I.

ADMINISTRATIVE OF JUSTICE IN THE PRESIDENCY

TOWNS AND DEVELOPMENT OF COURTS UNDER EAST INDIA
COMPANY.(1600-1773)

1. FROM 1600 TO 1726

1599-British East India Company was established

1600-Brutish East India Company was incorporated in England by the
Crown’s Charter to promote British trade in Asia, America and Africa.

a).Administration of Justice in Surat

1612-First Factory was established in Surat by the British East India
Company.
1615- Firman was issued by Moghul Emperor to Sir Thomas Roe granting
certain facilities to Englishmen

b). Administrative of Justice in M adras before 1726

Madraspatnam- Black Town & White Town

Black Town-Indian Inhabitants

Adigar or Adhikari-maintenance of law and order
Choultry Court-to decide small civil and criminal cases by Adigar as Judge

W hite Town-Englishmen and European

Agent-Administrative Head

Court of Admirality- estd 1683 & 1686 to hear and decide all cases
concerning maritime and mercantile transactions, piracy, trespass,
forfeiture of ships.

1668-Mayor Court was estd at Madras under company’s charter Act.

c). Administrative of Justice in Bombay before 1726

1534- The Islands of Bombay was acquired by the Portuguese from the King
of Gujarat.
1661- The Islands of Bombay was transferred by the Portuguese King as
Dowry to the British Crown on the marriage of his sister.
1668- The British Crown transferred the Islands of Bombay to British East
India Company for annual rent of pound 10.

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d). Administrative of Justice in Calcutta before 1726

1690- Fort W illiam was constructed on the River Hoogly in Bengal by

Englishmen.

e).M ain features of the Administrative of Justice in the Presidency

Towns of British East India Company before 1726
i). Administrative of Justice was executive ridden.
ii).There was no separation between Executives and Judiciary.
iii). There was non-professional Judges in the Judicial administration.
iv).The Courts were court of east India Company and they derived their
authority not from british crown but from British East India Company.
v).The Judgements delivered by the Company’s Court not recognized by the
Englishmen and the Court in England.
vi).The Judicial system in the Company’s settlement was not uniform.

2.ESTABLISHM ENT OF M AYOR’S COURT (1726)

1726- Charter Act created Corporation & Mayor’s Court in Presidency

Towns

Corporation-One Corporation was estd in 3 presidency Towns, consisting of

Mayor and 9 Aldermen. It was made an autonomous body to look after the
local administration of Presidency Town.

The M ayor’s Court:-The Charter of 1726 created a Mayor’s Court in each

Presidency Towns i.e. Bombay, Madras & Calcatta.

a).The Court consisted of the Mayor and the Aldermen of the Corporation of
the presidency Towns.
b).The Mayor and 2 Aldermen constituted the Quorum of the Court.
c).The Court was court of record, namely a court whose records were kept
on a permanent basis and which had the power to punish for contempt of
its authority.
d).Jurisdiction:- It had civil and testamentary jurisdiction in all matters
arising in the Presidency Towns.
d).Appeal:-An appeal from the decision of the Mayor’s Court could filed
before the Governor-in-Council and second appeal could be filed before the
King-in-Council (Privy Council).
e).A junior member of the Governor-in-Council was appointed as the Sherrif
to execute the process of the court.
f).It applied English Law when deciding cases.

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3.W ORKING OF THE M AYOR’S COURT OF 1726
(Conflict between the M ayor’s Court & the Governor-in-Council)

a).The Judges of the Mayor’s court were not professional persons and had
limited knowledge of English Law.
b).The Governor-in-council also often acted in despotic manner,showing
little respect for Judiciary.
c).The Judges took view that since they were appointed by the crown, they
were independent of executive control.
d).The conduct of the Mayor’s court can be considered to be major revolt
against the executive for judicial independent.

4.CHANGES INTRODUCED BY THE CHARTER OF 1753

-This was issued to rectify some of the problems arising from the operation
of 1726 Charter.
a).Organisation of Mayor’s Courts
b).Juristdiction of Mayor’s Courts

c).Courts Estd under the Charter of 1753

i).The Court of Requests:-It was to hear civil cases up to 5 pagodas (i.e, 15
Rupees)
ii). The Mayor’s Court
iii).The Courts of Governor and Council
iv).Privy Council or King-in- Council

Demerits:-
a).Too much executive oriented
b).Non-professional Judges
c).Judges independent on the Company and the Governor-in-Council.

5. W ARREN HASTINGS PLAN OF 1772,

1757-Battle of Plassey- British East India Company defeated the Nawab of
Bengal
1764-Battle of Buxar- British East India Company defeated the combined
forces of Mir Kasim (Nawab of Bengal), Shuja-ud daula (Nawab of Awadh),
Emperor Shah Alam of Delhi
1765-Robert Clive was sent from England as Governor of Bengal.
1765-Treaty by Robert Clive with Mughal Emperor Shah Alam who granted
Diwani of Bengal, Bihar & Orissa.
1772-Warrren Hastings was appointed as Governor of Bengal and revenue
collection were brought under the direct control of the servants of the
company.

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1772-W arren Hastings Plan -For administer of Justice, Warren Hastings
prepare a new Plan
1.The territories of Bengal, Bihar & Orissa were divided into districts and
each district were placed under English Officer designated as Collector of
that district.
2.Each District became a separate unit, not only for the collection of
Revenue but also administration of Justice.
3.New Courts were set up for adjudication of civil and criminal cases:-

a).Civil Cases:-
i).M ofussil Diwani Adalat was estd in each district to decided civil matters.
The Collector of the District presided over this court, which had jurisdiction
to hear and decide all civil cases as for instances contracts ,partnerships,
movable and immovable property, rent matters, disputed debt and matter
relating to marriage, inheritance and caste.

ii).Sadar Diwani Adalat Appeal from Mofussil Diwani Adalat consists of

Governor & 2 members of his Council.

Criminal Cases:-
i).M ofussil Faujdari Adalat was estd in each district to hear all criminal
cases. In these court, the Kazi and the Mufti assisted by two Maulvies held
trails in all criminal matters.
ii).Sadar Nizamat Adalat :- Appeal from Mofussil Faujdari Adalat.It was
headed by Indian Judge assisted by Chief Kazi, the Chief Mufti and 3
Maulvies.

6.REFORM S UNDER THE PLAN OF 1774 AND REORGANIZATION IN

1780

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 II. REGULATING ACT OF 1773

1. PROVISIONS OF THE ACT

a).Introduction:-
There were rampant acts of corruption and misappropriation by the
employees of the east India Company in the middle of the eighteenth
century. Although the servants of the Company posted in India were
paid low salaries, they were able to amass huge wealth by corruption
and exploitation. After their return to England, they would make an
ostentatious show of such wealth and were referred to as the Nobobs.
The Regulating was passed by the British Parliament to regulate the
affairs of the company in the future.

b).Object:-
i).To regulate the affairs of the Company and to bring its management
under the control of the British Parliament.
ii).To introduce reforms in the constitution and working of the British
East India Company.
iii).To establish a Supreme Court at Culcatta.
iv). To restrict acts corruption, illegalities and irregularities committed
by the company’s servants in India.

c).Main Provisions:-
i).Reconstitution of the British East India Company.
a).The terms of the company’s directors was increased from one year
to four years, with one-fourth of the Directors retiring every year.
b).To enable British Government to have an effective control over the
Company.

ii).Executive authority in the presidency of Calcutta:-

In the presidency town of Calcutta, a new government was established
under the Governor-General and a council of four members.
W arren Hastings was appointed as the first Governor-General and
Richard Barwell,Phillip Francis, General Clavering and Colonel
Monson were appointed as the four Councillors.

iii).Management of the Presidencies of Bombay and Madras:-

The Presidencies of Bombay and Madras were brought under the
control as superintendence of the Governor-General-in-Council at
Calcutta in matters of war and peace.

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 iv). Prohibition on acceptance of rewards and engaging in private
trade:-
The Governor-General-in-Council and the Judges of the Supreme
Court were specifically prohibited from accepting any present or
reward from the Indian princes.They were also prohibited from
engaging in any private trade.

v).Good Governance:-
The Governor-General-in-Council was empowered to make rules and
regulations and to issue Ordinance for the good governance of Fort
William and its subordinate factories.

vi).Establishment of Supreme Court at Calcutta:-

The Regulating Act 1773, also empowered the crown to establish a
Supreme Court, at Calcutta by issuing a Charter, and in the following
year the Supreme Court was established by the Charter Act of 1774.

M erits & Demerits of the Regulating Act 1773

2. ESTABLISHM ENT OF SUPREM E COURT AT CALCUTTA UNDER

CHARTER OF 1774
The Regulating Act, 1773 made a provision for establishment of a
Supreme Court at Calcutta but it was established by issuing
Charter of 1774.

a).Constitution:-
The Supreme Court at Calcutta consisted of the Chief Justice and
three puisne (subordinate) Judges.

b).Qualification:-
Barrisrter of not less than five years standing were eligible to be
appointed on the Bench and they were to hold office during the
pleasure of the Crown.

c).Court of Record:-
The Supreme Court was a court of record and was empowered to
administer justice according to the principle of Justice, Equity and
Good Conscience.

d).Jurisdiction of Supreme Court:-

i).Civil Jurisdiction
ii).Criminal Jurisdiction
iii).Ecclesiastical and testamentary Jurisdiction
iv).Admiralty Jurisdiction

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 v).Equity Jurisdiction
vi).Writ Jurisdiction

e).Appeals:-
i).In Civil cases appeals from Orders passed by the Supreme Court
could be filed within Six months before the Privy Councils with
leave of the Supreme Court.

ii).In Criminal Cases appeals lay before the Privy Council with the
leave of the Supreme Court.

3. THE W ORKING OF THE SUPREM E COURT AT CALCUTTA W ITH

SPECIAL REFERENCE TO:-

Cases
a).Trial of Raja Nandkumar
b).Trial of Radha Charan
c). Patna Trial
d).Kamalluddin’s Case
e).Cossijurah Case
f). Saroopchand’s Case
g).Gora Gopichand’s Case

a).Introduction:-
Elijah Impey was appointed as the first Chief Justice of the Supreme Court
at Calcutta in 1774.He was a towering personality who was determined to
make the presence of the rule of law felt in India. He was equally determined
to make the executive and the people of India realize the existence and
importance of the judiciary. He struggled to introduce the Independent
Court in India.

The Working of the Supreme Court resulted in serious friction between the
Court and the Governor-General-in-Council (Supreme Council)

The uncertainty and confusion regarding the powers and jurisdiction of the
Supreme Court were mainly due to the following factors:-

a). Both the Supreme Court and the Governor-General-in-Council (Supreme

Council) were constituted by the Crown but each of them claimed
superiority over the other.

b).The territorial Jurisdiction of the Supreme Court was vague and

uncertain which resulted in utter confusion and chaos.

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c).Confusion on whether the Supreme Court has jurisdiction over farmers
and zamindars who collected revenue on commission basis on the behalf of
the Company.

d).Uncertainty over Revenue officers of the company who were engaged in

collection of revenue in Bengal, Bihar and Orissa.

e).There was confusion over the relation between the Supreme Court and
Company’s adalat.

f).There was no clarity which law to be administered by the Supreme Court.

g).Confusion and uncertainty regarding the writ jurisdiction of the Supreme

Court.

CASES:-

A).TRIAL OF RAJA NANDKUM AR

Raja Nand Kumar was an influential Zamindar in west Bengal and a Hindu
Brahmin by religion. His loyalty to East India Company right from the days
of Robert Clive earned him the title of “ the Black Colonel”.

There were two groups in the Governor-General-in-Council.

One Group-The Governor-General- Warren Hastings and Councillor,
Barewell
Other Group-The Councillors- Francis, Clavering and Monsoon.

The Majority was against Warren Hastings. Raja Nand Kumar was
encouraged by the majority to bring certain charges against Warren
Hastings before Council. They instigated Nand Kumar to file charges of
bribery and corruption against the Governor-General, which he did in March
1775 in a letter which he handed to Francis.

In this letter he stated:-

i).That in 1772 Hastings had accepted a bribe of Rs.1,04,105 from him for
appointing Nand Kumar’s son, Gurudas as Diwan.
ii).That he had also taken a bribe of Rs.2,50,000 from a lady by the name of
Munni Begum for appointing her as guardian of minor.

This letter was placed before the Council in a meeting and Monson moved a
motion that Nand Kumar be summoned before the Council to prove these
charges.

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The Governor-General- Warren Hastings who was presiding at this meeting
in his capacity as The Governor-General strongly opposed this motion
observing that he would not sit in a meeting to hear charges against himself.

Only Barewell supported the Governor-General- Warren Hastings and

suggested that there was no need for the Council to go into the Complaint
and Nand kumar may be asked to file his complaint before the Supreme
Court as only Court could investigate such a matter.

But Monson’s proposal to summon Nand Kumar had the support of the
majority. So Hastings immediately dissolved the meeting.

The other three members objected to this and decided to continue the
meeting after electing Clavering to preside over the meeting in place of
Hastings. At this continued meeting, it was decided to call Nand Kumar
before the Council and allow him to prove his charges.

After few days Nand Kumar appeared before the Council and was briefly
examined by the majority group of the Council, which then declared that the
charged against Hastings were duly proved. Hasting was asked to deposit a
sum of Rs.3,54,105 in the Treasury, being the amount of the two bribes
accepted by him.

Due to this incident Nand kumar made a bitter enemy of Hastings who was
waiting for opportunity to get back Nand Kumar. Soon after he got
opportunity where Nand Kumar and Mr.Fawkes were arrested and charged
with conspiracy. Hastings succeded in getting one M r. M ohan Prasad to file
charge against Nand Kumar. It was alleged, in this charge, that in 1770,
Nand Kumar had forged a W ill to recover a bad debt, and he ought to be
punished under provisions of the Forgery Act,1728, an Act passed by the
British Parliament, under which the punishment for forgery was the death
penalty.

After hearing the conspiracy case, the Supreme Court imposed a fine on
Fawkes in July 1775 but reserved its judgment against Nand Kumar as the
forgery was still pending against him.

The majority group of the Governor-General-in-Council protested against the

charge of forgery leveled against Nand kumar before the Supreme Court, but
the court proceeded with hearing unheeded.

On behalf of Nand Kumar, it was strongly contended that the Supreme

Court have no Jurisdiction to try him.
The Chief Justice Impey, who presided over the Bench (and who
happened to be a school friend of Hastings) ruled other,vise. The Supreme

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 Court took the view that Nand Kumar was an inhabitant of Calcutta,
and the re fore , within the court's jurisdiction.

Defences:-

1.That English law was introduced into Calcutta by the Charter of 1726.
This would mean that all English laws prior to 1726 would apply to
Calcutta unde r this Charte r. Howe ve r, the Forge ry Act was passe d in
England only in 1728, and the Act did not contain any provision
that it would be applicable in India

2.That Nand Kumar was be ing trie d under an ex post facto law. It was
pointed out that the alleged offence was committed in 1770, and the
Supreme Court itself was established much later — in 1774.

3.That the Forgery Act was passed by the British Parliament and the
death penalty was prescribed under the Act because of the peculiar
conditions prevailing in England at that time

The whole defence of Nand Kumar thus collapsed.

The trial laste d for e ight contin uous days, at the e nd of which
the court, with the help of a Jury (consisting of all non -Indians) found
Nand Kumar guilty of the offence of forgery and sentenced him to death.

An application was immediately moved before the Supreme Court seeking the
court's leave to appeal to the Privy Council, but the same was rejected.
Another application was then given to the court to forward the case for mercy
to the British Crown. The court, howe ve r, re fuse d to do this also. As all
e fforts to save the Raja faile d, the de ath se nte nce was e xe cute d,
and Nand Kumar was hange d on August 5, 1775.

Conclusion

It a "judicial murder" as stated by most of the Historian. It is perceived, even

today, that there was a conspiracy between Chief Justice lmpey and his school
friend, Warren Hastings, to put Nand Kumar hastily and unjustly to death. In
the words of P E. Roberts, even if one concludes that this trial was not a
judicial murder, it was certainly a gross miscarriage of justice.

The Chief Justice lmpey and Warren Hastings were impeached by the British
Parliament. Hastings was charged with corruption and the Chief Justice was called
upon to answer the British Parliament on Nand Kumar's death. Although the
impeachment proceedings did not succeed, it is interesting to note that the
first judicial murder in India led to the first impeachment in England.

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(B) TRAIL OF RADHA CHARAN'S CASE:-

W arren Hastings, the Governor-General, lodged a complaint of conspiracy

against several persons, including Radha Charan M itra, who was a vakil of
the Nawab. The majority of the Council, consisting of Clavering, Monson
and Francis, wrote a letter to the Supreme Court, informing the judges that
Radha Charan was the vakil of the Nawab, and was therefore entitled to
rights, privileges and immunities under the Law of Nations and the statute
law of England.

The Sardar Faujdari Adalat was shifted from Calcutta to Murshidabad in

1775, the administration of justice was in the hands of Nawab
Mubarikuddoaula, a sovereign prince, who possessed a royal mint that coined
money. The Nawab also maintained his own troops.

The court heard the case in June, 1775 and the Nawab's position as a
sovereign prince was hotly contested before the court.

On the one hand, it was argued that since he administered justice, coined
money and kept troops, it was evident that he was a sovereign prince. It was
also contended that if a sovereign was held not to be sovereign, it would
produce "the most dreadful consequences. On the other hand, it was
contended that the Nawab had no effective power. Hastings and some ex-
members of the Council submitted affidavits that the Nawab's sovereignty
was "a mere delusion".

After hearing both the sides, the Chief Justice came to the conclusion that,
in effect, all the powers were in the hands of the Company and the Nawab
performed no act of sovereignty independently or without the consent of the
Company.

The court described him as a "phantom" and a "man of straw". The court
went on to observe that just interposing the name `Nawab' would not screen
any criminal from the justice of the court.

The claim for immunity of the Nawab's vakil, Radha Charan, was therefore
disallowed and he was sentenced to death for the crime. It was on ly on
account of strong representations from the inhabitants of Calcutta that he
was pardoned. Radha Charan thus escaped the death penalty, and was, in
this sense, luckier than Raja Nand Kumar.

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(C) PATNA TRAIL

In this case, a native of Kabul, Shahbaz Beg Khan, came to Bengal, joined the
services of the Company and then retired. After his retirement, he settled down
at Patna and married Naderah Begum. There were no issues of this marriage.
Later, his nephew, Bahadur Beg (whom Shahbaz treated as his son) came from
Kabul to live with him until Shahbaz expired in 1776, leaving
considerable property and estate.

After his death, both the widow and the nephew staked a claim to his
property. The widow claimed that her husband's entire property was given to
her in his life-time under a Gift Deed and a Deed of Dower.

On the other hand, the nephew contended that he was entitled to the
whole property as the adopted son of the deceased. He filed a petition against
the widow in the Patna Provincial Council, which was established as a
Diwani Court.

According to the nephew:-

1. that the Gift Deed and the Deed of Dower were not executed by
the deceased, but were forged by a cousin of the widow;
2. that the Kazi & Mufti (Muhammadan Law Officers) be
a p p o i n t e d b y t h e c o u r t t o a s c e r t a i n o ve r t h e
property of the deceased: and
3. that the widow had embezzled some valuab!es of the deceased
and that she should be directed to return them to the nephew.

The Provincial Council directed the Kazi and Muftis to prepare an

inventory of the property, provide for its safe custody and make a Report to
the Council on the rights of the parties. Accordingly, the Officers went to make an
on-the spot investigation, where they were alleged to have misbehaved with the widow
and acted rudely, harshly, and even cruelly, with her. Scared by such behaviour, the
widow fled and took refuge in a durgah, taking away same title deeds with her.

After investigations, the Officers gave a Report to the Provincial Council

that the Gift Deed and the Deed of Dower were forged documents. They
recommended that, as under Muslim Law, a widow is entitled to one-fourth
of her late husband's property, one-fourth of the property should go to her and the
balance three-fourths to the nephew. Without any further investigation, the
Provincial Council ordered that the Report be implemented and those responsible
for the forgery be arrested and put on trial.

The widow, however,, refused to accept only one-fourth of the property and
also refused to hand over the title deeds which were with her. She filed an
appeal against the decision before the Sardar Diwani Adalat., As this appeal

8
remained unheard for a long time, she brought an action in the Supreme Court
against the nephew and the Kazi and Muftis for assault, battery, false imprisonment
and other personal injuries, for which she claimed a sum of Rs. 6 lakhs as
damages.

The Supreme Court issued an arrest warrant against the defendants, who
were arrested in Patna and brought to a jail in Calcutta. Later, bail was offered
for the Kazi and Muftis, but not for the nephew. The court heard the case for ten
days, after which it concluded that the Deeds in question were not forged, and
therefore, the widow was entitled to the whole property.

The court also found that the widow was, in fact, harshly treated by the
Officers and awarded her Rs. 3 lakhs as damages. As the defendants were not in
a position to pay this amount, they were ordered to be imprisoned and sent to
Calcutta. The old Kazi died on the way, and the other defendants remained in the
Calcutta prison until 1781, when the British Parliament passed the Act of
Settlement under which they were directed to be released. The widow, then
instructed her attorney to file prosecution proceedings against the Patna
Provincial Council for the false imprisonment caused by ordering a sepoy to force
her to come back.

The Supreme Council defended this suit, pointing out that the members of
the Patna Provincial Council had only acted in their official capacity, and
therefore, the claim was baseless.

The Supreme Court, however, found the action of the Provincial Council to
be illegal, irregular and corrupt, and granted the widow Rs. 15,000 as damages.
The Provincial Council thereupon filed an indictment against the widow and
others for forgery.

This was, however, quashed by the Supreme Court on the ground that she
and others were neither residents of Calcutta, nor were they servants of the East
India Company. Apart from highlighting the conflict and clash between the
Supreme Court and the Supreme Council (that is, the Governor-General-in-
Council), this case raised several interesting questions.

The first issue was whether the Supreme Court had jurisdiction over the
nephew, Bahadur Beg. Under the 1773 Act, Indians residing outside Calcutta fell
within the court's jurisdiction only if they were, directly or indirectly, in the
service of the East India Company or in the service of His Majesty's subjects. it
was argued, on behalf of the nephew, that he did not fall in any of these
categories and therefore, the Supreme Court had no jurisdiction over him.

However, this contention was rejected by the court following a rather strange
line of reasoning. It was held that since he was a farmer of land revenue of some
villages in Bihar, he was in the service of the East India Company, and therefore
within the jurisdiction of the court.

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 It is submitted that this reasoning is indeed flawed and questionable. The
nephew was no doubt a farmer of land revenue — but not a collector of revenue.
There is a distinction between the two, and although a collector of revenue
employed by the Company on a fixed salary could be said to be in the service of
the Company, it would be stretching it too far to say that a farmer of land
revenue was also a servant of the Company. Such reasoning appears to be
neither logical nor reasonable. The second issue was whether the Kazi and the
Muftis could be tried for acts which they claimed were in discharge of their
official duties. The Supreme Court took the view that since they exceeded their
powers, their acts were, in no way, in discharge of their duties. The court
concluded that their functions were to explain and interpret Muslim Law — and
not t3 hear and inquire into the facts of any given case. When it was contended
that the authority to do so was delegated to them by the Provincial Council, the
court rejected this possibility by pointing out that since the function of
administration of civil justice was delegated to the Provincial Council by the
Governor-General-in-Council, it could not be further delegated to these Officers.
In taking this view, the court relied on the maxim, Delegatus non potest
delegare; a delegate cannot delegate. Thirdly, this case had an impact on other
farmers of land revenue. The effect of the ruling was that all farmers of land
revenue would be deemed to be in the service of the East India Company, and
therefore within the jurisdiction of the Supreme Court. This created a panic
amongst the farmers and a large number of them gave a petition to the Patna
Provincial Council, requesting that they be relieved of the management of the
farms. In other words, most farmers expressed their inability to co-operate with
the Council in the matter of collection of revenue. Needless to state, this had an
adverse effect on revenue collection and administration.

The Patna case was one of the reasons why the Act of Settlement was passed in
1781. The defects and deficiencies prevailing in the administration of justice at
that time were squarely reflected in this •case, and this made the British
Parliament realise the need to remedy by passing an appropriate law.

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(D) KAM ALUDDIN'S CASE

In this case, once again, the question arose whether the Supreme Court had
jurisdiction over the revenue officers of the East India Company who were
engaged in collection of revenue in Bengal, Bihar and Orissa.

Kamaluddin was the ostensible owner of a farm, which in reality belonged

to another person, Kantu Babu. As there were arrears of land revenue due
from Kamaluddin, the Calcutta Revenue Council sent him to prison,
although Kamaluddin disputed the claim against him. At that time, it was
customary to release such persons on bail, but Kamaluddin was refused
bail. So, he approached the Supreme Court which issued a writ of habeas
corpus and ordered him to be set free. The court took the view that since the
amount in question was in dispute, he should be set free on bail until the
completion of the inquiry as to the exact extent of his liability. The court also
observed that he should not be imprisoned again until his under-renter
(that is, Kantu Babu) had been called upon to pay the amount.

The Governor-General-in-Council, however, took exception to this. They took

the stand that they had exclusive jurisdiction over all revenue officers of the
Company and that the Supreme Court had no power to take cognizance of
any matter related to revenue.

The Supreme Court, on the other hand, took a firm stand that it was the
very object of the Regulating Act to empower the court to punish the revenue
officers of the Company for their illegal or irregular activities. It was
contended that it was a practice to release such persons on bail and that it
was equally a practice to demand rent from the under-renter before
proceeding against the farmer. The court therefore justified its action as
being in conformity with well-established customs and usages of revenue
collection.

The Governor-General-in-Council expressed strong resentment in the matter

and a majority of the Council took a decision to direct the Provincial Council
to arrest Kamaluddin once again. It was also decided to order the Provincial
Council to ignore any order coming from the Supreme Court in matters of
revenue.

However, the Governor-General, Warren Hastings, refused to support the

Council's decision, and so, the same could not be implemented. However,
the chain of events reflected in no uncertain terms, the serious conflict
between the Supreme Court and the Governor-General-in-Council.

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(E) COSSIJURAH'S CASE

Raja Sundernarain was a Zamindar of Cossijurah in Midnapur, Orissa, and

was engaged by the Company for collection of revenue (about 20,000
pounds every year). Kashinath, a merchant of Calcutta, was his surety.

Raja Sundernarain owed certain sums of money payable under two bonds
which he had executed in Calcutta in favour of Kashinath.

Not being able to recover the money through the Board of Revenue,
Kashinath filed a debt suit against the Raja in the Supreme Court.

The defence of Kashinath was that the Raja Sundernarain was a Zamindar
collecting revenue for the Company, and was thus in the service of the
Company. The Supreme Court therefore had jurisdiction over him.

This contention was accepted by the court, and a writ was issued by it for
the arrest of the Raja Sundernarain, who went into hiding.

In the meanwhile,- the Supreme Council, after consulting the Advocate -

General, Naylor informed the Raja Sundernarain, as well as the other
landholders, that they did not fall within the jurisdiction of the Supreme
Court and therefore, they need not to obey order of the court.

After receiving this directive, Raja Sundernarain came out of hiding and
decided to use force and resist the Sheriff if he came to serve the writ and
arrest him.

Accordingly, when the Sheriff came once again, the Raja's men drove him
away. The Supreme Council also directed the Collector of Midnapur not to
give any assistance to the Sheriff in serving the warrant.

The Collector also gave no assistance to the Sheriff. Thereafter, one more
writ was issued by the Supreme Court, this time to seize the contents of the
Raja's house, in order to compel his appearance before the court. The Raja
alleged that this time, the Sheriff's men entered his house as well as the
Zenana (room reserved for ladies) and also committed sacrilege in the prayer
room. In the meanwhile, the Governor-General-in-Council directed the
Commanding Officer of Midnapur to send troops to intercept and arrest the
Sheriff's men.

Accordingly, two companies of Sepoys, with the assistance of the Collector of

Midnapur, arrested the Sheriff and his men, kept them in confinement for
three days and then sent them to Calcutta as prisoners. Although the
Sheriff and his men were released later, the troops were directed to resist
any further writ coming from the Supreme Court.

Kashinath then brought an action against the Governor-General and all the
members of his Council individually, for having assaulted the Sheriff and his

12
men. Initially, the Councillors appeared before the court and pleaded that
they were not liable as the acts complained of were done by them in their
official capacity.

Later, however, they decided to withdraw their appearance and refused to

submit to the process of the court. Thereupon, the Supreme Court issued a
writ against all the Counsellors, except Barwell and Warren Hastings (the
Governor-General). This writ, however, could not be served as the army
officials prevented the court officials from serving it. Annoyed and insulted,
the Supreme Court committed the Advocate-General, North Naylor, to prison
for having wrongly advised the government to ignore the court's process.
Incidentally, the North Naylor later died in jail.

At this juncture, it became clear to the court that it had no force to compel
the appearance of the Councillors. Then came the anti-climax. At this
critical point of time, for some reason which is not clear, Kashinath
withdrew his suit against the Raja and the Governor-General-in-Council,
and thus ended an acrimonious legal drama.

Apart from once again highlighting the bitter conflict between the Supreme
Court and the Governor-General-in-Council, this case raised several important
issues:-

1.The most important question was whether the Zamindars were subject to
the jurisdiction of the Supreme Court. As the Zamindar in this case did not
appear before the court, the issue could not be argued. The proper course
would have been for the Zamindar to appear before the court and argue that
he did not fall within the court's jurisdiction.

2.Question arises as to which authority was to decide whether or not the

Zamindars fell within the jurisdiction of the Supreme Court. According to
the Supreme Court, it was the court — and not the Council — which was
competent to decide this point, a contention with which the Council
vehemently disagreed.

3.It is also clear that the Governor-General and his Council showed scant
respect for the process of the court. They hoped to settle the issue by force
— and not by the use of constitutional means. Not only that, they also
encouraged the Raja to use force and to disregard the orders and directions
of the court.

4.The most shocking event was the issue of a Notification by the Governor-
General-in-Council that Zamindars residing outside Calcutta should pay no
heed to the process of the Supreme Court.

13
(F) SAROOPCHAND'S CASE

Saroopchand was a surety for payment of revenue of district. Every

Zamindar or farmer of land revenue in those days had to bring a person who
would stand surety for him. In case the farmer defaulted, the surety would
be he liable to pay the dues to the East India Company.

It was alleged that Saroopchand was liable to pay a sum of Rs. 10,000 to
the Dacca Provincial Council as arrears of revenue a claim which was disputed
by him. He contended that he had advanced a loan of Rs. 10,000 to a member
of the said Council named John Shakespeare. This member denie d any
such loan, although admitted that he did have some financial dealings with
Saroopchand.

This matter was taken to the Supreme Court, in meanwhile,

Saroopchand was committed to custody without bail by the Provincial Council
until such time as he paid Interestingly, the member who had allegedly taken the
loan also took part in the proceedings of the Council when the decision against
Saroopchand was taken.

Thereafter Saroopchand then moved the Supreme Court for a writ of habeas
corpus. After hearing the matter, the court came to the conclusion that the
Council was guilty of arbitrary use of powers.

It held that the Council had no right to arrest a person wi t h o u t b a i l f o r

a r r e a r s o f r e n t o r r e ve n u e . In t h e circumstances, the Supreme Court
ordered Sarocpchand to be released on giving the necessary securities. In the
course of its judgment, the court passed severe strictures on the
government, observing that it was continuing to act in the same way as it had
be e n acting be fore the Re gulating Act was passed.

Conclusion

In this case, the conflict-between the judcial and the executive came out in the
open.

14
(G) GORA CHAND DUTT'S CASE

In Murshidabad Gora Chand Dutt filed a suit against M irza Jalleel for the
recovery of a sum of money. The defendant, Mirza, put in a counter-claim
against the plaintiff for a larger amount. The case was heard by different
judges at different stages. Ultimately, a decree was passed against the
plaintiff, Gora Chand, and his property was seized.

It appears that certain irregularities were committed in the execution of this

decree and Gora Chand_filed_a_suit against Hosea, the chief of the
Provincial Council, for such irregularities, contending that the proceedings
of the adalat were grossly irregular.

The Advocate-General of the Company gave an opinion that the Council had
in fact, indulged in irregularities for which no successful defence was
available. He pointed out that the style of the proceedings, the mode of
giving evidence and the principles followed in the adjudication were quite
repugnant.He therefore suggested that the matter ought to be compromised
with Gora Chand — as the Council would not succeed before the Supreme
Court.

The Council, however, did not accept this opinion. It was of the view that
the case was the first one of its kind, where members of a Diwani Adalat
were sued for acts done in their judicial capacity, and therefore, the case
ought to be allowed to take its own course, so that a judgment may be given
on the competency of the Diwani Adalats. In retort, the Advocate -General
pointed out that the competency of the adalats was not in question; rather,
the question before the Supreme Court was whether they exercised their
powers or abused such powers. As the Council was adamant in its view, the
case Was allowed to proceed before the Supreme Court.

The Supreme Court took a rather lenient view in the matter and held that,
except in cases of manifest corruption, the court would not go into the
question of regularity or irregularity of the proceedings. The only remedy
available in such cases was to file an appeal before the Sardar Adalat.
Although this case went in favour of the Company's adalats, it also exposed
the serious irregularities that were committed by these adalats.

Conclusion

The study of the above cases shows the unsatisfactory state of the courts
and the haphazard manner in which the judiciary functioned at that time. It
is clear that the courts often claimed jurisdiction on an arbitrary basis —
even over persons not within their jurisdiction. The cases also reveal how
English law was often blindly applied to native Indians, without regard to
the difference between the cultures of the two countries.

15
THE ACT OF SETTLEM ENT, 1781

i).Due to the conflict between the executive and the judiciary that is,
between the Supreme Council and the Supreme Court, had reached a very
serious stage, as is amply reflected in' the cases discussed above.

ii).A petition was made to the British Parliament against the activities of the
Supreme Court by the Supreme Council. Another petition was also
submitted to the British Parliament by the zamindars, servants of the
Company and other British subjects residing in Bengal.

iii).A Parliamentaiy Committee was set up in England to make inquiries and

submit a report in the matter. It is on the basis of this report that the Act of
Settlement was passed by the British Parliament in 1781.

The main purpose of the 1781 Act :-

i).To settle and remove the defects and deficiencies of the Regulating Act,
1773. As seen earlier, terms and expressions used in 1773 Act were not
defined with any degree of clarity, resulting in serious conflicts between the
Supreme Council and the Supreme Court.

ii).The 1781 Act was therefore passed to "settle" the disputes relating to the
jurisdiction of the Supreme Court and its relation With the Supreme Council
and the Company's courts. The Act also sought to provide relief to certain
persons who had been imprisoned under the orders of the Supreme Court in
the Patna case. The Governor-General-in-Council and other officers who had
acted in the course of their official duties were also indemnified under the
Act.

The main provisions of the Act of Settlement, 1781, are summarised

below:-

1. Restrictions on the jurisdiction of the Supreme Court –

The Act clarified that the Supreme Court would have no jurisdiction in
any matter concerning the revenue or any act done in the matter of its
collection.
a).It was provided that no person would fall within the jurisdiction of
the Supreme Court merely because he was a landowner or landholder
or zamindar collecting revenue for the East India Company.
b).The Governor-General and his Council would not be subject to the
jurisdiction of the Supreme Court in matters done by them in their
official capacity.

16
2. Clarification on the law to be applied by the Supreme Court
It was provided by the 1781 Act that the Supreme Court had to decide
all suits between Hindus on the basis of Hindu law and usages. Suits
between Mohammedans were to be settled by applying the laws and
usages applicable to Mohammedans. In a case where only one party
was a Hindu or a Muhammadan, the matter was to be decided
according to the law of the defendant.

3. Recognition of the Company's courts

The jurisdiction of the Sardar Diwani Adalats was expressly
recognised by the Act. It was also clarified that this Adalat would hear
all appeals from decisions of Mofussil Adalats in civil cases. The
judgment of the Sardar Diwani Adalat was declared to be final, and
appeals against such judgements could be filed before the Privy
Council only if the value of the subject-matter in dispute was 5,000
pounds or more.

4. Power to frame rules and regulations

The Governor-General-in-Council was empowered to frame rules and
regulations for the Provincial Courts and Provincial Councils. Copies
thereof were to be sent to the Court of Directors and the Secretary of
State for India within six months. The Privy Council had the power to
amend or abrogate any such rule or regulation within a period of two
years.

5. Release of certain persons and indemnity provisions

The Act also made provisions for the release of the defendants in the
Patna case (discussed earlier) on security being given by the Governor-
General-in-Council for the damages awarded. The defendants were
also allowed to appeal to the Privy Council, despite the fact that such
an appeal was already time-barred. The Governor-General and his
Council, the Advocate General and other persons acting under their
orders were also indemnified and discharged from any suit, action or
other prosecution, for resisting the execution of the orders of the
Supreme Court between the period 1.1.1770 and 1.1.1780.

Critical evaluation of the Act of Settlement

i).The Act of Settlement was to remove the defects of the Regulating

Act. The controversy and doubtful issues that had arisen in the Patna
case were settled by the Act of Settlement once and for all.

ii).The Act also clarified the position of the zamindars collecting

revenue for the Company. The Act also gave recognition to the
Company's adalats and raised their status. It also clarified the doubts
that had earlier arisen as to the applicable law in certain cases.
17
iii).The Act of Settlement also curtailed the powers of the judiciary. By
doing so, it put an end to the chaos and confusion that had prevailed
earlier as regards the court's jurisdiction.

iv).The Supreme Court was able to effectively enforce its orders and
thus earn greater authority and prestige.

There is, however, no doubt that the Act was substantially in favour of
the Governor-General and his Council and curtailed the powers the
Supreme Court. The Governor-General-in-Council became the
supreme, and often arbitrary, authority in the country.

18
 II. REGULATING ACT OF 1773

1. PROVISIONS OF THE ACT

a).Introduction:-
There were rampant acts of corruption and misappropriation by the
employees of the east India Company in the middle of the eighteenth
century. Although the servants of the Company posted in India were paid
low salaries, they were able to amass huge wealth by corruption and
exploitation. After their return to England, they would make an
ostentatious show of such wealth and were referred to as the Nobobs.
The Regulating was passed by the British Parliament to regulate the
affairs of the company in the future.

b).Object:-
i. To regulate the affairs of the Company and to bring its
management under the control of the British Parliament.
ii. To introduce reforms in the constitution and working of the British
East India Company.
iii. To establish a Supreme Court at Calcutta.
iv. To restrict acts corruption, illegalities and irregularities committed
by the company’s servants in India.

c).Main Provisions:-
i. Reconstitution of the British East India Company.
a. The terms of the company’s directors was increased from one year
to four years, with one-fourth of the Directors retiring every year.
b. To enable British Government to have an effective control over the
Company.

ii. Executive authority in the presidency of Calcutta:-

a. In the presidency town of Calcutta, a new government was
established under the Governor-General and a council of four
members.
b. Warren Hastings was appointed as the first Governor-General and
Richard Barwell, Phillip Francis, General Clavering and Colonel
Monson were appointed as the four Councillors.

iii. Management of the Presidencies of Bombay and Madras:-

 The Presidencies of Bombay and Madras were brought under the control
as superintendence of the Governor-General-in-Council at Calcutta in
matters of war and peace.

iv. Prohibition on acceptance of rewards and engaging in private trade:-

The Governor-General-in-Council and the Judges of the Supreme Court
were specifically prohibited from accepting any present or reward from
the Indian princes. They were also prohibited from engaging in any
private trade.

v. Good Governance:-
The Governor-General-in-Council was empowered to make rules and
regulations and to issue Ordinance for the good governance of Fort
William and its subordinate factories.

vi. Establishment of Supreme Court at Calcutta:-

The Regulating Act 1773, also empowered the crown to establish a
Supreme Court, at Calcutta by issuing a Charter, and in the following
year the Supreme Court was established by the Charter Act of 1774.

Merits & Demerits of the Regulating Act 1773

2. ESTABLISHMENT OF SUPREME COURT AT CALCUTTA UNDER

CHARTER OF 1774

The Regulating Act, 1773 made a provision for establishment of a Supreme

Court at Calcutta but it was established by issuing Charter of 1774.

a) Constitution:-
The Supreme Court at Calcutta consisted of the Chief Justice and three
puisne (subordinate) Judges.

b) Qualification:-
Barrisrter of not less than five years standing were eligible to be
appointed on the Bench and they were to hold office during the pleasure
of the Crown.

c) Court of Record:-
 The Supreme Court was a court of record and was empowered to
administer justice according to the principle of Justice, Equity and Good
Conscience.

d) Jurisdiction of Supreme Court: - (expand more)

i. Civil Jurisdiction
ii. Criminal Jurisdiction
iii. Ecclesiastical and testamentary Jurisdiction
iv. Admiralty Jurisdiction
v. Equity Jurisdiction
vi. Writ Jurisdiction

e) Appeals:-
(Mayor’s court to Governor General Counsel)
i. In Civil cases appeals from Orders passed by the Supreme Court
could be filed within Six months before the Privy Councils with
leave of the Supreme Court.
ii. In Criminal Cases appeals lay before the Privy Council with the
leave of the Supreme Court.

3. THE WORKING OF THE SUPREME COURT AT CALCUTTA WITH

SPECIAL REFERENCE TO:-

Cases
i. Trial of Raja Nandkumar
ii. Trial of Radha Charan
iii. Patna Trial
iv. Kamalluddin’s Case
v. Cossijurah Case
vi. Saroopchand’s Case
vii. Gora Gopichand’s Case

Introduction:-
Elijah Impey was appointed as the first Chief Justice of the Supreme Court at
Calcutta in 1774.He was a towering personality who was determined to make
the presence of the rule of law felt in India. He was equally determined to make
the executive and the people of India realize the existence and importance of
the judiciary. He struggled to introduce the Independent Court in India,
(independent judiciary).
The Working of the Supreme Court resulted in serious friction between the
Court and the Governor-General-in-Council (Supreme Council)

The uncertainty and confusion regarding the powers and jurisdiction of the
Supreme Court were mainly due to the following factors:-

a) Both the Supreme Court the Governor-General-in-Council (Supreme

Council) were constituted by the Crown but each of them claimed
superiority over the other. (Superiority complex)

b) The territorial Jurisdiction of the Supreme Court was vague and

uncertain which resulted in utter confusion and chaos.

c) Confusion on whether the Supreme Court has jurisdiction over farmers

and zamindars who collected revenue on commission basis on the behalf
of the Company.

d) Uncertainty over Revenue officers of the company who were engaged in

collection of revenue in Bengal, Bihar and Orissa.

e) There was confusion over the relation between the Supreme Court and
Company’s adalat.

f) There was no clarity which law to be administered by the Supreme

Court.

g) Confusion and uncertainty regarding the writ jurisdiction of the Supreme

Court.

Cases:-

1. Trial of Raja Nandkumar

Raja Nandkumar was an influential Zamindar in west Bengal and a Hindu

Brahmin by religion. His loyalty to East India Company right from the days of
Robert Clive (governor before warren Hastings) earned him the title of “The Black Colonel”.

There were two groups in the Governor-General-in-Council.

1. One Group- The GG. Warren Hastings and Councillor Barewell
 2. Other Group-The Councillors- Francis, Clavering and Monsoon.

The Majority was against Warren Hastings. Raja Nandkumar was encouraged
by the majority to bring certain charges against Warren Hastings before
Council. They instigated Nandkumar to file charges of bribery and corruption
against the Governor-General, which he did in March 1775 in a letter which he
handed to Francis.

In this letter he stated:-

i. That in 1772 Hastings had accepted a bribe of Rs. 1,04,105 from him for
appointing Nandkumar’s son, Gurudas as Diwan.
ii. That he had also taken a bribe of Rs. 2,50,000 from a lady by the name
of Munni Begum for appointing her as guardian of minor.

This letter was placed before the Council in a meeting and Monson moved a
motion that Nandkumar be summoned before the Council to prove these
charges.

The GG Warren Hastings who was presiding at this meeting in his capacity as
The GG strongly opposed this motion observing that he would not sit in a
meeting to hear charges against himself.

Only Barewell supported the Governor-General- Warren Hastings and

suggested that there was no need for the Council to go into the Complaint and
Nandkumar may be asked to file his complaint before the Supreme Court as
only Court could investigate such a matter.

But Monson’s proposal to summon Nandkumar had the support of the

majority. So Hastings immediately dissolved the meeting.

The other three members objected to this and decided to continue the meeting
after electing Clavering to preside over the meeting in place of Hastings. At this
continued meeting, it was decided to call Nandkumar before the Council and
allow him to prove his charges.

After few days Nandkumar appeared before the Council and was briefly
examined by the majority group of the Council, which then declared that the
charged against Hastings were duly proved. Hasting was asked to deposit a
sum of Rs. 3,54,105 in the Treasury, being the amount of the two bribes
accepted by him.
Due to this incident Nandkumar made a bitter enemy of Hastings who was
waiting for opportunity to get back Nandkumar. Soon after he got opportunity
where Nand Kumar and Mr.Fawkes were arrested and charged with conspiracy.
Hastings succeded in getting one Mr. Mohan Prasad to file charge against Nand
Kumar. It was alleged, in this charge, that in 1770, Nand Kumar had forged a
Will to recover a bad debt, and he ought to be punished under provisions of the
Forgery Act,1728, an Act passed by the British Parliament, under which the
punishment for forgery was the death penalty.

After hearing the conspiracy case, the Supreme Court imposed a fine on
Fawkes in July 1775 but reserved its judgment against Nand Kumar as the
forgery was still pending against him.

The majority group of the Governor-General-in-Council proyested against the

charge of forgery leveled against Nand kumar before the Supreme Court, but
the court proceeded with hearing unheeded.

On behalf of Nand Kumar, it was strongly contended that the Supreme Court
have no Jurisdiction to try him.
The Chief Justice Impey, who presided over the Bench (and who happened
to be a school frierpd of Hastings) ruled otherwise. The Supreme Court took the
view that Nand Kumar was an inhabitant of Calcutta, and therefore, within
the court's jurisdiction.

Defences:-

1. That English law was introduced into Calcutta by the Charter of 1726.
This would mean that all English laws prior to 1726 would apply to
Calcutta under this Charter. However, the Forgery Act was passed
in England only in 1728, and the Act did not contain any provision
that it would be applicable in India
2. That Nand Kumar was being tried under an ex post facto law. It was
pointed out that the alleged offence was committed in 1770, and the
Supreme Court itself was established much later — in 1774.
3. The Forgery Act was passed by the British Parliament and the death
penalty was prescribed under the Act because of the peculiar conditions
prevailing in England at that time

The whole defence of Nand Kumar thus collapsed.

 The trial lasted for eight continuous days, at the end of which the
court, with the help of a Jury (consisting of all non-Indians) found Nand
Kumar guilty of the offence of forgery and sentenced him to death.

An application was immediately moved before the Supreme Court seeking the
court's leave to appeal to the Privy Council, but the same was rejected. Another
application was then given to the court to forward the case for mercy to the British
Crown. The court, however, refused to do this also. As all efforts to
save the Raja failed, the death sentence was executed, and Nand
Kumar was hanged on August 5, 1775.

Conclusion

It a "judicial murder" as stated by most of the Historian. It is perceived, even

today, that there was a conspiracy between Chief Justice lmpey and his school friend,
Warren Hastings, to put Nand Kumar hastily and unjustly to death. In the words of P
E. Roberts, even if one concludes that this trial was not a judicial murder, it was
certainly a gross miscarriage of justice.

The Chief Justice lmpey and Warren Hastings were impeached by the British
Parliament. Hastings was charged with corruption and the Chief Justice was called
upon to answer the British Parliament on Nand Kumar's death. Although the
impeachment proceedings did not succeed, it is interesting to note that the first
judicial murder in India led to the first impeachment in England. (WH)

2. The Patna case

In this case, a native of Kabul, Shahbaz Beg Khan, came to Bengal, joined
the services of the Company and then retired. After his retirement, he settled down
at Patna and married Naderah Begum. There were no issues of this marriage.
Later, his nephew, Bahadur Beg (whom Shahbaz treated as his son) came from
Kabul to live with him and was with him until Shahbaz expired in 1776,
leaving considerable property and estate.

After his death, both the widow and the nephew staked a claim to his
property. The widow claimed that her husband's entire property was given to her
in his life-time under a Gift Deed and a Deed of Dower.
 On the other hand, the nephew contended that he was entitled to the whole
property as the adopted son of the deceased. He filed a petition against the
widow in the Patna Provincial Council, which was established as a Diwani Court.

According to the nephew:-

i. that the Gift Deed and the Deed of Dower were not executed by the
deceased, but were forged by a cousin of the widow;
ii. that the Kazi & Mufti (Muhammadan Law Officers) be a p p o i n t e d
b y t h e c o u r t t o a s c e r t a i n o v e r t h e property of the deceased:
and
iii. That the widow had embezzled some valuables of the deceased and
that she should be directed to return them to the nephew.

The Provincial Council directed the Kazi and Muftis to prepare an

inventory of the property, provide for its safe custody and make a Report to the
Council on the rights of the parties. Accordingly, the Officers went to make an on-the
spot investigation, where they were alleged to have misbehaved with the widow and acted
rudely, harshly, and even cruelly, with her. Scared by such behaviour, the widow fled
and took refuge in a durgah, taking away same title deeds with her.

After investigations, the Officers gave a Report to the Provincial Council that
the Gift Deed and the Deed of Dower were forged documents. They recommended
that, as under Muslim Law, a widow is entitled to one-fourth of her late
husband's property, one-fourth of the property should go to her and the balance three-
fourths to the nephew. Without any further investigation, the Provincial Council
ordered that the Report be implemented and those responsible for the forgery be
arrested and put on trial.

The widow, however, refused to accept only one-fourth of the property and
also refused to hand over the title deeds which were with her. She filed an appeal
against the decision before the Sardar Diwani Adalat. As this appeal remained
unheard for a long time, she brought an action in the Supreme Court against the
nephew and the Kazi and Muftis for assault, battery, false imprisonment and other
personal injuries, for which she claimed a sum of Rs. 6 lakhs as damages.

The Supreme Court issued an arrest warrant against the defendants, who
were arrested in Patna and brought to a jail in Calcutta. Later, bail was offered for
the Kazi and Muftis, but not for the nephew. The court heard the case for ten days,
after which it concluded that the Deeds in question were not forged, and therefore,
the widow was entitled to the whole property. The court also found that the widow
was, in fact, harshly treated by the Officers and awarded her Rs. 3 lakhs as
damages. As the defendants were not in a position to pay this amount, they were
ordered to be imprisoned and sent to Calcutta. The old Kazi died on the way, and
the other defendants remained in the Calcutta prison until 1781, when the British
Parliament passed the Act of Settlement under which they were directed to be
released.

The widow, then instructed her attorney to file prosecution proceedings against
the Patna Provincial Council for the false imprisonment caused by ordering a sepoy
to force her to come back. The Supreme Council defended this suit, pointing out
that the members of the Patna Provincial Council had only acted in their official
capacity, and therefore, the claim was baseless. The Supreme Court, however, found
the action of the Provincial Council to be illegal, irregular and corrupt, and granted
the widow Rs. 15,000 as damages. The Provincial Council thereupon filed an
indictment against the widow and others for forgery. This was, however, quashed by
the Supreme Court on the ground that she and others were neither residents of
Calcutta, nor were they servants of the East India Company. Apart from highlighting
the conflict and clash between the Supreme Court and the Supreme Council (that is,
the Governor-General-in-Council), this case raised several interesting questions. The
first issue was whether the Supreme Court had jurisdiction over the nephew,
Bahadur Beg. Under the 1773 Act, Indians residing outside Calcutta fell within the
court's jurisdiction only if they were, directly or indirectly, in the service of the East
India Company or in the service of His Majesty's subjects. it was argued, on behalf of
the nephew, that he did not fall in any of these categories and therefore, the
Supreme Court had no jurisdiction over him. However, this contention was rejected
by the court following a rather strange line of reasoning. It was held that since he
was a farmer of land revenue of some villages in Bihar, he was in the service of the
East India Company, and therefore within the jurisdiction of the court.

It is submitted that this reasoning is indeed flawed and questionable. The

nephew was no doubt a farmer of land revenue — but not a collector of revenue.
There is a distinction between the two, and although a collector of revenue
employed by the Company on a fixed salary could be said to be in the service of the
Company, it would be stretching it too far to say that a farmer of land revenue was
also a servant of the Company. Such reasoning appears to be neither logical nor
reasonable. The second issue was whether the Kazi and the Muftis could be tried
for acts which they claimed were in discharge of their official duties. The Supreme
Court took the view that since they exceeded their powers, their acts were, in no
way, in discharge of their duties. The court concluded that their functions were to
explain and interpret Muslim Law — and not t3 hear and inquire into the facts of
any given case. When it was contended that the authority to do so was delegated to
them by the Provincial Council, the court rejected this possibility by pointing out
that since the function of administration of civil justice was delegated to the
Provincial Council by the Governor-General-in-Council, it could not be further
delegated to these Officers. In taking this view, the court relied on the maxim,
Delegatus non potest delegare; a delegate cannot delegate. Thirdly, this case had an
impact on other farmers of land revenue. The effect of the ruling was that all
farmers of land revenue would be deemed to be in the service of the East India
Company, and therefore within the jurisdiction of the Supreme Court. This created
a panic amongst the farmers and a large number of them gave a petition to the
Patna Provincial Council, requesting that they be relieved of the management of the
farms. In other words, most farmers expressed their inability to co-operate with the
Council in the matter of collection of revenue. Needless to state, this had an adverse
effect on revenue collection and administration. Last but not the least, the Patna
case was one of the reasons why the Act of Settlement was passed in 1781. The
defects and deficiencies prevailing in the administration of justice at that time were
squarely reflected in this case, and this made the British Parliament realise the
need to remedy by passing an appropriate law.

i. Shahbaz Beg Khan – came from Kabul to Bengal,

Naderah Begum – wife of Shahbaz, (had no child)
Bahadur Beg – Nephew of Shahbaz (Treated like a son)
ii. Shahbaz Died in 1786
iii. Issue: Property claim
iv. Nephew filed in Patna provincial council
v. Kazi & Mufti went to acquire papers from Naderah, behaved rudely. She ran
away.
vi. Patna provincial council: ¼ to Wife & ¾ to nephew
vii. Naderah filed in Diwani court
viii. Naderah also filed in Supreme Court,
ix. SC reversed the judgement
Kazi, Mufti & Bahadur arested

3. Kamaluddin's case

In this case, once again, the question arose whether the Supreme Court had
jurisdiction over the revenue officers of the East India Company who were
engaged in collection of revenue in Bengal, Bihar and Orissa.
 Kamaluddin was the ostensible (apparent) owner of a farm, which in reality
belonged to another person, Kantu Babu. As there were arrears of land
revenue due from Kamaluddin, the Calcutta Revenue Council sent him to
prison, although Kamaluddin disputed the claim against him. At that time, it
was customary to release such persons on bail, but Kamaluddin was refused
bail. So, he approached the Supreme Court which issued a writ of habeas
corpus and ordered him to be set free. The court took the view that since the
amount in question was in dispute, he should be set free on bail until the
completion of the inquiry as to the exact extent of his liability. The court also
observed that he should not be imprisoned again until his under-renter (that
is, Kantu Babu) had been called upon to pay the amount.

The Governor-General-in-Council, however, took exception to this. They took

the stand that they had exclusive jurisdiction over all revenue officers of the
Company and that the Supreme Court had no power to take cognizance of any
matter related to revenue. The Supreme Court, on the other hand, took a firm
stand that it was the very object of the Regulating Act to empower the court to
punish the revenue officers of the Company for their illegal or irregular
activities. It was contended that it was a practice to release such persons on
bail and that it was equally a practice to demand rent from the under-renter
before proceeding against the farmer. The court therefore justified its action as
being in conformity with well-established customs and usages of revenue
collection.

The Governor-General-in-Council expressed strong resentment in the matter

and a majority of the Council took a decision to direct the Provincial Council to
arrest Kamaluddin once again. It was also decided to order the Provincial
Council to ignore any order coming from the Supreme Court in matters of
revenue. However, the Governor-General, Warren Hastings, refused to support
the Council's decision, and so, the same could not be implemented. However,
the chain of events reflected in no uncertain terms, the serious conflict between
the Supreme Court and the Governor-General-in-Council.

4. Saroopchand's case

Saroopchand was a surety for payment of revenue of district. Every

Zamindar or farmer of land revenue in those days had to bring a person who
would stand surety for him. In case the farmer defaulted, the surety would be
he liable to pay the dues to the East India Company.
 It was alleged that Saroopchand was liable to pay a sum of Rs. 10,000 to the
Dacca Provincial Council as arrears of revenue a claim which was disputed by
him. He contended that he had advanced a loan of Rs. 10,000 to a member of
the said Council named John Shakespeare. This member denied any such
loan, although admitted that he did have some financial dealings with
Saroopchand.

This matter was taken to the Supreme Court, in meanwhile, Saroopchand

was committed to custody without bail by the Provincial Council until such time
as he paid. Interestingly, the member who had allegedly taken the loan also took part in
the proceedings of the Council when the decision against Saroopchand was taken.

Thereafter Saroopchand then moved the Supreme Court for a writ of habeas
corpus. After hearing the matter, the court came to the conclusion that the Council
was guilty of arbitrary use of powers.

It held that the Council had no right to arrest a person w it h o u t ba il fo r

a rr ea rs o f ren t o r re ven u e. In t h e circumstances, the Supreme Court
ordered Saroopchand to be released on giving the necessary securities. In the
course of its judgment, the court passed severe strictures on the
government, observing that it was continuing to act in the same way as it had
been acting before the Regulating Act was passed.

Once again, in this case, the conflict-between the judicial and the executive
came out in the open.

5. Radha Charan's case

Warren Hastings, the Governor-General, lodged a complaint of conspiracy

against several persons, including Radha Charan Mitra, who was a vakil of the
Nawab. The majority of the Council, consisting of Clavering, Monson and Francis,
wrote a letter to the Supreme Court, informing the judges that Radha Charan was
the vakil of the Nawab, and was therefore entitled to rights, privileges and immunities
under the Law of Nations and the statute law of England.

The Sardar Faujdari Adalat was shifted from Calcutta to Murshidabad in 1775,
the administration of justice was in the hands of Nawab Mubarikuddoaula, a
sovereign prince, who possessed a royal mint that coined money. The Nawab also
maintained his own troops.

The court heard the case in June, 1775 and the Nawab's position as a sovereign
prince was hotly contested before the court. On the one hand, it was argued that
since he administered justice, coined money and kept troops, it was evident that he
was a sovereign prince. It was also contended that if a sovereign was held not to be
sovereign, it would produce "the most dreadful consequences. On the other hand, it
was contended that the Nawab had no effective power. Hastings and some ex-
members of the Council submitted affidavits that the Nawab's sovereignty was "a
mere delusion".

After hearing both the sides, the Chief Justice came to the conclusion that, in
effect, all the powers were in the hands of the Company and the Nawab performed no
act of sovereignty independently or without the consent of the Company.

The court described him as a "phantom" and a "man of straw". The court went
on to observe that just interposing the name `Nawab' would not screen any criminal
from the justice of the court.

The claim for immunity of the Nawab's vakil, Radha Charan, was therefore
disallowed and he was sentenced to death for the crime. It was only on account of
strong representations from the inhabitants of Calcutta that he was pardoned. Radha
Charan thus escaped the death penalty, and was, in this sense, luckier than Raja
Nand Kumar, whose case has been discussed earlier.

6. Gora Chand Dutt's case

Gora Chand Dutt filed a suit against Mirza Jalleel for the recovery of a sum of
money. The defendant, Mirza, put in a counter-claim against the plaintiff for a larger
amount. The case was heard by different judges at different stages. Ultimately, a
decree was passed against the plaintiff, Gora Chand, and his property was seized.

It appears that certain irregularities were committed in the execution of this

decree and Gora Chand filed a suit against Hosea, the chief of the Provincial Council,
for such irregularities, contending that the proceedings of the adalat were grossly
irregular.

The Advocate-General of the Company gave an opinion that the Council had in
fact, indulged in irregularities for which no successful defence was available. He
pointed out that the style of the proceedings, the mode of giving evidence and the
principles followed in the adjudication were quite repugnant. He therefore suggested
that the matter ought to be compromised with Gora Chand — as the Council would
not succeed before the Supreme Court.

The Council, however, did not accept this opinion. It was of the view that the
case was the first one of its kind, where members of a Diwani Adalat were sued for
acts done in their judicial capacity, and therefore, the case ought to be allowed to take
its own course, so that a judgment may be given on the competency of the Diwani
Adalats. In retort, the Advocate-General pointed out that the competency of the
adalats was not in question; rather, the question before the Supreme Court was
whether they exercised their powers or abused such powers. As the Council was
adamant in its view, the case was allowed to proceed before the Supreme Court.

The Supreme Court took a rather lenient view in the matter and held that,
except in cases of manifest corruption, the court would not go into the question of
regularity or irregularity of the proceedings. The only remedy available in such cases
was to file an appeal before the Sardar Adalat. Although this case went in favour of
the Company's adalats, it also exposed the serious irregularities that were committed
by these adalats.

Conclusion

The study of the above cases shows the unsatisfactory state of the courts and
the haphazard manner in which the judiciary functioned at that time. It is clear that
the courts often claimed jurisdiction on an arbitrary basis — even over persons not
within their jurisdiction. The cases also reveal how English law was often blindly
applied to native Indians, without regard to the difference between the cultures of the
two countries.

7. Cossijurah's case

Raja Sundernarain was a Zamindar of Cossijurah in Midnapur, Orissa, and was

engaged by the Company for collection of revenue (about 20,000 pounds every year).
Kashinath, a merchant of Calcutta, was his surety. The Raja owed certain sums of
money payable under two bonds which he had executed in Calcutta in favour of
Kashinath. Not being able to recover the money through the Board of Revenue,
Kashinath filed a debt suit against the Raja in the Supreme Cotirt.

His contention was that the Raja was a Zamindar collecting revenue for the
Company, and was thus in the service of the Company. The Supreme Court therefore
had jurisdiction over him. This contention was accepted by the court, and a writ was
issued by it for the arrest of the Raja, who went into hiding. In the meanwhile,- the
Supreme Council, after consulting the Advocate-General, informed the Raja, as well
as the other landholders, that they did not fall within the jurisdiction of the Supreme
Court and therefore, they need not pay any heed to the process of that court.

After receiving this directive, the Raja came out of hiding and decided to use
force and resist the Sheriff if he came to serve the writ and arrest him. Accordingly,
when the Sheriff came once again, the Raja's men drove him away. The Supreme
Council also directed the Collector of Midnapur not to give any assistance to the
Sheriff in serving the warrant.

Accordingly, the Collector also gave no assistance to the Sheriff. Thereafter, one
more writ was issued by the Supreme Court, this time to seize the contents of the
Raja's house, in order to compel his appearance before the court. The Raja alleged
that this time, the Sheriff's men entered his house as well as the Zenana (room
reserved for ladies) and also committed sacrilege in the prayer room. In the
meanwhile, the Governor-General-in-Council directed the Commanding Officer of
Midnapur to send troops to intercept and arrest the Sheriff's men.

Accordingly, two companies of Sepoys, with the assistance of the Collector of

Midnapur, arrested the Sheriff and his men, kept them in confinement for three days
and then sent them to Calcutta as prisoners. Although the Sheriff and his men were
released later, the troops were directed to resist any further writ coming from the
Supreme Court.

Kashinath then brought an action against the Governor-naoral and all the
members of his Council individually, for h_aving assaulted the Sheriff and his men.
Initially, the Councillors appeared before the court and pleaded that they were not
liable as the acts complained of were done by them in their official capacity.

Later, however, they decided to withdraw their appearance and refused to

submit to theprocess of the court. Thereupon, the Supreme Court issued a writ
against all the Counsellors, except Barwell and Warren Hastings (the Governor-
General). This writ, however, could not be served as the army officials prevented the
court officials from serving it. Annoyed and insulted, the Supreme Court committed
the Advocate-General, North Naylor, to prison for having wrongly advised the
government to ignore the court's process. Incidentally, the North Naylor later died in
jail.

At this juncture, it became clear to the court that it had no force to compel the
appearance of the Councillors. Then came the anti-climax. At this critical point of
time, for some reason which is not clear, Kashinath withdrew his suit against the
Raja and the Governor-General-in-Council, and thus ended an acrimonious legal
drama.

Apart from once again highlighting the bitter conflict between the Supreme
Court and the Governor-General-in-Council, this case raised several important
issues.

i. The most important question was whether the Zamindars were subject to the
jurisdiction of the Supreme Court. As the Zamindar in this case did not appear
before the court, the issue could not be argued. The proper course would have
 been for the Zamindar to appear before the court and argue that he did not fall
within the court's jurisdiction. If this argument was rejected, he could have
appealed to the Privy Council, which could have decided this point once and for
all. Unfortunately, . however, the Supreme Council and the Zamindar (with the
active encouragement of the Council) used force to stop the process of the
Supreme Court.
ii. Again, a question arises as to which authority was to decide whether or not the
Zamindars fell within the jurisdiction of the Supreme Court. According to the
Supreme Court, it was the court — and not the Council — which was
competent to decide this point, a contention with which the Council
vehemently disagreed.
iii. Further, it is also clear that the Governor-General and his Council showed
scant respect for the process of the court. They hoped to settle the issue by
force — and not by the use of constitutional means. Not only that, they also
encouraged the Raja to use force and to disregard the orders and directions of
the court.
iv. The most shocking event was the issue of a Notification by the Governor-
General-in-Council that Zamindars residing outside Calcutta should pay no
heed to the process of the Supreme Court — unless they were of the view that
they were servants of the Company or if they voluntarily accepted the court's
jurisdiction. In other words, every Zamindar residing outside Calcutta was
given the liberty-to decide whether or not he fell within the court's jurisdiction,
a proposition that is as astounding as it is illogical.

THE ACT OF SETTLEMENT, 1781

Due to the conflict between the executive and the judiciary that is, between
the Supreme Council and the Supreme Court, had reached a very serious
stage, as is amply reflected in' the cases discussed above. A petition was made
to the British Parliament against the activities of the Supreme Court by the
Supreme Council. Another petition was also submitted to the British
Parliament by the zamindars, servants of the Company and other British
subjects residing in Bengal. A Parliamentaiy Committee was set up in England
to make inquiries and submit a report in the matter. It is on the basis of this
report that the Act of Settlement was passed by the British Parliament in 1781.

The main purpose of the 1781 Act was to settle and remove the defects and
deficiencies of the Regulating Act, 1773. As seen earlier, terms and expressions
used in 1773 Act were not defined with any degree of clarity, resulting in
serious conflicts between the Supreme Council and the Supreme Court.. The
1781 Act was therefore passed to "settle" the disputes relating to the
jurisdiction of the Supreme Court and its relation With the Supreme Council
and the Company's courts. The Act also sought to provide relief to certain
persons who had been imprisoned under the orders of the Supreme Court in
the Patna case (discussed earlier). The Governor-General-in-Council and other
officers who had acted in the course of their official duties were also
indemnified under the Adt.

The main provisions of the Act of Settlement, 1781, are summarised

below.

1. Restrictions on the jurisdiction of the Supreme Court –

The Act clarified that the Supreme Court would have no jurisdiction in
any matter concerning the revenue or any act done in the matter of its
collection.
a) It was provided that no person would fall within the jurisdiction of
the Supreme Court merely because he was a landowner or
landholder or zamindar collecting revenue for the East India
Company.
b) The Governor-General and his Council would not be subject to the
jurisdiction of the Supreme Court in matters done by them in their
official capacity.

2. Clarification on the law to be applied by the Supreme Court

It was provided by the 1781 Act that the Supreme Court had to decide all
suits between Hindus on the basis of Hindu law and usages. Suits
between Mohammedans were to be settled by applying the laws and
usages applicable to Mohammedans. In a case where only one party was
a Hindu or a Muhammadan, the matter was to be decided according to
the law of the defendant.

3. Recognition of the Company's courts

The jurisdiction of the Sardar Diwani Adalats was expressly recognised

by the Act. It was also clarified that this Adalat would hear all appeals
from decisions of Mofussil Adalats in civil cases. The judgment of the
 Sardar Diwani Adalat was declared to be final, and appeals against such
judgements could be filed before the Privy Council only if the value of the
subject-matter in dispute was 5,000 pounds or more.

4. Power to frame rules and regulations

The Governor-General-in-Council was empowered to frame rules and

regulations for the Provincial Courts and Provincial Councils. Copies
thereof were to be sent to the Court of Directors and the Secretary of
State for India within six months. The Privy Council had the power to
amend or abrogate any such rule or regulation within a period of two
years.

5. Release of certain persons and indemnity provisions

The Act also made provisions for the release of the defendants in the
Patna case (discussed earlier) on security being given by the Governor-
General-in-Council for the damages awarded. The defendants were also
allowed to appeal to the Privy Council, despite the fact that such an
appeal was already time-barred. The Governor-General and his Council,
the Advocate General and other persons acting under their orders were
also indemnified and discharged from any suit, action or other
prosecution, for resisting the execution of the orders of the Supreme
Court between the period 1.1.1770- and 1.1.1780.

Critical evaluation of the Act of Settlement

1. The Act of Settlement was to remove the defects of the Regulating Act.
The controversy and doubtful issues that had arisen in the Patna case
were settled by the Act of Settlement once and for all.

2. The Act also clarified the position of the zamindars collecting revenue for
the Company. The Act also gave recognition to the Company's adalats
and raised their status. It also clarified the doubts that had earlier arisen
as to the applicable law in certain cases.

3. The Act of Settlement also curtailed the powers of the judiciary. By doing
so, it put an end to the chaos and confusion that had prevailed earlier as
regards the court's jurisdiction.
4. Despite this negative impact, it is interesting to see that, even with its
diminished jurisdiction, the Supreme Court was able to effectively
enforce its orders and thus earn greater authority and prestige.

5. There is, however, no doubt that the Act was substantially in favour of
the Governor-General and his Council and curtailed the powers the
Supreme Court. The Governor-General-in-Council became the supreme,
and often arbitrary, authority in the country.
 B. HISTORY OF LEGISLATURE

1. Charter of 1600
2. Regulation Law and Charter of 1813
3. Charter Act of 1833
4. Indian Councils Act of 1861
5. Indian Councils Act of 1892
6. Indian Councils Act 1909
7. Govt. of India Acts, 1919
8. Govt. of India Acts, 1935
9. Indian Independence Act 1947
10. Development of Civil Law Codification of Law
11. Law Reforms

1. Charter of 1600

Establishment of East India Company

The history of the legal system in British opens with the establishment of
the East India Company. The East India Company was incorporated in
England by the Crown’s Charter of 1600. The Company was incorporated for
a period of 15 years, but it could be wound up earlier on two years Notice of
trade was found unprofitable. The Company was given exclusive trading
rights in Asia (including India), Africa and America. No British subject could
carry on trade within these areas without the license granted by the
Company.

All the members of the Company constituted themselves as General Court.

The General Court was to elect annually the Court of the Directors. The
Court of Directors consisted of Governor and Twenty- four directors.

2. Regulation Law and Charter of 1813

The System of Regulation Law played an important role in the

development of the law in India. The Charter of 1726, for the first time
conferred the power of the legislation on the Governor and Council of
each Presidency Town.
Before 1726, the legislative Power was conferred on the Company. The
Charter of 1726 empowered the Governor-in-Council of each Presidency
Town to make by-laws, rules and ordinances for the regulation of the
Corporation and inhabitants of the settlement concerned.
The Charter of 1726 also empowered the Governor-in-Council of each
Presidency Town to make by-laws, rules and ordinances for the for the
good governance of the settlement of Fort William (Calcuta) and factories
subordinate to it.

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 Charter Act of 1813

This Act declared formally the Sovereignty of the British Crown over the
Company’s territorial acquisition of India; however, it allowed its
possession with the Company. The Charter Act of 1813 renewed the
Charter of the Company for further period of 20 years. This Act threw
open the Indian trade to all the Britishers except the tea trade which
continued under the Company’s monopoly.
The Charter Act of 1813 extended the legislature powers of the
Governments to all the presidency Towns.

3. Charter Act of 1833

The Charter Act, 1833, introduced many reforms in the then existing
legislative machinery in India. It played a vital role in the consolidation and
codifications of Indian laws. The Company acquired many territories in
India. It was very difficult for it to have control over them with the then
constitutional setup of the company. A strong Central Government was felt
necessary for the effective administration of such vast empire.

i. Establishment of the All India Legislature

Before 1833, there were five sources of Indian Legislation
i. The Charter issued by the British Crown
ii. The Act passed by the British Parliament
iii. The order of the Governor-General-in-Council (knowns as
regulations).
iv. The orders of the Supreme Court and
v. The regulations made by the Governor-in-Council of the
Presidencies.

Thus, before there were five authorities to make laws and

regulations. On account of it the uncertainty and diversity developed
in the field of law. To remove this defect, it was necessary to remove
the different sources of legislation and to establish one All India
Legislature having authority to make laws for the whole territory in
possession and under control of Company in India.

The Charter Act, 1833 was enacted with the object to remove the
defects. It ws great steps in the process of Centralization. The Provision
was made to the establishment of an All India Legislature and strong
Central Government.

ii. Establishment of Law Commission

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 Section 53 of the Charter Act of 1833 made a provision for codification
and consolidation of the Indian Laws. It made provision for appointment
of Law Commission in India.
iii. Adminsitrative Centralisation
The provisions were made for establishment of a strong Central
Government. The Governor-General of Bengal was designated as
Governior- Genaral of India. The Presidencies of Bombay, Madras
and Calcutta were placed under his control.

4. Indian Councils Act of 1861

To remedy the difficulties arising out of the cetralisation, the Indian

Councils Act, 1861, was enacted. This started the process of
Decentralisation. The object of the act was to give power of the Governor-in-
Council of Madras, Bombay to make and to establish new Council in other
provinces.

Besides, the Revolution opened the eyes of the Britishers and they realized
the important of the co-operation of the Indians in the administration. The
Indian association in the legislation was allowed by this Act.

Provisions:-
i. Provincial Executive and Provincial Legislature ( Powers conferred
on the Governor)- The Governor-in-Council constituted the
Provincial executive. The Governors had power to make rules for
the conduct of the business in the Council. Each Governors was
authorised to determine times and places of the meetings of his
Legislative Council.
ii. Central Executive and Central Legislature. (central Legislative
Council-its composition, powers and functions)-

5.Indian Councils Act of 1892

The Indian Council Act, 1892 many changes in the Constitutiinal set up of
the Government of India. They may be summed up as follows:-
i. The number of the Additional Members of the Governor-in-Council
would not be less than and no more than 16 and the Additional
Members of the Governor-in-Council
ii. 2/5 of the Additional Members were to be non-officials.
iii. The members of the Legislative Councils were authorised to
discuss annual financial statements.

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6.Indian Councils Act 1909

The Indian Councils Act, 1892, failed to satisfy the Indian leaders. The
political situation developing in India led the British authorities to think of
introducing constitutional reforms with a view to secure the support of the
moderate section in the Indian National Congress.

Mr. Gopal Krishna Gokhale, the Chief leader of the moderate section in the
Congress went to England, met the Secretary of State for India, Lord John
Morley and placed his views before him. Mr. Gokhale tried to convince Lord
Morley, the Secretary of State for India, of the urgency of the Constitutional
reforms. Lord Morley was sympathetic to the views of Mr. Gokhale. Lord
Minto, the Viceroy of India, was also in favour of introducing constitutional
reforms.

A Committee was appointed by Lord Minto, the Viceroy of India, to enquire

into the matter. The Committee submitted its report to the Viceroy in
October, 1906. The report was discussed in the Council and thereafter it
was forwarded to Lord Morley, the Secretary of State for India.

A Bill was prepared on the basis of the report of the committee negotiations
between Lord Morley, the Secretary of State for India and Lord Minto, the
Viceroy of India. In 1909, the British Parliament passed it to become an Act.
This Act, the Indian Councils Act, 1909, in the result of the efforts of Lord
Minto, the Viceroy of India and Lord Morley, the Secretary of State for India
and consequently, the reforms introduced by this Act are popularly known
as Minto-Morley Reforms.

The main objects of the Indian Councils Act, 1909, were as follows
(a} to increase the size of the Legislative Councils;
(b) to enlarge the functions of the Legislative Councils;
(c) to increase the proportion of elected members; and
(d) to secure the support of the moderate section in the Indian National
Congress.

Provisions.—

The provisions of:the Indian Councils Act, 1909 may be summed up as

follows
i. Size of the Legislative Councils. The size of the Legislative was
increased.
ii. Functions of the Legislative Councils
iii. System of election
iv. Vice-presidents
v. Executive Council

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7. Govt. of India Acts, 1919
8. Govt. of India Acts, 1935
9. Indian Independence Act 1947
10. Development of Civil Law Codification of Law
11. Law Reforms

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D. THE ACT OF SETTLEMENT, 1781

Due to the conflict between the executive and the judiciary that is, between
the Supreme Council and the Supreme Court, had reached a very serious
stage, as is amply reflected in' the cases discussed above. A petition was made
to the British Parliament against the activities of the Supreme Court by the
Supreme Council. Another petition was also submitted to the British
Parliament by the zamindars, servants of the Company and other British
subjects residing in Bengal. A Parliamentaiy Committee was set up in England
to make inquiries and submit a report in the matter. It is on the basis of this
report that the Act of Settlement was passed by the British Parliament in 1781.

The main purpose of the 1781 Act was to settle and remove the defects and
deficiencies of the Regulating Act, 1773. As seen earlier, terms and expressions
used in 1773 Act were not defined with any degree of clarity, resulting in
serious conflicts between the Supreme Council and the Supreme Court.. The
1781 Act was therefore passed to "settle" the disputes relating to the
jurisdiction of the Supreme Court and its relation With the Supreme Council
and the Company's courts. The Act also sought to provide relief to certain
persons who had been imprisoned under the orders of the Supreme Court in
the Patna case (discussed earlier). The Governor-General-in-Council and other
officers who had acted in the course of their official duties were also
indemnified under the Adt.

The main provisions of the Act of Settlement, 1781, are summarised

below.

1. Restrictions on the jurisdiction of the Supreme Court –

The Act clarified that the Supreme Court would have no jurisdiction in
any matter concerning the revenue or any act done in the matter of its
collection.
a).It was provided that no person would fall within the jurisdiction of the
Supreme Court merely because he was a landowner or landholder or
zamindar collecting revenue for the East India Company.
b).The Governor-General and his Council would not be subject to the
jurisdiction of the Supreme Court in matters done by them in their
official capacity.
2. Clarification on the law to be applied by the Supreme Court

It was provided by the 1781 Act that the Supreme Court had to decide all suits
between Hindus on the basis of Hindu law and usages. Suits between
Mohammedans were to be settled by applying the laws and usages applicable
to Mohammedans. In a case where only one party was a Hindu or a
Muhammadan, the matter was to be decided according to the law of the
defendant.

3. Recognition of the Company's courts

The jurisdiction of the Sardar Diwani Adalats was expressly recognised
by the Act. It was also clarified that this Adalat would hear all appeals
from decisions of Mofussil Adalats in civil cases. The judgment of the
Sardar Diwani Adalat was declared to be final, and appeals against such
judgements could be filed before the Privy Council only if the value of the
subject-matter in dispute was 5,000 pounds or more.

4. Power to frame rules and regulations

The Governor-General-in-Council was empowered to frame rules and
regulations for the Provincial Courts and Provincial Councils. Copies
thereof were to be sent to the Court of Directors and the Secretary of
State for India within six months. The Privy Council had the power to
amend or abrogate any such rule or regulation within a period of two
years.

5. Release of certain persons and indemnity provisions

The Act also made provisions for the release of the defendants in the Patna
case (discussed earlier) on security being given by the Governor-General-in-
Council for the damages awarded. The defendants were also allowed to appeal
to the Privy Council, despite the fact that such an appeal was already time-
barred. The Governor-General and his Council, the Advocate General and other
persons acting under their orders were also indemnified and discharged from
any suit, action or other prosecution, for resisting the execution of the orders of
the Supreme Court between the period 1.1.1770- and 1.1.1780.
Critical evaluation of the Act of Settlement

The Act of Settlement was to remove the defects of the Regulating Act. The
controversy and doubtful issues that had arisen in the Patna case were settled
by the Act of Settlement once and for all.

The Act also clarified the position of the zamindars collecting revenue for the
Company. The Act also gave recognition to the Company's adalats and raised
their status. It also clarified the doubts that had earlier arisen as to the
applicable law in certain cases.

The Act of Settlement also curtailed the powers of the judiciary. By doing so, it
put an end to the chaos and confusion that had prevailed earlier as regards the
court's jurisdiction.

Despite this negative impact, it is interesting to see that, even with its
diminished jurisdiction, the Supreme Court was able to effectively enforce its
orders and thus earn greater authority and prestige.

There is, however, no doubt that the Act was substantially in favour of the
Governor-General and his Council and curtailed the powers the Supreme
Court. The Governor-General-in-Council became the supreme, and often
arbitrary, authority in the country.
 IV. CONFLICT ARISING OUT OF THE DUAL JUDICIAL SYSTEM

INTRODUCTION:-

A. THE DUAL SYSTEM OF COURTS IN INDIA BEFORE 1861

Before the year 1861, two parallel systems of judicial institution of entirely
dissimilar origin prevailed in British India. The country had two sets of
courts: the Crown's courts and the Company's courts. The Supreme Courts
in the three Presidency Towns of Calcutta, Bombay and Madras constituted
the courts set up by the British Crown. In the mofussil areas, namely, the
areas lying outside the Presidency Towns, adalats were set up by the East
India Company.

The organisation, jurisdiction and powers of the two sets of courts we re

different and they applied different laws. A continuous clash and conflict
was seen between them, mainly because their respective jurisdictions were
not clearly defined. Thus, ordinarily, the jurisdiction of the Supreme Court
was confined to the inhabitants of the Provincial Towns, whereas persons
residing outside these towns fell within the jurisdiction of the Company's
adalats. However, in an attempt to extend its jurisdiction, the Supreme
Court gave a very broad meaning to the term "inhabitant'. it took the view
that even if a person lived outside a Presidency Town, the court would
nevertheless have jurisdiction over him if he had some property or land or
shop or an agent for commercial transactions within the Presidency Town.
Thus, jurisdiction over such persons was claimed by both the sets of courts
— by the Supreme Court for the reason given above and by the Company's
adalats because such persons resided in the mofussil areas. This led to
utter confusion. Parties would file cross-suits against each other in respect
of the same matter in different courts, which often gave conflicting
judgments.

Both the sets of courts claimed concurrent jurisdiction in respect of

immovable property, further complications arose when conflicting decrees
were to be executed in respect of the same property.

1|P a g e
The pendency of a suit in the Company's court in a mofussil area was no
bar to filing a fresh suit in the Supreme Court as regards the same subject-
matter.

The main features that distinguished the two sets of courts:

1.The Supreme Courts established in the three Presidency Towns derived

their authority from the British Crown, whereas the Company's adalats were
established by the East India Company.

2. The Judges of the Supreme Courts were appointed by the Crown and
held office during the pleasure of the Crown. On the other hand, judges of
the adalats were appointed by the Company and could be removed by the
Company.

3. The judges of the Supreme Courts were English Barristers, whereas the
"judges" of the adalats had little or no legal knowledge or training.

4. There was no system of hierarchy as far as the Supreme Courts were

concerned; there was just one Supreme Court in each Presidency Town. The
Company had, however, established a hierarchy of civil and criminal
adalats. In each province, the Sardar Diwani Adalat heard appeals in civil
cases and appeals against its orders could be filed before the Privy Council.
The Sardar Nizamat Adalat likewise exercised appellate jurisdiction in
criminal matters. Additionally, both these adalats had supervisory
jurisdiction over subordinate courts.

5. The laws applied by the two sets of courts were also different. The
Supreme Courts applied English IRw to all cases, whether civil or criminal,
except in matters involving the personal laws of Hindus or Muslims, where it
applied the Hindu .or the Mohammadan Law, respectively. In a dispute
between a Hindu and a Muslim, the law of the defendant was applied. The
Company's adalats, on the other hand, mainly decided suits between native
Indians. They therefore applied rules of Hindu and Mohammadan law. In
case of persons who were neither Hindus nor Muslims, the native laws and
customs of such persons were applied by the adalats. Where no specific rule

2|P a g e
of law existed, the adalats were required to act on the principles of justice,
equity and good conscience.

6. Even the procedure followed by the two sets of courts was different. The
Supreme Courts adopted the procedure followed by the English courts,
including the English law of evidence. On the other hand,

7.There was no uniform or definite procedure prescribed for the Company's

adalats. Although these adalats generally followed the English law of
evidence, in so far as the facts of the case permitted, it was not mandatory
to do so. The adalat often applied the customary law of evidence derived
from Mohammadan Law Officers attached to the adalat.

It was clear that if two sets of laws were administered by two sets of courts
whose respective jurisdictions were not well-defined, all kinds of
contradictions and conflicts were bound to follow. When the subject-matter
of the litigation was situated partly in a Presidency Town and partly in a
mofussil area, the Supreme Court and the Company's adalats both claimed
jurisdiction in the matter, and when cross-suits were filed in both the
courts, the two decisions were often inconsistent with each other.

Cases which highlight the chaos and confusion created by the dual
system of courts are given below.

M orton v. Khan

Morton, a resident of the town of Calcutta, filed a suit in the Supreme Court
at Calcutta against Khan, who was a resident of Oudh (a mofussil area) for
the recovery oi certain debts which Khan's servants had contracted in
Calcutta. Although Khan was residing in a mofussil, he did carry on some
trade through his servants in the town of Calcutta. On this ground, the
Supreme Court came to the conclusion that he was subject to its
jurisdiction and passed an order seizing his goods and property. When it
was contended that Khan was in fact living outside the Presidency Town and
that the Supreme Court had illegally assumed jurisdiction over him, the
court justified its stand on the ground that he was a "constructive
inhabitant' of Calcutta. The court pointed out that several Indians lived

3|P a g e
outside the Presidency Towns, that is, in the mofussil areas, but carried on
trade or business in such towns. If such persons were not treated as being
within the court's jurisdiction, no relief could be claimed against them. The
Supreme Court also took the view that, as a court of equity, it had
jurisdiction over movable and immovable properties in the mofussils .in all
cases where the owner of such properties was personally liable to its
jurisdiction. On this basis, the Supreme Court issued attachment orders of
Khan's property in the mofussil.

M usleah V. M usleah

In this case, Musleah, a Jew, who resided in the Presidency Town of

Calcutta died, leaving immovable property in the Presidency Town as well as
in the mofussil areas. His son approached the Supreme Court at Calcutta,
claiming the entire property of his late father under English law. An
argument was raised against him that only a mofussil adalat would have
jurisdiction over the property outside Calcutta and would dispose of the
same applying Jewish law. This contention was, however, not accepted by
the Supreme Court, which observed that the Company's adalats had
concurrent, but not exclusive, jurisdiction.

Choudhary v. Choudhary

A suit for partition of property filed between two residents of Calcutta was
decreed by the Supreme Court at Calcutta, although a part of such property
was in the mofussil area. The court repelled the argument that it had no
jurisdiction to partition property in the mofussil. It justified its stan d on the
ground that it had power to decide all suits if the parties were inhabitants of
Calcutta.

M utty Loll Seal v. Joygopaul

In this case, the Supreme Court held that the pendency of a suit in a
mofussil adalat could not be pleaded as a bar if a fresh suit was filed
between the same parties in respect of the same subject-matter. It observed
that the system and the procedures in the two sets of courts were different,

4|P a g e
and the Supreme Court would have the jurisdiction to entertain a new suit,
even if the same dispute was pending In a mofussil adalat.

Aga M ohd. Jaffer v. M ohd. Saduk

The plaintiff in this case had obtained a decree against the defendant from
the Supreme Court at Bombay. The court allowed him to execute the decree
by seizure of some horses of the defendant at Nasik, a mofussil area. A
creditor of the defendant filed a suit in the Nasik adalat against the
European bailiff of the Supreme Court, leading to the arrest of the bailiff.
The Supreme Court at Bombay took the view that such creditor at Nasik
was guilty of contempt of court and was, therefore, liable to be punished.

The solution to the problem

It was clear that the confusion and conflict arising from the dual system of
courts could be resolved only if they were merged into one set of courts. In
1853, a Law Commission was appointed to prepare a scheme for the merger
of the Supreme Court and the Sardar adalats. Besides, the East India
Company was also dissolved in 1858 and the Government of India was
taken over by the British crown. As a result, the distinction between the
Company's adalats and the Crown's courts had become academic. It was
against this background that the British Parliament passed the Indian High
Courts Act in 1861.

B. THE ESTABLISHM ENT OF HIGH COURTS UNDER THE INDIAN HIGH

COURTS ACT, 1861

Although the Indian High 'Courts Act, 1861, did not itself establish any
High Court, it empowered the British Crown to establish one High Court in
each of the Presidencies of Calcutta, Bombay and Madras. Accordingly, High
Courts were established in Calcutta, Bombay and Madras in 1862.

The main object of the Act was to abolish the Supreme Courts in the
Presidency Towns and the Sardar Adalats in the mofussil areas, and
establish in their place, one High Court in each Presidency town. Such a
High Court was vested with the jurisdiction which was earlier vested in the
Supreme Court and the Sardar adalats. In other words, the dual system of

5|P a g e
courts was to be abolished and a unified judicial system was to be
established in the country.

Under the Act, each High Court was to consist of one Chief Justice and as
many puisne (subordinate) judges, not exceeding fifteen, as the Crown
thought it fit to appoint. It was provided that: -

At least one-third of the Judges, including the Chief Justice, were to be

Barristers of at least five years' standing. - At least one-third of the.Judges
were to be appointed from members of the Civil Service of at least ten years'
standing and who had served as Zilla Judges for at least three years.

- The remaining one-third posts were to be filled by subordinate judges with

at least five years' service or pleaders of the Supreme Court or the Sardar
adalats with at least ten years' standing.

All judges of the High Court were to hold office during the pleasure of the
British Crown.

Earlier, the Supreme Court had judges who had a good knowledge of
English law, but who were least familiar with native laws and customs.
Likewise, the Company's adalats had judges who were well-versed with
native laws and customs, but had inadequate knowledge of the laws and
procedures prevailing in England. Now, the High Court would have both
these types of judges, which would be more conducive to the administration
of justice in the country.

Jurisdiction of the High Courts

The High Courts established under the 1861 Act were to be courts of record
with very wide jurisdiction in civil, criminal, admiralty, matrimonial, testate
and intestate matters. [A court of record is a court whose decisions and
orders are preserved permanently. Such a court also has the power to
punish for contempt of its authority.]

a).Ordinary original civil jurisdiction

In the exercise of its ordinary original civil jurisdiction (OOCJ), the High
Court exercised jurisdiction within the local limits of the Presidency town.

6|P a g e
This was similar to the jurisdiction earlier exercised by the Supreme Court.
However, before this Act, the Supreme Court had exercised jurisdiction in
certain cases even over persons outside the Presidency town; such
jurisdiction was not conferred on the High Court under the Act. Its ordinary
jurisdiction was confined to the local limits of the Presidency town. Subject
to what is stated above, the High Court had power to try suits of every
description — unless the subject-matter of the suit was below Rs. 100, in
which case the suit was to be tried by the Small Causes Court 'established
in that Presidency town.

As regards immovable property, the High Court wasgiven jurisdiction to try

all suits — - if the immovable property was situated in the Presidency town;
or - if the cause of action arose in the Presidency town; or

if the defendant, at the commencement of the suit, resided in the Presidency

town or carried on business or personally worked forgain within the limits of
that Presidency town.

Here also if the dispute involved a sum below Rs. 100, the suit would have
to be filed in the Small Causes Court.

b).Extraordinary original civil jurisdiction

The High Court could also exercise extraordinary original civil jurisdiction.
Under this jurisdiction, it could withdraw a suit pending in a subordinate
court which was subject to its superintendence and decide the matter itself,
if justice so required. When exercising such jurisdiction, the High Court
could also try offences committed outside the Presidency town.

c).Criminal jurisdiction

In the exercise of its ordinary original criminal jurisdiction, the High Court
had jurisdiction in criminal matters over all persons residing in that
Presidency town. It also had criminal jurisdiction over Europeans and
Britishers outside the local limits of the Presidency town. When exercising
its extraordinary criminal jurisdiction in criminal matters, the High Court
had jurisdiction over all persons residing in any place within the jurisdiction
of any court which was subject to its superintendence.

7|P a g e
d).Admiralty jurisdiction

As an admiralty court, the High Court could exercise civil, criminal and
maritime jurisdiction which extended to all maritime offences committed
anywhere in India.

e).Testamentary and intestate jurisdiction

The High Court was also given the power to grant probates of wills and
testamentary .dispositions, as well as letters of administration in re spect of
the property of deceased persons. It was provided that the court was to have
"like power and authority" as regards testamentary matters as was earlier
exercised by it predecessor, the Supreme Court.

f).Matrimonial jurisdiction

The High Court had jurisdiction in matrimonial matters concerning persons

professing the Christian religion. However, in doing so, the court could not
interfere with the exercise of any jurisdiction in matrimonial matters by any
other court.

g).Appeals to the High Court

In civil cases, the High Court was em'mbowered to hear appeals from the
judgments of all civil courts subordinate to it. In criminal matters, the High
Court could hear appeals from any court subject to its superintendence. The
High Court could also transfer any criminal case or appeal from one
subordinate court to another.

h).Appeals from the High Court

In civil cases, an appeal could be filed before the Privy Council against the
final judgment of the High Court if the suit was valued at Rs. 10,000 or
more or if the High Court certified that the case was a fit one for appeal to
the Privy Council. In criminal matters, an appeal to the Privy Council lay
from any judgment or order of the High Court made in the exercise of its
original criminal jurisdiction, or if in a criminal matter, a point of law had
been reserved for the opinion of the High Court by a lower court — provided

8|P a g e
that the High Court certified that the case was a fit one for appeal to the
Privy Council.

Law to be applied by the High Courts

As regards the law to be applied by the High Courts, the following

provisions were made in the Act:

1. When exercising its ordinary original civil jurisdiction, the High

Court was to apply the same law or principles of equity as would
have been applied to such a case by the erstwhile Supreme Court.
Effectively, this meant that English law would be continued to be
applied by the High Court in such matters.
2. In the exercise of its extraordinary original civil jurisdiction, the
High Court had to apply the same law or principle of equity as
would have been applied to such a case by the local court having
jurisdiction in the matter.
3. When exercising its appellate jurisdiction, the High Court was to
apply the same law or principles of equity as the court in which the
proceedings originated ought to have applied in such a case.
4. In criminal cases, the High Court was required to apply the
provisions of the Indian Penal Code, 1860, when acting as a court
of original jurisdiction or as a court of appeal, reference or revision.
Thus, in criminal matters, a uniform body of law was applicable on
all sides of the High Court.
5. Uniformity in the matter of procedural law was also sought to be
achieved by applying the Code of Civil Procedure (CPC) in all cases.
6. An effort was made to fuse law and equity, so as to achieve
uniformity in this sphere also.

9|P a g e
 The Government of India Act, 1919

Introduction:-

After the First World War broke out in 1914, with a view to prepare a scheme
of reforms, Montague, the Secretary of State for India came to India in
November 1917, along with the Viceroy, Lord Chelmsford and extensively
toured large parts of the country. He also met top-ranking Indian leaders, held
extensive discussions with them and personally studied the problems facing
the country. A report was then prepared by Montague, the Secretary of State
for India in consultation with Lord Chelmsford, which became well-known as
the Montague-Chelmsford (or the Mont-Ford) Reforms. It was on the basis of
this report that the Government of India Act, 1919, was passed by the British
Parliament.

Main objects of the Act

The principal objects of the 1919 Act may be summarised as under:

• The main purpose of the Act was to increase the association and participation
of Indians in every branch of the administration of India. To achieve this, the
Act sought to put a little more power and responsibility in the hands of
Indians.

• The Act aimed at establishing responsible government in India. However, this

was to be done, not immediately, but in gradual stage. The time and manner of
finally establishing full responsible government in the country was to be
decided by the British Parliament, taking into account the co-operation given
by Indians.

• The Act sought to develop — but in a gradual manner —self-governing

institutions in India. Before allowing Indians to take full charge of the
administration, it was thought necessary to give them proper training in the
right direction. It was conceived that, at first, only local affairs could be left in
their hands, and after they obtained sufficient experience, they could gradually
be given complete control over all matters concerning the country.

• The Act sought to give the provinces a large measure of independence in

provincial matters. This would ultimately lead to a good amount of
decentralisation in the government.

1
Main provisions of the Act

The most important provisions of the Act may be summed up as follows:

1. The 1919 Act introduced diarchy (dyarchy) in the provinces.

2. Changes were made in the constitution of the Indian Council, which was to
consist of eight to twelve members. The number of Indians in the Council was
increased from two to three. Their salaries and allowances were increased
although their tenure was reduced from seven years to five years.

3. As regards the Governor-General, it was provided as under: - The Governor-

General had to carry out his functions with the advice and concurrence of his
Executive Council. However, he was given the power to override the view of the
Council, if he was satisfied that such view was harmful or wrong or if it was
necessary to do so for preserving peace and tranquillity in the country.

Likewise, even if a Bill was rejected by the legislature, the Governor-General

had the power to put it on the statute book if, in his opinion, it was in the
interests of British India. This power popularly called the 'power of certification'
was, in fact, used by the Governor-General on several occasions.

- Bills affecting certain matters (for instance, foreign relations, public debt and
public revenue) could not be introduced in the legislature without the prior
sanction of the Governor-General.

4. The Act made the central legislature a bicameral legislature. It was to consist
of two Houses, the Upper House (or the Council of States) and the Lower House
(or the Legislative Assembly). The Upper House was to consist of a maximum of
60 members — some of whom were nominated and the rest were elected. The
Lower House had 140 members_ As the Governor-General was part of the
central legislature, this legislature consisted of the Governor-General, the
Upper House and the Lower House. Under the scheme of the Act, the Upper
house was meant to serve as a check on the Lower House.

5. The Act divided subjects of administration into two classes: central subjects
and provincial subjects. Central subjects, being matters of national importance
(like defence, post & telegraphs and currency & coinage) fell within the domain
of the central legislature, whereas provincial subjects, being of local interest
and importance (like education, agriculture, police, etc.) were left to be
legislated by the provincial legislature. It was also clarified that all matters not

2
included in the list of provincial subjects were to be treated as central subjects.
If any dispute arose as to whether a particular subject fell within the central
list or the provincial list, the same was to be decided by the Governor-General-
in-Council, whose decision was final.

6. In the matter of elections, the Act introduced the principle of communal

representation for Muslims, Sikhs, Anglo-Indians and Indian Christians.

THE DIARCHY SYSTEM UNDER THE 1919 ACT

As stated above, the Government of India Act, 1919, introduced diarchy in the
provinces. The word diarchy (or dyarchy) is made up of two words, 'd/ (or di)
meaning two and `archid meaning rule. The word thus signifies a system of
double rule or a double form of government.

Under the Act, all subjects of administration were divided into two classes:
central subjects (being matters of central importance like defence) to be
legislated by the central legislature, and provincial subjects (being matters of
local importance like agriculture) to be administered by the provinces. The
provincial subjects were further sub-divided into two categories: the transferred
subjects and the reserved subjects. Some examples of matters which fell in the
list of transferred subjects were:

local self-government; education; public health; sanitation; public works;

agriculture; co-operative societies; religious and charitable endowments;
museums; registration of births and deaths, etc.

On the other hand, matters such as the following fell in the category of
reserved subjects: - irrigation and canals;

administration of justice; development of industries; development of mineral

resources; water supplies; police; land revenue and land acquisition; famine
relief; newspapers, etc.

The transferred subjects were to be administered by the Governor with the

assistance of his ministers, who were responsible to the provincial legislature.
Such ministers were appointed by the Governor and held office during his
pleasure. In the administration of these subjects, the Governor was expected to

3
act on the advice of his ministers. However, he could refuse to act on such
advice if he had sufficient reason to dissent from their opinion.

The reserved subjects were to be administered by the Governor with the

assistance of his executive Councillors, who were not responsible to the
legislature. The Governor was not bound, under the Act, by the majority
decision of the Council and he could override such a decision if, in his opinion,
the majority decision was wrong or fraught with grave danger to the safety,
peace and tranquillity of the province.

The Councillors (who assisted the Governor as above) were appointed by the
Crown on the recommendation of the Secretary of State for India, the
appointment being for five years. Although such Councillors were ex officio
members of the Provincial Legislature, they were not responsible to such
legislature. The Councillors were responsible to the Governor-General, and
through him, to the Secretary of State for India, and through the latter,
ultimately to the British Parliament.

It will be seen that an experimental version of responsible government was

introduced only in the provinces. There was no element of responsible
government at the centre.

Critical evaluation of dyarchy in the provinces under the 1919 Act

Although the 1919 Act was a bold and commendable step towards the
establishment of complete provincial autonomy in India, the working of the
system of dyarchy left much to be desired. A Commission was appointed under
the chairmanship of Sir Alexander Muddimon to examine the working of
dyarchy in the provinces, and this Commission revealed the various shortfalls
of the system. The main defects of dyarchy in the provinces were the following:
1. Even in pure theory, the concept of dyarchy is rather unsound, as it pre-
supposes a perfect and logical division of various departments, which in
practice is impractical and even impossible.

2. The division of subjects into transferred subjects ani, reserved subjects

under the Act was irrational and unclear Thus, while agriculture was a
transferred subject, irrigation was a reserved subject. It is clear that dyarchy
was an experiment by the British in constitution-making, but one which failed
miserably.

4
 3. Ministers could exercise little control over the public servants of their own
departments. They had no say in their transfer or promotions — as this was
under the control of the Governor.

4. The Ministers had to please two masters — the Governor and the Provincial
Legislature. On the one had, the Governor could dismiss a Minister without
giving any reason; on the other hand, the Provincial Legislature could force a
Minister to resign if he had lost its confidence. This made the position of the
Ministers weak and vulnerable.

5.In practice, the Ministers did not act on the principle of the collective
responsibility. They were individually — and not collectively — responsible for
the working of their departments. As the Governor dealt with each Minister
separately, joint responsibility did not exist.

6. The Governor became a very powerful authority in the province. He

administered both the reserved and the transferred subjects. Although he was
supposed to administer the reserved subjects with the help of the Council, he
was not bound by the decision of the majority of the Council. Transferred
subjects were administered by him with the help of the Ministers, but he had
the power to refuse to act according to their advice. Besides, the Ministers held
office during his pleasure, and he could therefore dismiss any Minister without
giving any reason.

7.As the Finance Department was controlled by the Council, often, the
Ministers could not implement their policies and programmes as the Council
refused to sanction the necessary funds.

8. Some functions of the Government were handled by the Governor with his
Councillors and others by him and his Ministers. There was, however, a tussle
between the Councillors and the Ministers. The Governor did little to encourage
any joint deliberation between the two. In fact, this conflict between the
Councillors and the Ministers led to administrative inefficiency and ultimately
resulted in the failure of the system of dyarchy.

9. Moreover, the Indian National Congress was opposed to the system of

dyarchy. Because of non-cooperation from the Congress, Ministers were chosen
from other groups and they did not enjoy popular support.

10. Other events like the passing of the Rowlatt Act in March 1919 (which
authorised unlimited detention in the name of public safety), the Jallianwalla

5
Baug massacre in April 1919, and the enforcement of martial law in Punjab,
shattered the aspirations of all Indians. As Mahatma Gandhi remarked, the
working of the reforms were only a way of draining India of her wealth and
prolonging her servitude. The system of dyarchy in the provinces was
ultimately abolished by the Government of India Act, 1935.

6
 THE GOVERNMENT OF INDIA ACT, 1935

Introduction:-

As per the Government of India Act, 1919, a Commission of Inquiry be set

up within ten years to inquire into "the development of representative
institutions in British India". Accordingly, a Commission headed by Sir John
Simon (the Simon Commission) was set up in 1927.

After the Commission gave its report in 1930, there were three Round Table
Conferences in London between 1930 and 1932.

Although all these exercises resulted in a deadlock, the British government

nevertheless went ahead and passed the Government of India Act, 1935, an
Act which conferred a substantial measure of autonomy on the provinces
and also established a responsible government in the country for the first
time.

It is generally accepted that the 1935 Act was a product of four diverse
forces, namely, (a) Indian nationalism, (b) British imperialism, (c) Indian
communalism, and (d) the role played by the Indian princes.

It is widely perceived that this Act was forced upon India by the British
Parliament because the provisions of the Act were far from the expectations
of the Indian leaders.

Nevertheless, the 1935 Act can be regarded as a milestone in Indian legal

history for three reasons.

Firstly, it introduced a federal form of government in India in place of the

unitary structure which prevailed earlier.

Secondly, it envisaged a federation to which the native states were to accede.

Last, but not the least, it played a vital role in the shaping and moulding of
the Constitution of India in 1950.

The most important provisions of the Government of India Act, 1935,

may be summed up as follows:

1. Establishment of a federation
So far, the country had a unitary form of government. The 1935 Act
sought to introduce a federal structure for India. The Act provided for
the formation of an all-India federation. All the provinces were to join
the new federation automatically.
However, as far as the native Indian states were concerned, it was
purely voluntary as to whether a particular state would or would not
join the federation. If such a state opted to join the federation, its ruler

1
 was required to sign an Instrument of Accession, which stated the
extent of surrender of the ruler's powers in favour of the federal
government.

2. Division of legislative power between the centre and the units

The 1935 Act envisaged a division of power between the centre and
the units. It provided for three Lists of subjects to be legislated upon,
namely the Federal List, the Provincial List and the Concurrent List.
Subjects falling in the Federal list were to be legislated by the centre
and those falling under the Provincial List by the units (provinces).
Subjects included in the Concurrent List would be legislated upon
both by the centre and the provinces, but in case of a conflict, the
central legislation would prevail.

3. Diarchy at the centre

The system of diarchy in the provinces which was introduced by the
1919 Act was abolished. The Government of India Act, 1935,
introduced the system of diarchy at the centre. The federal subjects
were divided into reserved subjects and transferred subjects. Reserved
subjects were subjects of national importance like defence and
external affairs, and were to be administered by the Governor-General
with the assistance of his executive Councillors. The transferred
subjects, namely those which were central subjects, but of lesser
national importance, were to be administered by the Governor-General
with the aid and advice of his Ministers.

4. Bi-cameral legislature at the centre

The federal legislature was to be a bi-cameral legislature, consisting of

the Federal Assembly (the Lower House) and the Council of States (the
Upper House). The Federal Assembly had a life of five years, whereas
the Council of States was a permanent body of which one-third
members would retire every three years. [Here also, the introduction of
a bi-cameral legislature at the federal level is strikingly similar to the
framework of the Constitution of India which has the Rajya Sabha (the
Upper House) and the Lok Sabha (the lower House)]

5. Appointment of the executive

The Governor-General was appointed by the British Crown and was

responsible to the Secretary of State for India, and through him, to the
British Parliament. He was not responsible to the federal legislature.

2
 Neither he nor the executive Councillors could be dismissed by the
federal legislature. The executive Councillors were appointed by the
Governor-General and were ex officio members of the federal
legislature. However, they were responsible to the Governor-General —
and not to the federal legislature. The Council' of Ministers was to
consist of not more than ten members to be appointed by the
Governor-General. They held office at the pleasure of the Governor-
General, who could dismiss them at will.

6. Strong position of the Governor-General

The Governor-General became a very powerful authority under the
1935 Act, with vast administrative, legislative and financial powers.
He was not a mere constitutional head, but enjoyed very wide
discretionary powers. He could even promulgate Ordinances
overriding the will of the central legislature. Although the Governor-
General was, in general, to go by the advice of his Ministers in the
administration of the transferred subjects, he could refuse to follow
such advice in matters which were his 'special responsibilities'.
Moreover, there were certain powers which he could exercise even
without consulting his Ministers. As regards his financial powers, ,he
could exercise full control over all non-voatable heads of expenditure
— which constituted more than 80% of the entire budget. He could
also restore any demand for a grant which had been rejected or
reduced by the central legislature.

7. Administration of the provinces

At the provincial level, the executive consisted of the Governor and his
Council of Ministers, which was to aid and advise the Governor in the
exercise of his executive powers. The Ministers were responsible to the
provincial legislature and could be dismissed by it. The Governor
became a very strong authority in the province and was authorised to
exercise certain powers at his discretion, that is, even without
consulting the Ministers. For instance, he had the power to take any
step to prevent an attempt to overthrow the government, and when
doing so, he was not required to consult his Ministers. No doubt, there
were certain matters where he was bound to act on the advice of his
Ministers, but such matters were very few and were of hardly any
importance. In most provinces, there was only one House, namely, the
Legislative Assembly, but in some provinces like Assam, Bengal,
Bihar, etc., there were two Houses, the Legislative Assembly (the
Lower House) and the Legislative Council (the Upper House).

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 8. Establishment of a federal court and High Courts
The Government of India Act, 1935, established a Federal Court at the
centre and High Courts in the provinces.

The Federal Court

One of the most important — and significant — features of the 1935 Act was
S. 200 thereof, which provided for the establishment of a Federal Court,
consisting of a Chief Justice and such number of puisne (subordinate)
Judges as the Crown may deem necessary, not however exceeding six in
number. All the Judges were to be appointed by the British Crown and were
to hold office until the age of 65 years. Such a Judge could resign before
attaining this age; he could also be removed from office on the ground of
misbehaviour or on the ground of mental or bodily infirmity, if so
recommended by the Privy Council on a reference made to it by the British
Crown.

A person was qualified to be appointed as a Judge of thg, Federal Court — if

he had been a Judge of a High Court in British India or in a federal state for
at least five years; or if he was a Barrister of England or Northern Ireland
with a standing of at least ten years; or if he was a member of the Faculty of
Advisors in Scotland with at least ten years' standing; or if he was a pleader
of a High Court for ten years or more.

The Chief Justice, however, was required to be a Barrister or Advocate or

pleader with at least fifteen years' standing.

Jurisdiction of the Federal Court

The Federal Court enjoyed three types of jurisdiction : original, appellate

and consultative. The Court had exclusive original jurisdiction in all matters
of dispute between the federation, any of the provinces or any of the
federated states, if the dispute involved any question of law or fact on which
the existence or extent of any legal right depended. This jurisdiction would
not extend to a dispute where a state was a party, unless the dispute
involved the interpretation of the 1935 Act or an Order-in-Council made
under the Act or if it involved the extent of legislative or executive authority
vested in the federation by virtue of the accession of that state under its
Instrument of Accession. As regards its appellate jurisdiction, the Federal
Court was empowered to hear appeals from any judgment, decree or final
order passed by any High Court in British India — provided that the High
Court certified that the case involved a substantial question of law as
regards the interpretation of the 1935 Act or an Order-in-Council made
under the Act. However, the federal legislature could enact a law, with the
previous sanction of the Governor-General, for such appeals to be filed even
without the High Court's certificate if the dispute in that case exceeded at
Rs. 50,000 or such other amount as might be specified by law.

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The Federal Court also enjoyed advisory or consultative jurisdiction. If the
Governor-General referred any point of law to the Federal Court, it could
give its opinion on such a reference in open court.

Appeals against orders of the Federal Court

If a judgment was passed by the Federal Court in the exercise of its original
jurisdiction, an appeal would lie against the judgment to the Privy Council,
provided the dispute involved an interpretation of the 1935 Act or an Order-
in-Council made under the Act or which related to the extent of the
legislative or executive authority vested in the federation under an
Instrument of Accession. In all such cases, no leave of the Federal Court
was necessary to file an appeal. In all other cases, an appeal from a
judgment of the Federal Court would lie to the Privy Council only if leave to
file such an appeal was granted by the Federal Court or by His Majesty-in-
Council.

Supercession of the Federal Court After independence, the Federal Court

was converted into the Supreme Court of India on January 26, 1950. All the
Judges of the Federal Court on that day became Judges of the Supreme
Court, thus establishing a historical continuity between the highest court of
the country established in the British era and the highest court of
independent India.

High Courts

The 1935 Act also made provisions for High Courts. The existing High
Courts of Bombay, Calcutta, Madras, Lahore and Patna were recognised as
High Courts. Cprtain other courts which were in existence at that time, as
for instance, the Chief Court of Oudh, were also recognised as High Courts.
The High Court was to be a court of record and was to consist of a Chief
Justice and such other Judges to be appointed by the Crown from time to
time. His Majesty-in-Council was empowered to fix the maximum number of
judges for each High Court.

A person could be appointed as a judge of a High Court

if —

he was a Barrister or Advocate of Britain for at least ten years; or he was a

member of the Indian Civil Services for at least ten years and had served as
a District Judge for at leas, three years; or he held a judicial office in India,
not inferior to a subordinate judge or a judge of a Small Causes Court for at
least five years; or

he was a pleader of any High Court for at least ten years. The Governor-
General was empowered to appoint additional judges in any High Court for a
period of two years to clear the arrears of such High Court. The existing

5
High Courts were to enjoy the same jurisdiction as they had before the 1935
Act. Every High Court was also given the power of superintendence over all
courts subject to its appellate jurisdiction. An appeal could be filed before
the Federal Court from any judgment, decree or final order of a High Court,
if the High Court certified that the case involved a substantial question as to
the interpretation of the 1935 Act or an Order-in-Council made thereunder.
The Federal Legislature was empowered to pass laws to provide that, in
specified civil cases, an appeal could be filed before the Federal Court
without the certificate of fitness if the amount involved was not less than Rs.
50,000 or such other amount as might be specified in that law. Power was
also given under the Act to His Majesty to issue Letters Patent to constitute
new High Courts or to reconstitute existing High Courts.

6
 11. Law Reforms

Introduction

Law Reform has been a continuing process particularly during the last 300
years or more in Indian history. In the ancient period, when religious and
customary law occupied the field, reform process had been ad hoc and not
institutionalized through duly constituted law reform agencies. However,
since the third decade of the 19th century, Law Commissions were
constituted to recommend reforms.

As times change, the laws too need to evolve. A law which stood the test of
time yesterday may not be the best law today. Hence, Law Commissions
have been appointed in most countries to review the prevailing law and
recommend reforms in existing laws. Thus, In England, the Law
Commission of England and Wales is a statutory independent body created
by the Law Commissions Act, 1965, to keep the law under review and to
recommend reform where it is needed. Likewise, in New Zealand, a Law
Commission has been established by the Law Commission Act, 1985, to
review, reform and develop the law of New Zealand.

The main purpose and object of a Law Commission is to ensure that the law
is — a). fair b). up-to-date c).simple, and d). as cost-effective as possible.

In other words, Law Commissions promote systematic review, reform and

development of the law. At the same time, they recommend the repeal of
outdated and redundant laws of the nation.

In doing so, they also give a tremendous boost to legal research in the
country. Pre-independence period In the days of the East India Company,
two sets of laws prevailed in the country : one which applied to British
citizens and the other which applied to local inhabitants. This was
considered to be a major set-back and stumbling block for efficient
administration during the British raj. In order to ensure the uniformity of
legal administration, various options were considered. However, it was only
in 1833 that a Law Commission was constituted to undertake a
comprehensive examination of the existing legal system.

The First Law Commission was appointed in India according to the

provisions of Section 53 of the Charter Act of 1833. The Law

1
Commission was headed by T.B. M acaulay and consisted of four
members—C.H. Cemeron, Macleod, G.W. Anderson and F. Millet who was
appointed in 1837.

In 1837, Lord Macaulay went back to England. Andrew Amos was appointed
as Chairman in his place and in 1840, C.H. Cameron was appointed as
Chairman of Commission.

The Law Commission was to function under the direction and control of the
Governor-General-in-Council. The terms of reference of the Commission
were "to enquire into the jurisdiction, powers of the existing courts of
justice... in the Indian territories and all existing forms of judicial procedure,
and into the nature and operation of all laws whether civil or criminal,
written or customary prevailing and in force...". The Commission was
therefore, assigned the task of —

i). codification of Penal Law;

ii).the law applicable to non-Hindus and non-muslims with regard to their

various rights; and

iii).Codification of Civil and Criminal Procedural Law.

S. 53 of the Government of India Act, 1833 (also known as the Charter Act,
1833), authorised the Governor-General to establish Law Commissions in
India, with the twin objects of preparing a code of laws common to all
persons in the country and to systematise the application of laws in the
administration of justice. Pursuant thereto, four Law Commissions were
constituted in India before independence and their contribution to the
codification of laws in India remains unparalleled. These Commissions were
responsible for the drafting of several Acts, most of which remain in force
even today, as for instance, --. The Indian Penal Code

The Civil Procedure Code • The Criminal Procedure Code • The Indian
Evidence Act • The Indian Contract Act • • The Limitation Act • The Indian
Succession Act • The Indian Trusts Act.

The first Law Commission in pre-independent India was set up in 1834 with
Lord Macaulay as its Chairman. The greatest contribution of this
Commission was the preparation of a common penal code for the whole of
India. The Macaulay 's Code', as it was then referred to, became the Indian
Penal Code in 1860. Drafts of the Civil Procedure Code and the Law of
Limitation were also submitted by this Law Commission. However, perhaps
the most x loci in Latin means controversial Report of this Law Commission
was the Le Loci Report. Le "the law of the land". At that time, although
English law was applied as the lex loci to non-Hindus and non-Muslims in

2
the Presidency towns, there was no lex loci for these persons in the mofussil
areas. The Law Commission therefore recommended that the substantive
English law (though not the procedural English law) be declared toibe the
lex loci in the mofusslls also — so that the prevailing uncertainty and
obscurity in the application of laws could be put to an end. Although the Lex
Loci Report and the Lex Loci Act drafted by the First Law Commission are
regarded as its unique contribution, the Report was profusely criticised and
ultimately rejected. The only recommendation which was put into effect was
in the form of passing the Caste Disabilities Removal Act in 1850. This Act
invalidates all laws and usages which affect the right of inheritance of a
person who has renounced his religion or caste. In other words, such a
person retains his full rights of inheritance, despite such renunciation.

Post independence period

After independence, there had been demands - in Parliament and outside -

for establishing a Central Law Commission to recommend revision and
updating of the laws inherited from the British in order to serve the
changing needs of independent India. The Government of India reacted
favourably and established the first Law Commission of independent India
in 1955.

In India, the Law Commission is an executive body e stablished by an Order

of the Government of India, and works as an advisory body to the Ministry of
Law and Justice. It consists of high-ranking legal experts who are entrusted
with a mandate by the Government. It is usually headed by a law expert like
a retired Judge or Attorney General. This adds to the prestige and value of
the Commission.

The First Law Commission was established under the chairmanship of the
then Attorney-General of India, Mr. M. C. Setalvad. The tenure of this Law
Commission was for three years — a practice which is followed till date. This
Commission made several useful recommendations, inter alit% on the
following topics: • Liability of the State in tort • Legislation relating to sales
tax • The law of limitation • British statutes applicable to India • The law of
registration • The law of partnership • The law relating to specific relief • The
law relating to acquisition and requisition • The law governing negotiable
instruments • Reform of judicial administration.

This was followed by the Second, Third and Fourth Law Commissions. A
significant contribution was made by the Fifth Law Commission, which was
established in 1968 under the Chairmanship of Mr. K. V K. Sundaram. This
•Commission studied several •prevailing laws and presented six Reports,
entitled the following: • Punishment for imprisonmen Penal Code t for life

3
under the Indian • Law relating to attendance of prisoners in Courts - The
Code of Criminal Procedure

• The Indian Penal Code • Offences against national security

• The appellate jurisdiction of the Supreme Court in civil matters. The

Twentieth Law Commission, with Justice D. K. Jain, a retired Judge of the
Supreme Court, was established on 1st September, 2012, with a three -year
term ending on 31st August, 2015. Several important, matters have been
referred to this Law Commission, including the following: (a) A review of
obsolete laws, with a view to identifying laws which are no longer relevant
and which can be immediately repealed. (b) To identify laws which are not in
harmony with the existing climate of economic liberalisation and which need
to be amended. (c) To identify laws which otherwise require changes or
amendments and to make suggestions in this regard. To suggest suitable
measures for quick redressal of citizens'grievances in the field of law. (e) To
examine the laws which affect the poor and carry out an audit for socio-
economic legislations. (f) To suggest simplification of procedural laws to
reduce and eliminate technicalities and devices for delay, so that procedure
operates not as an end in itself but as a means of achieving justice. (g) To
examine the existing laws in the light of Directive and to suggest ways of
Principles of State Policy improvement and reform, and to suggest such
legislation that may be necessary to implement the Direc five Principles to
attain the objectives set out in the P to the Constitution. Preamble To
examine the existing laws with a view to promoting gender equality and
suggesting amendments thereto. To propose amendments in electoral laws
with a view to decriminalise politics and bring in fresh legislation on funding
of elections.

How the Law Commission functions

The Law Commission is situated in New Delhi. Its regular staff consists of
about a dozen research personnel of different ranks and varied experiences,
who work in a research-oriented manner. A small group of secretarial staff
looks after the administration of the Commission. The Law Commission
generally acts as a starting point for law reform in India. Basically, the
projects undertaken by the Commission are initiated in the Commission's
meetings. Priorities are discussed, topics are identified and work is assigned
to each member of the Commission, depending upon the nature and scope
of the topic. Different methodologies are adopted, keeping in mind the scope
of the reforms. The Commission has thus given a good boost to legal
research in India. Discussions at meetings of the Law Commission during
this period help in not only articulating the issues and focusing the research
but also evolving a consensus among members of the Commission. What

4
emerges from this is usually a working paper outlining the problem and
suggesting reforms. This paper is then circulated to thepublic and
concerned interest groups with a view to eliciting reactions and suggestions.
Usually, a carefully prepared questionnaire is also sent along with the
working paper. The Commission welcomes suggestions from any person,
institution or organisation on the issues under consideration of the
Commission. The Law Commission has always been anxious to consult as
many people as possible. For this purpose, partnerships are established
with professional bodies and academic institutions• the countand
workshops are also organised in different parts of country to elicit critical
opinion on the proposed reforms.

When all the data assembled, the Commission's staff evaluates and
organises the information forappropriate introduction in the report. Such a
report is written either by the Member-Secretary or one of the Member s or
the Chairman of the Commission. The report is then subjected to close
scrutiny by the Commission in subsequent meetings. Often, the
Commission also .prepares a draft amendment or a new bill which is
appended to its report. Thereafter,ortht e. final report is forwarded to the
Government. Once its re is submitted to the Ministry, the task of the
Commission is over — and the Government may or may not accept its
suggestions. Thus, for instance, the 13th Report of the Law Commission had
suggested that instead of striking down all contracts in restraint of trade, it
would be better — and fairer — if S. 27 of the Indian Contract Act struck
down all contracts where such a restraint was unreasonable. Again, in a
bold — though controversial — suggestion, the Law Commission had — in
its 42nd Report — proposed that S. 309 of the Indian Penal Code, which
prescribes punishment for an attempt to commit suicide, is a "harsh and
unjustifiable" provision and deserves to be deleted. However, no action has
been taken by Parliament till date on both these recommendations. The
Reports of the Law Commission are considered by the Ministry of Law in
consultation with the concerned administrative Ministries and are
submitted to Parliament from time to time. They are cited in Courts, in
academic and public discourses and are acted upon by concerned
Government Departments from time to time. The Law Commission of India
has, upto mid-2013,prepared 243 Reports on different subjects.
Interestingly, the Law Commissions also has the power to suo motu take up
new matters and make recommendations to thegovernment. This has
worked to the advantage of India's legal system. Thus, noting that there is
no statute on admiralty law in India, the Law Commission suo motu took up
this daunting task of making practical recommendations on the poin t, and
even prepared a draft of the Admiralty Act to fill up the vacuum.The
Government has, however, showed no interest in the matter. Often, the

5
Commission has also reviewed its earlier Reports in thebackground of
changed circumstances, as for instance, its recommendations on euthanasia
and related issues, where the Commission had a re-look at the prevailing
situation at least three times. In addition to receiving mandates from the
Ministry of Law, the Supreme Court has, on several occasions, called upon
the Law Commission to review particular matters and submit its Report. The
latest direction in this regard was the reference to the Commission in
connection with legal issues relating to child marriage and the different ages
a person is legally defined as a 'child under different laws. However, as seen
above, the Reports of the Law Commissions are not binding on the
Government. They are in the form of recommendations — which may or may
not be accepted. Several important and innovative recommendations have
not been accepted by the ruling governments in the past — for political
reasons or otherwise. Till date, only 96 out of 190 Reports submitted by the
Commission have been accepted in full by the government. It is, however,
heartening to note that successive Law Commissions have nevertheless
continued to carry on their good work with the same amount of zeal and
gusto.

6
 C. HISTORY OF LEGAL PROFESSION

1. Legal profession in Pre-British India

a) The legal profession in pre-British India was not at all organised. Actually,
the legal profession as it exists today was created and developed during British
period..
b) During the Hindu Period, there were local courts which derived their
authority from the king. As the king was considered to be the fountain-head of
justice, the king's court was superior to all other courts and was the highest
court of appeal. When hearing and deciding cases, the king was advised by his
Councillor, although such advice was not binding on him. The profession of lawyers,
as it exists today, was practically non-existent.
c) During the M oghul period also, the king was regarded as the highest
judge and the keeper of God's conscience. There was, however, no organised legal
profession. Some wealthy zamindars also had their own courts, exercising civil
and criminal jurisdiction. The Courts were guided by Quran,Sunna,Ijna etc.
d) Thus, before the British period, the legal professions were not organized. There
was no provision for the legal training. Although there existed a class of
persons called vakils, they were not educated in law, and acted more like
agents than as lawyers.

2.Law Practitioners in the M ayor’s Court of 1726

a) Before 1726, the judicial administration was not of high order mainly
because the Judges were not lawyers but laymen and did not have
sufficient knowledge. They use to decide cases according to their own
sense of justice. As a result uncertainty prevailed in the judicial
administration.

1
 b) After the entry of the East India Company into India, until 1683, judges of the
local courts continued to be lay persons with insufficient knowledge of law. An
attempt was made by the Charter of 1683 to provide that only lawyers
could be appointed as judges. This Charter provided that the chief judge of the
Admiralty Court (who was referred to as the Judge-Advocate) was to be an
expert in civil law. Although initially, civil lawyers were appointed as judges, later
on, the East India Company was quite reluctant to send English lawyers to India,
and lay persons were appointed as judges.
c) The Mayor's Courts were to follow well-defined procedures based on English laws.
The Charter did not, however, make any provision for legal training or for professional
lawyers, and the judicial administration in India continued to remain in the
hands of non-professional persons.
d) In 1753, a new Charter was issued to rectify certain defects in the
earlier Charter of 1726. However, the position under the Charter of 1753 was
no better. Even this Charter did not introduce the concept of professional
judges. Nor did it make any provision for legal training. Persons practising in the
Mayor's Courts were devoid of any legal training and a basic knowledge of
the law. Interestingly, it is a matter of record that some of these so-called
'lawyers' were in fact dismissed servants of the East India Company.

3.Legal Profession under Charter of 1774

a) The Regulating Act,1773, empowered the British Crown to

establish a Supreme Court by issuing a Charter. Accordingly, under the
Charter of 1774, a Supreme Court was established at Calcutta. It was at
this time that the first concrete step was taken to organise the legal
profession in India. Under Clause 11 of this Charier, the Supreme Court was
authorised to recognise such Advocates and Attorneys "as it deemed fit". The Court
was also empowered to disbar any such Advocate or Attorney for a "reasonable
cause". Thus, the only persons entitled to practise before this court were
Advocates and Attorneys.

2
 b) The same position continued when Supreme Courts were established in
Bombay and Madras. Thus, the only persons entitled to practise in all the
three Supreme Courts were British barristers, advocates and solicitors.
Indians had no right to appear before these courts.

4.Legal Profession in the Company’s Courts and Legal Practitioners Act

1853.

a) Before the rise of the British Power in India the administration of justice
in the Northern India was in the hands of the courts established by the
Moghul emperor.
b) Until 1793, the state of the legal profession in the adalats of the East India
Company was deplorable. Vakils with little or no knowledge of the law
practised in these adalats, but they charged exorbitant fees. In turn, the
vakils were subject to harassment — and even extortion — by the ministerial
officers of the courts. It was to remedy this unsatisfactory state of affairs
that the Regulation VII of 1793 was passed.
c) the Regulation of 1793 sought to organise and strengthen the legal profession
in India in the best public interest. It recognised that lawyers served as
trustees of clients and that it was their duty to assist the courts in the
administration of justice. The Regulation sought to establish the practice of
law as a regular profession and empowered the Sardar Diwani Adalat to enrol
pleaders and also to fix their fees, which were payable only after the
decision of the court. A pleader could not demand fees — or any other
consideration in cash or kind — in excess of the prescribed fee's, and if he
did so, his name could be struck off. Thus, the theory of freedom of
contract between the vakil and his client in the matter of fees was not
recognised..
c) Regulation, only Hindus and Muslims could be admitted as vakils. This
restriction was, however, removed by later Regulations, and still later, litigants
were also given the freedom to settle the professional fees with their vakils.

3
 d) The next significant landmark was the passing of the Legal Practitioners Act, 1846,
which can be considered to be the first all-India law relating to pleaders in the mofussil areas.
This Act is regarded as "the first Charter of the legal profession' and under it, every
Barrister enrolled in any of Her Majesty's Courts in India was eligible to plead in
the Sardar Adalats. The office of a pleader was thrown open to any person of
any nationality or religion, so long as he was duly certified to be of good
character and was qualified for this office.
e) Thereafter, under the Legal Practitioners Act, 1853, Attorneys on the roll of any of
Her Majesty's Supreme Courts were entitled to appear in any of the
Company's Sardar Adalats. In other words, whilst Barristers and Attorneys
could plead in the Company's Adalats, Indian legal practitioners were kept out
of all the three Supreme Courts. The Act also did away with the system of
compulsory attendance by pleaders, and a pleader was no longer required to
notify the court about his inability to attend to a matter on a particular
day.

5.High Courts Act, 1861 and enrolment of Advocates under letters Patent
Issued.

6.Legal Practitioner’s Act, 1879 and Report of Indian Bar Committee,

1923

a) The Legal Practitioners Act, 1879 brought all the six grade s of
le gal practitioners under one system. Under this Act, an advocate
enrolled on the roll of any High Court could practice in that High
Court and all courts subordinate to it. He could practise in any
othe r court in British India also, e xce pt a High Court on
whose roll he was not enrolled (unless he did so with the permission of
such a High Court, which permission was often denied) girl
students far outnumber the boys in several law colleges in the
country.

4
 b). In 1923, the Government of India appointed a Committee under the
chairmanship of 'Sir Edward Chamier (the Chamier Committee) to
suggest appropriate reforms. In its Report, the Chamier Committee
stated that it felt staggered by the variety of legal practitioners entitled to
practise in the High Court and subordinate courts. According to the
Committee, the ideal to be kept in view would be the ultimate
disappearance of different grades of legal practitioners, and in course
of time, there should emerg‘e a single grade of legal practitioners entitled
to practise in all courts. The Committee also proposed the
establishment o2f an all-India Bar Council to regulate matters
such as the qualification and admission of proper persons to be
advocates, legal education and matters relating to discipline and
professional conduct of advocates.

7.Indian Bar Council Act 1926 and All India Bar Committee 1951.

It was to give effect to the above recommendations that the Indian Bar
Councils Act, 1926 was passed. The Act sought to establish a separate Bar
Council for each High Court, which would have the power to make rules inter
alia for the following matters:

- the rights and duties of the advocates of the High Court and their
discipline and professional conduct;

- the giving of facilities for legal education and training, and the holding
and conduct of e xaminations by the Bar Council.

The Act also achieved a degree of unification of the Bar by unifying

two grades of practitioners, vakils and pleaders, by merging them into one
class of 'advocates'. Under S. 8 of the Act, no person could practise in the
High Court unless his name was entered in the roll of Advocates maintained
under the Act. Attorneys of the High Court were, however, exempted from being
entered on this roll. .A duty was imposed on the Bar Councils to decide all
5
 matters concerning legal education, qualifications for enrolment, discipline and
general control of the profession. The High Court was also authorised to reprimand,
suspend or debar from practice, any advocate of the High Court whom it found
guilty of professional or other misconduct.

Although this Act was a definite improvement on the pre-existing position

of the Bar in India, it failed to satisfy the Indian legal profession, which felt that the
Bar Councils were given unreal and ineffective powers — which in fact were closely
controlled by the High Courts. As observed by one native lawyer, "We have been
asking for substance. In answer, we are given a sham and a shadow." The
aspirations of Indian lawyers to have an autonomous and unified Bar had to wait for
more than three decades, when the Indian Parliament enacted the Bar Council
Act, 1961.

9.Advocates Act of 1961.

10.Law Reporting in India.

6
 RULE OF LAW

The ‘The rule of Law’ play an important role in the administration of the
country. It provides protection to the people against the arbitrary action of
the administrative authorities.

The rule of law is the basic foundation on which the unwritten Constitution
of England is based. Although the origin of this concept can be traced to
Chief Justice Sir Edward Coke, it was Prof. A. V. Dicey who developed this
theory in its modern form. In his monumental treatise, The Law and the.
Constitution (1885), Dicey submitted that the rule of law is th most
fundamental principle of the English legal system.

According to Dicey, the expression "rule of law" signifies three inter-related

concepts, namely, -

(a) The supremacy of the law.

(b) Equality before the law.

(c) Predominance of the legal spirit.

(a) The supremacy of the law

The supremacy of the law is the first fundamental principle of the rule of
law. It signifies that what prevails in the country is the law — as opposed
to any wide discriminatory or arbitrary power in the hands of those who
govern a country. According to Dicey, if any discretion is given to an
administrative authority, individual freedom is in danger and this can be
fatal to the supremacy of the law. He believed than an English man is
ruled by the law — and only by the law. He can be punished or penalised
only for a breach of the law, and for nothing else.
Applying this principle, Dicey maintained that no man can be detained
or arrested or imprisoned except by the due process of law and for a
breach of law proved against him in the ordinary manner in the ordinary
courts of the land.
(b) Equality before the law
This expression, according to Dicey, means that all classes of persons
are subject to the law. In his view, all persons, howsoever high or low,
are governed by one and the same law. In his words, "Every official from
the Prime Minister down to a Constable or a Collector of Taxes is under

1
 the same responsibility for every act done without legal justification, as
any other citizen."
It is mainly on this ground that Dicey found fault with the French system
of droit administratif, under which special courts are established in
France to deal with disputes between citizens and government officials.
According to Dicey, all persons, whether private individuals or
government officials, should not only be subject to the same law, but
should also be answerable to the same set of courts.

(c) Predominance of the legal spirit

Dicey strongly believed that the law courts should be the protectors and
guarantors of the liberty of the individual. He • was of the view that the
citizens of a country are better protected by the courts than by a mere
declaration of their rights in a document like the Constitution of the
country. He pointed out that England does not have a written
Constitution containing any elaborate list of fundamental rights.
Nevertheless, the citizens of the country are fully protected by the
unwritten Constitution, which is a judge-made Constitution. He
contended that the Constitution of England is not the source of judicial
pronouncements in England, but the result of such pronouncements.
Dicey pointed out that, in several countries, basic human rights like the
freedom of speech, freedom from arrest and detention, rights to personal
liberty, etc. are elaborately listed in the Constitution of the country.
However, such rights remain only paper declarations, which can be
ignored, curtailed and trampled upon by the government in power —
unless there is an effective judiciary which enforces such rights.

Merits of Dicey's Theory

There is no doubt whatsoever that the doctrine of rule of law has played an
extremely important role in the government of every successful democracy.
It has proved to be a strong and effective weapon for keeping the
administrative authorities ►ithin their boundaries. It has thus operated as
the best aossible check on the government of the day. The first principle of
Dicey's doctrine is a reminder that, at all times, the government is subject to
the law — and not vice versa. It emphasises that the whims and fancies of
the government in power have no place in good governance. The second
principle is a firm reminder that no one is above the law. All persons are
equal before the law, and in a true democracy, justice is dispensed without
fear or favour. The third principle of Dicey's theory serves to remind us of
the role which an independent judiciary plays in a democracy. Paper
declarations, however solemn, are of little value if they cannot be enforced
effectively or if they can be abrogated at the will of the government in power.

2
Criticism of Dicey's Theory

The fact that all constitutional democracies of the world are broadly based
on the rule of law is a fact which just cannot be denied. However, as pointed
out by Paton, the rules enunciated by Dicey and accepted by the English
legal system, were more the result of a political struggle — rather than
logical deductions from the principle of the rule of law.

As regards the first principle, critics point out that, according to Dicey,
there is no place for any arbitrary or discretionary power in the hands of the
_government in the concept of rule of law. Thus, Dicey places discretionary
power in the same category as arbitrary power. This is not warranted, and
no modern welfare state can effectively function unless some degree of
discretion is enjoyed by government officials.

As regards the second principle, critics point out that Dicey appears to have
misunderstood the real nature and working of droit administratif in France.
Although there are separate sets of courts in that country to settle disputes
between individuals and the government, the actual working of these courts
has shown that the French courts have given more protection to French
citizens than the English courts have given to citizens of England. It is also
pointed out that the English maxim, The King can do no wrong' (which was
ultimately abolished in England in 1947) was never accepted in France,
which gave no such immunity to the sovereign. In other words, sovereign
immunity was always a part of English law (until 1947), whereas this
doctrine was never a part of French law. Until 1947, equality before the law,
in its strictest sense, was thus not available in Dicey's own homeland. As
regards the third principle, critics point out that Dicey appears to have over-
emphasized the value of a judge-made Constitution. It is far from correct to
say that every country with an elaborate list of fundamental rights has a
weak judiciary and that such rights are mere "paper declarations". In di fact,
constitutional guarantees, like those found in the Indian Constitution,
coupled with a strong judiciary, go a long way in safeguarding the liberties
of the citizens of a country.

Application of the Doctrine in England

England is the home of this doctrine and the English courts have applied
the doctrine of the rule of law to the fullest extent. If a person is wrongfully
detained by the police, he can recover damages to the same extent as when
such an act is done by a private individual. Thus, in Wilkes v. Wood (1763

3
19 St. Tr. 1153), the plaintiff successfully sued for damages for a trespass,
although the trespass was done pursuant to the order of a Minister.
Likewise, when a publisher's house was ransacked by the King's messengers
sent by the Secretary of State, the publisher was awarded substantial
damages for such a trespass. (Enrick v. Carrington, 1765 19 St. Tr. 1030)

Application of the Doctrine in India

When the Constitution of India was being framed, our founding fathers
made sure that it was based on the rule of law. In fact, the Preamble to the
Constitution enunciates the triple concepts of justice, liberty and equality.
Fundamental rights are guaranteed by the constitution — and the right to
enforce them has itself been made a fundamental right. The Supreme Court
and the High Courts are fully armed (by Art. 32 and Art. 226, respectively)
to protect the individual against all forms of arbitrary action of the
government. In India, it is the Constitution that is supreme, and all the
limbs of the government — the executive, the legislature and the judiciary —
are subject to this all-pervading Charter. The doctrine of judicial review has
been accepted in toto and judicial activism has always been in the forefront
to protect the individual against arbitrary acts of the state.

Moreover, m Indian ndian Constitution has not accepted the English maxim,
'The King can do no wrong', and all government officials are subject to the
jurisdiction of the ordinary courts of the country. No person can be deprived
of his life or personal liberty except according to the procedure established
by law (Art. 21). Again, full protection is given by the Constitution against ex
post facto laws, double jeopardy and self-incrimination (Art. 20). Likewise,
Art. 14 guarantees equality before the law and equal protection of the law to
all persons in India. In the words of the Supreme Court, "In our
constitutional system, the central and most characteristic feature is the
concept of the rule of law." (CSC, Punjab V. Om Prakash, AIR 1969 SC 33)

The Habeas Corpus Case :

Until 1975, every Indian could say — with a sense of confidence and an
equal amount of pride — that the concept of the rule of law was so deeply
rooted in the Indian legal system that it could weather any possible storm.
But alas! In 1975, the Supreme Court handed down its judgment in
Additional District Magistrate, Jabalpur v. Shivakant Shukia (AIR 1976 SC
1207), also known as the Habeas Corpus Case. When the 4:1 majority
decision of the learned Supreme Court Judges was pronounced, people
inside and outside India began to re-consider whether the third principle of
Dicey's rule of law was ever a part of the Indian legal system. Wh en the

4
ruling government faced a serious political threat, the then Prime Minister,
Mrs. Indira Gandhi, declared an "Emergency" on 25th June, 1975, and
suspended all the freedoms under Art. 19 of the Constitution. Two days
later, at her behest, the President of India issued an Ordinance suspending
all the rights under Arts. 14, 21 and 22 also. On the night of 25th June and
on several nights thereafter, hundreds of persons, including prominent
leaders of the opposition parties, were arrested from their residences under
a draconian law called MISA (Maintenance of Internal Security Act). Most of
the detained persons were not even informed of the charges against them. In
short, the opposition in Parliament as effectively silenced and the common
man totally terrorised.

Several High Courts and the Supreme Court itself were flooded with habeas
corpus petitions, which were ultimately consolidated and heard by a 5-
Member Bench of the Supreme Court. After hearing arguments, a majority
of four Judges, led by Chief Justice Ray, agreed with the view of the
government that since Art. 21 itself was suspended during the "Emergency ,
all the petitions were liable to be dismissed at the very threshold. According
to the four learned Judges, Art. 21 is 1ndia's rule of law and no rule of law
exists separately in India. In other words, they came to a conclusion that the
rule of law itself stood suspended during the "Emergency".

The lone dissenting voice that was heard in the precincts of the apex court
was that of Justice Khanna. He took the view that the rule of law exists in
India even apart from Art. 21. In his words, "Even in the absence of Art. 21
in the Constitution, the state has got no power to deprive a person of his life
or liberty without the authority of the law."

Learned scholars all over the world showered admiration and praise for the
bold stance taken by Justice Khanna. Perhaps the best tribute to this lone
dissenting voice came from the New York Times, which wrote : "Surely, a
statue would be erected to him in an Indian city."

Fortunately for the country, this storm died down when the Forty-fourth
Amendment of the Constitution laid downthat the right to life and personal
liberty cannot be suspended by the executive even during an emergency.

However, Khanna J. had to pay a price for his bold dissent. When he was
the senior-most Judge of the Supreme Court and would, in normal
circumstances, have become the Chief Justice Itof India, he was superseded,
and his junior, Justice Beg, was made the Chief Justice. A frustrat resigned
from the Supreme Court. ed Khanna J. immediately

5
SEPARATION OF POW ERS

The Doctrine of separation of powers was originated by Aristotle and later

developed by Locke.

It was given a base and made popular by French Jurist, M otesquieu

According to Montesquieu there are three organs of the Government:-

1. Legislature
2. Executive
3. Judiciary

The function of the Legislature to make law, while Executive is to execute

law and Judiciary is to enforce and interpret law.

The three traditional organs of the government are the legislature, the executive
and the judiciary. The doctrine of separation of powers maintains that the
powers and functions of the three organs should be kept separate and must be
exercised only by the respective organs. Thus, the legislature must only
legislate — and not exercise any executive or judicial powers .Likewise, the
executive must only administer — and not legislate or adjudicate. Similarly,
the judiciary must only adjudicate — and not exercise any legislative or
executive powers.

This is, however, quite a simplistic view of the theory.

According to W ade and Phillips, the theory has three manifestations, namely,-

Firstly, it means that one organ of the government must not discharge the
functions of the other two. A Minister, for instance, should not have any
judicial powers.

Secondly, one organ of the Government must not interfere with the other two in
respect of the discharge of their respective functions. For example, the
executive should not interfere with the judiciary, which must be left to function
independently.

Lastly, the same person should not belong to two or more organs of
Government. A Judge, for instance, should not also be a Member of Parliament.

Although this doctrine is as old as Plato and Aristotle, it was made popular in
the 16th and 17th centuries by the French philosopher, John Bodin and the
British politician Locke. However, it was M ontesquieu, the French scholar,
1
who re-formulated the doctrine in a systematic and scientific form in his book
Espirit des Lois (The Spirit of laws) in 1748.

In the words of Montesquieu, if the legislative and executive powers are united
in the same person or the same body, there can be no liberty. Again, there
would be no liberty if the judicial power is not separated from the legislative or
the executive. If such power is joined with legislative - the life and liberty of the
citizen would be exposed to arbitrary control. If it is joined with the executive,
the judge behave with violence and oppression.

Historically speaking, Montesquieu was prompted to pursue this theory wh en

he saw the autocratic monarchy that prevailed in France during the reign of
Louis XIV. When he looked around him, he found that, in the reign of this
Monarch, the subjects enjoyed neither rights nor liberties, as Louis XIV himself
exercised all possible powers — executive, legislative and judicial.
Montesquieu's greatest inspiration was the functioning of the English
Constitution in the earlier part of the 18th Century, and he came to the
conclusion — rightly or wrongly —that the liberty of the English citizen was the
result of the total separation of powers in England.

Montesquieu's doctrine had a tremendous impact on the development of

administrative law all over the world. His doctrine can be said to be the
foundation-stone of the American Constitution.

In USA, M adison observed that the accumulation of legislative, executive and

judicial powers in the same hands would be "the very definition of tyranny".
Blackstone observed that if all the three functions were to be vested in one
person, that would result in tyranny.

The Constituent Assembly of France also declared that there would be nothing
like a Constitution in a country if the doctrine of separation of powers was not
an Integral part thereof.

The doctrine as prevalent In England

Although Montesquieu drew all his inspiration from England, it cannot be said
that the English Constitution has accepted the doctrine of separation of powers
in a strict sense. Thus, although the Lord Chancellor is the head of the
judiciary, he is also the Chairman of the House of Lords and a member of the
executive. Judges in England perform executive functions in matters of trust
and supervision of wards of court; they also exercise legislative functions when

2
they frame rules for the working of the courts. Likewise, members of the British
cabinet are also members of the legislature and are responsible to the
legislature. Again, when the House of Commons punishes a person for a breach
of its privilege, the legislative body exercises judicial powers.

The doctrine as prevalent in USA

The founding fathers of the American Constitution considered the doctrine of

separation of powers as the heart of their Constitution.

Art. I of the Constitution vests legislative powers in the Congress,

Art. II vests executive powers in the President of USA,

whilst Art. III confers judicial powers on the Supreme Court and other courts.

The President is not a member of the Congress and his tenure does not depend
on the confidence reposed by the Congress in him. By adopting a clever system
of checks and balances, the Constitution of USA seeks to ensure that each
organ of the government can exercise only its own powers and functions.

However, with the passage of time, a strict adherence to the doctrine has
become almost impossible today. When the US President sends "messages" to
the Congress, he actually interferes with the legislature. When he exercises a
right of veto, he is once again interfering with the legislature. Since the
Congress is vested with the power of impeachment, it is clear that the
legislature also exercises judicial powers. So also, the Congress has in fact
delegated many legislative powers to various administrative agencies, which are
part of the executive. Interestingly, there is not a single pronouncement of the
Supreme Court of USA, declaring that the combination of two or more
functions in the same organ of the government is unconstitutional in America.

The doctrine as prevalent in India

A casual reader of the Constitution of India might jump to the conclusion that
the doctrine of separation of powers has been fully incorporated in the Indian
Constitution, as executive powers are vested in the President and the Council
of Ministers, legislative powers in Parliament and the State Legislatures,
whereas the Supreme Court, the High Courts and other Courts discharge
judicial functions.

However, a more careful study of the Constitution will show that this doctrine
has not quite been accepted by-the founding fathers of the Constitution. This
becomes clear if one considers the following provisions of the Indian
Constitution:

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• The President enjoys wide legislative powers. He can issue Ordinances when
Parliament is not in session. He can also make laws for a State when the State
Legislature is not in session.

• The President exercises judicial functions when he decides disputes relating

to disqualifications of Members of Parliament or the age of a Judge of the
Supreme Court or a High Court.

• The President of India and the Governors of States are empowered to grant
pardon to persons convicted by the judiciary.

• The Ministers are a part of the Legislature — and also responsible to it.

• Parliament discharges judicial functions when it decides the question of

breach of its privileges — and punishes a person for such a breach.

• In the case of impeachment of a Judge one House frames the charges and the
other House investigates such charges and decides whether he is, in fact, guilty
or not — which is clearly a judicial function.

• High Courts have supervisory powers over all subordinate courts and can
transfer cases from one court to Such functions are evident no another. y t
judicial in nature.

• High Courts also frame R procedure uses regulating their own , and in doing
so, discharge a legislative function.

Perhaps the only extent to which the doctrine has been incorporated in the
Indian Constitution is that, in India, the judiciary is totally independent, that
is, free from any interference from the executive or the legislature. This, is the
most beneficial manifestation of the doctrine of separation of powers in India.

Thus the Indian the Constitution cannot be said that the doctrine applies in
its strictest sense in the Indian legal system.

Concluding remarks

The greatest benefit of doctrine is that it ensures that each organ of the
government functions independently and without any influence or interference
from the other two.. However important and useful this doctrine may be in
theory, its practical application has often posed serious problems.

The theory of strict sera of powers s often criticised on the following grounds:

1. Montesquieu drew inspiration for his theory from the English

Constitution. However, at no time in the history Of England has that
county adopted the doctrine in its strict sense. In fact, it would be far

4
 from the truth to say that England was the classic home of separation of
powers. As the Donoghmore Committee observed. 'Montesquieu looked
across foggy England from his sunny vineyard in Paris — and completely
misunderstood what he saw!'

2. Secondly, the doctrine goes on presumption that the three functions of

government are independent of, and distinguishable from, one another.
In fact however it is not possible to draw thin demarcating lines between
them and assign each to a water-tight compartment. As observed b."
President Woodrow Wilson. the government of a country is not a
machine. but a Iiving thing whose life is dependent on a mutual co-
operation between the three organs.

3. In actual practice, it is extremely difficult to apply the doctrine in its

strict sense. If the legislature's function is restricted to le gislation, it
would have no power to punish persons for contempt or a breach of
privilege nor would it be able to delegate its rule-making power an
executive authority (which may have a great amount of expertise in that
particular field).
4. Montesquieu had advocated this theory mainly from the angle of
ensuring that the freedoms and liberties of the subjects of a country are
not trampled upon. However, a mere mechanical division of powers and
functions between the three organs of government cannot achieve this
end. What is really required to attain this goal is the prevalence of the
rule of law, coupled with a strong and independent judiciary. -Eternal
vigilance on the part of the citizens is the ultimate guarantee of freedom.
5. Lastly, a modern state is a welfare state, which tries to solve complex
socio-economic problems of its citizens. If the doctrine were to be applied
in a strict sense, the working of the government would become difficult.
As observed by Prof. Friedman, strict separation of powers is "a
theoretical absurdity and a practical impossibility'.

Despite all this criticism, it is also not possible to abandon the doctrine
altogether — because that would tantamount to accepting the opposite
doctrine, namely, the doctrine of integration of powers, and that would
lead to a disaster. The pitfalls of the theory become evident only when
one looks at it in its strictest sense. It cannot be denied that the doctrine
of separation of Powers is necessary in modern times, though in a
relative, and not in an absolute, sense.

5
VII. COURTS SYSTEM UNDER THE CONSTITUTION OF INDIA
A. SUPREME COURT
1. Appointment of Judges
2. Qualification of Judges
3. Jurisdiction and powers of the Supreme Court
B. HIGH COURTS
1. Appointment of Judges
2. Qualification of Judges
3. Jurisdiction and Powers of Judges
C. WRITS
1. Habeas Corpus
2. Mandamus
3. Certiorari
4. Prohibition
5. Quo Warranto
6. General principles of adjudication
D. SUBORDINATE COURTS

Introduction:-

The government consist of 3 organ i.e the legislature, the executive and the
judiciary It is the function of the legislature to make the laws, which are
enforced by the executive and adjudicated upon by the judiciary.

The success of any democracy can largely be measured by the strength and
independence of its judiciary.

In India, the judiciary consists of the Supreme Court, the apex court, (that
is, the highest court of the country), followed by High Courts at the state
level, with several other courts constituting what is sometimes referred to as
the "lower judiciary". This Chapter is discussed under the following three
heads:

A. The Supreme Court of India

B. The High Courts

C. The Attorney-General of India.

A. THE SUPREME COURT OF INDIA

The Supreme Court of India is based in New Delhi, and consists of
the Chief Justice of India and upto thirty other Judges, all appointed
by the President of India. This number can, however, be increased by
Parliament. The appointment of these Judges are made by the
President by warrant under his hand and seal, after consulting such

1
 of the Judges of the Supreme Court and the High Court as he deems
fit. When appointing any Judge of the Supreme Court, except the
Chief Justice, the President must always consult the Chief Justice. A
Judge of the Supreme Court holds office until he attains the age of 65
years. If a question arises as to the age of a Supreme Court Judge, the
same is to be determined by such authority and in such manner as
Parliament may by law provide.

The salaries and allowances of the Supreme Court Judges are fixed by the
Constitution (Second Schedule) and cannot be altered or varied to their
disadvantage (that is, reduced) after appointment

. To be qualified to be appointed as a Judge of the Supreme Court, a person

must be a citizen of India and –

-- must have served as a Judge of one or more High Courts for at least 5
years; or - must have been in practice as an Advocate of one or more High
Courts for at least 10 years;

or

- must be, in the opinion of the President of India, a distinguished jurist.

if, at any time, there is no quorum to hold or continue any session of the
Supreme Court, the President of India can appoint a High Court Judge as
an ad hoc Judge of the Supreme Court for such time as may be necessary.
Likewise, a retired Judge of the Supreme Court can also be called upon by
the President to officiate as a Judge of the Supreme Court. Before taking
office, every Judge must make and subscribe before the President, an oath
or affirmation in the prescribed form. A Judge of the Supreme Court can
resign from his office by a writing under his hand, addressed to the
President of India.

Latest developments in the matter of appointment of judges

Parliament has recently passed the Judicial Appointments Commission Bill,

2013, under which a statutory commission called the Judicial Appointments
Commission has been constituted to recommend appointments and
transfers of Judges of the Supreme Court and the High Courts. This
Commission consists of the following six members: - the Chief Justice of
India (as the Chairman of the Commission); - two other senior-most Judges
of the Supreme Court; - the Union Law Minister; and

- two eminent persons appointed by a cc:Mogi/in/ consisting of the Prime

Minister, the Chief Justice of India and the Leader of the Opposition in the
Lok Sabha.

2
In order to give effect to the above, Parliament has also passed the
Constitution (One Hundred and twentieth) Amendment Bill, 2013, which
will come into effect after it is ratified by the legislatures of at least half the
number of states in the country, as required by Art. 368 of the Constitution.

Removal of Judge Impeachment

A Judge of the Supreme Court can be removed from office by a process

called impeachment. Firstly, a Judge can be removed only on the ground of
proved misbehaviour or incapacity. Secondly, both Houses of Parliament
must pass a resolution to that effect by a majority of the total membership
of the House and a majority of at least two-thirds of the members of that
House present and voting. Thirdly, the President must thereafter pass an
order for his removal. (Art. 124) The only instance of an attempted
impeachment of a Supreme Court Judge is that of Justice Ramaswamy on
the ground of the ostentatious expenditure on his official residence when he
was the Chief Justice of the High Court of Punjab and Haryana. His
impeachment motion fell through in the Lok Sabha because 205 MPs
belonging to the ruling Congress party and their allies abstained from
voting. Justice Ramaswamy, however, tendered his resignation soon
thereafter. (Attempted impeachments of two other High Court Judges is
discussed later in this Chapter.)

Independence of the judiciary

A Constitution framed after the federal model contains a scheme of

distribution of powers between the union and the states, and the ultimate
custadLan and guardian of the Constitution is the judiciary. Additionally,
the Supreme Court is also the highest court of appeal in the country. Being
the apex court, there are no appeals against its orders. Moreover, it is also
entrusted with the function of protecting fundamental rights under Art. 32
of the Constitution. In view of these important functions discharged by It,
the Independence of the Supreme Court — and the judiciary in general —
assumes the greatest Importance. The framers of the Constitution tried their
best to secure the independence of the Judiciary in India by various
measures. Whilst providing for necessary safeguards in this regard, they
drew inspiration from various other Constitutions and in particular, the
American, British and Swiss Constitutions. The following are the safeguards
contained in the Constitution which are aimed at securing the Independence
of the judiciary in India.

(1) Appointment
The appointment of the Supreme Court and High Court Judges has
rightly been taken away from the realm of pure politics. Their
appointment is made by the President of India after consulting such of
the Judges of the Supreme Court and the High Courts as the

3
 President may deem necessary. Executive influence in the matter of
appointment of these Judges is thus sought to be minimized, if not
totally excluded.

(2) Emoluments
The salaries and allowances of the Judges have been fixed by the
Constitution — and these cannot be altered or varied to their
disadvantage (that is, reduced) after appointment. A sense of financial
security and independence is thus sought to be provided to those
occupying high judicial posts in the country. However, if a
Proclamation of Emergency is in operation, the President does have
the power to reduce such salaries and allowances under Art. 360 of
the Constitution.
(3) Expenses
charged to the Consolidated Fund of India The salaries and
allowances of Judges, as well as the administrative expenses of-the
Supreme Court, are to be paid out of the Consolidated Fund of India.
Thus, such expenses are not put to the vote of Parliament.

(4) Prohibition on practice after retirement

After retirement, a Judge of the Supreme Court cannot plead or act in
any court or other authority in India (Art. 124). Likewise, after
retirement, a permanent Judge of a High Court cannot plead in any
court except in the Supreme Court or any other High Court (Art. 220).

(5) No discussion in the legislature

The conduct of Supreme Court or High Court Judges cannot be
discussed in Parliament or in the State legislature — except when a
Judge is sought to be impeached. This adds to the freedom and
independence of the Judges.

(6) Impeachment
A Judge of the Supreme Court or a High Court can be removed from
office only for proved misbehaviour or incapacity, by initiating
impeachment proceedings against him.

(7) Contempt of court proceedings

The Supreme Court and the High Courts are courts of record and can
impose fine and imprisonment for contempt of their authority and
disobedience of their orders. (A court of record is a court whose acts
and proceedings are preserved for perpetual memory and testimony.)

4
 (8) Appointment of officers and servants of the court The officers and
servants of the court are appointed by the Chief Justice and such
other Judges or officers as the Chief Justice may direct. The
independence of such persons is sought to be secured as they are not
appointed by the government; nor are they under its control or
influence.

Jurisdiction of the Supreme Court

The Supreme Court of India exercises four types of jurisdiction,
namely, -
1. Writ jurisdiction
2. Original jurisdiction
3. Appellate jurisdiction
4. Consultative jurisdiction.

1. Writ Jurisdiction
Any person whose fundamental rights are violated can move the
Supreme Court for the enforcement of such rights, Under Article 32 of
the Constitution, the apex court has the power to issue directions or
writa. Including writs in the nature of habeas corpus, mandamus,
prohibition, certiorari and quo warranto — whichever may be
appropriate — for the enforcement of fundamental rights.

2. Original jurisdiction
The original jurisdiction of the Supreme Court extends to disputes
between the Government of India and one or more States and disputes
between two or more States, Insofar as the dispute involves any
question of law or fact on which the existence or extent of any legal
right depends. (Art. 131) As stated above, the Supremo Court also
exercises original Jurisdiction when it issues writs for the enforcement
or fundamental rights under Art. 32 of the Constitution of India.

3. Appellate Jurisdiction
(a) Appeals in constitutional cases
An appeal lies to the Supreme Court from any judgment, decree or
final order of a High Court if the High Court certifies that the case
involves a substantial question of law as to the interpretation of the
Constitution. (Art. 132)

(b) Appeals in civil cases Under Art. 133, an appeal lies to the
Supreme Court from any judgment, decree or final order of a High Court, if
the High Court certifies:

5
- that the case involves a substantial question of law of

general importance; and

- that, in the opinion of the High Court, such a question

needs to be decided by the Supreme Court. (c) Appeals in criminal matters

Under Art. 134 of the Constitution, an appeal lies to the Supreme Court
from any judgment, decree or final order of a High Court in a criminal
proceeding if: the High Court, when deciding an appeal, has reversed an
order of acquittal passed by a lower court and sentenced the accused to
death; or the High Court has withdrawn for trial by itself, any case pending
in a lower court and has sentenced the accused to death; or

- the High Court has certified that the case is a fit one for appeal to the
Supreme Court.

Special leave to appeal

Notwithstanding the above provisions, the Supreme Court has the power,
under Art. 136 of the Constitution, to grant special leave to appeal from any
judgment, decree, sentence, determination or order passed by any court or
tribunal in India. Petitions filed under Art. 136 are sometimes referred to as
`special leave petitions" or SLPs. However, this discretionary power conferred
on the Supreme Court is to be exercised sparingly and in exceptional cases
only.

4. Consultative jurisdiction
Consultative or advisory jurisdiction has also been conferred on the
apex court by Art. 143 of the Constitution. This Article provides that,
if at any time, it appears to the President of India that a question of
law or fact has arisen — or is likely to arise — and the same is of such
a nature and of such public importance that it is expedient to obtain
the opinion of the Supreme Court on such a question, he may refer it
to the Supreme Court which may, after such hearing as it thinks fit,
give its opinion in the matter to the President. Any bench hearing
such a question must consist of a minimum of five Judges o' the
Supreme Court. A few instances where the Supreme Court's advisory
opinion was sought and given are:
- In Re. Delhi Laws Act (1951)
• In the matter of the Kerala Education Bill (1958)
- In Re Indo-Pakistan Agreement (1960).
As seen above, Art. 143 provides that, in such cases, the Supreme
Court may give its opinion to the President. The use of the word "may"
clearly shows that no obligation is cast on the Supreme Court to grve
its opinion en every rnetlw reierred to It by the President of India.
Thus. when the President referred a highly controversial question to

6
 the Supremo Cowl for ill opinion, namely, whether there was any
temple of other Hindu religious structure at the sits where a maipd
was demolished at Ayodhya. the Supreme Court refused to answer the
question, dubbing it as *superfluous and unnecessary',

Court of Record and power to punish for contempt

Under Art 129 of the Constitution, the Supreme Court is a court of record
(that Is, a court whose orders and judgments are proservOd on a permanent
ba) and has nil the powers of such a court, including the power to punish
for contempt of its authority.

The binding force of ludgmenta of the Supreme Court :

The doctrine of stare (Socials under Art 141

Judicial precedents have either a binding or a persuasive efficacy. Thus, a

judgment of the Swarm Court has binding efficacy on the Bombay High
Court. whereas a judgment of the Kerala High Court has only persuasive
efficacy on the Bombay High Court.

Art 141 of the Constitution lays down that the law declared by the Supreme
Court Is binding on all courts within the territory of India. This Article thus
reiterates the theory of binding force of precedents (stare decisis) and gives
the doctrine a constitutional sanction.

The theory of the binding force of precedents (discussed in another Chapter

in this book) Is firmly established in Indian as well as English law. The
theory brings about uniformity and certainty In the law. If the decisions of
the Supreme Court were not to be binding on all other courts, every court in
India deciding the same point of law in another case would be free and all-
round confusion. to give a contrary ruling — which would result in utter
chaos

Thus, all decisions of the Supreme Court are binding on all other courts —
and it is quite immaterial that the conclusion arrived at In a majority
decision of that court was arrived at by different Judges on different grounds
or by different processes of tOn011ilifj, (Ramesh V. Union of India, AIR 990
SC 560)

) A High Court cannot refuse to follow it decision of the Supreme Court on

the ground that the upromo Coin I did not consider a particular point when
handing down its lodgment. 11 Is not only a matter of discipline which all
High Gown have to follow, but they are also bound by the constitutional
mandato contained In Art. 141 of the Constitution. (S. S. Kumar v.
Jvdeoshan, AIR 2002 SC 661)

7
 The Patna High Court has ruled that an interim order of the Supremo Court
cannot be called "the law declared by the Supreme Court", and is therefore
not within the ambit of Art. 141. (MGM Medical College v, State of Bihar,
AIR 1994 Pat. 22)

Obiter dicta of the Supreme Court (that is, things which are said by the way
and which do not form part of the ratio decidendi of the case) do not have
any binding force — although they deserve the greatest respect, having come
from the highest court of the country.

Although Art. 141 of the Constitution uses the expression "binding on all
courts" and although this oxprossion is wide enough to cover the Supreme
Court also, it has boon held — and rightly so — that the oxprossion does not
cover the Supreme Court itself. (Bengal Immunity Co. Ltd. v. State of Bihar,
AIR 1955 SC 661) In fact, it would general° a groat amount of hardship if
the highest court of the land wore to be bound by its earlier decisions. Even
the House of Lords is now at liberty to depart from its earlier decisions.

B. THE HIGH COURTS

Each State in India has a High Court, and a provision Is also made in
the Constitution for a common High Court for two States, as for
instance, the High Court of Punjab and Haryana. Judges of the High
Court are appointed by the President of India by warrant under his
hand and seal, after consultations with the Chief Justice of India, the
Governor of the State and the Chief Justice of the High Court.

A Judge of a High Court holds office until he attains the age of 62 years. He
may, by writing under his hand, addressed to the President of India, resign
from his office. If a question arises as regards the age of a Judge of a High
court, the question is to be decided by the President of India, after
consultations with the Chief Justice of India. The decision of the President is
final in the matter.

Overruling an earlier (1981) decision (S. P Gupta v. Union of India, AIR 1982
SC 149), the Supreme Court has held (in 1994) that fixation of the number
of Judges of a High Court is a matter which can come before the courts.
However, when reviewing the strength of Judges of a particular High Court,
the opinions of the Chief Justice of India and the Chief Justice of that High
Court must carry a lot of weight. (Supreme Court Advocates-on-Record
Asso. v. Union of India, AIR 1994 SC 268)

8
 A person is qualified to be appointed as a Judge of a High Court if he is a
citizen of India and - has been an Advocate of one or more High Courts for at
least 10 years;

or

- has held a judicial office in India for at least 10 years.

A High Court Judge must, before he enters upon his office, make and
subscribe before the Governor of the State, an oath or affirmation in the
prescribed form. The salaries and allowances of High Court Judges are fixed
under the Constitution — and cannot be varied to their disadvantage (that
is, reduced) after appointment.

A Judge of a High Court can be removed in exactly the same manner as a

Judge of the Supreme Court . Two High Court Judges have been involved in
impeachment proceedings in the past, namely Justice Soumitra Sen of the
Calcutta High Court and Justice Dinakaran of the Sikkim High Court. Both
of them, however, submitted their resignations before the impeachment
proceedings could be completed.

If a person has been apermanent Judge of a High Court, he cannot plead or

act before any court or authority in . India. except the Supreme Court and
other High Courts (that is, all High Courts except the High Court/s where he
was a Judge).

Art. 222 of the Constitution empowers the President of India to transfer a

Judge from one High Court to another. However, this must be done in
consultation with the Chief Justice of India; also, the Judge so transferred
must be given an additional compensatory allowance.

The Supreme Court has observed that Art. 222 cannot be interpreted to
mean that a Judge of a High Court cannot be transferred to another High
Court without his consent. (Union of India v. Sankalchand, AIR 1997 SC
2328)

In S. P Gupta v. Union of India (AIR 1982 SC 149), the transfer of the Chief
Justice of the Patna High Court to the Madras High Court was challenged
before the Supreme Court. Although the court, by a majority, upheld the
transfer, it also cautioned that this power of transfer should not be used for
any oblique purpose — as for instance, for punishing a Judge who does not
favour the government in his judgments.

Powers of the High Court Every High Court is a court of record, that is, a
court whose acts and proceedings are preserved for perpetual memory and
testimony. The powers of a High Court can be summarised as under:

1. Power to issue writs (Art. 226)

9
2. Power of superintendence (Art. 227)

3. Power to withdraw cases (Art. 228)

4. Power to appoint officers and servants of the High Court (Art. 229)

5. Power to control subordinate courts (Art. 235)

1. Power to issue writs (Art. 226)

Art. 226 of the Constitution empowers the High Court to issue to any
person or authority, including the Government, directions, orders or
writs, including writs in the nature of habeas corpus, mandamus,
certiorari, prohibition and quo warranto for the enforcement of any
fundamental right or for any other purpose.

The Supreme Court has observed that the power conferred on the High
Courts by Art, 226 In meant to onforco lho rule Ofl of law and to ensure that
the Stato and othor statutory authorities act In accordance with the law. (K.
S. Bholr v. State of Maharashtra, AIR 2002 SC 444)

This power of the High Court Is similar to the power of the Supreme Court to
issue writs under Art. 32 32 the Constitution. However, whoroas the right
under Art. falls under Part III of the Constitution, and Is therefore a
fundamental right, the provisions of Art. 226 do not fall under Part III.
Moreover, whereas Art. 32 speaks of enforcement of fundamental rights,
under Art. 226, High Courts can issue writs to enforce fundamental rights
and for any other purpose.

2. Power of superintendence (Art. 227)

Under Art. 227, every High Court has the power of superintendence
over all courts and tribunals throughout the territories where the High
Court exercisesJurisdiction. In furtherance of this power, a High
Court may —

• call for returns from such subordinate courts;

• make and issue general rules andprescribe forms for regulating the
practice and proceedings of such courts;
• prescribe forms In which books, entries and accounts are to be kept
by the officers of such courts; and
• settle th© Table of Fees to be allowed to the Sheriff and all officers
and clerks of such courts, as als advocates and pleaders also to
attorney, practising in such courts.
3. Power to withdraw cases (Art. 228)
Art. 228 provides that if a High Court is satisfied that a case which is
pending Ina subordinate court involves a substantial question of law

10
 w ich has to be determined for disposing of the case, It, may either
dispose withdraw the case from the subordinate court and determine
such quest' e th of law and returnH question of law, to go h ed
scopauosr tseeot ono f that tthhhaeet

4, power to appoint officers and servants of tho High Court (Art. 229)

Art. 229 gives powor to the Chief Justice of a 1-11011 Court or such other
Judge or officer of tho loll Court as the Chief Justice may direct, to appoint
officers and sorvants of the High Court. The conditions of service of such
officers and servants are to be governed by rules made by the Chief Justice
of the High Court or by some other Judge or officer authorizod by the Chief
Justice to make such rules.

5. Power to control subordinate courts (Art. 235)

Every High Court exercises control over district courts and courts
subordinate thereto, including over matters such as posting,
promotion and leave of persons belonging to the judicial service of the
State and holding any post inferior to that of a District Judge.

C. THE ATTORNEY-GENERAL OF INDIA

Art. 76 of the Constitution empowers the President of India to appoint a

person who is qualified to be appointed as a Judge of the Supreme Court to
be the Attorney-General for India. The qualifications for his appointment are
the same as those laid down in Art. 124 for the appointment of a Judge of
the Supreme Court, namely,

-- He should be a citizen of India.

AND –

He must have been for at least five years, a Judge of a High Court or of two
or more High Courts in succession.

OR - He must have been, for at least ten years, an advocate of a High Court
or of two or more High Courts in succession.

c He Is, In the opinion of the President, a distinguished jurist.

His main duty Is to give advice to the Government of India upon such legal
matters and to perform such other duties of a legal character, as may be
n9ferrecl or asskined to him by the President of India. He also has to
discharge the functions conferred on him by the Constitution.

Under Rules made by the President of India, the Attorney-General has to

advise the Government of India on legal matters and also appear on behalf

11
of the Government in cases before the Supreme Court and the High Courts,
when called upon to do so. He must also represent the Government of India
in any reference made by the President to the Supreme Court under Art. 143
of the Constitution.

The Attorney-General has a right of audience in all courts in India. As the

head of the Indian bar, he is entitled to precedence in all courts in the
country. He also has the right to speak in, and otherwise take part in the
proceedings in Parliament or any Committee thereof of which he may be
named a Member. He is not, however, entitled to vote. (Art. 88)

12
 THE ADVOCATES ACT, 1961

On the report of the "All India Bar Committee", the Government of India
enacted the Advocates Act, 1961. The President signed on it on 19th May,
1961. This Act has been in force in entire India. The preamble of the Act
says that it is "an Act to amend and consolidate the law relating to legal
practitioners and to provide for the constitution of Bar Councils and an All
India Bar". It repealed the Indian Bar Councils Act, 1926, the Legal
Practitioners Ad, 1879, the Legal Practitioners (Women) Act, 1923, the Legal
Practitioners (Fees) Act, 1926, and all other laws on the subject. The Act has
undergone several amendments since its enactment in 1961 to bring
changes with the changing times and to solve the practical problems.

The Act of 1961 brought revolutionary changes in legal problems in India.

The Advocates Act, 1961, contains 60 sections in all set out in 7 Chapters.
Chapter 1 deals with preliminary issues such as short title, extent and
commencement and definitions. Chapter 2 deals with the Bar Councils and
contains Sections 3 to 15. Chapter 3 deals with the admission and
enrolment of advocates and contains Sections 16 to 28. Chapter 4 deals
with right to practice and contains Sections 29 to 34. Chapter 5 deals with
conduct of advocates and contains Sections 35 to 44. Chapter 6 contains
miscellaneous issues and contains Sections 45 to 52. Chapter 7 deals with
the temporary and transitional provisions and contains Sections 53 to 60.

Under Section 2 of the act the word “Advocate” means an advocate

entered in any Roll under the provisions of the Act.

The term “legal practioner” means an Advocate or Vakil of any High Court,
Pleader, Mukhtar or revenue agent.

1|P a g e
Admission and Enrolment of Advocates

Persons who may be admitted as Advocates

According to Section 24 of the Advocates Act, 1961, a person shall be

qualified to be admitted as an advocate on a State roll, if he fulfills the
following conditions, namely—

(a) he is a citizen of India. However, a national of any other country may be

admitted as an advocate on a state roll, if citizen of India, duly qualified, and
permitted to practice law in that other country;

(b) he has completed the age of twenty-one years;

(c) he has obtained a degree in law; Foreign Law Degree can also be
recognised by the Bar Council of India for this purpose;

(d) he fulfills such other conditions as may be specified in the rules made by
the State Bar Council;

(e) he has paid, in respect of the enrolment, stamp duty, if any, chargeable
under the Indian Stamp Act, 1899, and an enrolment fee payable to the
State Bar Council of six hundred rupees and to the Bar Council of India, one
hundred and fifty rupees by way of a bank draft drawn in favour of that
Council.

The privilege of enrolment as an advocate has also been extended to the

earlier Vakils. Pleaders and Mukhtars and to some other specified
conditions. The right to practice as an advocate is a statutory right but not a
fundamental or absolute right.

Disqualification for Enrolment

According to Section 24-A of the Advocates Act, 1961, no person shall be

admitted as an advocate on a State roll—

2|P a g e
(a) if he is convicted of an offence involving moral turpitude.

(b) if he is convicted of an offence under the provision of the Untouchability

(Offences) Act, 1955.

(c) if he is dismissed or removed from employment or office under the State

on any charge involving moral turpitude.

However, these provisions do not apply to a person who having been found
guilty, is dealt with under the provision of the Probation of Offenders Act,
1958.

As per Section 25 of the Advocates Act, 1961, an application for admission

as an advocate shall be made in the prescribed form to the State Bar
Council within whose jurisdiction the applicant propose to practice.

Senior and Other Advocates

Prior to the Advocates Act, 1961, there were six different classes of legal
practitioners, namely Barristers, Attorneys, Advocates, Vakils, Mukhtars
an.' Revenue Agents. The Advocates Act, 1961, abolished the different
classes of legal practitioners. Hereinafter, there is only one class of legal
practitioners known as 'Advocates'. There is a uniform qualification for the
appointment of advocates. However, a slight distinction between senior
advocates and other advocates has been maintained in this Act.

According to Section 16 of the Advocate Act, there shall be two classes of

Advocates, namely, senior advocates and other advocates. An advocate may,
with his consent, be designated as senior advocate if the Supreme Court or
a High Court is of opinion that by virtue of his ability, standing at the Bar or
special knowledge of experience in law he is deserving of such distinction.

Senior advocates shall, in the matter of their practice, be subject to such

restrictions as the Bar Council of India may, in the interest of the legal
profession, prescribe. An advocate of the Supreme Court who was a senior
advocate of the Court immediately before the appointed day shall, for the
purposes of this section, be deemed to be a senior advocate.

3|P a g e
Designating an advocate as 'a Senior Advocate' means recognition of his
professional skill, long standing in the Bar experience and services
rendered to the society. An advocate can be called as 'Senior Advocate' on
the basis of his ability, his long standing at the Bar, his special knowledge
or experience in law, and confirmation by the Supreme Court or High Court.

The Act recognises only one single class of practitioners, namely: advocates.
According to the Section 30 of the Advocates Act, 1961, advocate whose
name is entered in the State roll shall be entitled as of right to practice
throughout the territories to which the Act extends; in all Courts including
the Supreme Court; before any Tribunal or person legally authorised to take
evidence and before any other authority or person before whom such
advocate is by or under any law for the time being in force entitled to
practise.

Bar Councils

Bar Council of India

The Act established an All India Bar Council for the first time According to
Section 4 of the Advocates Act, 1961, there shall be a Bar Council of India
consisting of the Attorney-General of India and the Solicitor-General of India
as the ex-officio members of the Bar Council of India. Besides, it has one
member elected by each State Bar Council from among it members. The
Council elects its own Chairman and Vice-Chairman.

The Bar Council, as per Section 7 of the Act, has been entrusted with the
following functions:

a) To lay down standards of professional conduct and etiquette for

advocates;
b) To lay down the procedure to be followed by its disciplinary committee
and the disciplinary committee of each State Bar Council;
c) To safeguard the rights, privileges and interest of advocates;
d) To promote and support law reform;
e) To deal with and dispose of any matter arising under this Act, which
may be referred to it by a State Bar Council;

4|P a g e
f) To exercise general supervision and control over State Bar Councils;
g) To promote legal education and to lay down standards of such
education in consultation with the universities in India imparting such
education and the State Bar Councils;
h) To recognise universities whose degree in law shall be a qualification for
enrolment as an advocate and for that purpose to visit and inspect
universities; (i) To conduct seminars and organise talks on legal topics
by eminent jurists and publish journals and papers of legal interest;
i) To organise legal aid to the poor in the prescribed manner;
j) To recognise on a reciprocal basis foreign qualification in law obtained
outside India for the purpose of admission as an advocate under this
Act;
k) To manage and invest the funds of the Bar Council;
l) To provide for the election of its members;
m) To perform all other functions conferred on it by or under this Act;
n) To do all other things necessary for discharging the aforesaid functions.

Section 5 of the Act says that every Bar Council shall be a body corporate
having perpetual succession and a common seal, with power to acquire and
hold property, both movable and immovable, and to contract, and may by
the name by which it known, sue and be sued.

State Bar Councils .

Constitution:-

As per Section 3 of the Advocates Act, 1961, each state has a Bar Council.
It is an autonomous body. The Advocate-General of the State is its ex-officio
member, and there are 15 to 25 elected advocates. These members are to be
elected for a period of five years in accordance with the system of
proportional representation by means of single transferable vote from
amongst advocates on the roll of the State Bar Council.

The State Bar Council has power to elect its own Chairman and a Vice -
Chairman.

5|P a g e
Functions

According to Section 6 of the Advocates Act, 1961, the functions of State

Bar Council are :

(a) To admit persons as advocates on its roll;

(b) To prepare and maintain such roll;

(c) To entertain and determine cases of misconduct against advocates on its

rolls;

(d) To safeguard the rights, privileges and interests of advocates on its roll;

(e) To promote the growth of Bar Associations for the purpose of effective
implementation of the welfare schemes;

(f) To promote and support law reform;

(g) To conduct seminars and publish journals and papers of legal interest;
(h) To organise legal aid to the poor in the prescribed manner;

(i) To manage and invest the funds of the Bar Council;

(j) To provide for the election of its members;

(k) To visit and inspect universities;

(1) To perform all other functions conferred on it by and under this Act.

Every State Bar Council prepares and maintains a roll of advocates and an
authenticated copy of the roll is to be sent to the Bar Council of India. An
application for admission as an advocate is made to the State Bar Council
within whose jurisdiction the applicant proposes to practise. A S tate Bar
Council has an Enrolment Committee consisting of three members elected
by the Council from amongst its members. The Enrolment Committee has to
dispose of applications for admission. Where the Enrolment Committee

6|P a g e
proposes to refuse any such application, it has to refer the same for opinion
to the Bar Council of India.

The finances of the Bar Councils are essentially met out of the enrolment
fees of the advocates. Twenty per cent of the fees realised are paid by each
State Bar Council to the Bar Council of India. Besides, the Bar Council may
receive donations and grants.

The Bar Councils can frame rules for carrying out their functions and
purposes. The rules made by the State Bar Council have to be approved by
the Bar Council of India. The Central Government has been given an
overriding power of making rules on any matter.

Thus, admission, practice, ethics, privileges, regulation, discipline and

improvement of the profession are now all in the hands of the profession
itself. The legal profession has achieved its long cherished object of having a
unified autonomous Bar on an All India basis.

Disciplinary Powers Over Advocates

An important function entrusted to the Bar Councils is the task of

maintaining discipline among 1961, makes it clear that an advocate the
advocates Section 35 of the Advocates Act makes it clear that an advocate
may be punished for professional misconduct.

Some examples of misconduct be of advocates are :

(i) Discourteous behaviour towards the Bench;

(ii) (Use of hot words or epithets or disrespectful, derogatory or
threatening language in the Court;
(iii) Exhibiting ill temper which has the effect of overbearing the Court;
(iv) Involvement in moral turpitude; e (v) Defrauding or cheating the
party;
(v) Failing to file a case after accepting a brief and fee plus expenses;
and
(vi) Engaging in a business of profit making.

7|P a g e
 A function of the State Bar Council is "to entertain and determine
cases of misconduct against advocates on its roll". As per Section 9 of
the Act, a Bar Council shall constitute one or more disciplinary
committees, each of which shall consist of three persons of whom two
shall be persons elected by the Council from amongst its members
and the other shall be a person coopted by the Council from amongst
advocates who possess the qualifications specified and who are not
members of the Council, and the senior-most advocate amongst the
member of a disciplinary committee shall be the Chairman thereof.
This arrangement has been made because Bar Council are large
bodies and, a such, cannot discharge effectively the disciplinary
powers.

A complaint of professional or other misconduct is referred by the

State Bar Council to its Disciplinary Committee. The Committee then
fixes a date for the hearing of the case and shall cause a notice
thereof to be given to the advocate concerned and to the Advocate -
General of the State.

The disciplinary committee of the State Bar Council after giving the
advocate concerned and the Advocate-General an opportunity of
being heard, may make any of the following orders, namely—
(a) dismiss the complaint or, where the proceedings were initiated at
the - instance of the State Bar Council, direct that the proceeding be
filed; r (b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem
fit; ,
(d) remove the name of the advocate from the State roll of advocates;

Where an advocate is suspended from practice under clause (c) of .

sub-section (3), he shall, during the period of suspension, be
debarred from practising in any Court or before any authority or
person in India.

8|P a g e
 Within 60 days of the order, an appeal can be preferred to the Bar
Council of India. The Disciplinary Committee of the Bar Council of
India would hear the appeal and pass such orders as it deems fit.
Against this order, a further appeal lies to the Supreme Court within
60 days of the passing of the order.

The disciplinary committee of the Bar Council of India may, either of

its own motion or by any person interested withdraw for inquiry
before itself any proceedings for disciplinary action against any
advocate before the disciplinary committee of any State Bar Council
and dispose of the same.
The disciplinary committee of Bar Council shall have same powers as
are vested in a Civil Court under the Code of Civil Procedure,1908, in
respect the following matters, namely —
(a) summoning and enforcing the attendance of any document
(b) requiring discovery and production of any document
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court
or office
(e) issuing commissions for the examination of witnesses or
documents
((f) any other matter which may be prescribed

Provided that no such disciplinary committee shall have the right to

require the attendance of-
-(a) any presiding officer of a Court except with the previous sanction
of the High Court to which such Court is subordinate;
(b)any officer of a Revenue Court except with the previous sanction of
the State Government.

All proceedings before a disciplinary committee of a Bar Council shall

be deemed to be judicial proceedings within the meaning of Sections
193 and 228 of the Indian Penal Code, and every such disciplinary

9|P a g e
 committee shall he deemed to be a Civil Court for the purposes of
Sections 480, 482 and 489 01 the Code of Criminal Procedure, 1898.
Besides, the disciplinary committee may send to any Civil Court any
summons or process, and the Civil Court would (let as if it were its
own. The disciplinary committee of a Bar Council, •tto !Roth or
otherwise, has a right to review its own decision within 60 days 01
the order, but no such order of review of the disciplinary committee of
a State Bar Council has any effect without the approval of the Bar
Council of India.

Notwithstanding the absence of the Chairman or any member ol

disciplinary committee on a date fixed for the hearing of a case before
it, the disciplinary committee may, if it so thinks fit hold or continue
the proceedings on the date so fixed and no such proceedings and no
order made by the disciplinary committee in any such proceedings
shall be invalid merely by reason of the absence of the Chairman or
member thereof on any such date.

Section 36-B of the Advocates Act, 1961, provides that the

disciplinary committee of a State Bar Council shall dispose of the
complaint received hy it under Section 35 expeditiously and in each
case the proceedings skill concluded within a pe riod of one year from
the date of the receipt ()yin' complaint or the date of initiation of the
proceedings at the instance of the Bar Council as the case may be,
failing which such proceedings shall stand i transferred to the Bar
Council of India which may dispose of the same as if t were a
proceeding withdrawn for inquiry under sub-section 36. Section 43 of
the .Advocates Act, 1961, enables a Bar Council to make an ordr as
to costs in respect of proceedings before.

10 | P a g e
 HISTORY OF LEGAL PROFESSION
1. Legal profession in Pre-British India

a) The legal profession in pre-British India was not at all organised. Actually, the legal
profession as it exists today was created and developed during British period.
b) During the Hindu Period, there were local courts which derived their authority
from the king. As the king was considered to be the fountain-head of justice, the
king's court was superior to all other courts and was the highest court of appeal.
When hearing and deciding cases, the king was advised by his Councillor,although
such advice was not binding on him. The profession of lawyers, as it exists today, was
practically non-existent.
c) During the Moghul period also, the king was regarded as the highest judge and
the keeper of God's conscience. There was, however, no organised legal profession.
Some wealthy zamindars also had their own courts, exercising civil and criminal
jurisdiction. The Courts were guided by Quran,Sunna,Ijna etc.
d) Thus, before the British period, the legal professions were not organized. There was
no provision for the legal training. Although there existed a class of persons
called vakils, they were not educated in law, and acted more like agents than as
lawyers.

2. Law Practitioners in the Mayor’s Court of 1726

a) Before 1726, the judicial administration was not of high order mainly because
the Judges were not lawyers but laymen and did not have sufficient knowledge.
They use to decide cases according to their own sense of justice. As a result
uncertainty prevailed in the judicial administration.
b) After the entry of the East India Company into India, until 1683, judges of the local
courts continued to be lay persons with insufficient knowledge of law. An attempt
was made by the Charter of 1683 to provide that only lawyers could be
appointed as judges. This Charter provided that the chief judge of the Admiralty Court
(who was referred to as the Judge-Advocate) was to be an expert in civil law.
Although initially, civil lawyers were appointed as judges, later on, the East India
Company was quite reluctant to send English lawyers to India, and lay persons were
appointed as judges.
c) The Mayor's Courts were to follow well-defined procedures based on English
laws.The Charterdidnot,however,makeanyprovision for legal training or for
professional lawyers, and the judicial administration in India continued to
remain in the hands of non-professional persons.
d) In 1753, a new Charter was issued to rectify certain defects in the earlier
Charter of 1726. However, the position under the Charter of 1753 was no better.
Even this Charter did not introduce the concept of professional judges. Nor did it
make any provision for legal training. Persons practising in the Mayor's Courts were
devoid of any legal training and a basic knowledge of the law. Interestingly, it is a
 matter of record that some of these so-called 'lawyers' were in fact dismissed servants
of the East India Company.

3. Legal Profession under Charter of 1774

a) The Regulating Act,1773, empowered the British Crown to establish a

Supreme Court by issuing a Charter. Accordingly, under the Charter of 1774, a
Supreme Court was established at Calcutta. It was at this time that the first
concrete step was taken to organise the legal profession in India. Under Clause 11
of this Charier, the Supreme Court was authorised to recognise such Advocates and
Attorneys "as it deemed fit". The Court was also empowered to disbar any such
Advocate or Attorney for a "reasonable cause". Thus, the only persons entitled to
practise before this court were Advocates and Attorneys.
b) The same position continued when Supreme Courts were established in Bombay
and Madras. Thus, the only persons entitled to practise in all the three Supreme
Courts were British barristers, advocates and solicitors. Indians had no right to
appear before these courts.

4. Legal Profession in the Company’s Courts and Legal Practitioners Act,

1853.

a) Before the rise of the British Power in India the administration of justice in the
Northern India was in the hands of the courts established by the Moghul emperor.
b) Until 1793, the state of the legal profession in the adalats of the East India Company
was deplorable. Vakils with little or no knowledge of the law practised in these
adalats, but they charged exorbitant fees. In turn, the vakils were subject to
harassment — and even extortion — by the ministerial officers of the courts. It was
to remedy this unsatisfactory state of affairs that the Regulation VII of 1793 was
passed.
c) The Regulation of 1793 sought to organise and strengthen the legal profession in
India in the best public interest. It recognised that lawyers served as trustees of
clients and that it was their duty to assist the courts in the administrationof justice.
The Regulationsought to establish the practice of law as a regular profession and
empowered the Sardar Diwani Adalat to enrol pleaders and also to fix their fees,
which were payable only after the decision of the court. A pleader could not
demand fees — or any other consideration in cash or kind — in excess of the
prescribed fee's, and if he did so, his name could be struck off. Thus, the theory
of freedom of contract between the vakil and his client in the matter of fees was
not recognised..
d) Regulation, only Hindus and Muslims could be admitted as vakils. This restriction
was, however, removed by later Regulations, and still later, litigants were also given
the freedom to settle the professional fees with their vakils.
e) The next significant landmark was the passing of the Legal Practitioners Act, 1846,
which can be considered to be the first all-India lawrelating to pleaders in the
 mofussilareas. This Act is regarded as "the first Charter of the legal profession' and
under it, every Barrister enrolled in any of Her Majesty's Courts in India was eligible
to plead in the Sardar Adalats. The office of a pleader was thrown open to any
person of any nationality or religion, so long as he was duly certified to be of good
character and was qualified for this office.
f) Thereafter, under the Legal Practitioners Act, 1853, Attorneys on the roll of any of
Her Majesty's Supreme Courts were entitled to appear in any of the
Company's Sardar Adalats. In other words, whilst Barristers and Attorneys
could plead in the Company's Adalats, Indianlegalpractitioners were kept out of all
the three Supreme Courts. The Act also did away with the system of
compulsoryattendance by pleaders, and a pleader was no longer required to notify the
court about his inability to attend to a matter on a particular day.

5. High Courts Act, 1861 and enrolment of Advocates under letters Patent Issued.

6. Legal Practitioner’s Act, 1879 and Report of Indian Bar Committee, 1923

a) The Legal Practitioners Act, 1879 brought all the six grades of legal practitioners
under one system. Under this Act, an advocate enrolled on the roll of any High
Court could practice in that High Court and all courts subordinate to it. He could
practise in any other court in British India also, except a High Court on whose
roll he was not enrolled (unless he did so with the permission of such a High
Court, which permission was often denied) girl students far outnumber the
boys in several law colleges in the country.

b) In 1923, the Government of India appointed a Committee under the chairmanship

of 'Sir Edward Chamier (the Chamier Committee) to suggest appropriate reforms.
In its Report, the Chamier Committee stated that it felt staggered by the variety of
legal practitioners entitled to practise in the High Court and subordinate courts.
According to the Committee, the ideal to be kept in view would be the
ultimate disappearance of different grades of legal practitioners, and in course of
time, there should emerg‘e a single grade of legal practitioners entitled to practise in
all courts. The Committee also proposed the establishment o2f an all-India Bar
Council to regulate matters such as the qualification and admission of proper
persons to be advocates, legal education and matters relating to discipline and
professional conduct of advocates.

7. Indian Bar Council Act 1926 and All India Bar Committee 1951.

It was to give effect to the above recommendations that the Indian Bar Councils Act,
1926 was passed. The Act sought to establish a separate Bar Council for each High Court,
which would have the power to make rules inter alia for the following matters:
- the rights and duties of the advocates of the High Court and their discipline and
professional conduct;
- the giving of facilities for legal education and training, and the holding and conduct of
examinations by the Bar Council.
The Act also achieved a degree of unification of the Bar by unifying two grades of
practitioners, vakils and pleaders, by merging them into one class of 'advocates'. Under S. 8
of the Act, no person could practise in the High Court unless his name was entered in the roll
of Advocates maintained under the Act. Attorneys of the High Court were, however,
exempted from being entered on this roll. .A duty was imposed on the Bar Councils to decide
all matters concerning legal education, qualifications for enrolment, discipline and general
control of the profession. The High Court was also authorised to reprimand, suspend or debar
from practice, any advocate of the High Court whom it found guilty of professional or other
misconduct.
Although this Act was a definite improvement on the pre-existing position of the Bar in India,
it failed to satisfy the Indian legal profession, which felt that the Bar Councils were given
unreal and ineffective powers — which in fact were closely controlled by the High Courts.
As observed by one native lawyer, "We have been asking for substance. In answer, we
are given a sham and a shadow." The aspirations of Indian lawyers to have an
autonomous and unified Bar had to wait for more than three decades, when the Indian
Parliament enacted the Bar Council Act, 1961.

8. Advocates Act of 1961.

9. Law Reporting in India.

 10. LAW REPORTING IN INDIA

JUDICIAL PRECEDENTS

The word 'precede' signifies something that has gone before. The expression
'judicial precedent refers to previous decisions of superior courts.

The doctrine of stare decisis (embodied in Art. (141 of the Constitution of India)
lays down that a previous decision of a superior court on a point of law is
binding on, and is to be followed by, all inferior courts.

The theory of the binding force of precedents is firmly established in English

law. In the words of Salmond, a judicial precedent in England speaks with
authority. It is not merely evidence of law, but a source of it, and the courts are
bound to follow the law that is so established.

Importance of this theory is that:-

it brings about uniformity and certainty in the law.

It also avoids delays and promotes convenience.

In its absence, every court would be free to interpret the law in its own way,
resulting in utter chaos and all-round confusion.

If an earlier decision of a superior court was not binding on a lower court, every
court deciding similar matters would have to decide the same question again
and again.

The theory thus eliminates delay, disorder and conflicts which would result in
utter confusion. If decisions of higher courts were not binding, it would be
difficult, if not impossible, to regulate one's future conduct, and lawyers would
be at a loss when advising their clients on how to manage their affairs in the
future.

Under the doctrine of stare decisis (referred to above), decisions of the

Supreme Court are binding on all other courts. However, the interesting
question that arises is : How are other courts informed about the numerous
judgments of the apex court? The answer is simple : By the law reports.

1
LAW REPORT

It is a compilation of judgments of higher courts published at regular intervals.

Each and every case decided by such courts is not reported; only those that
involve an important interpretation of the law or which lay down an important
or new principle of law find place in such reports.

Law reports are of two kinds:

i).Official law reports and

ii).Private law reports.

Official reports are publications of the government,

whereas private law reports are published by non-governmental publishers.

Thus, the Supreme Court Reports (SCR) form a series of official law reports,
published under the authority of the Supreme Court of India, whereas the All
India Reports (AIR) is a private publication of the All India Reporter Private Ltd.
at Nagpur.

B. LAW REPORTING BEFORE 1875

It was only after Supreme Courts were established in the three Presidency
Towns of Bombay, Calcutta and Madras that the system of law reporting began
in India.

The earliest compilations were restricted to cases involving personal laws. In

1824, Sir Francis McNaughton published a volume entitled Considerations
upon Hindu Law, and in 1825, Sir William McNaughton came out with
Dissertations on Mohammedan Law.

Then, in 1829, Clarke published a volume entitled Rules and Orders of the
Supreme Court, containing elaborate notes on decided cases. This was followed
by several private law reports, of which the most notable were the following: •
Bignell's Reports (1830 — 1831)

• Foulton's Reports (1842 — 1844)

• Montriou's Select Cases (1846)

• Boulnoi's Reports (1853 — 1859)

• Gasper's Commercial Cases (1851 — 1860)

• George Taylor's Reports (1847 — 1848)

2
Some attempts were also made to publish decisions of the Sardar Diwani
Adalats and the Sardar Nizamat Adalat. Thus, for instance, seven volumes
containing cases decided by the Sardar Diwani Adalats, covering the period
1791 to 1849, were published. From 1845, the decision of these courts were
published on a monthly basis and were called the Bengal SDA Reports.

It must be noted that the publication of all such reports was neither systematic
nor scientific. Whereas some reports were prepared carefully, others contained
neither a statement of facts nor the arguments of the lawyers. This erratic
manner of publishing law reports came under strong criticism from Sir James
Stephen (see below) and eventually led to the passing of the Indian Law Reports
Act, 1875.

C.LAW REPORTING AFTER 1875

The prevailing haphazard system of law reporting in India was severely

criticised by Sir James Stephen, the Law Member of the Government of India.
He pointed out that the existing law reports were of varying degrees of merit,
the quality of reporting was poor and the number of such reports was
increasing rapidly. Private law reports made no distinction between cases
worth reporting and those which did not merit a place in the reports. He
regarded this as a "mischievous state of things", which ought not to be allowed
to continue.

Ultimately, to reduce the multiplicity of law reports in India and to improve

their quality, the Indian Law Reports Act was passed in 1875. This Act is a
significant landmark in the history of law reporting in India.

Under this Act, courts were to accept, as citations, only those reports which
were published under 'The authority of the Governor-General-in-Council"
(which was amended to "the authority of the State Government" after
independence). Section 3 of the Act now provides as follows:

"No court shall be bound to hear cited, or shall receive or treat as authority
binding on it, the report of any case decided by any of the High Courts other
than a report published under the authority of the State Government."

Thus began an official series of law reports known as the Indian Law Reports
(ILR). Today, each High Court has its own series of law reports, as for instance,
ILR Bombay, ILR Allahabad, and so on.

Although it was envisaged by the above Act that only the ILR series would be
accepted by courts in India, in the course of time, several private law reports
have sprung up, as for instance, the All India Reports (AIR), the Income -tax
Reports (ITR), Supreme Court Cases (SCC), etc., and are freely cited in all

3
courts. The Fifth Law Commission also examined the system of law reporting in
India and was opposed to the creation of a monopoly in favour of any official
law report.

Today, a wide variety of law reports are available to everyone: lawyers, law
professors, judges, etc. Some like the AIR and SCC publish judgments relating
to all fields of law, whereas others like the ITR and the Criminal Law Journal
(CU) contain reports of cases relating to specific segments of the law, Most law
reports are published on a monthly basis, whereas some others are published
every fortnight, as for instance, Unreported Judgments (UJ) — or even on a
weekly basis, as for example the SCC in India and the WLR (Weekly Law
Reporter) in England.

Due to the universal use of the internet, several courts and tribunals now
publish their judgments on their websites, so that judges, lawyers, litigants
and all other interested persons can access them at the click of a button. In
1995, the Supreme Court, in collaboration with the National Informatics
Centre, launched a website/information system called JUD1S .Judgments
Information System). A versatile system of law reports is also now available on
a CD ROM, and is called the Supreme Court Case Finder. The latest
development is the collaboration between the publishers of SCC with LawNet of
the Singapore Academy of Law, whereby subscribers of LawNet all over the
world can get access to all cases reported in SCC from 1969 onwards through
the website of LawNet.

4
 B. HISTORY OF LEGISLATURE

CODIFICATION

Laws can broadly be divided into

i).Codified and

ii).Uncodified laws.

The word "codification" refers to arranging something in a systematic order.

When used in a legal sense, the term refers to the process of enacting
particular rules of law in a statute or Act passed by the legislature.

The systematic arrangement of the legal provisions, rules and regulations of a

country on a specific topic is thus referred to as codification.

Codified law is thus available in the Acts passed in the country, whereas
uncodified law has to be painstakingly found in judicial precedents and
authoritative text books.

Thus, codification refers to a process by which scattered, non-uniform and

often uncertain provisions of law are transformed into a written and
systematically arranged code (Act).

Bentham, a strong supporter of codification, once said, "A complete dige st as

such is the first rule. Whatever is not in the code ought not to be law."
Codification thus brings uniformity to the law and avoids, or at least
minimizes, confusion and uncertainty.

Thus, for instance, a part of Hindu law is codified for example,

the Hindu Marriage Act, 1955,

the Hindu Succession Act, 1955, etc.) whereas other portions of Hindu law (for
instance, the law relating to Hindu joint families, Hindu coparcenaries,
partition, etc.) is uncodified.

Likewise, most of Mohammadan law (including the law relating to marriage,

divorce, succession, etc.) is uncodified, having its origin in holy scriptures like
the Koran.

1
Various legal systems of the world have resorted to codification of laws for
many reasons.

Laws have been codified in India with several objectives in mind, as for
instance, the following:

1. To lay down the law in a precise form.

2. To make the laws better known to people at large.

3. To remove the uncertainties and complexities of uncodified law.

4. To assist in the administration of justice.

5. To check the automatic infusion of technical rules of English law into the
Indian legal system.

6. To preserve and legalise beneficial customs and usages suited to the people
of India and prevailing in the country for long periods of time.

7. To minimize what Bentham calls "the evils of judicial legislation".

History of Codification

Public demand for codified laws can be traced to the dawn of recorded history.
The first known codification of laws is generally attributed to Ur-Nammu, the
King of Ur in the 25th century B.C.

Ancient Greek and Roman civilizations continued the practice of codification .

However, these primitive codes were not very helpful. Often, laws were written
in small characters and hung on pillars for the benefit of citizens.

Although Julius Caesar made an attempt at codification, he met with very_liftle

success, and was not able to reduce the enormous body of Roman law to a
simple, codified form.

In the olden days in India, the absence of codification resulted in uncertainty,

incoherence and lack of uniformity resulting from the application of at least five
different systems of laws and rules in the country. Firstly, English law (rules of
common law as well as English statutes) were often applied to Indian cases.
Again, three different sets of regulations, existing separately and independently
from one another, prevailed under the governments of Bombay, Madras and
Bengal. Lastly, in the absence of specific laws or rules applicable to minority

2
groups like the Anglo-Indians, Jews and Parsees, the principles flowing from
the doctrine of justice, equity and good conscience were applie d to these
communities.

The historical position in India

The governance of the East India Company was one of a multi-centered

authority. With limited powers, it tried to govern and administer justice to a
multitude of diverse communities of Indians spread over a vast territory. No
wonder such a system was most uncertain, haphazard and chaotic.

The position in India in the 17th, 18th and early 19th centuries was far from
satisfactory. Three Presidencies of the Company's government operated under
the remote control of the Board of Directors of the Company and the English
Parliament. The three Supreme Courts and the Sardar Adalats began to
interpret and apply laws, each in its own way, resulting in utter chaos and
confusion.

When the first Law Commission w as appointed in 1833, with Lord

M acaulay as its Chairman, the first project referred to it was the codification
of criminal law in India. Under the inspired and able guidance of Lord
Macaulay, the first draft of the Indian Penal Code was submitted in 1837.
Today, the Indian Penal Code (amended from time to time to keep it in tune
with changing times) is a unique and unparalleled piece of legislation. The
draftsmanship of the Code was so splendid that there was a demand in
England that an English Code be drafted in that country, modelled after this
Code.

After independence, since the Constitution envisages a neat division of

legislative powers between the center and the states, certain statutes like the
Indian Penal Code or the Indian Contract Act- apply to the whole country,
whereas other Acts are in force only in a particular state, as for instance the
Maharashtra Rent Act and the Bombay Stamp Act, both of which are operative
only in the state of Maharashtra.

Prior to 1955, almost the entire range of Hindu law was uncodified, having its
source in the Vedas, Smrutis, Shrutis, etc. It was only in 1955 and 1956 that
Parliament codified most of Hindu personal law in the shape of the Hindu
Marriage Act, the Hindu Adoptions and Maintenance Act, the Hindu Minority
and Guardianship Act and the Hindu Succession Act.

The reason why most laws were uncodified in the earlier days — especially in a
country like India — was that in primitive and ancient societies, law and

3
religion were blended together. In this scenario, custom had a vital and
important role to play, and legislation was often non-existent.

Today, however, times have changed, and legislation has claimed a degree of
superiority over other methods of legal evolution, although custom continues to
be a subsidiary source of law in countries like India. Today, most of the law of
torts is uncodified law, and there have been persistent demands for its
codification. It is argued that if this branch of the law is reduced to a single
piece of legislation, it would add a great degree of certainty to this branch of the
law. The result of litigation would then depend on the provisions of an Act
rather than on Judicial decisions, some of which conflict with some others. In
fact, a Bill to codify the Indian law of torts had even been drafted — but was
never passed by Parliament.

Although there is a lot of truth in such arguments, it must also be kept in

mind that, if codified, the law of torts would become extremely rigid and would
lose all Its current flexibility. Every time a change in the law becomes
necessary, the arduous task of amending that Act would have to be gone
through.

Drafting a Code : Contents of a Code

A code is a piece of enacted law on a particular subject, which should be the

authoritative, comprehensive and an exclusive source of that law. The
technique of drafting the various contents of a Code may be briefly set out as
under:

• At the very outset, the Code must briefly state the objects and purpose of
that law and whether it is meant to consolidate or amend or repeal the existing
law on that subject.

• The title of the Act should then be set out in a manner that is short and
simple, but which nevertheless gives a clear indication of the subject-matter of
that Act.

• The date from which the Act is to come into force may then be stated in the
Act itself or this may be left to the government to decide. Different sections of
the same Act may come into force on different dates (as has recently happened
in the case of the Companies Act, 2013).

• The Act must specify whether it applies to the whole of India or to a

particular State or only to certain parts of the country.

• The Act must contain the definitions of the terms and expressions used in the
Act, so that varied interpretations of the same term or expression are avoided.

4
• The substantive part of the law must then be neatly divided into various
topics, each contained preferably in a separate Chapter. Such Chapters should
then be divided into sections and sub-sections (wherever necessary).

• Illustrations may be added to clarify and illustrate what is stated In the

sections. Explanations, exceptions and provisos may also be inserted at the
proper places.

If the Act has repealed any earlier law, this must be stated – generally at the
end of the Act.

M erits and demerits of codification

As codified law is to be found in statutes and uncodified law represents

precedents or case law, the controversy boils down to 'statutes versus
precedents'. The respective merits and demerits of both these important
sources of law can be summarised as under.

M erits of codification

In the nineteenth century, Lord Macaulay and Jeremy Bentham were staunch
supporters of codification. Criticising the process where judges laid down the
law in their judgments, Lord ' Macaulay observed that judge -made law "is a
curse and a scandal not to be endured". Bentham was also a strong advocate of
codification and is often called "the apostle of codification". It was he who was
responsible for the invention of the word 'codification', or at any rate, for its
introduction in the English language. In his words, "To be without a code Is to
be without justice." Codification, it was said, was indeed the passion of his life.
The main advantages of codification are listed below.

1.Form and simplicity

Codification makes the law simple and accessible to everYbody. it is said that
statute law is brief and clear, whereas case law is buried from sight and
knowledge in the huge, and °f ten complicie—a• mu mass of case law. It is
easier for a citizen, I$ argued, to refer to an Act of Parliament rather than get
'?st in a maze of case law. As once observed, case law may u.• gold In the mine,
but statute law Is the coin of the realm, lady for Immediate use.

2. Easy access

it is argued that precedents are scattered all over time and ;ace_ and often
inconvenient to access, whereas codified laws Are More accessible to the
common man.

3. Abrogative power

5
 Legislation is both constitutive and abrogative; it can make and unmake law.
Precedent, on the other hand, can only make law, that is, it is constitutive only.
To take an example, even if a decision of the Full Bench of the Bombay High
Court is not a sound decision, in all future cases, Judges of the Bombay High
Court will have to follow it — and decide cases in conformity with a decision
that is ultimately proved to be a wrong one. It is only when a future litigant
takes the matter to the Supreme Court where such a decision is over-ruled,
that Judges of the Bombay High Court are liberated from following such an
erroneous ruling.

4. Advance declaration

Justice requires that laws be known before they are applied. Codified law is
formally declared in the form of an Act, so that all persons are aware of its
content. But in the realm of uncodified law, if a new point is to be decided, the
courts will make the law and apply it immediately. There can be no advance
declaration in such cases.

5. Division of functions

Codification allows an advantageous division of functions, which results in

efficiency. The function of the legislature is to make laws, whereas that of the
judiciary is to apply the laws. Case-law, however, combines in the same body
(namely, the courts), the function of making the law and applying it, which is
not always the best formula for efficiency.

6. Provision for future cases

Codified law makes provisions for cases that have not yet arisen, whereas
precedent has to wait until a particular set of facts are presented to the court.
Codified law proceeds in the direction of certainty, whereas case law is often
incomplete, uncertain and unsystematic.

7. Reliability

Codified law is, in many ways, more reliable than the judgment of an individual
Judge or even a Bench of Judges. As remarked by the famous jurist, Dr.
Sethna, the human mind is not infallible — and a Judge is no exception to this
rule. The collective wisdom of the legislature can therefore be regarded as a
more reliable means of protecting the subjects of a nation than the fancy of an
individual Judge.

8. Impartiality

6
 It is one of the cardinal principles of law that justice should not only be done,
but should also be seen to be done. This can be achieved only when there are
fixed principles of law, declared in advance, and reduced to writing in the
shape of a statute.

9. Protection against arbitrary, biased and dishonest decisions

The existence of fixed and codified principles of law also avoids the dangers of
arbitrary, biased and dishonest decisions

Demerits of codification

The main demerits of codification are the following:

1. Little scope for judicial discretion

Once the law is codified, the courts have no option but to follow the law —
even if it results in injustice in a particular case. Uncodified law, however,
leaves a great amount of discretion in the hands of the Judge (often referred
to as `judicial discretion'), as his hands are not tied down by the water-tight
rules contained in an Act.

2. Lack of clarity Very often, codified laws are, couched in legalistic jargon
and cumbersome language, which makes little sense to a layman. Case law, on
the other hand, is seldom worded in verbose or high-sounding language.

3. Rigidity Codified laws are generally rigid. Uncodified law, on the other hand,
exists in the form of precedents. As the facts of any two cases can almost never
be exactly the same, the courts have enough scope for doing justice in every
individual case.

4.Change

As times change, the laws too require to be modified When an Act needs to be
changod, the formal process of amendment of that Mt has to be gone through.
A precedent, on the other hand, can be easily over-ruled by a higher court.

5. Inoompleteness

As a legislature cannot anticipate all possible problems and situations that

may arise In the future, statutes tend to be incomplete, and when new
problems arise, his often difficult for the court to tackle that problem within the
framework create by a particular Act. According to Paton, codification purifies

7
the law at the stage when the law is made and often there is little scope for
applying It to now situations.

Re-codification

Often, there are several statutes dealing with the same subject-matter, some
recent and others that may be outdated. Sometimes, provisions in one Act
appear to conflict with those in another Act on the same subject. In such cases,
there is a need to re-codify the law into one consolidatedpiece of legislation and
to repeal the other Acts. This is referred to as re codification.

Conclusion

It cannot be denied that codification is replete with manifold benefits. The road
to codify laws may be a difficult path, but It is one where the journey is worth
the trouble. Today, the law of torts is mostly uncodified. Again, most portions
of Mohammadan law and several parts of Hindu law are yet to be codified. The
need of the day is a uniform civil code, mandated by the Indian Constitution as
a directive principle of state policy — but one where no progress has been seen
despite more than six decades of independence.