LEGAL HISTORY

MODULE 2: ADVENT OF BRITISH COLONIALISM IN INDIA

Charter Act of 1600

● The East India Company was incorporated in England on 31st December, 1600, by a
Charter of Queen Elizabeth.
● This charter settled the constitution, powers and privileges which were to be enjoyed by
the company.
● Initially this charter was granted only for 15 years, subject to the provision of
termination, by giving two years notice in advance, if the activity of the company was
found unprofitable.
● During these 15 years, the Company had exclusive rights to carry on trade into and from
different countries like India, America and Africa.
● The same charter further granted legislative power to the company to make rules, by-laws
and ordinances for its good governance and to punish for offences against company or its
servants by fine or imprisonment according to the law, statutes or customs of the time.
● This power was subjected to two important conditions i.e., reasonableness and
non-contravention of the statutory as well as customary English law.
● No law prescribing capital punishment could be enacted by the Company.
● The first Charter of 1600 was mainly designed for trade and was not intended for
acquisition of any dominion in India.
● In order to enable the Company to punish its servants for grosser offenses on long
voyages, the Company secured the first Royal Commission in 1601.

Charter Act of 1609

● In 1609, a fresh charter was granted to the company which continued its privileges in
perpetuity, subject to the condition that they could be withdrawn after three years' notice.
● All the privileges, powers and rights which had been granted in 1600 to the Company by
Queen Elizabeth were continued without modifications.
● In 1615, the king authorised the company to establish a similar Royal Commission as it
was established under the Charter of 1600 to conduct the trial of capital offences like
wilful murder, mutiny etc.
● Concept of Jury trial was formalised for the first time and 12 servants of the company
were allowed to give verdict in such cases.
● Trial of Gregory Lillington: Gregory Lillington killed Henary Barton, another
Englishman, near Surat. The trial was conducted on the basis of the confession of
Gregory Lillington. Finally, he was sentenced to death by the jury.
● Charter of 1623: Some additional powers were given to the Company for enforcing
martial law by this Charter.

Charter Act of 1635

● A new company by the name of Courten’s Association was allowed to be set up. The old
Company faced competition at the hands of the new Company.

Charter Act of 1657

● This charter ended the old rivalry between the old companies by amalgamating various
joint stock companies into one joint stock company.

Charter Act of 1661

● After this charter the company entered into an unprecedented prosperity and changed its
character from purely trading company into a territorial power.
● This Charter reorganized the Company on a joint-stock principle and each member who
had a share capital of 500 pounds was given the right to one vote in the general Court of
the Company.
● The company was authorised to appoint governors and other officers for proper
administration of civil as well as criminal justice over the persons employed by the
company at its various trading centres of Calcutta, Bombay and Madras according to
English law.

Settlement at Surat
● The English people established the first factory in India at Surat in 1612 during the time
of Mughal Emperor Jahangir.
● It was the first presidency, being known as such due to the fact that its administration
was conducted by a President or Governor and Council. All affairs of the factory were
regulated by a majority vote in the Council and the President did not hold any veto power.
● With a view to strengthening their power and to secure advantages, the Directors of the
Company tried to contact the Mughal emperor. The purpose was to get some power from
Jahangir.
● In the year 1618, Sir Thomas Roe, Ambassador of James I, succeeded in gaining
Jahangir’s favour and the EIC entered into a treaty with Jahangir. As per the treaty,
Jahangir issued a farman which entrusted the right to self-government to the English and
some judicial functions in the hands of the EIC.
● There are 4 components of this farman:
1. The disputes amongst the company servants will be regulated by their own
tribunals.

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 2. The English people will enjoy their own religion and laws in the administration of
the EIC.
3. Local native authorities will settle such disputes in which both Englishmen and
Hindus/Muslims are parties.
4. The Mughal governor (Qazi) of the relevant place was entrusted with the duty to
protect English people from all sorts of injury.
● The native courts of Surat did not enjoy a good reputation as they suffered from many
evils. There was no set pattern of crimes and punishments and corruption was also very
much rampant amongst the judges.
● The Surat settlement of the company did not remain in prominence for a longer period of
time and it lost its importance very shortly after the transfer of the seat of President and
Council to Bombay.

Charter Act of 1668

● This charter authorised the company to make laws, orders and constitutions in
consonance with the laws of England for good governance of the island of Bombay.
● It granted territorial sovereignty to the East India Company by granting the port of
Bombay.
● It also empowered the company to establish courts of judicature similar to those
established in England for the proper administration of Justice.

Charter Act of 1683

● It authorised the Company to raise military forces.
● This charter provided that a court of judicature should be established at such places as the
company might consider suitable consisting of one person learned in civil laws and two
merchants to decide the cases according to equity, justice and good conscience, laws and
customs of the merchant by such dates as directed by the crown from time to time.
● It also authorised the East India Company to establish admiralty courts at the places of its
own choice.

Charter Act of 1686

● This charter strengthened the concept of admiralty courts and authorised the company to
appoint admirals or other sea officers in any of their ships to raise naval forces and
exercise martial law during the times of war.
● The company was authorised to establish a municipality and a Mayor’s court at Madras.
The constitutional government of the company was extended to the company's territories
in India.

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 Charter Act of 1693
● This charter was issued to break the monopoly of the old company and again a new
company was established in the name of General Society. With the passage of time
serious competition and conflict arose between these two companies and finally both
these companies were united in the name of “The United Company of merchants trading
to the East Indies”.

Charter Act of 1698

● This charter made significant changes in the existing rules to improve the administration
of the company. It created a separate court called the Court of Proprietors and the control
of the entire affairs of the United Company was entrusted in the hands of this court.

Organisational Set-up of the English Company’s Factories or Settlements in India

● After the death of Aurangzeb, the Mughal empire started disintegrating and the English
Company got an opportunity to lay its foundations in England as well as in India.
● In India, the English Company was in possession of three factories and settlements at
Bombay, Madras and Calcutta.
● These were governed by a President or Governor and Council. The Governor was the
executive head of the Council and also looked after the administration of justice in his
settlement.
● At Bombay, the Company exercised its powers as the representative of the English
Crown.
● In Madras, it ruled over both Englishmen and Indians but its authority over the former
was derived from the Royal Charters while its power over the latter was derived from the
grant of the local Raja or Nawab.
● At Calcutta, the Company exercised its authority under the Mughal Emperor’s grant of
zamindari.
● The policy of the company varied according to the principle by which control was to be
exercised in all these three settlements.

Administration of Justice in Madras

● Judicial Institutions in Madras developed in three stages:
1. First Stage (1639-1666) - Primitive and elementary
2. Second Stage (1666-1686) - Emergence of regular court consisting of Governor
and Council
3. Third Stage (1686-1726) - Creation of Mayor’s Court and Court of Admiralty
● First Period: Foundation of Madras
➢ Madras was founded in 1639 by Francis Day. On this piece of land, the Company
constructed a fortified factory. The fort was named as the Fort St. George.

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 ➢ The Company was empowered to mint money and govern Madraspatnam, a
village near the Company’s fort.
➢ Black Town: The village came to be known as Black Town inhabited by Indians.
➢ White Town: Inside the fort, resided the Europeans and the British servants of the
Company and this settlement came to be known as White Town.
➢ Initially, Madras was merely an Agency, its administrative head was known as
Agent. He regulated all matters and affairs along with a small Council.
➢ Choultry Court: The village headman, known as Adigar, used to sit in the
Choultry Court and decided petty civil cases and small breaches of peace.
➢ Charter of 1661:
❖ This Charter was granted by Charles II on April 3, 1661.
❖ Firstly, the Charter authorised the Company to appoint Governors and
Councils in their settlements in India.
❖ Secondly, a general judicial authority was conferred on the Governor and
Council of each factory to judge all persons belonging to the Company or
living under them, in all causes civil and criminal according to the laws of
England and to execute judgment accordingly.
➢ The Agency at Madras became the Presidency of Madras in 1665. The
administrative head of the place was designated as the President or Governor.
● Second Period: Reorganisation of the Judicial System
➢ In 1678, the Court of the Governor and the Council was designated as the High
Court of Judicature.
➢ The Court was decided to meet twice a week to decided all civil and criminal
cases with the help of a jury of 12 men.
● Third Period: The Charter of 1683
➢ The Charter of 1683 empowered the Company to establish Courts of Admiralty.
➢ Its main purpose was to try all traders committing various crimes on the high seas.
➢ The Court was to have power to hear and determine all cases, mercantile or
maritime in nature.
➢ It was authorized to deal with all cases of trespasses, injuries anf wrongs done or
committed on the High-Seas or within Charter limits.
➢ The Company issued a Charter in 1687 which authorized it to create a
Corporation of Madras and establish a Mayor’s Court, empowered to carry out
judicial functions.
➢ The Corporation of Madras consisted of a Mayor, 12 Aldermen and 60 or more
Burgesses.
➢ An Englishman would be elected Mayor every year by the Aldermen and the
Aldermen were appointed for their life or during their residence in Madras.

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 ➢ Tha Mayor and Aldermen were constituted into a Court of Record for the town.
The Court known as the Mayor’s Court, was authorised to try all civil and
criminal cases.
➢ An officer known as the Recorder was to be attached to the Court to assist in the
discharge of judicial work.
● Drawbacks of the Judicial System in Madras
➢ Absence of proper judicial system
➢ Uncertainty of Laws
➢ Severe punishments
➢ Lack of facilities in the jails
➢ Unfair trials

Administration of Justice in Bombay

● The island of Bombay was transformed to the East India Company in 1688 by King
Charles II for an annual rent of 10 pounds.
● Initially, Bombay was under the control of the President and Council of the Surat Factory.
Bombay had merely a Deputy Governor and a small Council.
● The first judicial system of Bombay divided it into two divisions: one division consisted
of Bombay, Mazagaon and Girgaon and the other, Mahim, Parel, Sion and Worli.
● A Court was started in each of these divisions. Each court was to consist of four or five
judges.
● In addition, a superior Court consisting of the Deputy Governor and Council was also
started. The superior Court enjoyed original as well as appellate jurisdiction.
● Drawbacks of this system: No separation between the executive and judiciary. Judges
were people who had no knowledge of law.
● In 1670, the old system was abolished and a new judicial scheme was put into force in
Bombay in 1672.
● First Stage: Judicial Plan of 1672
➢ A Court of Judicature consisting of a judge was established in Bombay.
➢ This Court was to have jurisdiction in all causes, civil, criminal and testamentary.
➢ The Court was to sit once a week to try civil cases, which were tried with the help
of a jury.
➢ For the trial of criminal cases, Bombay was divided into four sections: Bombay,
Mahim, Mazagaon and Sion.
➢ In every division, a Justice of the Peace was appointed whose function was to
arrest the accused and hold a preliminary examination of the witness.
➢ Judges were debarred from carrying on any private trade and were to get a pay of
Rs. 2000 per year.
➢ To meet this and other charges of the Court, a fee of Rs. 5 was levied on every
cause determined in the Court.

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 ➢ George Wilcox was appointed the first Judge of this court.
➢ Court of Appeals: The deputy governor and its council functioned as Court of
Appeal. They used to hear appeals against the judgments of the court of judicature
in all matters.
➢ A Court of Conscience was set up to decide petty civil causes.
➢ This Court was designed to provide a forum to dispense justice to the poor
without any cost and hence, no court fee was charged.
➢ The Court sat once a week. All trials here were summary and without a jury.
● Second Stage:
➢ The development of the Courts at Bombay was interrupted due to the Keignwin’s
Rebellion.
➢ Admiralty Court was established in Bombay in 1684, on the same lines as the
one started in Madras.
➢ Dr. John St. John was appointed as the Judge and the President of the Admiralty
Court of Bombay.
➢ The main purpose of this court was to deal with the crimes related to maritime
and mercantile laws.
➢ This charter specifically provided that the court will be guided by the laws and
customs of merchants and will decide the cases on the basis of equity and good
conscience.
➢ Initially, all Admiralty Courts had their jurisdiction limited to only maritime
disputes but later on, their jurisdiction was extended to deal with all kinds of cases
➢ In the year 1687 itself, the judge of Admiralty Court succeeded in taking authority
to act as Chief Justice of Court of Judicature and propounded the doctrine of
judicial independence in their various judgments which was the main reason of
conflict between the Admiralty Court and the Governor & Council.
➢ The conflict was finally resolved in the year 1690 when all these matters came
before the directors of EIC in London. Due to the strong bias towards the
Governor & Council, they won the conflict and Admiralty Court stopped
operating in 1690 itself.
➢ In 1685, another Court of Judicature, on the lines of 1672, was started in Bombay
to dispense common justice.
➢ Siddi Yakub - Due to the invasion of Siddi Yakub, Admiral of the Mughal
Emperor in 1690, the judicial system of Bombay also came to an end.
➢ After 1690, for a few years the practice of appointing a separate judge was not
adopted and the administration of justice was also entrusted to the Governor and
his Council.
➢ From 1690 to 1702, there were no Courts. The period from 1690 to 1718 is
known as a dark period in Bombay’s Legal History.
● Third Stage:

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 ➢ A new Court of Judicature was created on March 25, 1718.
➢ The new Court consisted of a Chief Justice and nine other judges. The Chief
Justice and five Judges were to be Englishmen and the remaining four, Indians.
➢ The Indian judges represented the four principal Indian communities residing on
the island as Hindu, Mohammedan, Portuguese Christian and Parsi.
➢ The Court had full power and authority to hear and determine all cases, civil and
criminal, according to law, equity and good conscience and rules and ordinances
made by the Company.
➢ The Governor and Council were to hear appeals from this Court.
➢ The quorum for judges was to be three English Judges.
➢ Judgments were required to be given in accordance with English law.
➢ Presumption of innocence and benefit of doubt to the accused did not get
recognition before this court.

Administration of Justice in Calcutta

● In 1690, a few Englishmen under the leadership of Job Charnock landed at Sutanati on
the banks of the river Hughly and constructed a fortified factory at this place known as
Fort William.
● In 1698, the Company was able to secure the zamindary of three villages of Calcutta,
Sutanati and Govindpur from the grandson of Aurangzeb.
● In 699, Calcutta was declared to be a Presidency; a President and Council were instituted
to administer the settlement.
● The government of the Company, at the settlement of Calcutta, appointed an English
officer as the ‘Collector’. He was to be a member of the Calcutta Council.
● He was to exercise all the zemindary functions in relation to the zemindary area, and so,
he was often called as ‘Zemindar’.
● The English Collector maintained a Fozdary Court to administer justice in criminal cases
to the Natives. Trials were held without the help of a jury.
● In capital cases, the sentence was not executed until it had been confirmed by the
Governor or the President.
● The Collector also maintained a Court or Cutcherry to decide civil causes arising among
the Natives. Appeals from this Court lay to the Governor and Council.
● The Collector was responsible for the collection of revenue from the zamindary lands.
● Serious criminal cases and civil disputes relating to Englishmen were outside the
jurisdiction of the Collector and they were decided by the Governor and its council.

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MODULE 3: DEVELOPMENTS OF JUDICIAL, LEGISLATIVE AND
ADMINISTRATIVE INSTITUTIONS AND THEIR POWERS

Charter of 1726
● The Charter of 1726 provided for the establishment of a Corporation in each Presidency
town i.e. Bombay, Calcutta and Madras.
● The Courts and the system of administration of justice in the presidencies were not
very satisfactory. The three settlements had grown in population, trade and commerce.
The Company felt that there was a great need for a proper and competent power and
authority for the more speedy and effective administration of justice in civil cases, and for
trying and punishing capital and other criminal offences.
● The Company was of the opinion that grant to it, of additional judicial powers, which
might be used for ‘punishing the guilty, and administering of justice’, would be
conducive to a better government of these settlements, and would result in the increase
of their prosperity, and, consequently, the national trade and revenue.
● There was also a great necessity of a Court in each of the presidencies which might have
jurisdiction to take cognisance in the matters of distribution of the property of the
deceased. It was also requisite that such a Court be established under Royal authority,
so that its judgments and proceedings in such matters might command respect and be
recognised by the Courts in England, without being called into question.
● Important Points:
➢ Establishment of Crown’s Court - Civil and Criminal Courts established under
this charter derived their authority directly from the King. These courts came to
be known as the Royal Courts.
➢ Establishment of Mayor’s Court
❖ Each presidency town had a Mayor’s Court consisting of a Mayor and 9
Aldermen.
❖ These were Courts of Record and authorized to try, hear and determine all
civil actions and pleas.
❖ Jurisdiction covered over all persons living in the presidency town and
working in the Company’s subordinate factories.
❖ An appeal was allowed to the Governor-in-Council for all cases involving
a sum less than 100 Pagodas and a further appeal was allowed to the
King-in-Council (Privy Council) if the sum involved was either 1000
Pagodas or more.
➢ Grand Jury - Before the actual trial started in this Court, the evidence for thL
prosecution—accusation or indictment as it was technically called—was again
placed before the Grand Jury, and their duty was simply to decide whether, on the
evidence of the prosecution, there was a case to go for trial or not.

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 ➢ Petty Jury - After the indictment had been found, the Petty Jury, would be
empanelled, to hear both sides and try the issues of fact. If the Petty Jury returned
the verdict ‘guilty' for the prisoner, he was to be sentenced by the Court of
Quarter

Charter of 1753
● In the year 1746, The French got control over the Madras Presidency. In 1749, the British
again got the control of Madras and established the Madras Corporation again.
● King George II again issued a new charter in the year 1753. The new charter of 1753 was
made applicable to all the 3 Presidency Towns.
● This Charter made the Corporation subservient to the government.
● New charter changed the method of appointment of Mayor and Aldermen. The Mayor
and Aldermen combined were to elect a Mayor for one year, without making any
reference to the government.
● Natives: It excluded from its jurisdiction of the Court all suits and actions between
natives only, and directed that these suits and actions should be determined amongst
themselves unless both parties submitted them to the determination of the Mayor’s Court.
● Regarding Oath: Main purpose was to oblige the witness to speak the truth before a
court. It was stated that the oath must be taken in a manner which is considered most
binding on their conscience according to their own castes.
● Action against Mayor: The Mayor’s Court was empowered to hear suits against the
Mayor and Aldermen. In such cases, the interested person was not allowed to preside
over the Court.
● Action against the Company: The Mayor’s Court was authorised to hear and decide
cases against the Company. In such cases, the Government was required to defend its
case with the aid of its legal experts.
● Court of Request: A Court of Request was created at each presidency town of Bombay,
Calcutta and Madras to decide civil cases involving a sum not exceeding 5 Pagodas. Its
aim was to give cheap and quick justice to the poor.
● The Court of Governor and Council were designated as the Court of Appeal against the
Mayor's Court decision in civil cases. The Privy Council in England was the final
authority in all the matters.

Development of Adalat System

1. Grant of Diwani and Execution of Diwani functions
2. Judicial Plan of 1772 and Defects
3. Judicial Plan of 1774
4. Warren Hastings Judicial Plan 1772-1774-1780
5. Regulating Act 1773

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6. Leading cases Raja Nand kumar, The Patna Case and The Cossijurah Case
7. 1781 Act of Settlement and its Defects

Grant of Diwani
● Warren Hastings was transferred from Madras to the Governorship of Bengal in 1772.
● After defeat in the Battle of Buxar in 1764 it was not merely the Nawab of Bengal, but
the Emperor of India who was defeated.
● Clive arrived in India as Governor of Bengal and Commander-in-Chief of the Company’s
forces in India, for the third time on May 3, 1765.
● The Mughal Emperor in August 1765 granted the Diwani of Bengal, Bihar and Orissa to
the East India Company.
● In exchange the Company agreed to pay the Emperor a sum of 26 lakh rupees and to the
Nawab of Bengal a fixed sum of 53 lakh rupees annually.
● The Nawab in return agreed not to keep any military force independently and left it in the
hands of the Company’s authorities.
● The Nawab used to have two main functions:
➢ Diwani - collection of revenue and civil justice
➢ Nizamat - military power and criminal justice
● The Company obtained Diwani rights from the Mughal Emperor and the Nawab gave it
Nizamat work. The Nawab was left the responsibility of maintaining law and order and
administration of criminal justice.
● The Company appointed two Indian officers, Mohammad Reza Khan at Murshidabad
and Raja Shitab Roy at Patna, and the actual administration of the Diwani was left in
their hands.
● They supervised the collection of land revenue and the dispensation of justice in civil as
well as revenue matters.
● The divorce of power from responsibility under the dual government in Bengal further
deteriorated the efficiency of the whole administrative machinery.
● The English servants of the Company misused their power and position to meet their
selfish ends, which ultimately led to the exploitation of the people of Bengal, Bihar and
Orissa.
● It encouraged corruption, bribery, misappropriation and their evil consequences ruined a
prosperous and flourishing Bengal making the inhabitants very poor and miserable.
● As a result of the defective state of affairs, the revenue also decreased considerably.
● To reap full advantage of the Diwani, the Company decided in 1772 to ‘stand forth as
Diwan’, and to take over the entire care and management of the Diwani functions and
discharge them directly through the agency of its own servants.
● The man to accomplish this mission was Warren Hastings, who was the Governor of
Calcutta at the time. In 1772, therefore, a new scheme for the collection of revenue was
put into force.

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● The charge of revenue and civil justice was taken over by the Controlling Councils of
Revenue and they advised their subordinate agents and officers to deal with them directly
on all matters relating to the Diwani.
● The main object of the Company was to bring under the direct control of the Company’s
servants the revenue collections and civil justice in order to save both the ryots and the
government from hardships caused due to the existence of the intermediaries.
● The revenue collection was wholly taken away from the Nawab’s government and was
given to the European servants of the Company.

Warren Hastings’ Plan of 1772

● Collector - Bengal, Bihar and Orissa were divided into districts. The ‘district’ was
selected as the unit for the collection of revenue and for the administration of civil and
criminal justice. In each district, an English Officer, called Collector of the district, was
appointed.
● Mofussil Diwani Adalat - The Mofussil Diwani Adalat was empowered to decide all
civil cases dealing with real and personal property, inheritance, caste, marriage, debts,
disputed accounts, contracts, partnerships and demands of rent. \
Its decision was final in all suits up to valuation of 500 rupees.
● Sadar Diwani Adalat - Court of appeal for cases of Mofussil Diwani Adalat where
valuation of the suit was more than 500 rupees.
● Small Cause Adalat - Head farmers of Parganas were authorized to decide petty disputes
relating to property up to the value of 10 rupees.
● Mofussil Faujdari Adalat - It was established in each district to deal with criminal
matters. It tried serious offences including murder, robbery, theft, fraud, perjury etc. and
it was assisted by a Qazi or Mufti and two Maulvies.
● Sadar Nizamat Adalat - Established at Calcutta to hear appeals from Mofussil Faujdari
Adalats. It was presided over by a Darogha. A Chief Qazi, Chief Mufti and 3 Maluvies
were to assist the Darogha in performing his duties. Mofussil Faujdari Adalat couldn’t
pass the capital sentence without approval of Sadar Nizamat Adalat.
● Personal Laws - The cases relating to caste, religion, marriage and inheritance of the
native were to be decided according to their usages and customs of Hindu law for Hindus
and Muslim law for Mohammedans respectively.
● Other Procedural Safeguards - Definite rule for the civil proceedings, punishment for
delay in filing the reply, Hearing of the case in an open court.

Defects of 1772 Plan

● Less number of courts - It was necessary to have more subordinate courts keeping in
view the population and the area of each district.

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● Concentration of Power - The administrative, tax collection and judicial powers were
concentrated in the hands of the Collector. He was the Civil Judge as well as the
supervisor of the criminal courts.

Judicial Plan of 1774

● Establishment of Provincial Council or Provincial Sadar Adalats for Civil Justice:
Under the Judicial Plan of 1774 the entire Diwani area of Bengal, Bihar and Orissa was
divided into six divisions. Each division consisted of several districts.
● A Provincial Council consisting of five covenanted servants of the company and a Diwan
was established in each of these divisions except Calcutta where a 'Committee of
Revenue' was set up.
● These Councils supervised the revenue collection in the Division and heard appeals from
the Mofussil Diwani Adalats from the districts within its territorial jurisdiction.
● The English Collectors were replaced by native superintendents of the revenue known as
Naibs who were conferred both the powers i.e. power to collect revenue and to decide the
civil cases within its jurisdiction also.
● The Provincial Council also had original jurisdiction to decide all cases arising at the
headquarters of the division, in the first instance.
● Establishment of the Court of Naib Nazim for Criminal Justice Administration: The
entire Criminal Judicature was transferred from Governor-General-in- Council to the
Nawab.

Reorganisation of Adalats: 1780

● Separation of revenue from judiciary
➢ Provincial Councils established at 6 different places under the Judicial Plan of
1774 continued their existence for revenue collection only. Their judicial powers
were taken away.
➢ At each of these 6 places, a Provincial Court of Diwani Adalt was established to
be presided by a covenanted servant of the Company.
● Jurisdiction of Provincial Diwani Adalats extended
➢ The Provincial Diwani Adalats were empowered to decide all cases of property,
including those relating to inheritance and succession to Zamindaris and
Talukdaries which were previously under the responsibility of the
Governor-General and Council.
➢ In all suits where the valuation of the suit was up to 1000 rupees, the decision of
the Provincial Adalats was final.
➢ Where the amount exceeded this value, an appeal was allowed to the Sadar
Diwani Adalat at Calcutta consisting of the G.G. and his Council.
● The Court fee was fixed at 2% to 5% depending upon the valuation.

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 The Regulating Act of 1773
The Regulating Act, 1773 permitted the Company to retain its Indian possessions, but its
management was brought under definite, if only partial, control of Crown and Parliament.
1. Election of Directors - The Directors of the Company were elected for a period of 4
years, 1/4th of them were to retire every year and the retiring Directors were not entitled
to be elected again.
2. Control over correspondence - The Directors were required to place regularly all their
correspondence regarding civil and military affairs with the Indian authorities, before the
Secretary of State. All correspondence relating to revenues in India was required to be
placed before the Treasury in England.
3. Appointment of Governor-General and Council - A Governor-General and 4
Councillors were appointed by the Presidency of Fort William in Bengal. The Governor
of Bengal was designated as the Governor-General of Bengal.
4. Decision by majority present - Warren Hastings was appointed the first
Governor-General. The term of office was for 5 years and the King was empowered to
remove them even earlier on the recommendation of the Court of Directors.
5. Extent of G.G’s power - The Governor-General-in-Council was given all the powers to
govern the Company’s territorial acquisitions in India, to administer the revenues of
Bengal, Bihar and Orissa and to supervise and control the general civil and military
government of the Presidency.
6. Bombay and Madras under the control of G.G. - The two Presidencies were placed
under the control and superintendence of the Governor-General-in-Council while
exercising their powers to make war and peace. The G.G and the Council were to keep
the Court of Directors fully informed of all their activities affecting the interests of the
Company.
7. Establishment of Supreme Court of Judicature
● The Regulating Act empowered the Crown to establish by Charter a Supreme
Court of Judicature at Fort William in Calcutta.
● The Supreme Court was to consist of a Chief Justice and 3 Puisne Judges.
● The Supreme Court would have full power and authority to exercise all civil,
criminal, admiralty and ecclesiastical jurisdiction.
● It was authorised to form and establish such rules of practice for the subordinate
courts as were necessary for the administration of Justice and due execution of all
the powers.
● It was recognised as a Court of Record.
● It had jurisdiction over all British subjects residing in Bengal, Bihar and Orissa
and had power to decide all complaints regarding crime, misdemeanours or
oppression. This jurisdiction extended to servants of the Company too.

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8. Immunity of G.G. and his Council - The Supreme Court was incompetent to exercise
criminal jurisdiction over the G.G. and any of his Councillors. No power to arrest or
imprison them in any action. Immunity was granted to safeguard them from unnecessary
harassment and to maintain their prestige as they were heads of the executive.
9. Justices of Peace - The Governor-General, members of the Council and the Judges of the
S.C. were to act as Justices of Peace and to hold Quarter Sessions.
10. Appeals - Appeals from the judgements of the SC were allowed to the King-in-Council.
Conditions and circumstances under which such an appeal was to be allowed were also
specified.
11. Legislative Power - The Governor-General and Council were authorized to make and
issue rules, ordinances and regulations for the good order of civil government of
Company’s settlements at Fort William and other subordinate factories and places.
This power was subject to certain restrictions:
● Required to be just and reasonable and not repugnant to the Laws of England
● Must be duly registered in the Supreme Court with its consent and approbation
● Even after registration, any person was legally entitled to file an appeal against
such regulation to the King-in-Council and he had the power to set aside and
repeal such laws if they were considered defective

Raja Nandkumar (Judicial Murder) Case 1775

● Background of the case: Before filing of this case, 3 out of 4 members of the council
were opponents of Hastings, the Governor-General and thus the majority group
comprising Francis, Clavering and Monson instigated Nand Kumar to bring certain
charges of bribery and corruption against Warren Hastings before the council.
● In march, 1775 Nand Kumar gave a letter to Francis, one of the members of the council
complaining that in 1772, Hastings accepted from him bribery of Rs. 104105/-for
appointing his son Gurudas, as Diwan.
● The letter also contained an allegation against Hastings that he accepted 2.5 lakh rupees
from Munni Begum as bribe for appointing her as the guardian of the infant Nawab
Mubarak-ud-Daulah.
● Francis placed his letter before the council and Nand Kumar was summoned to appear
before the Council. Warren Hastings who was presiding the meeting in the capacity of
Governor-General, opposed the motion on the ground that he shall not sit in the meeting
to hear accusations against himself nor shall he acknowledge the members of his council
to be his judges.
● But the motion was supported by the majority hence Hastings dissolved the meeting.
Majority of the members objected to this action of Hastings and Clavering was elected to
preside over the meeting in place of Hastings. Nand Kumar was called before the council
to prove his charges against Hastings.

15
● The majority Members of the council examined Nand Kumar briefly and declared that
the charges leveled against Hestings were proved and directed Hastings to deposit an
amount of Rs.3,54,105 in treasury of the company, which he had accepted as a bribe from
Nand Kumar and Munni Begum.
● Hastings genuinely believed that the council had no authority to inquire into Nand
Kumar's charges against him. This event made Hastings a bitter enemy of Nand Kumar
and he looked for an opportunity to show him down.
● Soon after the order of the council, Nand Kumar was charged and arrested for conspiracy
along with Fawkes and Radha Charan were at the instance of Hastings and Barbell.
● In order to bring further disgrace to Raja Nand Kumar, Hastings manipulated another
case of forgery against him at the instance of one Mohan Prasad in the conspiracy case.
● The Supreme Court in its decision of July 1775 fined Fawkes but reserved its judgment
against Nand Kumar on the grounds of a pending fraud case. The charge against Nand
Kumar in the forgery case was that he had forged a bond in 1770. The council protested
against Nand Kumar's charge in the Supreme Court but the Supreme Court proceeded
with the case unheeded.
● Finally, Nand Kumar was tried by the jury of 12 Englishmen who returned a verdict of
'guilty' and consequently, the Supreme Court sentenced him to death under an act of the
British parliament called the Forgery Act which was passed as early as 1729.
● Important Questions about the Trial:
1. Whether Raja Nand Kumar was under the Jurisdiction of the court as the offence
was committed before the advent of this court itself?
2. Whether the English Forgery Act of 1729 under which Raja Nandkumar was
executed, extended to India?
● Critical Evaluation of the Case:
➢ Serious efforts were made to save the life of Nand Kumar and an application for
granting leave to appeal to the king-in-council was moved in the Supreme Court
but the same was rejected.
➢ Another petition for recommending the case for mercy to the British council was
also turned down by the Supreme Court.
➢ The sentence passed by the Supreme Court was duly executed by hanging Nand
Kumar to death on August 5, 1775.
➢ Chief Justice Impey in this case acted unjustly in refusing to respite Nand Kumar.
No rational man can doubt that he took this course in order to gratify the
Governor-General.
➢ The trial of Nand Kumar disclosed that the institution of Supreme Court hardly
commanded any respect from the natives as it wholly unsuited to their social
conditions and customs.
➢ The trial has been characterized as “judicial murder” of Raja Nand Kumar which
rudely shocked the conscience of mankind.

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 ➢ Raja Nand Kumar's trial was certainly a case of miscarriage of justice.

Kamaluddin Case (1775)

● In this case Kamaluddin was holding a salt farm in Hugli (Bengal) which originally
belonged to another person named Kanta Babu.
● Kamaluddin was just an ostensible holder of the farm and was holding the farm on the
behalf of Kanta Babu.
● He was imprisoned without bail for the arrears of revenue which was against the
prevailing customary practices of that time.
● Kamaluddin appealed in the supreme court for a writ of Habeas Corpus. The Supreme
Court headed by chief justice Elijah Impey gave its decision in the favour of Kamaluddin
and he was set free by the court on bail.
● The court, in its judgement, held that the defendant, in the cases of disputed accounts,
should be granted bail till the inquiry regarding his obligation to pay is completed and he
is found liable.
● Jurisdiction of the Supreme court: The Council stated that the supreme council had its
jurisdiction over the officers of Calcutta Revenue Council as the company was Diwan of
the territories of Bengal, Orissa and Bihar and the court was not empowered to judge a
matter related to the revenue. Therefore, according to the council, the court had no power
to issue a writ of Habeas corpus to the defendant and grant him bail.
● However, Elijah Impey, Chief Justice of the Court, opposed the view of the council and
stated that the revenue officers were also the servants of the company and therefore, on
this ground, the jurisdiction over the revenue officers can be claimed by the supreme
court.
● Again, the council expressed its dissatisfaction on the view of the supreme court and 4
out of 5 members of the supreme council decided to order the provincial Council to put
the defendant again in the prison without paying attention to any of the orders of the
Supreme Court. But, Warren Hastings, the Governor General didn't pay any heed to these
decisions and hence, they couldn't be implemented.

The Patna Case (1777-79)

● Shahbaz Beg Khan belonged to Kabul and came to India and joined an army company
and settled at Patna and married one Nadirah Begum and then he retired.
● He called his nephew Bahadur Beg from Kabul to live with him. It is alleged that
Shahbaz Beg Khan called Bahadur Beg with an intention to adopt him but died in
December, 1776 before completing his wish.
● Shahbaz Beg left impressive property behind him which led to serious conflict between
his wife and the nephew. Each one of them claimed the whole property of the deceased.
● Nadirah Begum, asserted her claim to the said property on the basis of three documents:

17
 1. Dower Deed (Meharnama)
2. Gift Deed (Hibanama)
3. Acknowledgment (Ikrarnama)
● Bahadur Beg (the Nephew) filed a petition with the Provincial Council at Patna, asserting
the property in the limit of being the adopted son of the deceased. He also requested the
court to protect the property from being abused by the widow of the deceased.
● Nadirah Begum designated the Mohammedan Native Law officers i.e. Mufti and Kazi to
find out his claim to the property.
● After inquiry, they submitted their report to the Patna Council (Provincial Council of
Diwani Adalat Patna). On the basis of evidence, the Kazi reported on January 20, 1777,
that widow's agent (counsel) had neglected to deliver the dower deed and in this manner,
there was nothing invalidate the attestations of Bahadur Beg that the sum of Rs.1200/- as
dower was already paid by the deceased to Nadirah Begum during his life-time.
● As respects the other two documents, namely, the gift-deed and acknowledgment-deed,
the law-officers recommended that they were invalid being forged and, therefore, the
property of the deceased should be divided into four shares, out of which three should be
given to Bahadur Beg as illustrative of his dad in India and the fourth offer ought to be go
Nadirah Begum in accordance with the Mohammedan Law of succession.
● The Provincial Council of Patna acknowledged the report of the Qazi and Mufti and
requested the division of the property in like manner. In any case, aggrieved by the
decision of the Provincial Council, Nadirah Begum favored an interest to Sadar Diwani
Adalat at Calcutta which comprised Governor – General and Council.
● She petitioned Warren Hastings for help directly. After receiving no reply, she turned to
the Supreme Court and filed a suit claiming Rs. 600,000 in damages. Beg’s attorney
argued that he was not under the Supreme Court’s jurisdiction because he was a revenue
“farmer” (contractor), not a revenue “collector” (salaried) and thus not “directly or
indirectly” in the Company’s service.
● The Court unanimously disagreed. Impey stated the Court’s opinion that simply changing
the name of the officer from a “collector” to a “farmer” still meant Beg was involved in
tax collection and was “directly or indirectly” in the Company’s service and under the
Court’s jurisdiction. The Court also agreed the qazi and muftis were subject to their
jurisdiction since they were the Patna Council’s employees.
● The Supreme Court found that the Patna Diwani Adalat had decided the case and seized
the property on no evidence other than Beg’s testimony. They suspected Beg had bribed
the Council, the qazi and the muftis. Impey further suspected the Patna Council had
fabricated their entire proceedings, recording the events only after the Supreme Court
took up Naderah’s case.
● The Court ruled that the Patna Diwani Adalat had violated its duties by improperly
deciding the case without due process and awarded Naderah Rs. 300,000 in damages and
Rs. 9,208 in costs in February 1779.

18
 ● This outcome was not acceptable to many Company servants nor to the Supreme Council
who viewed the Court as an unwelcome intruder on their tax collection system and their
provincial councils.
● The Supreme Council moved to protect its provincial council and Beg. They attempted to
sue Naderah for forging her husband’s will, a charge that carried the death penalty.
● The Supreme Court along with Impey refused to issue the necessary warrants by
mentioning in the judgment that Naderah’s will was genuine, squashing the Supreme
Council’s suit. The Court had won a major victory, confronting both the Patna and
Supreme Councils, thus proving that tax collectors were under their jurisdiction.

The Cossijurah Case (1779-80)

● Raja Sundernarain, zamindar of Cossijurah (Kasijora) was under a heavy debt to
Kashinath Babu. Though Kashinath Babu tried to recover the money from the Raja, his
efforts were in vain.
● He therefore filed a civil suit against the Raja of Cossijurah in the Supreme Court at
Calcutta. The SC issued a writ of capias for the Raja’s arrest and subsequently the writ
of sequestration to seize the properties of the Raja's house. Being afraid Raja avoided
service of the writ by hiding himself.
● The council issued a notification informing all the landholders that they need not pay
attention to the process of the Supreme Court unless they were either servants of the
company or had accepted the courts jurisdiction by their own consent.
● The Raja was also specially informed by the council and therefore his people drove away
the sheriff of the Supreme Court when that official came with a writ to arrest Raja of
Cossijurah.
● Warren Hastings also considered the supremacy of the council more important than his
friendship with Impey. When Warren Hastings ordered the military to arrest the Sheriff of
the court he declared “We are upon the eve of an open war with the Court”.
● Finally, a petition was signed in March 1779 by all the prominent British inhabitants of
Bengal, Servants of the company, zamindars and sent to the British Parliament against the
excesses of SC in Bengal.
● As result of this a parliamentary Committee was appointed which presented a detailed
report on the conflict between the Supreme Court and the Council and the Act of
settlement was passed by the Parliament in 1781.

Act of Settlement 1781

The Act of Settlement was an Amending Act of 1781, which was passed by the British
Parliament on 5th July 1781 to remove the defects of the Regulating Act 1773. This Act brought
following changes in the administration of justice:

19
● Granted complete immunity to the Governor General & Council from the jurisdiction of
SC of Calcutta.
● Revenue matters were completely taken out from the jurisdiction of SC of Calcutta.
● Indian land owners, farmers and persons engaged in land revenue collection were also
● excluded from SC’s jurisdiction.
● Persons employed by the Governor General & Council or by any official of EIC were
also excluded from the SC’s jurisdiction unless they submitted themselves to it.
● SC was not given direct jurisdiction over corruption cases either. It could issue notices to
the persons concerned to appear before court and present their cases but it wasn’t
empowered to issue orders of arrest or detention directly.
● This enactment also acknowledged the role of personal law of the natives. Personal
● religious laws applied like Hindu law and Muslim law for cases where all parties
belonged to the same religion. If parties were from two different religions, the law was
decided according to the defendant’s religious law.
● Any judicial officers exercising judicial functions, including natives and Provincial
Council, were excluded from the SC’s jurisdiction.
● Sadr Diwani Adalat consisting of Governor General & Council was made the highest
court of civil appeal in India. It was not subordinate to the SC of Calcutta. Appeal against
the decision of Sadr Diwani Adalat could be entertained by the Privy Council without any
role of the SC of Calcutta.
● Major Defects:
➢ Almost all the judicial functions of the SC were taken down.
➢ To invalidate the SC’s decision in the Patna Case, clear provision was made in the
Act to release the persons held guilty in that case.
➢ To save the presiding officer of the Provincial Council of Patna, who gave the
primary decision in the Patna Case, his post was excluded from the SC’s
jurisdiction.

Constitution of High Courts in India

● Unification of separate sets of judicial institutions/courts laid down the foundation of
High Courts in India.
● The Charter Act, 1833 empowered the Governor-General-in-Council to legislate with
the help of law members for all the provinces. This Act also declared about the binding
force of the laws made by Governor-General-in-Council over all the courts of the country
including the supreme courts as well.
● This Act also laid emphasis on the enactment of uniform law in certain fields and to carry
out this function the law commissions were appointed for the first time under this Act.
● In 1858 the East India Company was abolished and to achieve the objective of unification
of separate sets of judicial institutions the Indian High Courts Act, 1861 was passed by
the British Parliament.

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● With the passage of time the High Courts Act, 1865 and the High Courts Act, 1911 were
also passed to make necessary changes in the jurisdictions of the existing High Courts as
well as to establish new High Courts.

Indian High Courts Act, 1861

● The Indian High Courts Act was passed on 6th August, 1861.
● Section 1 vested in the Queen, the authority to establish High Courts of Judicature ar
Calcutta, Madras and Bombay.
● Each of these HCs was to consist of a Chief Justice and puisne Judges, not exceeding 15
in number at a time.
● At least 1/3rd of these Judges, including the Chief Justice, were to be barristers of not less
than 5 years’ standing.
● Not less that 1/3rd of the Judges had to be from amongst those members of the
covenanted civil service of not less than 10 years’ standing who had served as Zilla
judges for at least 3 years.
● The remaining quota of Judges could be selected out of the following categories of
persons:
I. Barristers of at least five years’ standing :
II. Civil servants of at least ten years’ standing who had three years work as District
Judges to their credit ;
III. Persons who had been holding the office of Principal Sadar Ameens or Judges of
Small Cause Courts for at least five years ;
IV. Pleaders of the Sadar Courts or the High Courts of at least ten years’ standing.
● The Judges were to hold office during the Queen’s pleasure.
● The new High Courts were to consist of persons having knowledge of law and comprised
on non English Lawyers.
● The Chief Justice of the High Court was to be a trained lawyer. He would be a barrister of
at least 5 years’ standing.

Jurisdiction of the Courts

● It was to have and exercise such civil, criminal', admiralty and vice admiralty,
testamentary, intestate, and matrimonial jurisdiction, original and appellate, and all such
powers and authority for and in relation to the administration of justice in the Presidency
for which it was established, as Her Majesty might grant and direct by Her Letters Patent.
● The High Court was to have superintendence over all the Courts subject to its appellate
jurisdiction.
● Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction extended to the towns of
Calcutta, Madras and Bombay and such local limits as from time to time could be
prescribed by law of a competent legislature in British India. All suits of the value of Rs.

21
 100 or more and which were not cognizable by the small courts at Calcutta, Madras and
Bombay were cognizable under High Courts.
● Extra Ordinary Civil Jurisdiction: Extra Ordinary Civil Jurisdiction provides that the
High Court could call a case pending in any lower court subject to its superintendence
and could decide that case itself. This jurisdiction could be exercised in a case where the
parties agreed to such exercise or the High Court thought it proper to impart justice.
● On a similar line they had Ordinary criminal Jurisdiction and Extra Ordinary Criminal
Jurisdiction in criminal matters.
● Appeals from High Court: An appeal to Privy Council lay from judgement of High
Court in civil cases when the amount involved is Rs. 10,000 or more or if the High Court
certified that the case is fit for appeal. And in case of criminal cases from its original
jurisdiction or if the High Court certified that the case is fit for appeal.
● Ordinary Original Criminal Jurisdiction : This jurisdiction was to extend within the
same local limits as the ordinary original civil jurisdiction. Beyond these limits it
extended to all such persons as the Supreme Court of Judicature enjoyed formerly.
● Extraordinary Original Criminal Jurisdiction : The High Court was to enjoy this
jurisdiction over all persons residing within the jurisdiction of any Court subject to the
superintendence of the High Court. The High Court could try any person on charges
being preferred by the Advocate General, or by any magistrate or any other officer
specially empowered by the Government in that behalf.
● Appellate Jurisdiction : The High Court was to be a Court of Appeal from subordinate
Criminal Courts. The High Court was also to act as a Court of Reference and Revision
from the subordinate Criminal Courts. It might hear and determine all reference made to
it by the Sessions Judges. It might revise proceedings of the lower Criminal Courts.
● In the discharge of its criminal jurisdiction the High Court was to apply the law as
contained in the Penal Code which had already been enacted by the Indian Legislature.

Expansion of High Courts in India

● High Courts Act, 1865
This Act was authorized by the Governor-General-in-Council to make necessary changes
in the territorial jurisdiction of the existing High Courts established under the Indian High
Courts Act, 1861.
● High Courts Act, 1911
It increased the maximum number of judges in each High Court to 20 including the chief
Justice also.
● Government of India Act, 1915
This Act also contained certain provisions regarding constitution, jurisdiction and powers
of the High Courts. Two High Courts namely, Patna High Court and Lahore High
Court were established under the provisions of this Act.

22
● Government of India Act, 1935
This Act gave a new constitution to regulate the functions of executive, legislature and
judiciary in India. The High Court of Nagpur was established as per the provisions of
this Act.

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 MODULE 4: CONSOLIDATION AND CODIFICATION OF LAWS

Lord Cornwallis and his Judicial Reforms

● Lord Cornwallis held the high post of governor general twice in India. His first tenure
lasted from 1786 to 1793. For the second time, he came to India in 1805, but died very
shortly before doing anything.
● Before accepting the appointment of governor general, he laid down two important
conditions and joined the after their acceptance:
1. The Governor General will have the powers to override its councils.
2. The office of the Governor General and the Commander-in- Chief will be united
under one person.
● After taking the charge of Governor General, Lord Cornwallis put this office under the
authority of the Board of Control and the Court of Directors.
● Lord Cornwallis reformed the whole system of criminal and civil justice and introduced
his reforms in three installments-in 1787, 1790 and 1793.
● Lord Cornwallis also achieved great success due to implementation of his famous
concept of permanent settlement in Bihar, Bengal and Orissa.
● Permanent settlement was a very important reform regarding the fixation of land revenue.
Lord Cornwallis taking the prevalent land revenue of 1793 fixed that revenue
permanently in relation to the lands. Rates of land revenue were also fixed permanently.
Due to this reason, this fixation of land revenue is called permanent settlement.
● Lord Cornwallis was appointed as Governor General with 3 important instructions:
1. To deal with the problem of land revenue
2. To improve the administrative machinery
3. To introduce reforms in the judicial system
● In order to implement these 3 instructions, he gave the idea of unification of the entire
judicial system in 1786 itself. Finally, he did not succeed and reunited the civil and
revenue jurisdiction in one hand and left the criminal justice system in the hands of the
Muslim law officers.
● Finally, in order to implement the judicial reforms, Lord Cornwallis introduced all the
reforms in 3 installments.

Judicial Plan of 1787

● Extension of the power of Collector: All the judicial functions were united in a single
post (revenue, civil and criminal) and was given to the Collector of each district.
● Introduction of double stage appeal system: In revenue matters the Collector was also
presiding over Revenue Courts which were known as Mal Adalats and against the
decision of the Mal Adalats, 1st appeal could be made before Board of Revenue, and 2nd

24
 appeal, against the Board’s decision, could be made before the Governor General &
Council.
In relation to civil matters, Collector was designated as the presiding officer or civil judge
of Mofussil Diwani Adalat. Appeal against the judgement of Moffussil Diwani Adalat
was allowed before the Sadar Diwani Adalat, presided over by the Governor General &
Council. Appeal was allowed only in those matters where the valuation of the suit was
Rs. 1000 or more.
A 2nd appeal against the Sadar Diwani Adalat’s decision was allowed before the
King-in-Council situated in London. 2nd appeal was allowed only in cases where the
valuation of the suit was Rs. 5000 or more.
● Appointment of Registrar in District Court to assist the Collector to decide petty cases
with valuation of up to Rs. 200.
● This plan conferred certain magisterial powers in the hands of the Collector. He was
empowered to pass the order of arrest, conduct the trial and punish the offenders in small
criminal cases, where the punishment was expected up to 15 days and in cases which the
punishment was supposed to be more than 15 days, the Collector was authorized to send
that matter to the nearest Mofussil Faujdari/ Nizamat Adalat.
● Just after the Judicial Plan of 1787, it was analyzed that this plan was concentrated in and
around the civil and revenue jurisdictions. Lord Cornwallis also studied the then judicial
system of India and he came to two determinate conclusions regarding the failure of the
criminal justice system in India.
● Mohammedan criminal law was ineffective.
● The Constitution of trial courts was defective.
● In order to remove these defects Lord Cornwallis came up with a new plan which is
known as the Judicial Reform of 1790.

Judicial Plan of 1790

● The plan of 1790 mainly focused on the criminal administration of the justice system in
India. Court fees were introduced, ostensibly to reduce the burden on courts.
● Allowances of the judges and other officers of the court were increased and fixed, to
reduce corruption and influence. This plan also eliminated the name of Nawab from the
criminal justice administration.
● The new administration system went into the hands of the English servants of the
company, assisted by Muslim law officers. The pre-existing Mofussil Faujdari Adalat was
abolished and in its place, three types of distinct courts were established:
● Court of the District Magistrate: The district magistrate was given the same functions
as he had under the plan of 1787, to arrest criminals, take evidence and commit them to
the circuit court for trial. For minor crimes, he could punish the offenders.

25
 ● Circuit Court: The entire Mofussil Area was divided into four divisions, Patna, Calcutta,
Murshidabad, and Dhaka. A Circuit [moving] Court was established in each division,
consisting of two servants of the company who administered criminal justice in all
matters presented by the district magistrate. It visited each district twice a year to try
those charge-sheeted by the Magistrate. A Qazi and mufti assisted the court.
● The Sadar Nizamat Adalat was transferred to Calcutta from Murshidabad. The
Governor-General and council were the judges. They were assisted by a Qazi and mufti
in Muslim law cases. Only Sadar Nizamat Adalat was empowered to pass capital
punishment.
● Discriminatory provisions related to religion and gender were abolished. All witnesses
were made equal before the law. There were also some provisions for the rehabilitation of
criminals after they finish their sentences.

Judicial Plan of 1793

The judicial reforms of 1793 mainly dealt with the Cornwallis Code. In 1793, Lord Cornwallis
prepared a set of 48 regulations to introduce judicial reform in Bihar, Bengal and Odisha. Under
this codified regulation, demerits of earlier 2 judicial plans were removed. Certain reformative
changes were introduced and this plan concentrated over almost all the areas of maintenance of
law and order, i.e., civil, disputes, criminal justice system, land revenue, police administration,
commercial system, and maintenance of uniformity in every state’s regulations.
Concept of rule of law was firstly coined under this plan and attempt was made to codify
all these legal provisions.
● Separation of revenue and judicial concerns: Regarding separation of revenue functions
and judicial functions of the Collector was taken under this plan. This post was associated
only with revenue functions.
● Mal Adalats introduced under the plan of 1787 were abolished and jurisdiction over the
suits were transferred to Mofussil Diwani Adalat.
● Appeal from Mofussil Diwani Adalat was allowed to be filed before the Board of
Revenue in civil matters.
● Reorganization of civil courts: Relating to the civil justice system, Circuit Courts were
strengthened under this plan. Jurisdiction of Mofussil Diwani Adalat also continued in
the civil matters and appeal was allowed before the Circuit Courts.
A complete hierarchy of courts was established to deal with civil matters:
➢ Sardar Diwani Adalat: The highest court in the judicial hierarchy consisted of
the Governor-General and council. It heard appeals against the decisions of the
provincial courts of appeal in the matter exceeding Rs. 1000. An appeal against
the decision of this court could go to the king in council in cases exceeding Rs.
5000.

26
 ➢ Provincial Court of appeals: The provincial courts of appeals were established
in four divisions: Patna, Dacca, Calcutta, and Murshidabad. The court consisted
of three British servants of the company as its judges. The court had the
jurisdiction to try civil suits referred to by the government or the Sadar Diwani
Adalat to receive corruption charges against the Diwani Adalat judges. It was the
court of appeal in all matters and also had direct control over subordinate courts.
➢ Diwani Adalat: A British servant of the company was the judge of the Diwani
Adalat; he had no other work except deciding the civil and revenue disappear.
➢ Registrar’s court: Diwani Adalat could refer the suits up to Rs. 2000 to the court
of a registrar, which a servant of the company held. The orders of the registrar
were to be countersigned by the judge of that Diwani Adalat.
➢ Munsif’s Court: Zamindars, Tehsildars, and other respectable persons were
appointed as Munsif to try suits up to Rs.50. Munsifs were selected so that no
person would have to travel more than 10 miles to file a suit.
➢ Ameen’s Court: The court of Ameen, junior to Munsif, had the same
composition and powers as the court of Munsif, but it could not entertain a case
directly unless the Diwani Adalat transferred it.
● Native law officers: Native law officers were appointed by the Governor-General &
Council to assist the working of the court. They were supposed to be an expert in
personal law and were authorized to expand the principles of personal law before the
court. Matters relating to marriage, succession, inheritance, caste or religious institutions
were ordered to be decided by application of personal law, i.e., Hindu and Muslim law
with the help of native law officers.
● Courts took control over executive machinery: Not only the Collector but all other
executive officers of the government were made subject to the jurisdiction of the courts
and it was also provided that they will be personally liable for violation of any of the
regulations.
● The injured party was also given the right to oppose the court even in cases of corruption
and excess of jurisdiction by any authority. This provision is also called the basic fact of
rule of law, introduced during Lord Cornwallis’s reign.
● Abolition of court fee
● Reforms in the criminal justice system: The reforms of 1790 made in the criminal
justice system by Lord Cornwallis were continued in this plan with some changes.
Magisterial power of the Collector was taken away in this plan and conferred all the
power to judges of Mofussil Diwani Adalats regarding criminal matters. By this way,
Moffussil Diwani Adalat was conferred all three jurisdictions, revenue, civil and
criminal.
● In the criminal justice administration, not many changes were made. The magisterial
powers of the collectors were transferred to the judge of the Diwani Adalat. The powers
of the magistrate were extended to punish criminals in petty offences with imprisonment

27
 to 15 days or a fine of Rs. 100. The provincial courts of appeal replaced the Circuit Court.
The Provincial Court of Appeal became the main court of criminal jurisdiction after the
coming of this plan.

First Law Commission, 1834

It was constituted as per the provision of Charter Act of 1833. This law commission came into
existence in the year 1834. The Charter placed the 1st Law Commission under the control of the
Governor General & Council. Lord Macaulay was the Chairman of this Law Commission and
there were other members to assist him.
This Act placed this first Law Commission wholly under the control of the
Governor-General-in-Council which determined from time to time the subjects upon which it
was supposed to submit its reports. Accordingly, the commission was assigned the following
tasks:
1. Codification of Penal law: The rough draft of the IPC was presented in the year 1837,
but after that two members of the 1st Law Commission withdrew themselves and finally
with the effort of Chairman of 1st Law Commission, the IPC was passed in 1860.
2. The law applicable to non-Hindus and non-Muslims in respect to their various
rights: First recommendation was made by the 1st Law Commission regarding this issue.
Before this law commission non-Hindus & non-Muslims, like Christians and Parsis were
regulated by different systems of laws. Those non-Hindus & non-Muslims who were
residing in the residential towns were governed by the principles of English law, whereas
the same was not applicable to those who were residing in the Mofussil areas or other
parts of the country.
This law commission made the recommendation that non-Hindus & non-Muslims must
be governed by the substantive law of England by putting certain restrictions on it, which
were as follows:
● All those laws must be suitable to the conditions prevailing in India.
● The English law must not be opposed to any existing regulations in presidency
towns.
● The dispute concerning marriage, divorce, adoption of persons other than
Christians must be decided by the rules of that state or community.
● Rules of equity must be given an overriding effect over the substantive law of
England.
3. Codification of civil and criminal procedural law etc:
● Civil Procedure Code: The commission drafted a code of civil procedure and
suggested various reforms in the procedure of civil suits.
● Law of Limitation: The First Law commission drafted a valuable report on the law
of Limitation and with a draft bill on it, submitted it to the Government on 26th Feb,
1842.

28
 ● Stamp Law: The report was submitted on 20th Feb, 1837. however it was not passed
till 1860.
● Other Digests and Guides: While the draft codes prepared by the first Law
commission were being discussed, several Digests and Guides were published in
India.
Limitations:
The First Law Commission suggested many changes such as codification of penal laws,
uniformity regarding lex loci laws applicable to non-Hindus & non-Muslims and codification of
civil & criminal procedural laws. But, in reality it did not achieve any purpose and no law was
made during its tenure.

Second Law Commission, 1853

● Under the provisions of the Charter Act of 1853, the second Law commission was
appointed in England on 29th November 1853.
● The task entrusted to the commission was to examine and consider the
recommendations of the first Law commission and enactments proposed by it, for
the reform of the judicial establishment's, judicial procedure and laws of India.
● The life of the second Law commission was fixed for 3 years, which was to expire
in 1856.
● The second Law commission submitted 4 reports to the Indian Government. The
first report was submitted in 1855, second, third and fourth reports were submitted in
1856.
➢ First Report: In the first report, the commission submitted a plan for
reforms in judiciary and in court procedure.
➢ Second Report: In its Second report the commission agreed with the
lex-loci report of the first Law commission. It suggested that there must be a
substantive civil law for persons in the mofussil who had no law of their own.
➢ Third and Fourth Report: Plan for the amalgamation of the Supreme Court
and Sadar courts and a uniform civil code of civil and criminal procedure
applicable both to the High Court's to be formed by that amalgamation.
● Achievements of the Second Law Commission:
➢ The Penal Code proposed by Macaulay was taken up, revised and finally
passed in the year, 1860;
➢ Codes of Civil Procedure and Criminal Procedure were passed in the year
1859 and 1861 respectively;
➢ The draft on the Law of Limitation as submitted by the first Law
Commission was also taken up and passed into law in 1859.

29
 Third Law Commission 1861
● Third law commission was appointed on 2nd December 1861 under the chairmanship
of Lord Romilly. It was appointed “to prepare a set of substantive law for India on the
basis of English law”.
● This commission was also charged with the duty of preparing the reports on the reforms
proposed by the Secretary of the State in the Indian laws.
● The Third Law Commission submitted Seven Reports about certain legislations which
were subsequently converted into the form of an Act.
1. The Indian Succession Bill 1863 which was converted into the form of an Act in
1865.
2. The Contract Bill 1866 which was converted into the form of an Act in 1872
3. The Negotiable Instruments Bill 1867 which was converted into the form of an
Act in 1881
4. Observations in reply to certain remarks and objections of the Government of
India against the Inclusion of section's dealing with the law of specific
performance in the draft law of contract.
5. The Evidence Bill 1868 which was converted into the form of an Act in 1872.
6. The Transfer of property Bill 1870 which was converted into the form of an Act
in 1882.
7. The Revised Draft of Criminal Procedure 1870.
● This Commission submitted a draft of 6 major pieces of legislation within a short span
of 9 years but it came to an end on an unhappy note in 1870 due to strained relation
between the commission and the Government of India.

Fourth Law Commission 1879

● Many important branches of law had been codified so far, whereas some of them
were still un-codified. In 1879, this Fourth Law Commission was established which
made the following recommendations:
➢ The process of Codification of substantive law should continue.
➢ The English law should be made the basis of the future codes in India.
➢ The law of actionable wrongs should be codified.
➢ Uniformity in legislation should be aimed at, but local and special customs should
be treated with great respect.
➢ The laws relating to the Private Trusts, Easement, Alluvion and Dilution, Master
and Servant, Negotiable Instruments and Transfer of Property Act should be
codified and bills already prepared should be passed into law subject to suggested
amendments;
➢ Concurrently the laws relating to Insurance, Carries and Lien should be codified.

30
● On the recommendation of this commission certain enactments like Negotiable
Instruments Act, 1881 and those relating to Trusts, Transfer of Property and
Easements were passed in 1882.
● The law of civil wrong (Torts) was not codified though Indian civil Wrongs Bill was
prepared and till today this area is uncodified and is mostly covered by English law of
Torts.

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 MODULE 5: CONSTITUTIONAL HISTORY OF INDIA

Constitution of India Bill 1895

● The Constitution of India Bill 1895, also referred to as The Home Rule Bill or Swaraj
Bill, was written during the emergence of Indian nationalism and was influenced by Bal
Gangadhar Tilak – who was the force behind calls for ‘Swaraj’.
● This document attempted to outline a constitutional vision for India. It was written in a
legal style and contained 110 articles.
● It covered a number of individual rights – right to free speech, right to property, right to
privacy, right of franchise, equality before the law etc. and also touched upon structures
of government and separation of powers.
● It is considered as the first non-official attempt at drafting a Constitution for India as well
as the first articulation of a constitutional imagination by Indians. It is also considered as
a critical document in the constitutional history of India.

The Indian Councils Act 1909

● The Indian Councils Act 1909, commonly known as the Morley–Minto or
Minto–Morley Reforms, was an act of the Parliament of the United Kingdom that
brought about a limited increase in the involvement of Indians in the governance of
British India.
● The Act was a relatively short document, consisted of eight articles and two schedules,
and was written in a legal style. Its core feature was the recognition of the principle of
elections of members to the central and provincial legislative councils.
● It considerably increased the size of the legislative councils, both Central and provincial.
The number of members in the Central Legislative Council was raised from 16 to 60. The
number of members in the provincial legislative councils was not uniform.
● The elected members were to be indirectly elected. The local bodies were to elect an
electoral college, which in turn would elect members of provincial legislatures, who in
turn would elect members of the central legislature.
● It provided (for the first time) for the association of Indians with the executive Councils
of the Viceroy and Governors. It also provided for the separate representation of
presidency corporations, chambers of commerce, universities and zamindars.
● It introduced a system of communal representation for Muslims by accepting the concept
of ‘separate electorate’. Under this, the Muslim members were to be elected only by
Muslim voters and it legalized Communal Electorate for the first time in India.

Government of India Act, 1919

The Government of India Act 1919, also known as the Montagu-Chelmsford Reforms, was a
landmark piece of legislation that introduced significant changes to the British administration of

32
India. It was the first time that Indians were given a meaningful say in the governance of their
country, and it laid the foundation for the eventual independence of India.
● Separate Electorates: It extended the principle of communal representation by
providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans.
It granted franchise to a limited number of people on the basis of property, tax or
education.
● Dyarchy in the Provinces: It relaxed the central control over the provinces by
demarcating and separating the central and provincial subjects. The central and
provincial legislatures were authorised to make laws on their respective list of subjects.
However, the structure of government continued to be centralised and unitary.
➢ It further divided the provincial subjects into two parts– transferred and
reserved. The transferred subjects like, local self-government, education, public
health, public works, and agriculture, forests, and fisheries were to be
administered by the Governor with the aid of Ministers responsible to the
legislative council. The reserved subjects like, judiciary, police, land revenue,
and irrigation etc. on the other hand, were to be administered by the Governor and
his executive council without being responsible to the legislative council. This
dual scheme of governance was introduced for the first time under this Act.
However, this experiment was largely unsuccessful.
● It introduced, for the first time, bicameralism and direct elections in the country. The
Indian Legislative Council was replaced by a bicameral legislature consisting of an Upper
House (Council of State) and a Lower House (Legislative Assembly). The majority of
members of both the Houses were chosen by direct election.
● It provided for the establishment of a Public Service Commission and a Central Public
Service Commission was set up in 1926 for recruiting civil servants.
● It separated, for the first time, provincial budgets from the Central budget and authorised
the provincial legislatures to make their own budgets.
● It provided for the appointment of a statutory commission to inquire into and report on
its working after 10 years of its coming into force.
● Role of Governor-General:
1. A Provincial Bill, even though assented to by the Governor, would not become
law unless assented to also by the Governor-General
2. G.G. was empowered to reserve a Bill for the consideration of the
Governor-General if it related to matters specified in this behalf by the Rules
made under the Act.
3. G.G’s prior sanction was required to introduce Bills relating to certain matters
4. He had the power to veto or reserve for consideration of the Crown any Bill
passed by the Indian Legislature

33
 5. He had the converse power of certifying any Bill or any grant refused to be passed
or made by the Legislature, in which case it would have the same effect as if it
was passed or made by the Legislature
6. He could make ordinances, having the force of law for a temporary period, in case
of emergency.
● Shortcomings of the Act: The Reforms of 1919 failed to fulfill the aspiration of the
people in India, and led to an agitation by the Congress for ‘Swaraj’ ro ‘self-government’,
independent of the British Empire, to be attained through ‘Non-Cooperation’. The
shortcomings of the 1919 system, mainly, were:
1. The Governor-General in Council still remained the keystone of the whole
constitutional edifice. It was the Governor-General and not the Courts who had
the authority to decide whether a particular subject was Central or Provincial.
2. The Provincial Legislature could not, without the previous sanction of the
Governor-General, take up for consideration any bill relating to a number of
subjects.
3. The greatest dissatisfaction came from the working of Dyarchy in the Provincial
sphere. In a large measure, the Governor came to dominate ministerial policy by
means of his overriding financial powers and control over the official block in the
Legislature.
4. There was no provision for collective responsibility of the Ministers to the
Provincial Legislature.

Simon Commission 1927

● The Simon Commission, 1927 Section 84, GoI Act, 1919 provided for the appointment of
a statutory commission, 10 years after the passing of the Act to review the
implementation of the provisions of the Act and after review, extend, modify or restrict
the degree of responsible government as needed.
● The commission was headed by Sir John Simon, a British Liberal politician.
● The commission had six members, all of whom were British.
● The commission's appointment was met with widespread protests from Indian
nationalists, who boycotted the commission's proceedings.
● The Commission came to India in 1928 and submitted its report in 1930. It was
condemned by Indians, who expressed their disagreement through protests and strikes.
● Recommendations:
1. Diarchy should be abolished in provinces
2. No interference of Centre in the administrative and legislative work of the
provinces
3. Communal electorate
4. Federal Assembly

34
 ➢ The Central Assembly should be called ‘Federal Assembly’ and it must be
constituted on the basis of representation of the provinces and other areas
in British India in proportion to the population.
➢ Official members should consist of such members of the Governor
General’s Council who could sit in the Lower House with the nominated
officials.
Although the Simon Commission’s reports were shelved at that time, its suggestions played a
major role in the GoI Act, 1935

The Nehru Report 1928

The Indian National Congress took up the challenge to draft a constitution that shall be
acceptable to all political parties of India. All Parties Conferences were held in Delhi and
Bombay and in 1928 a small committee chaired by Pandit Motilal Nehru was set up to draft a
constitution for India.
The committee produced an impeccable report which was statesmanlike and it served to
advertise the high standard of learning in India. The Nehru Report was unanimously accepted at
the Lucknow All Parties Conference, although the AIML ratified the report only after Gandhi’s
intervention.
Features of this Report are:
● The Nehru Report 1928 was a proposal for a new dominion status and a federal set-up of
government for the constitution of India. It also proposed for the Joint Electorates with
reservation of seats for minorities in the legislatures.
● All powers of the government and all authority – legislative, executive and judicial
would be derived from the people and the same shall be exercised through organisations
established by, or under, and in accord with, this Constitution.
● There shall be no state religion; men and women shall have equal rights as citizens.
There should be a federal form of government with residuary powers vested in the
centre.
● It included a description of the machinery of government including a proposal for the
creation of a Supreme Court and a suggestion that the provinces should be linguistically
determined.
● It did not provide for separate electorates for any community or weightage for
minorities. Both of these were liberally provided in the eventual Government of India Act
1935. However, it did allow for the reservation of minority seats in provinces having a
minority of at least ten percent, but this was to be in strict proportion to the size of the
community.
● Criticism:
➢ It did not demand complete independence for India. The report instead
proposed dominion status, which meant that India would remain within the British

35
 Empire. This was a compromise that was unacceptable to many Indian
nationalists, who wanted complete independence.
➢ It did not adequately address the concerns of the Muslim community. The
report proposed joint electorates for all communities, but Muslims were
concerned that this would lead to their marginalization in the political process.
They demanded separate electorates to protect their interests.
➢ It did not provide a detailed plan for the economic development of India. The
report focused on political reforms, but it did not address the economic problems
that were facing India at the time. This was a major weakness of the report, as
many Indians were more concerned with their economic well-being than with
political reforms.
➢ It was not accepted by all sections of Indian society. The report was criticized
by some Indian nationalists, who felt that it did not go far enough, and by some
Muslim leaders, who opposed the system of joint electorates. This lack of
consensus on the report made it difficult for it to be implemented.

Karachi Resolution 1931

The Karachi Resolution was passed by the Indian National Congress at its 1931 Karachi session.
The Session was conducted in the shadow of three major events. First, Mahatma Gandhi had just
been released from prison following his Salt Satyagraha. Second, the Gandhi-Irwin pact had just
been concluded which had brought the civil disobedience movement to an end. And third, the
British government had, a week before the session, executed Bhagat Singh and two of his
associates in connection with the Kakori Conspiracy case.
The Resolution reiterated the Congress Party’s commitment to ‘Purna Swaraj’ or ‘complete
independence’. In addition to fundamental rights which protected civil liberties, the Resolution
for the first time put forward a list of socio-economic principles/rights that the Indian state had to
adhere to.
Important aspects of the resolution:
1. Provision for basic civil rights of freedom of speech, Freedom of Press, Freedom of
assembly, Freedom of association, Equality before law.
2. Provision for elections on the basis of Universal Adult Franchise
3. Free and compulsory primary education.
4. Substantial reduction in rent and taxes
5. Better conditions for workers including a living wage, limited hours of work.
6. Protection of women and peasants
7. Protection of Minorities.
8. Socialist economic system: The resolution proposed a socialist economic system for
India. It called for the nationalization of key industries and the redistribution of land. The

36
 resolution declared that "the State shall own or control key industries and services,
mineral resources, means of transport, and banking and insurance."
9. Unity of all Indians: The resolution emphasized the importance of unity among all
Indians, regardless of caste, creed, or religion. It called for the removal of all barriers to
unity, such as caste and religious discrimination. It also called for the promotion of Hindi
as the national language of India. The resolution declared that "the present society is
based on the domination of foreign imperialism and feudalism, which must be ended."

The Poona Pact 1932

● On August 16, 1932, the British Prime Minister, Ramsay MacDonald, announced the
Communal Award on the basis of The Government of India Act 1919 which provided for
separate electorates for the ‘Depressed Classes’, the Muslims, the Europeans, the Sikhs,
the Anglo-Indians and the Indian-based Christians.
● Under a separate electorates system, each community was allocated a number of seats in
the legislatures and only members from these communities would be eligible to vote to
elect a representative of the same community to legislative assemblies.
● The Poona Pact 1932 was an agreement between B.R. Ambedkar and M.K. Gandhi on
the political representation of the Depressed Classes (a loose term that referred to
Dalits/Untouchables/Scheduled Castes).
● The pact was the culmination of a long and bitter dispute between Ambedkar and Gandhi
over the issue of separate electorates for the depressed classes. Ambedkar had demanded
separate electorates for the depressed classes, arguing that it was the only way to ensure
that they would be fairly represented in the legislature. Gandhi, on the other hand,
opposed separate electorates, arguing that they would divide Hindu society and weaken
the struggle for independence.
● Key Provisions:
1. The depressed classes would be given reserved seats in the provincial and central
legislatures. The number of reserved seats would be based on the population of
the depressed classes in each province.
2. The depressed classes would be free to contest seats in the general electorate as
well as the reserved seats.
3. The Pact also called for the non-discrimination of Depressed Classes in public
services and urged for efforts towards the fair representation of the community in
public services.
4. It also contained a provision that proposed the earmarking of a portion of the
state’s educational grant for Depressed Classes.
● Significance:
➢ First, it was the first time that the British government had officially recognized
the depressed classes as a distinct political entity. This was a major victory for

37
 Ambedkar and the depressed classes, as it gave them a voice in the political
process.
➢ Second, the Poona Pact helped to improve the relationship between Ambedkar
and Gandhi. Ambedkar had been critical of Gandhi in the past for his opposition
to separate electorates. However, the Poona Pact showed that Gandhi was willing
to compromise on the issue in order to achieve Hindu unity.
➢ Third, the Poona Pact had a significant impact on the Indian independence
movement. The pact helped to strengthen the relationship between the depressed
classes and the upper caste Hindus. This unity was essential for the success of the
independence movement.
● Criticism:
➢ Some members of the depressed classes felt that Ambedkar had compromised too
much in the pact. They argued that the pact gave the upper caste Hindus too much
control over the reserved seats.
➢ Other critics argued that the Poona Pact perpetuated the caste system by creating
separate constituencies for the depressed classes. They argued that the pact would
make it difficult for the depressed classes to integrate into mainstream Hindu
society.

Government of India Act, 1935

The Government of India Act 1935 was a landmark piece of legislation that introduced a number
of significant changes to the British administration of India. It was the most comprehensive
attempt yet at constitutional reform in India, and it laid the foundation for the eventual
independence of the country.
The act was the result of a long and complex process of negotiation between the British
government and Indian nationalists. It was based on the recommendations of the Simon
Commission, which had been appointed in 1927 to review the Government of India Act 1919.
The main features of the Act were:
● Federation and Provincial Autonomy
➢ The GoI Act 1935 prescribed a federation, taking the Provinces and the Indian
States as units. But it was optional for the Indian States to join the Federation; and
since the Rulers of the Indian States never gave their consent, the Federation
envisaged by the Act of 1935 never came into being.
➢ The Act divided legislative powers between eh Provincial and Central
Legislatures, and within its defined sphere, the Provinces were no longer
delegates of the Central Government, but were autonomous units of
administration.

38
 ➢ To this extent, the GoI assumed the role of a federal govt vis-a-vis the Provincial
Government.
➢ The executive authority of a Province was also exercised by a Governor on behalf
of the Crown and not as a subordinate of the Governor-General. The Governor
was required to act with the advice of Ministers responsible to the Legislature.
● Division of power: The Act provided for the division of power between the Centre and
the provinces & states under three lists:
➢ Federal List
➢ Provincial List
➢ Concurrent List: Both federal and provincial legislatures could pass laws on these
subjects but the federal legislature held a superior position.
● Dyarchy at the Centre: It established dyarchy at the Centre and the provincial dyarchy
was abolished. A part of the federal executive was declared Reserved while the
remaining was declared Transferred. Reserved part consisted of important subjects like
defence, external affairs, etc.
● Bicameral federal legislature:
➢ Federal legislature was divided into the Federal Assembly and the Council of
States.
➢ Tenure of the Federal Assembly was fixed at 5 years while Council of States’
➢ 1/3rd members would retire after every 3 years.
➢ Members from States would be nominated by the rulers, representatives from
➢ British India would be elected.
➢ Communal representation in elections was retained.
● Legislatures’ power restricted:
➢ Powers of both federal and provincial legislatures were restricted regarding issues
which affected the Sovereign, the Royal Family, etc.
➢ Many non-votable items in budget over which the federal legislature had no
control
➢ Governor General was empowered to interfere with the legislatures’ workings.
● Autonomy in name only: Autonomy was given to provinces as well in accordance with
the August Declaration of 1917. Diarchy was abolished in provinces and the different
treatments given to subjects under different lists was done away with. Provincial
administration was given to Ministers who were to be appointed by the Governor;
however, they were responsible to the legislature. The Governors were empowered to
remove the Ministers which was a major defect of this Act.
● Indian Council of Secretary of State: This Act abolished the Indian Council of the
Secretary of State.
● Establishment of Federal Court: Federal Court was established having both original
and appellate jurisdiction to

39
 ➢ Decide disputes between the federal units or between the federal government and
units.
➢ Answer questions regarding interpretation of the Constitution.
The Privy Council remained the final court of appeal.
● Governor General’s power: The Governor General had vast administrative, legislative
and financial powers under this Act. Along with being the constitutional head regarding
administration of subjects in the Transferred list, he was given very wide discretionary
powers regarding legislation. He was also allowed to promulgate ordinances over the
head of legislature by exercising the provisions made by the Governor General’s Act.
Defects:
1. Dyarchy at Centre: Indian participation was minimal and they were not given power to
amend the constitution either. Diarchy instead of being completely done away with at the
provincial level was instead applied at central level.
2. Options for States: The inauguration of All India Federation was subject to a specified
number of states joining the federation. The Act gave Indian States a choice to join or
not.
3. Privileged position of States: Indian States were given a privileged position in matters
of representation, etc. The nominated members remained loyal to the British.
4. Communal award: Indirect elections to the Federal Assembly were opposed. The seats
in legislatures were filled on the basis of community. Ill effects are felt till date due to the
influence of communalism on the Constitution of India from an early date.
5. Discretionary powers: Near unending power of the Governor General and Governors
was a major defect of this Act.
6. Mistrust of Indians: Act was wholly based on the mistrust of Indians in the British

Sapru Committee Report 1945

The Constitutional Proposals of the Sapru Committee commonly referred to as the Sapru
Committee Report was published in 1945 to resolve issues pertaining to minorities that had
plagued Indian political and constitutional discourse. It was prepared by a committee appointed
by the Non-Party Conference in November 1944. Tej Bahadur Sapru, a well-renowned lawyer,
convened the first meeting of the Non-Party Conference in 1941. This group consisted of
individuals who represented a variety of interests except those of the dominant political parities
which were the Indian National Congress, Muslim League and the Communist Party.
● The Report rejected the Muslim League’s demand for Pakistan: it was not convinced that
a separate state would be advantageous to any community and felt that the division of
India would ‘endanger the peace and progress of the whole country’.
● It called for the setting up of a constitution-making body, in which Muslims and Hindus
would be equally represented, that would frame a new Constitution.

40
● It rejected separate electorates for Muslims for the Union Legislature and instead
proposed joint electorates with reservation of seats.
● It introduced a ‘Minorities Commission’ that would assess the welfare of minorities and
had powers to recommend measures to the government.
● This committee recommended that the Fundamental Rights “must” be included in the
Constitution of India.
● This committee divided fundamental rights into two parts viz. Justiciable Rights and
Non-justiciable rights.
➢ The Justiciable rights were those enforceable by a court of law. These enforceable
rights were incorporated in Part III of the Constitution.
➢ The non-justiciable rights were incorporated as a directive to the state to take all
measures to provide those rights to individuals without any guarantee. They were
incorporated in the Part IV of the constitution and were called Directive Principles
of State Policy.

Cabinet Mission Plan 1946

● The Cabinet Mission Plan was a statement made by the Cabinet Mission and the Viceroy,
Lord Wavell, on May 16, 1946, that contained proposals regarding the constitutional
future of India in the wake of Indian political parties and representatives not coming to an
agreement.
● In September 1945, the new elected Labour government in Britain expressed its intention
of creating a Constituent Assembly for India that would frame India’s Constitution; the
Cabinet Mission was sent to India in March 1946 to make this happen.
● The Mission had to deal with a major obstacle: the two main political parties – the Indian
National Congress and the Muslim League – had fundamental differences over India’s
future.
○ While the Muslim League wanted the Muslim majority provinces of India to
constitute a separate sovereign state of Pakistan, the Congress wanted a united
India.
● The Mission, at the Simla Conference, attempted to facilitate an agreement between the
Muslim League and the Congress. When this failed, the Mission came out with its own
proposals known as the Cabinet Mission Plan.
● Objectives of Cabinet Mission
➢ To obtain an agreement with the Indian leaders as to the framing of a constitution
for India.
➢ To formulate a constitution-making body (the Constituent Assembly of India).
➢ To establish an Executive Council with the support of the major Indian parties
● The Plan contained 24 points and amongst them Point 15 is considered as very important
as it described the basic form of the future constitution of India.

41
 ● Point 15 consists of 6 sub-points that proposed the basic form of the Constitution of
India; strikingly, all relate to the federal structure of India.

Point 15 of the Cabinet Mission Plan 1946

We recommend that the Constitution should take the following basic form:
(1) There should be a Union of India, embracing both British India and the States which should
deal with the following subjects: Foreign Affairs, Defence, and Communications; and should
have the powers necessary to raise the finances required for the above subjects.
(2) The Union should have an Executive and a Legislature constituted from British Indian and
State’s representatives. Any question raising a major communal issue in the Legislature should
require for its decision a majority of the representatives present and voting of each of the two
major communities as well as a majority of all members present and voting.
(3) All subjects other than the Union subjects and all residuary powers should vest in the
Provinces.
(4) The States will retain all subjects and powers other than those ceded to the Union.
(5) Provinces should be free to form groups with Executives and Legislatures, and each group
could determine the Provincial subjects to be taken in common.
(6) The Constitutions of the Union and of the groups should contain a provision whereby any
Province could by majority vote of its Legislative Assembly could call for a reconsideration of
the terms of the Constitution after an initial period of ten years and at ten-yearly intervals
thereafter.

Effects of the Cabinet Mission Plan 1946

● The Congress Party wanted a strong centre with minimum powers for the provinces
whereas the Muslim League wanted strong political safeguards for the Muslims like
parity in the legislatures.
● The Muslim-majority provinces were grouped into two groups and the remaining
Hindu-majority in one of the groups. The Congress was not keen on the idea of the
groupings of provinces on the basis of Hindu-Muslim majority. It was also against the
idea of a weak centre. The Muslim League did not want any changes to the proposals.
● The plan was not accepted, a new plan was proposed by the mission in June 1946. This
plan proposed the division of India into a Hindu-majority India and a
Muslim-majority India later to be renamed Pakistan. A list of princely states was also
made that could either join the union or remain independent.
● The Congress Party did not accept the second plan. Instead, it agreed to be part of the
constituent assembly. The Viceroy invited 14 men to form the interim government. There

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were 5 from the Congress, 5 from the League, 1 member each representing the Sikh,
Parsee, Indian Christian and scheduled caste communities.

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 MODULE 6: REPEAL OF BRITISH STATUTES
● A repeal is the removal or reversal of a law. There are two basic types of repeal; a repeal
with a re-enactment and a repeal without re-enactment.
● A repeal with a re-enactment is used to replace the law with an updated, amended, or
otherwise related law whereas a repeal without re-enactment or replacement is used to
abolish its provisions altogether.
● Generally, laws are repealed to either remove inconsistencies or after they have served
their purpose. When new laws are enacted, old laws on the subject are repealed by
inserting a repeal clause in the new law.
● The Repealing and Amending (Amendment) Bill will pass through the same procedure as
any other Bills. It will have to be cleared by both Houses of Parliament and the President
would give his assent to make it a law.
● Law Commission of India on repeal of statutes (148th and 159th Report).
Legislations Repealing British Statutes
1. The British Statutes (Application to India) Repeal Act, 1960: It repealed the
application of 258 British statutes from India.
2. The British Statutes (Repeal) Act, 2004: It was passed to repeal the application
of 4 British Legislations.

Reasons for Repeal of Statutes

● To identify laws which are no longer needed or relevant and can be immediately repealed.
● To identify laws which are in harmony with the existing climate of economic
liberalization which need no change.
● To identify laws which require changes or amendments and to make suggestions for their
amendment;
● To consider in a wider perspective the suggestions for revision/amendment given by
Expert Groups in various Ministries/Departments with a view to coordinating and
harmonising them;
● To consider references made to it by Ministries/Departments in respect of legislation
having bearing on the working of more than one Ministry/Department;
● To suggest suitable measures for quick redressal of citizens grievances, in the field of law
● To recommend measures for bringing the statute book up-to-date by repealing obsolete
laws and enactments or parts thereof which have outlived their utility to the Government.

Law Commission of India on British Statutes

● Law Commission of India 148th report 1993: repeal of the Central Acts passed before
15th August 1947 and still formally in force. (6 Enactments)

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● Law Commission of India 159th report 1998: repeal of the Central Acts passed before
or after 15th August 1947and still formally in force.
● Law Commission of India 248th report 2014 (September): First interim report on
Obsolete Laws : Warranting Immediate Repeal.
● Law Commission of India 249th report 2014 (October): Second interim report on
Obsolete Laws : Warranting Immediate Repeal.
● Law Commission of India 250th report 2014 (October): Third interim report on
Obsolete Laws : Warranting Immediate Repeal.
● Law Commission of India 251st report 2014 (November): Fourth interim report on
Obsolete Laws : Warranting Immediate Repeal.

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 MODULE 7: CONSTITUENT ASSEMBLY DEBATES

Objectives Resolution of the Constitution

Pandit Jawaharlal Nehru introduced the Objective Resolution on December 13, 1946, which was
accepted by the Constituent Assembly on 22 January 1947. It established the concept and
guiding principles for building the Constitution and eventually took the shape of the Preamble to
the Indian Constitution.
1. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an
independent Sovereign Republic and to draw up for her future governance a Constitution;
2. WHEREIN the territories that now comprise British India, the territories that now form
the Indian States, and such other parts of India as are outside British India and the States
as well as such other territories as are willing to be constituted into the Independent
Sovereign India shall be a Union of them all; and
3. WHEREIN the said territories, whether with their present boundaries or with such others
as may be determined by the Constituent Assembly and thereafter according to the law of
the Constitution shall possess and retain the status of autonomous units, together with
residuary powers, and exercise all powers and functions of government and
administration, save and except such powers and functions as are vested in or assigned to
the Union, or as are inherent or implied in the Union or resulting therefrom; and
4. WHEREIN all power and authority of the Sovereign Independent India, its constituent
parts and organs of government, are derived from the people; and
5. WHEREIN shall be guaranteed and secured to all the people of India justice, social,
economic, and political; equality of status, of opportunity, and before the law; freedom of
thought, expression, belief, faith, worship, vocation, association and action, subject to law
and public morality; and
6. WHEREIN adequate safeguards shall be provided for minorities, backward and tribal
areas, and depressed and other backward classes; and
7. WHEREBY shall be maintained the integrity of the territory of the Republic and its
sovereign rights on land, sea and air according to justice and the law of civilised nations;
and
8. This ancient land attains its rightful and honoured place in the world and makes its full
and willing contribution to the promotion of world peace and the welfare of mankind.

Secular, Federal, Socialist

On November 15, 1948, India debated in the Constituent Assembly on the nature of the
Constitution.
Prof K T Shah proposed inserting the words, “Secular, Federal, Socialist”.

46
His above-mentioned words to be read as, “India shall be a Secular, Federal, Socialist Union of
States.” He was of the opinion that by using such words in the Preamble, it will give an idea
about the governing ideals of the Constitution.
According to Ambedkar, this proposal was rejected because “What should be the policy of the
State, how the Society should be organised in its social and economic side are matters which
must be decided by the people themselves according to time and circumstances. It cannot be laid
down in the Constitution itself, because that is against democratic feature of the country”.
Ambedkar proposed the Preamble, “We, the people of India, having solemnly resolved to
constitute India into a sovereign, democratic, republic,”
It was vehemently opposed by Maulana Hasrat Mohani. According to him, the Objectives
Resolution had three words: Independent Sovereign Republic.
He asked the Constituent Assembly to decide on the following three sets of words that are to be
incorporated in thePreamble before the consideration of the Draft Constitution clause by clause.
● Sovereign Independent Republic,
● Sovereign Democratic Republic,
● Sovereign Democratic State.”
After due deliberations, ‘Sovereign Democratic Republic’ was adopted.

Federalism
When Dr. Ambedkar presented the Draft Constitution to the Constituent Assembly, he described
the Constitution proposed to be federal, even though the word used in Article 1 was Union and
the word “federal” was never mentioned in the Preamble or any other provision.
With regard to the nature of a federal state, Mr. N. Gopalaswami Ayyangar proclaimed that one
of the essential principles of a Federal Constitution is that it must provide for a method of
dividing sovereign powers so that the Government at the Centre and the Governments in the
Units are each within a defined sphere, coordinate and independent.
● He said that the orthodox definition of federalism as adopted by other constitutions was
not rigidly followed as there was no clear demarcation between the functions of the
centre and the states and that they had to be dependent on each other.
● This definition would not apply to the Indian context as they were facing problems which
many of the constitution-makers who adopted federalism had not faced historically.
In this regard, Dr. Ambedkar clarified that only the President can exercise the power under
Articles 250, 352 and 353 of the Constitution and this exercise requires the approval of both
Houses of the Indian Parliament.
Article 250: Power of Parliament to legislate with respect to any matter in the State List if a
Proclamation of Emergency is in operation
Article 352: Proclamation of Emergency
Article 353: Effect of Proclamation of Emergency

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He outlined this view when he opined thus: “These provisions make the Indian Constitution both
‘Unitary as well as Federal’ according to the requirements of time and circumstances. In normal
times, it is framed to work as a federal system. But in times of war, it is so designed to make it
work as though it was a unitary system.”

Fundamental Rights
On the 29th of April 1947, Sardar Vallabhbhai Patel moved that “the Constituent Assembly to
proceed to take into consideration the interim report on the subject of Fundamental Rights
submitted by the Advisory Committee appointed by resolution of the Assembly of the 24th
January, 1947.”
At the outset he stated that in considering the question of fixing the Fundamental Rights and
incorporating them into the constitution the committee came to the conclusion that the
Fundamental Rights should be divided into 2 parts - the first part justiciable and the other
part non-justiciable.
In the course of the debate, Pandit Hirday Nath Kunzru pointed out that several matters which
could hardly be called justifiable included in the Report e. g . Freedom of speech, the right to
assemble peaceably and without arms and the right to form associations etc.
They were all subjected to safeguards, the right non-justiciable. He admitted that restrictions
were necessary, but maintained that the rights conferred on citizens in practice cease to be
justiciable.
Mr. P. R. Thakur is also in favour of inclusion of economic rights as justiciable rights. Mr.
Thakur pointed it out as a lacuna in the fundamental rights which is responsible for making our
country short sighted.
The absence of the right to work gives the imagination of innumerable evils such as
unemployment and starvation which will play havoc with the country for years to come.
● Right to equality – Article 14 to 18
● Right to freedom – Article 19 to 22
● Right against exploitation – Article 23 and 24
● Right to freedom of religion – Article 25 to 28
● Cultural and educational rights – Article 29 and 30
● Right to constitutional remedies- Article 32 to 35
● Article 31 stands repealed.

Untouchability
● Draft Article 11 (Article 17, Constitution of India 1950) was debated on 29 November
1948 in the Constituent Assembly. It aimed to abolish the practice of untouchability.

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 ● The debate was short. However, there was some confusion about the scope of the term
“untouchability.” Mr. Naziruddin Ahmad moved an amendment that for article 11, the
following article be substituted.
● “No one shall on account of his religion or caste be treated or regarded as an
untouchable and its observance in any form may be made punishable by law.”
● Dr. Mono Mohan Das was of the opinion that the removal of Untouchability is an
important fundamental right.
● Professor K.T. Shah made a suggestion that the definition of Untouchability is nowhere
given in the Constitution and a question may arise as to what constitutes Untouchability.
● He suggested making corrections i.e. to use a different word instead of using the word
“Untouchability”.
● According to him, if a person is placed under disability for a period of time, he is treated
as untouchable.
● His suggestion was not accepted by Dr. B.R. Ambedkar. Thereafter, the motion regarding
Article 11 was adopted and it was added to the Constitution.
● Article 17 Abolition of Untouchability: Untouchability is abolished and its practice in
any form is forbidden The enforcement of any disability arising out of Untouchability
shall be an offence punishable in accordance with law.

Minority Reservation
Kazi Syed Karimuddin, “the most important provision in this Constitution from the point of view
of the minorities is the provision of reservation of seats with joint electorates. The only provision
made for the minorities now is joint electorate with reservation of seats. In my opinion, it is
neither here, nor there. Joint electorates with reservation of seats is absolutely of no consequence
to the minorities. It would do them positive disservice. The representatives who would be elected
under joint electorate with reservation of seats would not be the representatives of the minorities
for whom reservation is given.”

Reservation in Employment Opportunities

S Nagappa and Jaipal Singh, who were members of the depressed classes demanded
reservation proportional to the population of backward classes. They demanded representation in
the cabinet as well.
Jaipal Singh also argued for the rights and dignity of the Adivasis. He said that Adivasis are the
original inhabitants of the country, and therefore, they should be given their due recognition.
The members from the schedule caste put forward that the reservation policy shall either renew
after 10 years or the 10 year period clause shall abolish. In case, if
● there is no substantial progress
● there is a need for more progress
● there is no change in the situation of the depressed classes even after the 10

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 ● years of reservation.

Provision for Reservation under Indian Constitutiom

Article 14: Equality before law.
Article 15 (4) & (5): Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.
Article 16 (4) & (4A): Equality of opportunity in matters of public employment.
Article 243D: Reservation of seats for SCs and STs in Panchayats.
Article 233T: Reservation of seats for SCs and STs in Municipalities
Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the
People
Article 332: Reservation of seats for the Scheduled Castes and the Scheduled Tribes in the
Legislative Assemblies of the States.
Part XVI: Special Provisions Relating to Certain Classes which Include reservation for
Scheduled Castes, Scheduled Tribes, Anglo- Indian Community, and Other Backward Classes.

Supreme Court Judgements on Reservations

● CA Rajendran v. Union of India (1967): There would be no reservations for SC and
STs in promotions to Class I and II services in the railways.
● Indra Sawhney v. Union of India (1992): Question of Post Reservation for Backward
Classes. 9 Judge bench Judgment
● M. Nagaraj v. Union of India (2006): The Court validated Parliament's decision to
extend reservations for SC/STs to include promotions (reservation in promotion).
● Ashoka Kumar Thakur v. Union of India (2008): 93rd Constitutional Amendment Act,
2005 was challenged in this case.
➢ The Constitution (Ninety-Third Amendment) Act, 2005 was passed by Parliament
in 2006 to assist the educational objectives of the underprivileged sections of the
nation and to bring private colleges and unaided education institutions under the
government’s reservation policy.
● The Supreme Court observed that reservations provide an extra advantage to those who
without such support dream of university education.

Outcome of the Debate

● Representation of Anglo-Indians in the legislative assembly: It was suggested by
Pandit Thakur Das Bhargava, a member of the INC and Constituent Assembly.
● Ambiguous 10 years time period: It was suggested by Mr Naziruddin Ahmed. He stated
whether or not those holding reserved positions will be required to resign from their
positions if the government is in power and the ten-year timeframe has passed.

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● No expiration period for a reservation: It was suggested by Mr Monomohan Das and
Mr Muniswami. Dr Ambedkar rejected the amendment on the grounds that the legislature
had previously unanimously chosen the expiration period and that any future changes to
the section would require a Constitutional Amendment.
● Extension of Reservation for Scheduled Castes: During the Debate on Reservations in
Constituent Assembly, according to Dr Ambedkar, other minorities had enjoyed
privileges in the past for a longer period of time, such as Muslims since 1910 and
Christians since the 1920 Constitution, whereas the Scheduled Caste had enjoyed
privileges since the 1935 Constitution and practically since 1937, which had also been
discontinued by 1939.
● The Scheduled Caste had only been receiving benefits for two years at that point, he
thought they should be granted a reservation for a longer period of time. But now that the
resolution to end the ten-year period has been enacted, he wouldn't oppose it, and the
option to extend the time frame if necessary would always be available.

Uniform Civil Code

● The debate on Uniform Civil Code was raised for the first time in the Constituent
Assembly on November 23, 1948. It was proposed by Meenu Masani, and it was
figured under Article 35.
● Article 35, Draft Constitution of India 1948 (Article 44, Constitution of India 1950):
The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India.
● The Uniform Civil Code first got support from women members. There were 15 women
members in the Constituent Assembly. Hansa Mehta lobbied for a UCC as a member of
the Fundamental Rights Sub-Committee.
● Apart from them, Rajkumari Amrit Kaur, Dr Bhimrao Ambedkar, Meenu Masani,
Kanhaiyalal Maniklal Munshi, Alladi Krishnaswami Iyer also supported the
implementation of a UCC and argued strongly in its favour.

Leaders Who Supported UCC

1. Dr BR Ambedkar, Supported the UCC as a means to promote gender equality and
eliminate discrimination based on personal laws. He advocated for a comprehensive civil
code that would ensure equal rights for women in matters of marriage, divorce, and
inheritance.
2. Jawaharlal Nehru emphasized the need for social reform and modernization, favoring a
UCC to replace personal laws based on religion.
3. Dr Rajendra Prasad supported the idea of a UCC as a means to ensure equal rights for
women and promote gender justice.

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4. Alladi Krishnaswami Ayyar argued for the UCC, highlighting the need to eliminate
discrimination against women and establish a uniform civil law for all citizens. He
stressed the importance of promoting gender equality and social justice through a
comprehensive civil code.
5. K M Munshi strongly supported the UCC, emphasizing the need to move away from
religious-based laws and establish a modern and egalitarian legal framework.

Leaders Who Opposed UCC

1. Maulana Abul Kalam Azad expressed concerns about the potential erosion of religious
autonomy and minority rights with the implementation of a UCC. He emphasised the
need to respect the cultural and religious diversity of India, suggesting that personal laws
should be protected.
2. KT Shah raised concerns about the potential violation of religious freedom and minority
rights with the imposition of a UCC.
3. Frank Anthony expressed reservations about imposing a UCC, emphasising the need to
respect the cultural diversity and pluralism of India. Highlighted the importance of
safeguarding minority rights and allowing communities to maintain their distinct
identities.
4. Begum Aizaz Rasul raised concerns about the potential impact of a UCC on Muslim
personal laws, advocating for the protection of religious practices.

Death Penalty
● Debate on Abolition of Death Penalty continued in between 1947 and 1949 in the
Constituent Assembly. It was questioned because of its judge-centric nature, possible
uncertainty in its enforcement, its discriminatory impact on the poor and the marginalised
sections, and the possibility of error in the final judgment.
● It was discussed under Article 11-B (Proposed by Mr. Z.H. Lari)of the draft constitution
as “Capital punishment except for sedition involving use of violence should be
abolished.”
● Mr. Z.H. Lari, proposed it on the ground, “once the said punishment is pronounced, the
offender remains no more alive. Later on, if the court or tribunal comes to know that it
had committed a mistake i.e. the person on whom such sentence is pronounced is not
guilty, such mistake cannot be rectified.” He gave examples of thirty countries of the
world where society is protected at large without such punishment.
● Amiyo Kumar Ghosh also supported this proposal but was not in favour of making it as
a part of the Constitution as incorporating such a clause in the Constitution, would fetter
the hands of the State for all time to resort to such punishment even if it is required by the
exigencies of time.

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 ● K. Hanumanthaiya was also against the abolition of the Death Penalty. From the
viewpoint of the State he observed that, “a man who has no consideration for human lives
does not deserve any consideration for his own life. Society is based not merely on
reformation, but also on the fear instinct principle.”

Ordinance Making Power of the President

On 23rd May 1949, the Constituent Assembly held a debate on Ordinance Making Power of the
President dealt under Article 102 of the draft constitution and it has been incorporated under
Article 123 of the current Indian Constitution, which states, “Power of the President to
promulgate Ordinances during the recess of Parliament.”
Article 102, Draft Constitution 1948,
1. If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinances as the circumstances appear to him to
require.
2. An Ordinance promulgated under this article shall have the same force and effect as an
Act of Parliament assented to by the President, but every such Ordinance - Shall be laid
before both Houses of Parliament and shall cease to operate at the expiration of six weeks
from the re-assembly of Parliament, or, if before the expiration of that period resolutions
disapproving it are passed by both Houses, upon the passing of the second of those
resolutions.
When the ordinance-making powers of the President were being discussed in the Constituent
Assembly, members were concerned about more fundamental implications of such a
power—namely, the allocation of legislative powers to the executive and the violation of the
doctrine of separation of powers.
Hriday Nath Kunzru agreed that an emergency situation might require some immediate action
by the government in the form of an ordinance, but failed to see why Parliament shouldn’t
convene immediately, or as soon as possible to deal with the situation.
K.T. Shah supported this argument, calling the ordinance making power “a negation of the rule
of law,” and an “extreme power in the hands of the executive.”

B. Pocker, proposed to insert a proviso in this Article, “Provide that such ordinance shall not
deprive any citizen of his right to personal liberty except on conviction after trial by a competent
court of law.”
B.R. Ambedkar acknowledged the concerns of the members and pointed out that there must be
some mechanism by which the executive could deal with unforeseen situations through
legislation, when Parliament is not in session.

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He discarded Mr. Kunzru’s concerns over the time period saying that Parliament would likely
have to meet quite frequently, therefore the existing Article had sufficient protections.

Power of President to Promulgate Ordinances during Recess of Parliament

1. If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinances as the circumstances appear to him to
require.
2. An Ordinance promulgated under this article shall have the same force and effect as an
Act of Parliament, but every such Ordinance—
(a) shall be laid before both Houses of Parliament and shall cease to operate at the
expiration of six weeks from the reassembly of Parliament, or, if before the expiration of
that period resolutions disapproving it are passed by both Houses, upon the passing of the
second of those resolutions; and
(b) may be withdrawn at any time by the President.
3. Explanation.—Where the Houses of Parliament are summoned to reassemble on
different dates, the period of six weeks shall be reckoned from the later of those dates for
the purposes of this clause.
4. If and so far as an Ordinance under this article makes any provision which Parliament
would not under this Constitution be competent to enact, it shall be void.

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