BLS LLB: June 2014

HISTORY OF COURT

INDIAN LEGAL HISTORY

East India Company Year 1600

Today the present Indian legal system as well as laws which we are using is the gift of East India Company and British king, the rulers of India. History is very vast, but I will try to cover in short all the important events of Indian legal

History, First I have decided to write about the constitution of India, but then realized that if someone does not know Legal History of India, he will not understand the current situation and problems which India is facing .For all our problems root cause is our laws. Indian Region has a history of more than 5000 years, but for us Indians real legal history started with the arrival of East India Company in the year 1600. Before arrival of British, the India was divided into different countries , each king ruled and made laws which he liked and felt are good and right.

As the king died or the king lost the war with neighbor king the rules of that kingdom were changed Our present judicial system and laws is a gift of British Kings. Let’s start to understand and know the Legal History of India. While writing this I will clarify many terms also.East Indies - refer to nations - India, Pakistan, Bangladesh, Myanmar, Nepal, Sri Lanka, the Maldives and also Thailand, Cambodia, Laos, Brunei, Singapore, the Philippines, East Timor, Malaysia and Indonesia.

Dutch-held colonies in the area were known as the Dutch East Indies. Spanish-held colonies were known as the Spanish East Indies Caribbean is called the "West Indies. The east India Company was formed to do business with the East Indies. East India Company is also known as East India Trading Company, English East India Company then British East India Company. The oldest among several similarly formed European East India Companies, the Company was granted an English Royal Charter, under the name Governor and Company of Merchants of London Trading into the East Indies, by Elizabeth I on 31 December 1600.The charter awarded the newly formed company, for a period of fifteen years, a monopoly of trade (known today as a patent) with all countries to the east of the Cape of Good Hope and to the west of the Straits of Magellan. Sir James Lancaster commanded the first East India Company voyage in 1601. As per this charter no other company was allowed to do business with this geographic area with out the permission and license from the company.

The charter awarded the judicial powers to the company to make laws, to punish servants etc so that the functioning of company does not stop and company does not face losses. The company was not allowed to make any laws which may go against the English laws or customs. The company was supposed to work in democratic manner. During this time company aim was to do business and make profits, charter does not mention about the war and controlling other nations or lands. This is the beginning, development of Indian legislative system.
For Indians this phase is very important as this is beginning of formation of India as well as our legal system. The charter gave the legislative power to the company; company found that the limited powers were useless on the long voyages to control servants and maintain law and order on ships. To solve this problem company invoked the crowns prerogative and the commander in chief got the power to give death punishment to servants by using the law of martial. On 24th January 1601 Queen Elizabeth gave first time this right to commander in chief. Using this power first time on 28th Feb. 1616 at Surat Port, person named as Gregory killed an Englishman and commander in chief gave his death sentence.

PREROGATIVE – meaning in English law. The royal prerogative is an arbitrary power vested in the executive to do good and not evil. With the charter of 1600 the company landed at the Surat Port during the Jehangirs reign to do business of Import and Export between the East Indies and England. Before the arrival of East India Company in Surat, the Portuguese already established their business at Surat. After arrival of East India Company at Surat, the company and Portuguese fought with each other and in the year 1612 the company won and established their first factory at Surat with the permission of the local Moghul Governor. Factory was a place where company employees stayed, a big warehouse for storage of goods and different offices. The company was running its business democratic way and as per the powers given to them by the charter.

Later company realized that to establish there business at Surat permanently they need permanent trading facilities directly from the Moghul Emperor, with this view in the year 1915, James I sent an ambassador, Sir Thomas Roe to the Moghul Emperor and the Emperor issued the FARMAN OR FIRMAN , grating certain facilities powers to the company, Englishmen. Like they were allowed to hire a place and established the factory. All the fights between Englishmen were solved by the company head the head was known as Governor or President. In the year 1687, the seat or office of the President was transferred to Bombay, and slowly Surat lost its importance. Later in future Madras, Calcutta and Bombay came to known as the Presidency Towns and the territories around these towns were known as Mofussil.
mofussil areas: - n. [Urdu] outlying districts, away from urban areas or big city centre.

Surat Factory and administration –

The factory got the administrative as well as judicial set up. The president and counsil were appointed by the company who hold the administrative power. All decisions in the council meeting were taken by a majority of votes.The president got one vote only and no right to overrule the members.Its very interesting to know that this time at Surat there was no special law, or territory laws were present neither laws regarding succession, marriage or divorce or inheritance, all the laws were derived from religion, for Muslim their own laws, for Hindus their own laws, etc. But regarding criminal matters only Muslim law was followed. There was no uniform law among the people. Englishmen got permission from the Moghul Emperor that they should be allowed to follow their own laws inside their factory and on their own people which they got. This way from the beginning Englishmen here in East Indies, surat followed their own British laws. As per Moghul orders the fights between local people and English people came under local jurisdiction, tribunals at Surat.

That time local justice system was corrupt and who got the more money won the case. But Englishmen rarely went to local courts; they themselves administered all justice at Surat. When Company started its business with East India, that time also in Europe, British, Spanish, Dutch and Portugal all were fighting with each other regarding the business, as well as to keep control over the sea. I am not going into those wars and those details. Final result is only important, who won the war. In early days company got only business factories or stations at various places without territorial sovereignty. Company first started business at Surat, Agra, Ahmadabad, and Broach, and Surat factory become the main head office. In the year 1639 first Time Company got the power and right to mint money and govern Madras on condition that half the customs and revenues of port should be paid to the grantor.

In the year 1658 company paid 380 pagodas as king’s shares. Later In 1672 the amount was increased to 1,200 pagodas and Company first time got the full unrestricted power and control over Madras including justice . Later company added more villages with the same rights.

In 1752, company got full control over Madras and that remaining India was controlled by Muslim or Hindu kings.

In 1698 the Company purchased at the cost of 1,200 rupees a year the right of zamindar over the three villages of Sutanati, Calcutta, and Govindpur. The fortified factory was named Fort William in honor of the King, and in 1700 became the seat of a presidency. By giving Bribe, company got complete control over all three villages including Hindu as well as Muslim people, indirectly company became owner, ruler of those villages. Like this company got full power at their 3 towns Madras, Bombay, and Calcutta which were came to be known as Presidency Towns.

With Presidency Towns our Judicial History started to grow.

In the beginning at Presidency towns, the judicial system was their only to administer the Englishmen, and as towns made progress population of Hindu and Muslim people grew. And company has to make the adjustments, changes to administer these people in their English Legal System.

Presidency Town Madras Judiciary –

1. From 1639 to 1665 Judiciary Elementary State
2. From 1665 to 1686 – Court of Governor and Council was established
3. From 1686 to 1726 - Admiralty Court and Mayors Court was established.

Period One - From 1639 to 1665 Judiciary Elementary State –

Madras was founded by Francis Day in 1639 who got grant from Hindu Raja and company build first Fort, factory which is known as Fort St.George. Near the fort there was a village Madraspatnam on which also company got full power and right .this town later became Black Town and Inside factory town where British lived became white town and these both towns came to be known as Madras.

Madras was subordinate to Surat that time.

Head of Madras Town was called as an Agent.
Madras is the first Presidency Town of company.

During this period company agent did not do anything to change the justice system of black village, headman of black village did the justice for the black village.
No formal procedure was their, very few cases are reported but very interesting case happened in 1644. A sergeant Bradford Killed a native from Black town and company agent did not try him and but they gave the case to the black town Head and who found that death is caused by Accident. That time normally Agent referred the cases as per importance to the headman or the Raja or sent the report to the England regarding criminal or serious crimes.

From 1665 to 1686 – Court of Governor and Council was established

Charter of 1661 gave judicial power to the Governor and Council not to the Agent. To try serious cases like murder agent was not entitled and he referred those cases to England, but in the Year 1665 Company made changes and the agent of Madras became the Governor of Madras. So he can use all the powers given by the charter of 1661 which became effective in black town as well as white town. That is Madras. In the year 1665 first jury trial was held with the help of grand and petty juries which involved six Englishmen and five Portuguese none of them was studied in law.

So quality of law and justice and procedure was poor, the Madras Governor informed the company head office in England regarding this but company did not send any lawyer to Madras from England. That time also in criminal trials , the accused has to wait long to get their trial started as governor and Council was not aware about English Law so they always waited ,consulted to the Company Head office which was in the England .

On record there are cases –

One Englishman killed other Englishman and the accused has to stay in jail for 31 months, without trial as Governor consulted the case to England Head office.

The governor and council of Madras were afraid that they may commit mistake regarding English law or trial and other reasons, the problems started to grew in Madras Presidency and people started to think that reform was needed .
In 1678 Governor decided to hold weekly two days court to try all the cases as per English Law with the help of Jury of 12 men.

This court was designated as High Court of Judicature and was inaugurated on March 27, 1678.

After this choultry Court was also reorganized, choultry court – village head administered Justice. After reorganization company servants took the charge, mint master, customer or pay master and presence of two was compulsory they hold the court 2 times weekly and tried matters upto 50 pagodas.

Pagoda was a gold coin valuing 3 rupees.

All the appeals went to Governor and Jury, this way first time a hierarchy of court was established in Madras.

Third Period - 3. From 1686 to 1726 - Admiralty Court and Mayors Court was established at Madras

On August 9 1683, Charlas II granted charter to the company to establish the courts which was to consist of person learned in the Civil law and two merchants appointed by the company. The court got the power to hear and try the cases related with the mercantile, maritime, trespass, injury and wrongs etc.

Again on April 12, 1686 Charlas II issued a new charter with same provisions.
In 1683 mercantile law was not fixed but it was based on customs of merchants and Roman law not common law of England.

The chief judge of the admiralty Court was known as the Judge –Advocate.
After this charter on 10th July 1686 in Madras a Court of Admiralty was started which was consisted of three civil servants.

In 1687 company sent from England Sir John Biggs a professional lawyer learned in civil law to act as the judge advocate of Admiralty Court.

After this Governor and Council stopped to use their Judicial Functions. And admiralty Court started to give justice in all cases civil, criminal as well as maritime. The court used Jury in criminal cases and not in the civil cases.
Importance - First time in India a professional lawyer came who was studied in civil law and most important thing is Executive gave up Judicial Function.
Executive means Governor and his Council.

Sir Biggs Died in 1689. And Governor again took the charge of judicial function. Governor became the judge advocate. And one Hindu and one Armenian were selected to assist the admiralty court regarding respective communities.

In 1692 Company sent John Dolben as new judge advocate and in 1694 he was dismissed on the charge of taking bribes. Then willliam Fraser a civil servant became the Judge advocate.

In 1696 company directed that members of the council should in succession serve as the judge advocate.

After Fraser , a merchant was appointed as judge advocate later he resigned and no one was ready to become the judge advocate, so company made the court registrar , judge advocate He left for England in 1704 and it was decided that office should remain vacant . After 1704 admiralty court ceased to sit on regular basis.

Interesting case –

In 1694 company brought a case suit against Elihu Yale the ex- governor of Madras who extorted 50000 Rupees from merchants.
Beginning of Corruption by Executive.
So it is our tradition and religion to do corruption in India from olden times.

1688 - MADRAS MAYORS COURT –

At that time in England there they got London Corporation and they got London mayors court, as per the British Law that time Municipal corporations enjoyed the judicial powers also. Company issued the charter and started Madras Corporation utilizing the powers given by British Crown. In the year 1687 company established Madras Corporation and Mayors Court was the part of this corporation.

In the year 1686 Madras government levied a house tax on the Madras city population to repair the city wall, but people of Madras, local people did not pay the tax and company faced problems and difficulties to collect the tax. After this company decided that to make the tax collection easy, a body should be formed consisting of English men as well as local Indian population so it will become easy for the Company officials to collect the tax. The corporation came into existence on September, 29, 1968 which consisted of a Mayor, 12 Aldermen and from 60 to 120 Burgesses. It was decided that every year new Mayor will be elected from Aldermen by aldermen and burgesses and retiring Mayor can be reelected by them. The aldermen and Burgesses got the power to remove the Mayor if he is unable to perform his duties. Only Englishman can become the Mayor. The Aldermen hold the office as long as they stayed in Madras city. Indirectly they hold the office for lifelong.
Mayor and Burgesses hold the power to remove the Aldermen from office also if he did not perform well. Among the Aldermen minimum 3 were required to be British servants of the company and other 9 can belong to any nationality or religion.

The first 12 Aldermen were as follows –

Englishmen – 3
Hindus – 3
Frenchman – 1
Portuguese – 2
Jews and Armenians – 3

The charter appointed 29 Burgesses and then remaining Burgesses were appointed by the Mayor and Aldermen. Among the first 60 Burgesses, the caste heads were selected as the Burgesses. This was the nature of First Corporation.
The Mayor and the 3 senior Aldermen were to be the Justices of the peace. The Mayor and Aldermen were to form a Court of record which was authorized to try civil as well as criminal cases.

This court was known as Mayors Court.

The Mayors court was authorized to give following punishments. Fine, amercement, imprisonment and corporal punishment. The convicted persons got right to file appeal at the Admiralty court. As Mayor and Aldermen did not have legal knowledge the provision was made for the appointment of the Recorder of the court. He helped the Mayor regarding the cases and he also got the power to vote just like Aldermen. The recorder of the court was required to be skillful in the law as well as the servant of the company.

The charter appointed the Judge Advocate Sir Biggs as the first Recorder.

Only in the year 1712 the court got power to give death sentence to native people. The Mayor Court did not follow uniform punishment for the same crime it depend on the judges discretion for this the reason was that the Mayor and his team did not have any legal knowledge. Sir Biggs got the experience of working as a recorder in the London but here in Madras the problem was that Sir Biggs sat in the Admiralty Court as Judge Advocate where appeals from the Mayors Court were went. But company ignored this fact. After the death of Sir Biggs no Recorder was appointed. Like this in the period of 1686 to 1726 in Madras city 3 Courts functioned.
Mayors Court, Choultry Court and Admiralty Court. After 1704, Governor and Council heard the appeals from the Mayors court as Admiralty court stop to function. In this period also the criminals were so long kept in jails that even people forgot the crimes.

Justice system was very slow and no one bothered.
The capital punishment was given by Hanging.
Robbery was punished with Death.
Witchcraft was punished with fine and pillory.

Meaning of the words –

Alderman –

1. A member of the municipal legislative body in a town or city in many jurisdictions.
2. A member of the higher branch of the municipal or borough council in England

and Ireland before 1974.
3. one of the senior members of a local council, elected by other councilors

Burgesses –

A magistrate of a borough; generally, the chief officer of the corporation, who performs, within the borough, the same kind of duties which a mayor does in a city. In England, the word is sometimes applied to all the inhabitants of a borough, who are called burgesses sometimes it signifies the representatives of a borough in parliament.

ADMINISTRATION OF BOMBAY – LEGAL SYSTEM OF BOMBAY 1668 – 1726

1. In the year 1534 Portugal first time got the Island of Bombay by cession from

the King of Gujarat, Sultan Bahadur. Bombay was controlled by them for more

than a century.
2. When King Charles II of England began his reign, the Emperor Aurungzebe

was at the height of his power in India.
3. in Surat Company occupied merely the position of one of the big trading

houses of the city which was controlled by Aurungzebe.
4. In the year 1661 Portuguese King Alfonsus VI transferred the Island of

Bombay to Charles II as a gift on the marriage of his sister Princess Catherine

with the British King. That time Bombay was a poor place and population of

Bombay was just 10 000, Bombay was a just small fishing, neglected Island

town.
5. Later Charles II transferred Island of Bombay to the East India Company in

year 1668 for annual rent of Ten pounds.
6. Charles II gave charter to the company to administer the Island of Bombay

with full powers and jurisdiction.
7. The company was authorized to make the laws on the basis of Laws of

England.
8. Thus with the charter of 1668 , the status of East India company started to

change with this charter the trading company started its journey towards

becoming a territorial sovereign .
9. Thus Bombay came under the Surat Presidency; The Governor of Surat

factory was the ex-officio Governor of Bombay.
10. Gerald Aungier the Governor of Surat factory led the plans of judicial system

in Bombay, he was the founder of Bombay. With his effort in the year 1670 in

Bombay first judicial system was established.
11. Bombay was divided into two divisions. First Division – comprised Bombay,

Mazagaon and Girgaon and 2nd division Mahim, Parel , Sion and Worli and in

each division a court consisting of five judges was started with English person

as the head of each Court and Indians were also appointed as the judges .
12.       Ten Thousand Population - 10 Judges
13.       1 Thousand Population – One Judge
14.       Today what is situation in India ?
15.       This courts quarterly submitted copies to the Deputy Governors office which

were to constitute a superior court.
16. From 1670 – 1672 legal system was very elementary. No one was lawyer .
17. In the year 1672 legal system was reformed and George Wilcox became

judge. The court was to have jurisdiction in all cases ,civil ,criminal .
18.       The court sit once a week and tried all civil cases with the help of Jury.
19.       Provisions were made for the speedy trials and quick decisions by the court .
20.       A fee of 5 percent was charged on each case which court tried.
21.       For administration of criminal justice .Bombay was divided into 4 divisions

,section
• Bombay
• Mahim
• Mazagaon
• Sion

22. In each section ,An English person was appointed as a justice of peace . He

held preliminary examination of the witnesses against an accused and made

a record which he sent to the Court which sat once a month to try criminal

cases with the help of Jury.
23. The judge was given salary of 2000 Rupees a year . But company did not pay

salary to the judge Wilcox and further company started to reduce the salary of

judges, so judges will never go against the company top officials. Executives.
24.       Reduced Salary – Reduces status
25.       This time civil case was decided in 10 to 12 days
26.       Justice was very cheap .
27.       Debtors were kept in jail until they paid their debt.
28.       The law was so strict that even dead body of debtor was kept in jail until

relatives paid the debt, this is the reported case of company employee.
29.       Jury would be consisted of 12 Englishmen
30.       In one criminal case a person accused of witchcraft was sentenced to death
31.       In the year 1683 the company judicial system came to an end because of

Keigwins rebellion on the Bombay Island and in the year 1684 the Keigwins

rebels surrendered the Island to the company .
32. Today it is not important for Indians to know the details of this rebels and their

story.

In the year 1684 the East India company sent Dr. John from England to Bombay.
Dr.John was expert in civil law.
Under the charter of 1683, company established Admiralty Court in Bombay which took cognizance of all civil as well as criminal matters.
That time Dr.St. John took the evidence against the Governor child and this made Governor child upset and Governor did not believe the theory of equality before the law .He felt offended and did not like the judicial independence so in the year 1685, he reduced the powers of this court and limited it to try only maritime and admiralty matters.
And a new court was established in Bombay called as King’s Bench of the common pleas. And person named as Vaux became judge who was not aware about law.
With this new court, both courts started to fight with each other regarding the jurisdiction of the court cases.
As Dr.St.John was very liberal person and believed in equality before law, the executives who thought judiciary is under them did not like Dr. John, so in the year 1687 Executives Governor, dismissed the Dr.John from his job of judge.
This time the persons who were obedient to the Executive and the governor were appointed as judge, and executives did not like persons like Dr. John who thought of equality before the law.
In the 1688, Vaux became Judge advocate by breaking the charter of 1683 which said that Judge advocate should be learned in civil law and Vaux never learned any kind of law, but he knew how to keep executives happy.
In the year 1690 Bombay was attacked by the Moghul Admiral Siddi.
After this attack the judicial system of Bombay came to an end. for the period of 1690 to 1718.
After the gap of 30 years in the year 1718,March 25 again company started the court in Bombay which consisted of chief justice and 9 judges , 5 were British and 4 Indian judges.
The court handled all cases, followed laws of England and tried to pay attention to the caste and customs of each religion also.
The court work as registration house also for the sale of immoveable property and charged fees also,
The court sat once a week and decided all cases.
British Judges enjoyed more powers and respect than the Indian judges.
The courts work with speed, gave justice quickly and it was very cheap for everyone to go to court.
Courts followed customs of Hindus as well as Muslims when tried cases as well as considered international law and British law.
It was common practice to give lashes as punishment to criminals.
Robbers were whipped and branded with red hot iron.
Everyone feared to do crime, justice was deterrent.
That time one interesting case is that the officials falsely charged innocent person and robed his property by proving him guilty in court by producing fake papers and witnesses who were tortured. The case is known as Rama Kamati case.

ADMINISTRATION OF JUSTICE AT CALCUTTA - 1660 TO 1726 AND CHARTER OF 1726

1. In the year 1668, the grandson of Aurangzed, Azimush-shan, and the

Subahdar of Bengal gave Zamindari of villages, Calcutta, Sutanati and

Govindpur for annual revenue of 1195 Rupees to the East India

Company

2. In the December 1699, Calcutta became Presidency Town and

Governor was appointed to administer the settlement.

3. As a zamindar company got all the powers just like other zamindars of

that time. Bengal zamindars.

4. In Moghul Empire, zamindars got judicial powers, but collected the

revenue and maintained law and order in the zamindari area or

villages.

5. For judicial purpose that time Kazis court were established in each

district, parganah and villages. They handled civil and criminal matters.

6. Normally village Panchayat solved all problems, In Hindus , elders or

Brahmins solved the problems

7. The judicial system was simple, as everyone knew each other and

transactions of each other.
8. Moghul Kings never paid any attention to judicial system that time

nothing was organized.

9. The post of Kazi was sold many times , the highest bidder became the

Kazi

10. Justice was purchased , corruption was rampant

11. Kazi never got salary, so kazi court fined the criminal and earned

money, after this demanded money from the complainant for giving him

justice.

12. The other Zamindars when gave death sentence , the appeal went to

the Nawab but company never did this , the appeal from zamindar ,

collectors court went to the Governor and council

13. In Calcutta that time Collector enjoyed all the powers upto the year

1727

14. With the charter of 1726 the new system was started in Calcutta

Presidency.

15. Before this charter the authority was given by company and zamindar,

but the charter of 1726 was a royal charter.

16. The importance of this charter is that this charter introduced Uniformity

of justice system in all 3-presidency towns.

17. The charter established civil and criminal courts in each presidency

towns.

18. The 2nd important point is that before 1726 the courts got authority

from the company but after this charter the courts got their authority

from the royal British king , The courts enjoyed same status just like the

courts which were present that time in England.

19. With the charter of 1726, the appeals from courts in India went to the

Privy Council in England.

20. This way English law system became accepted to Indians, Indians did

not find it foreign and Indians did not have any other judicial system as

such.

21. With this charter in each presidency town local legislature was

established.

22. Charter of 1726 is also known as judicial charter as this is the

beginning of development of Indian law system and judiciary.

23. Names of Presidency Towns - Madras, Bombay and Calcutta

24. All the courts established before the year 1726 got the power from

company but after this charter courts got their permit, authority from the

British King.

Following are the few provisions of charter of 1726

1. In each presidency Town establishment of corporation consisting of

Mayor and nine Aldermen.
2.         Every year new mayor was chosen from the Aldermen
3.         An aldermen hold office for life
4.         Establishment of Mayors Court
5.         The mayor and two council members gave justice and appeal went to

the Governor within 14 days. Further appeal could be made to the king

in council if matter involved more than 1000 pagodas This way first

time Indians got right to file appeal in the king in council.
6. A sheriff was appointed for each ten miles of area by the Governor and

council annually, in simple terms he was the police officer.
7. When complained was given to the court, the court issued the

summons in writing to the Sheriff and he brought the accused in the

court, he handed the summons to the concern party.
8. If party accused did not come on that day, the warrant was issued and

Sheriff brought them before the courts, bail was granted sometimes.
9. For criminal jurisdiction , justice of peace was established same like

England
10. Criminal jurisdiction system followed all the British criminal system and

procedures.
11. Charter of 1726 empowered the governor and his council to make by

laws, rules and ordinances for the regulation of corporation.
12.       In Madras charter became effective from the 17th August 1727
13.       In Bombay 10th February 1728
14.       In Calcutta December 1727 the implementation of charter started.
15.       The company directed the courts to maintain records and send them to

England to know how they are working.
16. With these establishments common Indians also start to file the more

and more cases in the courts.
17. Mayors Court, Governor, and Council always got disputes regarding

jurisdiction in presidency towns. This fights resulted into the weakening

of Judiciary in the future and executive became powerful.
18. Company adopted policy not to get involved in the Indian customs and

disputes but if the matter went to the Mayors Court they adopted

English procedures.

INDIAN LEGAL HISTORY - CHARTER OF 1753

1. In the year 1746, The French got the control of Madras Presidency.
2. Because of this Madras Corporation which was created after the

charter of 1726 was ceased to function.
3. In the year 1749 Again British got the control of Madras.
4. To establish again Madras corporation King George II again issued a

new charter on the 8th January ,1753
5. The company officials utilized this chance and tried to remove all the

disadvantages of the charter of 1726.
6. The new charter of 1753 was made applicable to all the 3 Presidency

Towns.
7. New charter changed the method of appointment of Mayor and

Aldermen.
8. Governor and Council got the power to appoint the Aldermen.
9. Regarding selection of the Mayor, the corporation selected the names

of 2 people and Governor and Council selected one of them as the

Mayor every year.
10. This way Mayor became the puppet of the Governor and Council.
11. This way Mayor as well as Aldermen became the nominee of

Government.
12. And Government got the full control of Corporation
13. This way Government got the power to appoint the judge of the Mayors

Court and remove him also if he disobeyed the Government or

Governor.
14. Mayor’s court lost all the autonomy and independence, and became

secondary in nature.
15. The court was allowed to hear the Indian cases only if both native

Indian parties agreed and submitted the case to the Mayors court.
16. Mayors court got the right to take action against the Mayor
17. No person was allowed to sit as a Judge if he was interested in the

matter in anyway.
18. Mayors court got the power to hear the cases against the Government

and Government Defended them
19. Now suitors deposited money with the Government not to the Mayors

Court.
20. The new charter also created the new court called as Court of Request

at each presidency town to decide, cheaply and quickly cases up to 5

pagodas. 1 Pagoda equals to 3 Rupees.
21. This court was established to help poor Indian litigants who cannot

afford the expenses of the court.
22. The court weekly sat once , and was manned by commissioners

between 8 to 24 in number
23. The government appointed the commissioners and every year half of

the commissioners got retired and those places were filled by the ballot

method by remaining commissioners.
24. 3 Commissioners sat in each court on rotation
25. For small claims, cognizable by Requests court if people, plaintiff went

to the Mayors court, the rule was that Defendant was awarded costs,

this way it saved time and money also.
26.       Requests court got the power to hear the Indian matters also.
27.       Now there were 3 courts namely
28.       a] court of Request
29.       b] Mayors Court - Civil court Jurisdiction
30.       c] Court of Governor and Council – the court where appeal from the

Mayors court went
31. Criminal Cases - Justice of the Peace and court of quarter sessions

consisting of Governor and Council
32. Regarding civil cases Privy Council in the England was the final

authority
33. This charter introduced many changes but this charter took away the

Independence of Mayors Court , which was given to this court by the

charter of 1726
34. The East India Company with this charter also always followed the

policy not to break the customs of Hindus and Muslims.
35. When both Indian parties agreed that time only Mayors court handled

those cases.
36. As executive enjoyed more powers they appointed company servants

as the judges.
37. The executives handled the cases in such a way it does not harm them

or did not harm the company servants or friends.
38. In 1772 House of Commons appointed a committee of secrecy to

check the affairs of the east India Company. The committee in its 7th

report gave adverse report regarding Calcutta Judicial system.
39. The reported stated that Mayors court behaved as they wish in all the

cases without following English law.
40. As a result of criticism , Supreme Court was Established at the Calcutta

in the year 1774
41. The supreme court of Calcutta was Independent court and does not

work under company executive and consisted of professional lawyers

who knew English law in depth.

EAST INDIA COMPANY BECOMES DIWAN OF BENGAL

1. In the beginning we have seen that East India Company started judicial

system in the three presidency towns namely Calcutta, madras, and Bombay.

2. As company started its expansion in India, company started to take control of

surrounding areas of Presidency Towns and this surrounding area was called

as the Mofussil area.

3. East India Company started administrative system in the Mofussil areas and

that administrative system was called as Adalat system.

4. Adalat system was introduced by the company to administer justice in the

mofussil areas.

5. In the beginning company started adalat system in the year 1772 in Bengal,

Bihar, and Orissa. later it was introduced in the mofussil of Bombay and

Madras when company saw the good results in the Bengal .First the

experiment was made in the Bengal and when successful it was introduced

into the Bombay and Madras Mofussils

6. That time when Nawab Siraj –ud-daula saw the rising power of East India

company in the Bengal , he attacked the Calcutta and captured the Calcutta in

the year 1756

7. After this east India company under the leadership of Clive attacked the

Calcutta and recaptured Calcutta in the year 1757

8. Same year Battle of Plassey was fought and Nawab was defeated.

9. After this real power in Bengal went to the company but company made the

Mir Jafar the Nawab and gave him civil government.

10. When Calcutta council was dissatisfied with the performance of Mir Jafar as

Nawab they replaced him , and Mir Kasim became the Nawab in the year

1760

11. In the year 1763, again Mir Jafar was made the Nawab.

12. In the year 1765 the minor son of Mir Jafar, Najam-ud-daula became the

Nawab.

13. This way slowly east India Company increased its power in the Bengal.

14. Nawab of Bengal was just a puppet in the hands of East India Company.

When company wanted, company changed the Nawab.

15. As company was supreme, why it did not declare itself was the ruler of

Bengal?

16. There were few reasons. The first and most important reason was that that

time British Constitutional law if No British Person can claim the sovereignty

over any territory for himself, it must vest in crown and this way crown and

parliament got the authority to legislate that area. The second reason that

East India Company was afraid of French as well as Portuguese as they

would create international problems for company as well as problems in the

Bengal for company. Therefore, company took the easy way out, used Nawab

as the Puppet, and controlled Bengal through him.

17. In the year 1765 Moghul Emperor Shah Alam granted to the company the

diwani of Bengal , Bihar and Orissa

18. The company agreed to pay annually 26 lakh rupees to the Moghul Emperor

and got right to keep the all-surplus amount of collected revenue.

19. The grant of the Diwani gave to the company a de jure status of an official of

the Moghul Emperor.

20. The company was real controller but still company adopted this policy of not

becoming direct ruler.

21. During the time of Moghul administration, Moghul Emperor appointed two

persons in the province that is Subah; one was called as Nawab and second

was Diwani.

22. Nawab or Nizam controlled the criminal justice system as well as military and

maintained the law and order in the Province

23. Diwan or Diwani gave right to collect the revenue, and decide civil and

revenue cases. Diwan send the collected revenue to the central authority or

treasury

24. This way the power of divided between Nawab and Diwan and both acted

and controlled each other

25. Nawab got the military but no money

26. Diwan got the money but no military so this way Moghul Emperor kept his

control on both as none of them can become powerful than the Moghul

Emperor.

27. Regarding Bengal, we can see that Nawab of Bengal was the Puppet of East

India Company and Now East India Company became the Diwan of the

Bengal.

28. Now again company made the agreement with the Nawab that he will not

maintain the army and company will pay him an annual allowance of 53 lakh

rupees for his expenditure and criminal judicature.

29. After this agreement, company became Supreme Authority regarding Bengal.

30. The nawab of Bengal also agreed that a Deputy Nawab will be appointed by

the Calcutta government and Nawab will work as per his advice and Nawab

cannot remove him from his post.

31. Thus East India Company got the responsibility of maintaining military,

collecting revenue and civil justice, criminal justice was seen by deputy

Nawab, and expenses regarding criminal justice were made through the

allowance of Nawab.

32. After getting, the Diwani in the beginning company did not make any changes

in the procedure of collecting revenue or civil justice as company was not

aware how it functioned. Moreover, they were less in numbers.

33. The company appointed Mohammed Reza Khan at Murshidabad and Raja

Shitab Roy at Patna to control the working of old system; they both were

supervised by two English officers situated at Murshidabad and Patna.

34. Mohammed Reza khan was appointed as the Naib Nazim and he look after

the administration of criminal justice system on behalf of Nawab.

35. As both these, two were reported to the East India Company they knew who

the real master was so they never went against the Company servants.

36. Using them company officials made lot of money in a short period.

37. The east India company servants did the private business also and made

more money.

38. In the year 1765, Clive became the Governor of Bengal and he himself

described the situation of Bengal as follows. ‘I shall only say that such a

scene of anarchy, confusion, bribery and corruption and extortion was never

seen or heard of in any country but Bengal.

39. In this way Bengal was ruin by Bengal officials as well as East India company

officials, everyone became the criminal and robbed the Bengal.

40. To improve these matters in the year 1769 Governor Verelst appointed

company servants as supervisors in the districts. The supervisors were to

collect information regarding condition of the soil, collection of land Revenue

and administration of justice .They were to check the corruption and supervise

the justice system. The supervision extended to practically on all the functions

of Diwani.

41. The governor and council described the justice system as , corrupt bargain

with the highest bidder

42. The proper procedure of maintaining records was started.

43. Kazis and Brahmins who administered the justice were given Sanads, which

were duly registered so that non-authorized persons cannot give the justice.

44. However, the scheme of Supervisors failed as they were in less numbers and

has to look after more work.

45. Majority times they also became corrupt.

46. In the year 1771 Bengal face the acute Famine and in that one fifth of the

population was swept away. That time company saw reduction in the revenue

collection. In addition, company officers blamed that Indian officers are doing

more corruption. Therefore, Company as a diwan decided to take full charge

of collection of revenue. The company officers just wanted to increase their

corruption share so they brought this idea.

47. After this, Governor and Council at Calcutta were to become responsible for

providing solutions for administrative problems.

48. This is the beginning of new judicial system in the Mofussil

49. That time judicial officers kazis were appointed not on the merit but matter of

official favor.

50. Zamindars were also corrupt and ruled the villages as they wished.

51. Judicial officers did not get the salary so they use this power and did the

corruption to make money.

52. There was no procedure established that time. Corruption was everywhere

and honesty was sold everywhere.

53. To reform this entire situation Warren Hastings was called to formulate a

scheme for the execution of functions of Diwani.

54. Warren Hastings Introduced new judicial administration system as well as

revenue collection system in the year 1772

55. It laid the Foundation of Adalat system.

JUDICIAL PLAN OF WARREN HASTINGS 1772 AND 1774

1. Warren Hastings Administrative plan divided territory of Bengal, Bihar and

Orissa into number of Districts.

2. In each District an English servant of the company was appointed as collector

who was to be responsible for the collection of land revenue.

3. Establishment of Mofussil Diwani Adalat

4. As per Warren Hastings plan a Mofussil Diwani Adalat was established in

every district with collector as the Judge. The court was authorized to decide

all civil cases like disputes regarding properties, inheritance, marriage, caste,

debts, disputed accounts, contracts, partnerships and demands of rent.

5. Where ever possible religious laws of Muslim as well as Hindus were followed

and applied .E.g. Caste, marriage, inheritance etc.

6. As English servant who was appointed as Collector did not understand the

religious laws , Kazis and Pundits were appointed to help him

7.         The decisions of the Mofussil Diwani Adalat in cases up to Rs.500 were final.

8.         Establishment of Small Cause Adalat –

9.         As name says, this Adalat decided petty cases up to Rs. 10 .The Head farmer

of the Pergunnah became the judge. This system was designed to save the

traveling expenses of poor farmers, as they did not need to travel to the

district place for justice.

10. Establishment of Mofussil Fozdari Adalat –

11. In every district a mofussil nizamat or fozdari adalat was established to try all

criminal cases.

12.       The adalat consisted of the Muslim kazi, mufti and moulvies.

13.       The moulvies interpreted the Muslim law of crimes.

14.       The Kazi and Mufti gave fatwa and render judgment.

15.       In this adalat collector exercise general supervision over the Adalat, and saw

that no corruption was made in the case. The judgment was given impartially.

16. This Fozdari adalat was not allowed to handle cases where punishment was

death sentence or forfeiture of property of the accused. Such cases went to

Sadar Nizamat Adalat for final orders.

17. Establishment of Sadar Adalats –

18. Firstly two courts were established namely Mofussil Diwani Adalat and

Mofussil Fozdari Adalat over them 2 superior courts were established namely

Sadar Diwani Adalat and Sadar Nizamat Adalat.

19. The sadar diwani adalat was consisted of Governor and members of the

council and was to hear appeals from the mofussil diwani adalat in the cases

over 500 Rs.

20.       The first sitting of the Sadar Diwani adalat was held on the 17th March, 1773.

21.       On each appeal fee of 5 percent was charged.

22.       The appeals were to be filed in the Adalat within 2 months from the date of the

judgment, decree given by the Mofussil Adalat.

23. Establishment of Sadar Nizamat Adalat –

24. Sadar Nizamat Adalat consisted of an Indian judge known as Daroga-i-adalat

who was to be assisted by the chief Kazi, chief mufti and 3 moulvies. Nawab

appointed all these persons as per the advice of Governor.

25. In case of death sentence, punishment death warrant was made by the Adalat

and signed by the Nawab as the Head of Nizamat.
26. The governor and council supervised this adalat to control and reduce the

corruption.

27.       All cases were heard in the open court.

28.       All courts were ordered to maintain registers and records.

29.       Any case older than 12 years was not accepted.

30.       District courts forwarded their records to the Sadar adalat

31.       In civil cases when Plaintiff filed a case, defendant accused person was given

only limited time to give answer and then examine the witness and give the

decree, pass the final orders.

32.       The plan tried to reduce the expenses of people.

33.       With this plan law officers like kazis, muftis were given salaries.

34.       Before this plan Judge charged the commission but this new plan abolished

this law and introduced the Court fee system where fees went to Government.

35. After this plan and establishment of Courts for common Indians it became

easy to approach the Judiciary.

36. Warren Hastings was very intelligent person; he purposefully did not take the

full charge of Criminal justice system and kept the puppet Nizam alive.

37. He did not change the forms and when possible tried to show case that

company respected the Nizam. Like Nizam got the power to sign the death

sentence.

38. The other clever intelligent system Warren Hastings kept alive was that

following Hindu laws for Hindus and Muslim laws for the Muslims.

39. In this plan collector got the many powers, collector was the administrator, tax

collector, civil judge and supervisor over the criminal courts.

40. With this collectors got the unlimited powers and Warren Hastings knew this

that collectors will become corrupt and he already told the company directors

about this defect of this plan. The directors of the company understood the

fear and reality of this plan.

41. In the year 1773, Company directed the Calcutta council to withdraw the

collectors as they became very corrupt.

42. After this Calcutta Government introduced new plan for the collection of

revenue and administration of Justice on November 23, 1773 and put it into

force in the year 1774.

43.       Plan of 1774 –

44.       With this plan collectors were recalled from every district.
45.       In place of Collector an Indian officer was appointed called as Diwan or amil.

46.       Diwan got the power to collect the revenue as well as act as a judge in the

Mofussil diwani adalat.

47. The territory of Bengal , Bihar and Orissa was divided into six divisions with

their head quarters at Calcutta, Burdwan, Murshidabad , Dinajpore, Dacca

and Patna

48.       In each division many districts were created.

49.       The complete Bihar came under the Patna Division

50.       A provincial Council consisting of four or five English servants of the company

were appointed in each division to supervise the collection of revenue and to

hear appeals from the cases decided by the amil , the Indian diwan.

51. The appeals from this Provincial council were allowed if the case amount was

more than Rs. 1000. The appeal went to Sadar Diwani Adalat.

52. This time also Warren Hastings new that the Provisional council will do the

more harm and more corruption than the Collectors. Warren Hastings thought

this plan as a temporary plan but Regulating act was passed in this time and

Warren Hasting could not change the plan until year 1780