal Courts deriving authority
from the British crown, not the East India Company.
⎯ Mayor’s Courts under the Charter of 1687 had jurisdiction in civil and criminal matters,
while those under the Charter of 1726 handled civil issues, including wills and probate,
leaving criminal matters under the Governor-in-Council’s jurisdiction.
⎯ The legal profession lacked organisation, allowing individuals with limited legal
knowledge to practice.
⎯ Many practicing lawyers lacked legal training and knowledge, some being former
dismissed servants of the Company.
⎯ These courts had no specified qualifications for legal practitioners, leaving it to their
discretion to regulate through practice rules.
⎯ The situation remained unchanged in the 1753 Charter, failing to establish an organised
legal profession in the Presidency Towns.

4.2.3. LEGAL PROFESSION UNDER CHARTER OF 1774

⎯ The Regulating Act of 1773 granted authority to the British crown to create a Supreme
Court in Calcutta through a Charter.
⎯ The Charter of 1774 established the Supreme Court of Judicature in Calcutta, granting the
Supreme Court the power, as per Clause 11, to approve and enrol advocates and attorneys
at law.
⎯ “Advocate” meanst British and Irish Barristers.
⎯ “Attorney” meant the British Attorney or Solicitor.
⎯ The Supreme Court had powers to remove any advocate or Attorney on reasonable cause.
⎯ Even the Charter of 1774 didn’t provide for the appearance of the Indian Legal Practitioners
to appear and to plead before the Supreme Court.

4.2.4. LEGAL PROFESSION IN THE COMPANY’S COURT AND LEGAL

PRACTITIONERS ACT, 1853
⎯ LEGAL PROFESSION IN THE COMPANY’S COURT
o Local vakils in the Company’s courts in Mofussil (s) continued to work. But there
was no proper organisation or code for these lawyers till Lord Cornwallis in 1793
authorised the Bengal Regulation VII for the Company’s courts in Bengal, Bihar
and Orissa. Regulation VII also fixed the scale of fees.

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 o This regulation permitted only Hindus and Muslims to be enrolled as pleaders in
the Sadar Diwani Adalat, the highest civil court under the Company’s rule , thus
creating the first structured legal profession.
o The Bengal Regulation of 1883 altered previous rules on selecting and remuneration
of pleaders.
⎯ LEGAL PRACTITIONERS ACT, 1853
o The Charter Act of 1833 gave authority to the Sardar Diwani Adalat to enrol any
qualified individual as a pleader, regardless of their nationality or religion.
o In 1846, the Legal Practitioners Act enabled individuals certified by the Sardar
Diwani Adalat, possessing good character and qualifications, to become pleaders.
o Attorneys and barristers registered in any of Her Majesty’s courts in India gained
the right to plead in the Sardar Adalat under this Act.
o Barristers and pleaders accredited to represent in the Sardar Diwani Adalat were
granted permission to make fee agreements with clients.
o Following this, the Legal Practitioners Act of 1853 extended the right for barristers
and attorneys to appear before any Company court.
o The Act of 1853 extended authority to barristers and attorneys from the Supreme
Court to plead in the Company’s subordinate courts, following the rules applicable
in those courts.

4.2.5. HIGH COURT ACT, 1861

⎯ The Indian High Court Act of 1861 granted authority to set up High Courts in Presidency
towns.
⎯ Subsequently, civil courts were arranged in various towns following the establishment of
the High Courts.
⎯ Under Clause 9 of the Letters Patent of 1865, which formed the Calcutta High Court, there
was authorisation to approve, admit, and enrol advocates, vakils, and attorneys as deemed
appropriate by the High Court.
⎯ These practitioners had the entitlement to appear and plead before the Court, abiding by
stipulated rules and directions.
⎯ Similar provisions were instituted for establishing High Courts in Bombay and Madras.

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4.2.6. LEGAL PRACTITIONERS ACT, 1879 AND ALL INDIA BAR
COMMITTEE OF 1951
⎯ LEGAL PRACTITIONERS ACT, 1879
o The Legal Practitioners Act of 1879 aimed at regulating the legal profession,
enhancing qualifications, and ensuring ethical conduct among practitioners
o This legislation redefined legal practitioners, encompassing “Advocate,” “Vakil,”
“Attorney,” “Pleader,” “Mukhtar,” and “Revenue Agent.”
o Vakils, possessing law degrees from Indian Universities, were distinct from pleaders
and mukhtars, who were Indian lawyers.
o The Act empowered High Courts to enrol lawyers for various courts and undertake
disciplinary actions against them.
o High Courts were authorised, with provincial government sanction, to establish
rules for qualifications and admission of advocates and vakils.
o Rules for qualifications and admissions of pleaders and mukhtars in subordinate
courts and revenue offices were under the jurisdiction of High Courts.
o Pleaders practised in all subordinate courts, while mukhtars appeared only in
criminal courts and, in some instances, before revenue officers.
o Chartered High Courts categorised advocates, attorneys, and vakils, where
advocates and attorneys were trained in English law, and vakils were Indian law
graduates.
o Amendments in the rules of Bombay and Madras High Courts allowed law
graduates to become advocates after passing a designated exam.
o Advocates had the right to appear in original and appellate sides of these High
Courts, while vakils lacked access to the original side and initial appeals, a
distinction erased by the Madras High Court in 1886.
o Attorneys were also permitted to practice in subordinate and High Courts apart from
their enrolled court, granting greater professional mobility to practitioners.
o Section 5 allowed an Attorney practicing in a High Court to operate in any court
subordinate to it or lower stature revenue court.
o Sections 6, 8, and 9 empowered pleaders and mukhtars to practice in courts and
revenue offices post-enrolment, while Section 12 allowed the High Court to take
action against them in case of criminal conviction or professional misconduct.

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 o Section 14 addressed the procedure for addressing professional misconduct charges
in subordinate courts or revenue offices.
o Section 17 conferred power upon the chief controlling revenue authority to establish
rules consistent with the Act concerning the qualifications, suspension, dismissal,
etc., of revenue agents.
⎯ ALL INDIA BAR COMMITTEE OF 1951
o Indian Bar Committee and Indian Bar Council Act of 1926:
▪ Dissatisfaction over the disparity between vakils and advocates in accessing
the original side of the Chartered High Courts and demands for an all-India
Bar led to the formation of the Indian Bar Committee in 1923 under Sir
Edward Chamier.
▪ The Indian Bar Councils Act of 1926 introduced significant changes,
establishing a Bar Council for each High Court comprising 15 members,
including the Advocate General as an ex-officio member, with an elected
chairman and vice-chairman.
▪ The Act ensured no disqualification for women advocates solely based on
gender and constituted specific rules for each Bar Council.
▪ The Indian Bar Council Act of 1926 eradicated the distinction between
barristers and advocates in Bombay and Calcutta High Courts, allowing
non-barrister advocates to practise. However, pleaders and Mukhtars in
Mofussil Courts fell beyond its scope.
▪ Despite the Act, High Courts retained authority over advocate enrolment,
with the Bar Council’s functions being adversarial and subject to High Court
approval.
▪ Section 10 of the Indian Bar Council Act, 1926, vested High Courts with the
power to reprimand, suspend, or disbar advocates for professional or other
misconduct.
o All Indian Bar Committee of 1951:
▪ In 1951, The All India Bar Committee, led by Justice S.R. Das was formed,
that proposed reforms for the legal profession, advocating the creation of
All India Bar Councils and State Bar Councils.
▪ These bodies were recommended to possess authority over the enrolment,
suspension, or removal of advocates, ensuring consistent standards and
discipline within the legal realm.
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 ▪ The committee suggested maintaining a unified roll of advocates permitted
to practice in all courts nationwide.
▪ Furthermore, it discouraged the recruitment of non-graduated pleaders or
mukhtars, aiming to elevate the professionalism and qualifications of legal
practitioners.
▪ Similar suggestions were put forth by the fifth Law Commission of India in
its fourteenth report, echoing the call for standardised practices and
qualifications in the legal field.

4.2.7. INTRODUCTION TO ADVOCATES ACT, 1961

⎯ This Act came into force on 19th May 1961, following the report of the All India Bar
Committee and replaced the earlier Indian Bar Councils Act of 1926.
⎯ One of its primary objectives was to establish uniformity in legal education and admission
to the legal profession.
⎯ The Act comprises 60 Sections across 7 chapters, addressing various aspects:
o Chapter I: Covers fundamental matters like title, scope, commencement, and
definitions.
o Chapter II (Sections 3-15): Discusses bar councils.
o Chapter III (Sections 16-28): Focuses on admission and enrolment of Advocates.
o Chapter IV: Deals with the right to practice law.
o Chapter V (Sections 35-44): Addresses the conduct of Advocates.
o Chapter VI: Encompasses miscellaneous issues.
o Chapter VII: Addresses temporary and transitional provisions.
⎯ The Act (Section 4) created the Bar Council of India (BCI), which acts as a statutory body
regulating legal practice and legal education in India.
⎯ The Bar Council of India includes the Attorney General, Solicitor General, and members
elected from State Bar Councils. It’s responsible for selecting its leadership.
⎯ Under this Act (Section 7), the BCI is responsible for setting standards for legal education,
prescribing qualifications for entry into the profession, and maintaining professional ethics
among advocates.
⎯ It introduced (Section 16) a two-tier system of legal practitioners: advocates and senior
advocates, with distinct roles and responsibilities.

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⎯ Advocates are entitled to practice law (under Section 33) and represent clients in courts,
while senior advocates are distinguished lawyers who can be designated by the court for
their exceptional knowledge and expertise.
⎯ The Act (Section 35) also lays down provisions for disciplinary action against advocates
for professional misconduct, empowering the BCI to suspend or revoke an advocate’s
license in case of violations.
⎯ Section 49 of the Act provides for the establishment of State Bar Councils in each state,
entrusted with the task of regulating legal practice within their respective territories.
⎯ The State Bar Councils enrol qualified individuals as Advocates and create a state-wide list,
subsequently consolidated into a national list by the Bar Council of India. Advocates on
this list gain the right to practice in all Indian courts, including the Supreme Court.
⎯ Additionally, the Advocates Welfare Fund Act of 2001 established a fund providing support
for advocates during serious illness, cessation of practice, or in the event of their death. The
fund also caters to medical and educational needs of advocates and their dependents, and
facilitates common facilities like book purchases.
⎯ The Act has undergone several amendments to adapt to changing times and practical
challenges.
⎯ One of the significant amendments to the Act was introduced in 1973, empowering the Bar
Council of India (BCI) to set standards for legal education and prescribe qualifications for
entry into the profession.
⎯ The Advocates (Amendment) Act of 1980 introduced changes to expand the definition of
‘advocate’ to include a broader spectrum of legal professionals.
⎯ The amendment also allowed for the appointment of Additional Solicitors General and
Assistant Solicitors General of India, further defining their roles and responsibilities.
⎯ The Advocates (Amendment) Act of 1993 aimed at strengthening disciplinary proceedings
against advocates by enhancing the powers of the disciplinary committees of Bar Councils.
⎯ In 2002, amendments were made to establish the All India Bar Examination (AIBE), which
advocates need to clear to practice law in India.
⎯ The Legal Services Authorities (Amendment) Act of 2017 brought significant changes by
introducing stringent provisions for the prevention of professional misconduct by
advocates. It mandated the disclosure of income by advocates and provided for penalties in
case of non-compliance.

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⎯ Additionally, the 2017 amendment empowered the BCI to conduct disciplinary proceedings
against advocates practicing in the Supreme Court. The amendment also introduced
provisions to protect the interests of clients and maintain transparency in fee structures
charged by advocates.
⎯ The Advocates (Amendment) Bill, 2023, passed in Lok Sabha and Rajya Sabha, aims to
eliminate “touts” from the legal system by amending the Advocates Act, 1961 and repealing
the Legal Practitioners Act, 1879 to reduce “the number of superfluous enactments in the
statute book” and repeal all “obsolete laws”.

4.2.8. LAW REPORTING IN INDIA

⎯ The evolution of law reporting originated from the doctrine of Precedent in English law,
shaping the foundation of the modern Indian legal system.
⎯ The genesis of law reporting dates to the establishment of the Calcutta Supreme Court in
1774, initially marked by sporadic efforts to ensure consistency in decisions.
⎯ Early reports by Sir Francis Macnaughten and Sir William Macnaughten covered Hindu
and Mohammedan law cases respectively, followed by Morton’s extensive reports praised
for their utility and authority.
⎯ Various publications, including Bignell’s, Fulton’s, Gaspers’, and Taylor’s Reports,
significantly contributed to law reporting’s development.
⎯ Initial reports from Bombay and Madras Supreme Courts were collected by Sir Pasbirs
Perry and Sir Thomas Strange, respectively, but became less accessible as they went out of
print, prompting reprint efforts.
⎯ The Sadar Diwani Adalats (Company’s courts) in Calcutta and Bombay saw reports
initiated by Sir William Macnaughten and Sevestre, offering summaries and decisions.
⎯ Reports from Sadar Nizamat Adalats in Calcutta and Bombay were limited but commenced
monthly publication.
⎯ High Courts established in 1862 published official reports, supplemented by private
publications like Weekly Reporter, Indian Jurist, Hyde Reports, Henderson Reports, and
Bengal Law Report.
⎯ The Indian Law Reports Act of 1875 aimed to regulate law reporting, restricting court
reliance on non-government reports to ensure accuracy and discourage excessive court
cases.

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⎯ Official Indian Law Reports (ILR) series began for various High Courts and the Supreme
Court, supplemented by commercial non-official reports.
⎯ The establishment of the All India Reporter (AIR) in 1922 in Nagpur marked a significant
non-official publication’s emergence.
⎯ Specialised reports covering areas like Company Cases, Factories Journal, Income Tax,
Labour Law, Sales Tax, Criminal Law, and Election Law surfaced.
⎯ Privy Council judgments were reported under the Council of Law Reporting for England
and Wales, while Federal Courts and post-Independence Supreme Court judgments were
officially recorded.
⎯ Law reporting assists advocates in preparing cases based on precedent law, facilitating
efficient court proceedings.
⎯ Recommendations from the Frist Law Commission (1955) emphasised the need for a Law
Reporting Council, early availability of case notes, comprehensive case details, prompt
reporting, and judicial verification for accuracy.
⎯ Though challenging, the proposal seeks control over private reporters to maintain the
quality of law reporting in India, acknowledging the need for effective regulation.

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