(Last Updated on : 22/03/2012)
The British East India Company
established a system of courts in each of the three Presidencies (Bengal, Bombay and Madras). The types of courts and their jurisdiction varied from Presidency to Presidency, until the Crown replaced the Company's administration and greater uniformity in the entire judicial structure became possible. From an early date, Indians held important roles in the Company's judiciary. Uniquely, the British also demonstrated an early interest and sensitivity to the existence and use of Hindu and Islamic law in the Company's courts. As the first Law Member, Thomas Macaulay initiated a tradition of the law's codification for use in India. It is pretty evident that judicial conditions during the prolonged period of 17th - 18th century in British India was taken up as a solemn effort, paving the way for future law developments.
In the latter decades of the nineteenth century, two Law Members, Sir James Fitzjames Stephen and Sir Henry Maine, created an immense structure of legislation regarding the various types of personal and corporate law. For a time the violent and widespread British opposition to the Ilbert Bill denigrated the reputation of the liberal Englishman. In the end, however, the Indians advanced further in the judicial role than any other in the Raj and importantly carried forward the rule of law in the Republic of India.
During the year of 1600, Elizabeth I's charter rendered to the British East India Company
empowered it to make laws, constitutions, orders and ordinances as necessary for the governance of its servants. The Company could impose punishment, but it had to be reasonable and could not contravene English laws or customs.
In 1621, the Company produced the Lawes, a compilation of rules, which guided the management of its meetings, the selection of its officers and the arrangement of the Company's governance in England and in India. Judiciary was a domain which was pretty new to India during those times, rendering such judicial conditions in 17th century and the upcoming 18th century extremely stringent and strict for both natives and Englishmen.
From the year of 1652, with some interruptions, the Chaultry Court started operation in Madras. Presided over by an Indian official and two Englishmen, its jurisdiction covered small misdemeanours, breaches of the peace and cases of debt up to fifty pagodas of value.
On 3rd April 1661, the Charter Act, granted by Charles II (1630-1685), made provision for the use of English criminal law in India. In 1666, in Madras, an early styled court consisted of the Governor-in-Council.
On 30th September 1668, in response to the issuance of a new Charter, Thomas Papillon (1623-1703), member of the Company's Court of Committees and Mr. Moses, Solicitor of the East India Company, prepared a draft code of laws. Following their revision and approval, they took effect in January 1670 in Bombay. They addressed fields like religion, administration of Justice, types of judicial Institutions and their proceedings, registration of property sales and aspects of military discipline. These activities proved the seriousness of the British in taking Indian judicial system as a serious endeavour. Quite ideally therefore supported by the British the Judicial conditions during the 17th -18th century in British India was progressing fast towards a substantial aim.
On 2nd February 1670, Gerald Aungier (d.1677), Governor of Bombay, initiated a scheme for the first provision of justice in Bombay. He established two precincts of justice, each with five Englishmen. Appeals from these bodies were sent up to the Deputy-Governor and Council for hearing. At this appellate level all trials were held with juries.
On 8th August 1672, Aungier established a Court of Judicature for Bombay and seated George Wilcox (d. 1674) as its first judge. During this time the use of Portuguese laws and procedures were abolished in favour of English law. The court exercised civil and criminal jurisdiction and generally supervised the maintenance of law and order. The court's presiding judge earned a salary of 2000 rupees in lieu of participation in private trade in an effort to prevent bribery. For cases between English and Portuguese litigants requiring a jury, its membership consisted of an even division between the two nationalities.
On 16th August, 1672 as Judge of the Bombay Court of Judicature, Wilcox established a Court of Conscious, where even the poor could receive free justice. It convened each Saturday. Judicial conditions during the initial times of 17th - 18th century were given an entirely innovative appearance, far removed from the erstwhile Portuguese rule of law. British India had already taken a fruitful shape, waiting to unfold its more administrative styles.
On 18th March 1678, under the direction of Streynsham Master (1640-1724) the Madras Court of Judicature took over the judicial activities formerly executed by the Governor in Council. The new court sat twice a week, tried civil and criminal cases and operated in accordance with the laws of England.
The Charter granted in the year of 1683, authorised the establishment of Courts of Admiralty in the three Presidency cities. Additionally the Court held the power to apply martial law throughout India.
In 1685, in Bombay, the question emerged regarding path of appeal for civil cases from the Admiralty Court. The President of the Court of Judicature suggested that appeals should pass to the Deputy Governor and Council.
With time's swift progress, judicial conditions during 17th - 18th century began to take on a new shape, in the process resting more power in the hands of native states. In 1687, Mayor's Courts were established in the three Presidency cities. This court consisted of the Mayor and twelve Aldermen. Its jurisdiction encompassed both civil and criminal cases.
On 10th July 1686, the Court of Judicature in Madras ceased operation in favour of the Court of Admiralty. The latter court could also accept cases on appeal from the Madras Mayor's Court.
In February 1690, following the Sidi's attack in Bombay, no Judge remained to ensure the continuance of the Court of Judicature. For a time the Deputy Governor and Council handled some judicial matters. The development and staffing of judicial institutions in Bombay were delayed until the arrival of Sir Nicholas Waite as Governor of Bombay in November 1704.
In 1692, the Government of Bombay established the office of the Coroner.
In 1694, in Calcutta, the Council possessed a zamindar status. Accordingly, a Zamindari Court was convened to administer both civil and criminal justice among the Indians. In 1698 at Sutanati and Govindpur the Company also acquired zamindari rights.
On 5th September 1698, the new Charter, as granted by King William III (1650-1702), determined that the East India Company would carry out its business in accordance with such by-laws, constitutions, orders, rules and directions provided by its General Court as were not repugnant to the laws of England. The Company could govern trade and its officers and inflict reasonable penalties and punishments. With the turn of the century, in 1700, with the establishment of Bengal as a Presidency with a Governor-in-Council, the Company granted full judicial authority.
On 7th July 1712, the Council of Bombay passed a resolution declaring that it would sit two days a week to hear judicial matters. This ended the practice of one-person judicial operations practiced during the preceding decade. In January 1716, the Company issued instructions that a sub-committee of the Governor's Council should be formed to treat judicial matters. The 18th century witnessed yet another change and overhaul in British judicial system; judicial conditions during the passing times of 17th -18th century stood another chance of new governing rules for Indians.
On 31st August 1717, the Governor-in-Council of Bombay announced the establishment of a new Court of administration. The court seated five Englishmen and four Indians representing the Hindus, Muslims, Portuguese Christians and the Parsis. The court possessed wide civil and criminal jurisdiction. Appeal of its decisions could be made to the Governor-in-Council. Justice was, however, delivered from the bench and not by a jury. The court officially began its work on March 25, 1718 with Chief Justice Laurence Parker presiding.
On 24th September 1726, Letters Patent, or Charter Act granted by the Crown provided for the re-establishment of a Mayor's Courts in Calcutta, Madras and Bombay. They were composed of the Mayor and nine Aldermen, seven of whom were required to be British subjects. They possessed jurisdiction in civil cases with appeal to the Governor-in-Council and then to the Privy Council if the value exceeded 4000 rupees. It practiced English common and statue law. It was also authorised to hear criminal cases except those for high treason.
By this Act, the Governor and Council Members of each Presidency were constituted as Justices of the Peace and could thus hold Quarter Sessions. Each Mayor's Court also possessed responsibilities to grant probate of wills and to appoint administrators for those who died intestate. These actions bore substantial evidence of the judicial conditions during 17th -18th century British India, with the colonial government tightening rules, thereby making a judicial escape difficult.
On 8th January 1753, replacing the measures of the 1726 Charter Act, the new Charter Act modified the jurisdiction of the Mayor's Court of the three Presidency cities (Bengal, Bombay and Madras). The Act specifically indicated that cases between two Indians could only appear before the Mayor's Court with the consent of both parties. The Act provided for a Court of Record, consisting of the President and Council to hear appeals from the Mayor's Court. Also established was a Court of Request for the purpose of recovering small debts.
In 1754, with the arrival of Royal troops in India, the terms of the Mutiny Act and the Articles of War became applicable to Company's military forces. Their use in the control of looting and prize money proved important in the wars fought in the following century and in particular during the legendary Sepoy Mutiny
In the same year, an Act passed provided that an English subject, if oppressed by a Company's President or Council, could be heard in His Majesty's Court of King's Bench. Distance and expense made the Act's employment rare. Judicial conditions during 17th - 18th century, as was started with a unified zeal, somewhere lost its unbiased attitude in the long run. Just like later rules and regulations, these judicial systems also took a pro-British admittance, letting in several loopholes for English population and looking past native law and its operation.
In 1765, in Bengal, the grant of diwani by the Nawab to the British East India Company
pragmatically included the responsibility for convening Diwani Courts throughout Bengal, Bihar and Orissa. The Company clarified the situation in 1790 by explicitly taking control of criminal justice for all parts of India under Company control, except Bombay. As diwani granted to the Company administrative powers, the grant also made it possible for the Governor-General-in-Council to create a body of law.
In 1769, in recognition of some oppression and judicial chaos in the interior, or 'Mofussil' (places and areas that did not fall under city categories, remote districts), the Company appointed some Covenanted Servants to act as Supervisors of the Country Courts. As the Supervisors had no control over the Nawab of Bengal, their power to influence or encourage change, limited the improvements in the judicial administration of Bengal.
On 28th April 1772, as ordered by the Company's Court of Directors, Warren Hastings (1732-1818), Governor of Bengal, directed the Murshidabad
councils to initiate revenue and judicial administration. The position of the Collector replaced that of the Supervisor in the execution of these duties. Hastings ordered the arrest and trial of Mohamed Reza Khan of Murshidabad and Shitab Roy of Patna, the former Indian administrators of these revenue and judicial duties. To a great extent, Warren Hastings can be called an extremely incompetent ruler of preliminary British governmental policies. Although he was declared the first governor-general of Bengal, yet, Hastings committed major mistakes all through his rule. His each decision called for extreme criticism, leading to his historical impeachment. Under him, judicial conditions of British India, during 17th -18th century suffered enormously.
On 15th August 1772, Hastings drew up a collection of rules which tacitly became the first British Indian law code in Bengal, Bihar and Orissa. The code embraced thirty-seven rules or sections addressing the issues of civil and criminal law. A new system of courts replaced the defunct legal system left by the Mughals. It provided each district with a Diwani Adalat for civil cases under the administration of the Collector sitting as judge and a Faujdari Adalat for criminal cases presided over by the Qazi of the district and two muftis. The district Diwani Adalats were linked with one of six Provincial Adalats which provided a link with the Sadar Diwani Adalat in Calcutta. In Calcutta, the Sadar Diwani Adalat heard appeals from the Diwani Adalat and the Sadar Nizamat Adalat took appeals from the Faujdari Adalat. The records of all capital cases were sent to the Sadar Nizamat Adalat for review. Cases regarding inheritance, marriage, caste, and other matters relating to religious practices, either Hindu or Muslim, continued to be judged by their own laws. Civil complaints of over twelve years in duration ceased to be actionable in order to eliminate interminable litigation. This system survived in the main until 1793. Within the period of 1773-76, a Hindu Commission of eleven Hindu scholars prepared a code of law in Sanskrit under the title, Vivadarnava Setu.
Judicial conditions during 17th - 18th century however tried to take an eventful turn with natives taking up a grip in administrative functions. It was rendered into Persian and then translated into English by Nathaniel Halhed (1751-1830) as A Code of Gentoo Laws (1776).