HISTORY OF COURTS PART I NOTES (CHAPTER NO. 1)

            In 1583 A.D three (3) English merchants Ralph Fitch, James Newsberry and William Heeds visited India. Britishers got information about the wealth of India from the writings of Ralph Fitch who travelled throughout India. The information about the wealth of the country inspired the Britishers to have trade relation with India.

            On 24^th September 1599, some merchants of London held a meeting under the chairmanships of the city mayor. The object of the meeting was to constitute themselves into a company for starting trade relations with the east Indies. They formed a company under the name and style “The Governor and Company of merchants of London trading into the East Indies”. The said company is known as East India Company. The Company applied to the crown for permission to trade with East Indies. On 31^st December 1600 Queen Elizabeth issued a Charter and there by incorporated East India Company.

INTRODUCTION –

            History comprises of the growth evolution and development of the legal system in the country and sets forth the historical process where by a legal system has come to be what it is overtime. The legal system of a country at given time is not creation of one man or of one day but is the cumulative fruit of the endeavor experience thoughtful planning and patient labor of a large number of people through generation.

            With the coming of the British to India the legal system of India changed from what it was in the Mughal period where mainly the Islamic law was followed. The legal system currently in India bears a very close resemblance to what the British left with.

            As per the need of the changing times the changes and amendments were made but the procedure which is followed not has its root in the era of British India. Little did the traders of the English East India Company (EIC) while establishing their trade in India knows that they would end up establishing their rate for about 400 years here. But the evolution of law as it today did not came about in one go altogether. It was the presidency towns individually that were first affected by this change in hands of the governance of India after which the steps towards amalgamation of the judicial system were taken by the Charter 1726 and 1753. To improve upon this under the regulating Act 1773. Supreme Court in the presidency town and then under the Act of 1798 the recorders Court at Madras and Bombay were established. This were ultimately replaced by the establishment of High Court Act 1861 which are still running in the country it was only after Independence in 1950 that the Supreme Court was established reforms and codifications were made in the pre-post-independence era and are still continuing.

THE HISTORY OF THE LEGAL SYSTEM IN BRITISH –

INDIA OPENS WITH THE ESTABLISHMENT OF EAST INDIA COMPANY –

            The company incorporated in England by the crowns Charter of 1600. The company was given executive trading right in Asia including India, Africa and America. All the members of the company constituted themselves as general court it was to elect annually the court of Directors. The Court of Directors consisted of a Governor and 24 Directors.

            The court of directors was to manage the entire business the court of director were to be elected by the general court for 1 year but any of them might be removed from his office even before the expiry of his term of office by the general Court.

OBJECT OF THE COMPANY –

            Actually the company appears that to promote British trade and commerce in Asia. The company was conferred on only those powers which were necessary to regulate its business and maintain discipline amongst its servants and they were not at all adequate for governance of any territory.

            But the company came to India and they were found the Indian Kings disunited and unaware of the Modern Politics. They realized they can dominate the territory in India the company gradually and gradually inclined to acquire territories in India. The company thereby could market for its goods. At the time of the incorporation the object of company was commercial but gradually and gradually its object became political also.

            In early days the administration of justice in the settlement East India Company was not a high order. There was no separation between the executive and the judiciary the judiciary was under the control of the executive the judges were not a law experts. The company gave lesser importance to the judicial independence fair justice and rule of law. The administration of justice and developments of courts and judicial institution during this period may discussed under the following headings –

·         1600 to 1726 is the first period.

·         1726 to 1773 is the second period.

·         Administration of justice and development of East India Company – presidency town.

ADMINISTRATION OF JUSTICE IN SURAT –

The East India Company established Ist factory in Surat in 1612. British crown sent an ambassador Sir Thomas Roe to the Mughal Emperor to request to grant certain facilities to the English man in India. In 1615 the Mughal Emperor on the pleading of Sir Thomas Roe issued a Firman, the Mughal Emperor allowed the Englishman to live according to their own religion and laws and to settle dispute among themselves by their president, however the disputes between on Englishman and an Indian were to be decided by the native Judges.

ADMINISTRATION OF JUSTICE INMADRAS BEFORE 1726-

            In 1639 Francis Day acquire a piece of land from a Hindu Raja for the East India Company and constructed a fortified factory were Englishman and other Europeans and therefore the area of the factory came to be known as while town and the people residing in the village Madras, Patnam were mostly Indians and therefore it came to be known as Black Town. The Whole Settlement Consisting of white town and black town came to be known as Madras. In judicial administration in Madras divided in 3 stages. First, Second and Third.

FIRST STAGE –

            White town before 1665 Madras was not presidency town and it was subordinate to Surat. The administrative head was called ‘Agent’ and he was to administer the settlement with the help of Council. The serious criminal cases referred by them to the Company’s authorities in England for advice. But there was defects the judicial power of the agents and council was vague and indefinite and much delay also, they did not have any elementary knowledge about law. They were Merchant. There was no separation between executive and judiciary.

            The president of the Surat factory and members of His Council constituted a court to decide dispute between the Englishman interest in accordance with their own laws and customs. They were to decide both civil and criminal cases.

            Capital offences dealt by a jury there was no separation between executive and judiciary. The president and the members of his council who were to decide cases and administer justice were merchant. They did not have even elementary knowledge of English law.

            The cases were decided by them according to their wisdom, commonsense. And the native judges were corrupt bribery was rampant. They had no request for law and justice.

Surat was the chief trading center till 1687. But there after it lost its importance because in 1687 the headquarters of the president and council were transferred from Surat to Bombay.

BLACK TOWN –

            The old judicial system was allowed to function there was a village head man known as Adigar or Adhikari who was responsible for the maintenance of Law and Order. Adigar administered justice to the native at the Choulby Court. According to the long established usages, Choulby Court was court of a petty cases. The Company had no power to inflict death sentences under the Charter of 160 and the agent in Council could inflict such a sentence only under the authority of local sovereign. The appeals front the Choulby Court were to be heard by the agent in Council. An Indian native named Kannappa was appointed Adigar but he misused his power and consequently he was dismissed from the office and the English servants of the office and the English servants of the company were appointed to suit at the Choulby court.

CHARTER OF 1661 –

            It was granted by the British Crown it conferred board powers on the East India Company. The charter authorized the Governor and Council of Englishman inhabiting the settlement of the company. The Governor and Council of each factory to hear and decide all type of civil and criminal cases. Including the cases of capital offences also and it could award any kind of punishment. Including death sentences.

            Under the Charter of 1661, the cases of Indians inhabiting in the settlement of the company were to be decide according to English law. The powers conferred on the company could only be exercised by the Governor the chief factor and Council were empowered to send offenders for punishment either to a place where there was a Governor and Council or to England.

SECOND STAGE – (1665 – 1683) –

In 1665 one Mrs Ascentra Dawes was charged with the commission of Murder her slave girl and the Agent- in – Council referred the case to the Company’s authority in England for advice. After raising the status of agent and Council of the factory at Madras to try Mrs. Dawes with the help of Jury and an unexpected verdict of not guilty was given and consequently Mrs. Dawes was acquitted. Later on 1678 the whole judicial administration was re-organized. The judicial administration in both the towns was improved.

WHITE TOWN –

            The court of Governor and Council was declared to be the High Court of Judicature. It was to hear all case of the inhabitance of both towns with the help of jury and also hear the appeals from the Choulby Court. It was decide cases according to English Law. The Court was to meet twice a week.

BLACK TOWN –

            The Choulby Court was also re-organized. The number of the judges was increased from 2 to 3. All the judges were Englishmen. At least 2 of them were to sit in the Court for 2 days in each week. The Choulby Court was empowered to hear petty criminal cases. It was also empowered to hear petty civil cases up to 50 pagoda and the cases of higher value with the consent of the parties.

THIRD STAGE (1683 – 1726) –

            Admiralty Court on August 9 1683 Charles II granted Charter to the Company to establish the courts which was to consist of person learned in the civil law and two mercantile, maritime trespass, injury and wrongs etc. again April 12 1686 Charles II issued a new charter with same provisions. Chief Judge of the Admiralty Court was known as the Judge Advocate. The admiralty court having the jurisdiction to hear and decide all mercantile and maritime cases.

            In 1687 company sent from any land Sir John Biggs a professional lawyers learned in Civil Law to act as the Judge Advocate of Admiralty Court bestowed justice in all cases civil, criminal as well as maritime. Sir Biggs died in 1689 and Governor again took the charge of judicial function. In 1692 the company sent John Dolben as new Judge advocate and in 1694 he was dismissed on the charge of taking bribes.

            In 1696 company directed that members of the Council should in succession serve as the judge Advocate after Willian 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 the Judge Advocate.

MADRAS MAYORS COURT (1688) –

            At the time in England there they got London corporation and they got London mayors court as per the British Law. That time municipal corporation enjoyed the Judicial power also company issued the charter and started Madras corporation utilizing the power given by British Crown.

            In the year 1687 Company established Madras Corporation and Mayor’s 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 tax and Company faced problems and difficulties to collect 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 Indians population so it will become easy for the company officials to collect the tax.

            The corporation came in to existence on September 29 1968 which consists of a Mayor, 12 Alderman and 60 to 120 Burgesses. It was decided that every year new Mayor will be elected from Alderman by Alderman and Burgesses and retiring Mayor can be re-elected by them.

            The Alderman and Burgesses got the power to remove the Mayor if he is unable to perform his duties, only Englishman becomes the Mayor. The Alderman hold the office as long as they stayed in Madras City indirectly they hold the office for life long. Mayor, Burgesses holds the power to remove the Alderman from office also if he did not perform well.

            Among the Alderman minimum three were required to be British Servants of the Company and other nine can belong to any nationality or religion.

The First Alderman were as Follows –

a)    Englishman – 3

b)   Hindu – 3

c)    Frenchman – 1

d)   Portuguese- 2

e)    Jews and Americans – 3

The charter appointed 29 Burgesses and then remaining Burgesses were appointed by the Mayor and Alderman. Among 1st 60 Burgesses the caste head were selected as the Burgesses.

This was the nature of 1st corporation the Mayor and three Senior Alderman were to be the justice of the peace. The Mayor and Alderman were to form a court of record which was authorized to try civil as well as criminal case. This court was known as Mayors court.

The Mayor’s Court was authorized to give following punishments –

Fine, imprisonment and corporeal punishment. The convinced person gets right to file appeal to the Admiralty Court.

As Mayor and Alderman 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 Alderman. 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 1st 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 depends on the Judge 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 were went. But company ignored this fact after the death of Biggs. No recorder was appointed. Like this in the period 1686 to 1726 in Madras three Courts Functioned.

1)    Mayor’s Court

2)    Choultry Court

3)    Admiralty Court.

After 1704 Governor and Council heard the appeals from the Mayors Court as Admiralty Court to stop function. In this period also the Criminals were so long kept in jails, that even people forget the crimes. Justice system was very slow and no one bothered. The capital punishment was given by hanging. Robbery was punished with death, witch craft was punished with fine.

ADMIRALITY COURT –

            In 1683 King Charles II issued a Charter. It empowered the Company to establish Courts of Admiralty in India. The Court of Admiralty was authorized to try all traders who committed various crimes on the high seas. The court was empowered to hear and determine all cases concerning maritime and mercantile transactions. The court was also authorized to deal with all cases of forfeiture of Ships, Piracy, Trespass, Injuries and Wrongs. It was stated that the court would be guided by the laws and customs of merchants as well as the rules of equity and good conscience in the task of administration of justice.

            The provision of the Charter of 1683 was repeated by James II in a charter issued in 1686. On 10^th 1686 the court of admiralty was established at Madras John Grey was appointed judge of the court and to assist him 2 other English man were appointed as his assistants on 22^nd July 1687. Sir John Biggs who was a Professional Lawyer learned in Civil law was appointed as Judge Advocate in Chief Judge of the Court.  

            Thereafter the Governor and Council relinquished the judicial function and ceased to sit as court. The Jurisdiction of the Admiralty court was not confined to Mercantile and Maritime Cases. It also decided both civil and criminal cases. Further it heard appeals from the Mayor’s Court. Thus it became a General Court of the Settlement. The Admiralty court was functioning regularly till 1704, but thereafter it ceased to sit on regular basis and gradually it disappeared, and its jurisdiction was transferred to the Governor and Council.

THE CHOULBY COURT –

            The old Choulby Court was recognized and allowed to continue by the Governor. The number of Judges was increased to Three – Two Judges were required to preside over the trail of cases. The Court met 2 days in each week. The court was empowered to try civil cases up to 50 Pagodas (Pagoda was a gold Coin, One Pagoda was equivalent to 3 Rupees) and petty criminal cases. The High Court of Judicature was authorized to hear appeals from Choulby Court.

THE HIGH COURT OF JUDICATURE –

            The court of Governor and Council was designated as the High Court of Judicature. The Court met twice a week. The Court decided all Civil and Criminal cases with the help of jury of 12 men.

Meaning of the Words –

1)    Mayors –

            The Name of a court usually established in cities, composed of a Mayor, recorder and alderman. Generally having Jurisdiction of offence committed with in the city.

2)    Alderman –

            A member of the municipal, legislative body in a town or city. In many jurisdiction, a member of the higher branch of the municipal or borough council in England and Ireland before 1974. One of local council elected by the other Councilors.

3)    Burgesses –

A magistrate of a borough generally the chief officer of the corporation who performs with in the borough (administrative division) the same kind of duties which a mayor does in a city. In England the word is sometimes applied to all the inabilities of a borough who are called burgesses. Sometimes it signifies the representatives of a borough in parliament.

ADMINISTRATION OF JUSTICE IN BOMBAY –

PERIOD 1668 – 1726

            Portuguese were the 1st European to acquire the island of Bombay in 1534 from the King of Gujarat in 1661. Portuguese King Alfonsus VI transferred the island to Charles II as Dowry on the marriage of his sister Catherine with the British King. Charles II transferred it to the East India Company in 1668 for an insignificant annual rent of 10 pounds.

JUDICIAL SYSTEM –

            Before 1726, the Judicial system the Island of Bombay grew in Three Stages –

1)    First Stage – (1668 – 1683)

2)    Second Stage – (1683 – 1690)

3)    Third Stage – (1781 – 1726)

CHARTER OF 1668 –

            The political position of Bombay was quite different from that of Madras, the King of Gujarat and from that of Madras, the king of Gujarat and from that time onwards it was under the political control of the Portuguese. In 1668, the charger authorized the company the other comprised of Mahim, Parel, Sion and Worli. A separate court of judicature was established. For each division at Bombay and Mahim. Each court consisted of Five Judges, the custom officers of each division, an Englishman, was empowered to preside over the respective court. Three Judges formal the quorum of the court. As it was not possible for an Englishman to have adequate knowledge of India Laws, some Indians were also appointed Judges to assist him in the court of each division. The courts were authorized to hear, try and determine cases of small thefts and all civil actions up to 200 (it was a Portuguese Coin 20 Xeraphins were equal to nearly Rs.150) in value. An appeal from the court of each division was allowed to the court of Deputy Governor and Council. A part from the appellate Jurisdiction the court of Deputy Governor and Council also had original jurisdiction in important. Felonies which were to be tried with the help of Jury and the laws of the company. Englishman was under the jurisdiction of this court. Further appeal to the president and council at Surat was discouraged except in rare cases to legislate and to exercise judicial authority in the island of Bombay. It was further stated that such laws should be consonant to reason and not repugnant or contrary to the laws of England and they were also required to be as near may be agreeable to the laws of England. The system of courts and procedure was to be similar to that established and used in England. The Charter of 1668 resulted in a transition of the company from a trading association to a territorial sovereign invested with powers of civil and military government.

            The president of Surat, Sir George Oxenden, received the Company’s order in September 1668 to visit the Island of Bombay and establish the executive government under a Deputy Governor and Council. Oxenden visited Bombay in January 1669. He died in July 1669. The next Governor of Surat – Gerald Aungier, made same reforms in the Island of Bombay in 1670

JUDICIAL REFORMS OF 1670 –

            As per the reforms of 167 the Portuguese Laws and Customs were allowed to continue the Island of Bombay was divided into two divisions. One division consisted of Bombay, Mazgaon and Girgaon. The other comprised of Mahim, Parel, Sion and Worli. A separate court of judicature was established for each division at Bombay and Mahim. Each court consisted of Five Judges. The customs officer of each division, an Englishman, was empowered to preside over the respective court. Three judges formed the quorum of the court. Three Judges formed the quorum of the Court. As it was not possible for an Englishman to have adequate knowledge of Indian Laws, some Indians were also appointed Judges to assist him in the Court of each division. The Courts were authorized to hear, try and determines cases of small thefts and all civil actions up to 200  xeraphins (it was a Portuguese coin 20 xeraphins were equal to nearly Rs.150) in value. An appeal from the court of each division was allowed to the court of Deputy Governor and Council. Apart from the appellate jurisdiction the court of Deputy Governor and Council also had original Jurisdiction in important Felonies which were to be tried with the help of jury and the Laws of the Company. Englishman was under the jurisdiction of this Court. Further appeal to the President and Council at Surat was discourages except in rare case.

NEW JUDICIAL PLAN IOF 1672-

            It was realized within the next 2 years that the judicial system of 1670 was defective in various respects. Augier the Governor was himself not satisfied with the working of the Courts. The Judges of the Superior and Inferior Courts had no knowledge even of the elementary principles of law, they were Merchants. The judicial and executive powers were exercised by the same person. As consequences, the abuse of power created various new problems. Order to remove these defects a new plan was prepared in 1672 for the administration of Justice in Bombay.

            According to the new plan the government issued a proclamation on 1^St August 1672 declaring the introduction of English Law into Bombay. The Portuguese Laws and Customs were totally abolished under the new plan. The Judicial Machinery was again organized. A new central court known as the Court of Judicature was established. The Court of Judicature was empowered to exercise its Jurisdiction over all Civil a and Criminal and Testamentary cases. George Wilcox appointed its Judge assisted by other Justice. The Court sat once a week to try civil cases with the help of jury. The court charges a fe of five percent of valuation of the suit from the litigants.

            The judges were prohibited from carrying on private trade or business and instead he was granted a salary of Rs. 2000 per year to meet his expenses. An appeal from the court of Judicature was allowed to the Deputy General and Council. Juries were duty employed and paid. Attorneys were allowed to practice. English procedure including arrest and imprisonment was followed. As far as possible the English substantive law including statue law was made applicable. In framing the new scheme Aungier was primarily concerned with the speedy and impartial administration of Justice.

            Justice of the Peace was appointed to administer criminal justice. For this purpose Bombay was divided into four divisions, namely, Bombay, Mahim, Mazagaon and Sion.in each division a justice of the Peace, an Englishmen was appointed. They acted as committing Magistrate to arrest the accused and to examine the witness. The record was then placed before the Court of Judicature which met once a month to decide criminal cases with the assistance of the Justice of Peace, who acted as assessors in the Court.

            The scheme of 1672 also created a Court of Conscience to decide petty civil cases. Once a week the court dealt summarily with cvil cases under twenty Xeraphins. The decision of the Court was final and no further appeal was allowed. No Court-Fee was charged from poor persons and, as such the Court Become famous as, “Poonam’s Court”. George Wilcox, Judge of the Court of Judicature, also presided over the Court of Conscience which met only once a week to deal with petty civil cases.

            George Wilcos, the first Judge of the Court of Judicature died in 1674. James Adams was chosen to succeed Judge Wilcox but he was not well – versed in law. After a few months in 1675, his assistant Niccolls was appointed judge in his place. In 1677 Niccolls was suspended and later dismissed by the Council in various charges. Gary succeeded Niccolls as Judge and remained in the office up to 1683. During this tenure, the salary and rank of a Judge was reduced and the Council became superior in power and position.

            Keignwin’s rebellion, which began in December 1683, and continued up to November 1684, gave a death – blow to Aungie’s judicial system in the Island of Bombay.

Admiralty Court (1684 to 1690) –

            As stated above, the development of Courts at Bombay was interrupted due to the Keignwin’s rebellion. After the rebellion was suppressed, efforts were made to set-up a regular judicial system at Bombay. The Company found its authority to establish courts under the earlier Charter of 1683 granted by Charles II. The Charter provided for the establishment of Courts at such places as the Company might direct for Maritime causes of all kinds, including all cases of Trespasses, Injuries and Wrongs done or committed upon high seas or in Bombay or its adjacent territory, and each Court was to be held by a learned judge in civil law assisted by two persons chosen by the company. Such Courts were required to decide cases according to the rules of equity and good conscience and the laws and customs of merchants. Accordingly, an Admiralty Court was established at Bombay in 1684. Dr. St. John was also authorized to act as Chief Justice of the Court of Judicature. The Court of Judicature was again created, as the authority of the Admiralty Court was not sufficient to cover all other civil business.

            John Child, Governor of Bombay at Surat, was not in favour of accepting the theory of judicial independence which was adopted by dr. St. John in his judicial decisions. It gave rise to conflicts between the Governor and the Chief Justice. Dr. St. John’s judicial independence was interrupted by the Governor John Child as insubordination towards himself. In 1685 the powers of Dr. St. John to act as Chief Justice of the Court of Judicature were withdrawn by the Governor. Vux, a member of the Bombay Council was appointed as judge to preside over this Court, in place of Dr. St. John. These steps further developed the existing conflict between the Governor and the Chief Justice. Dr. St. John strongly criticized the transferring of his power to Vaux, a new judge, who according to him was ignorant of civil laws. In due course the Governor and Dr. St. John’s dismissal, Sir J. Wyborne, Deputy Governor of Bombay, was appointed as the Judge of the Admiralty Court. In 1688 Vaux succeeded Sir J. Wyborne and remained in the office up to 1690.

            In 1690, Siddi Yakub Admiral Emperor invaded the island of Bombay and the judicial system of Bombay came to an end. From 1690 to 1718, in fact, the machinery to administer justice was almost paralyzed in Bombay. Thus the period from 1690 to 1718 is a dark period in Bombay’s Legal History.  

Court of judicature –

            A new period in the Judicial history of Bombay began with the revival and inaugutration of a court of judicature on 25^th March,1718 by Governor Charls Boone. It was established by the order of the Governor and Council which was later on approved by the Company authorities. The court of Judicature of 1718 consisted of ten Judges in all. It was specially provided that the Chief Justice and Five Judges will be Englishman. The remaining Four were required to be Indian representing Four different communities, namely, Hindus, Mohammedans, Portuguese – Christians and Parsi. All English Judges were also members of the Governor’s Council and enjoyed status superior to Indian Judges. Three English judges formed the quorum of the court. The Court met once a week. Indian Judges, who were also known as “Black Justice” were included mainly to increase the efficiency of the Court and their role was mostly that of assessors or assistants of the English judges. They do not appear to have enjoyed equal status with English judges.

            The Court of 1718 was given wide powers. It exercised jurisdiction over all civil and criminal cases according to law, equity and good conscience. It was also guided by the rules and ordinance issued by the Company from time to time. It was necessary for the Court to give due consideration to the customs and usages of the Indians. Apart from its jurisdiction over probate and administrative matters, it was further authorized to act as a Registration House for the registry of all sales concerning houses, lands and tenements.

            An appeal from the decision of the Court of Judicature  was allowed to the Court of Governor and Council in cases where the amount involved was Rs. 100 or more. A notice to file an appeal was to given within Forty-Eight hours after the judgment was delivers to the Chief Justice of the Court of Judicature. Moderate fees were prescribed by the Court for different purposes. For filing an appeal a fee of Rs. 5 was to be paid.

ADMINISTRATION OF JUSTICE IN CALCUTTA 1690- 1726 –

1.    Mughal Judicial system

2.    Kaziz and Courts

3.    Nawabs Courts

In the year 1668 the grandson of Aurangzeb Azimush Shan, and the Subedar of Bengal gave Zamindari of villages, Calcutta, Sutanati and Govindapur for annual revenue of 1195 rupees to the East India Company. In the December 1699 Calcutta became Presidency town and Governor was appointed to administer he settlement. As a Zamindar company got all powers just like other zamindar of that time. Bengal Zamindar  in Mughal Empire zamindars got judicial power but collected the revenue and maintained law and order in the zamindari area or village for judicial purpose. That time Kaziz Court were established in each District, Parganah and Villages.

            They handled civila dn criminal matters. Normally villages panchayats solved all problems. The Judicial System was simple as everyone knew each other and transaction pf each other Moghul Kings never paid any attention to Judicial System that time nothing was organized. The highest bidder became the Kazi. Justice was purchased, corruption was rampant Kazi never got salary so Kazi court fined the criminal and earned money. After this demand money from the complainant for giving him justice. The other zamindars when gave death sentence the appeal went to the Nawab, but company never did this the appeal from Zamindar’s. Collectors Court went to the Governor and Council.

            In Calcutta that time Collector enjoyed all the powers up to the year 1727. With the Charter of 1726 the new system was started in Calcutta presidency. Before this Charter the authority was given by company and zamindar but the Charter of 1726 was a Royal Charter. The important of this company but after this Charter Court got their permit authority from the British Crown.

CHARTER OF 1726 –

Necessity of judicial reforms –

            The judicial administration in the settlement of the East India Company before 1726 was not of high order. The judicial administration was executive ridden. There was no uniform judicial system in the settlement of the company. The Courts were of the Courts of East India Company consequently their decisions were not accepted by the court un England. The director of the company therefore presented a petition to King George I stating that there was a great want at Madras, Fort William and Bombay of proper and competent power and authority speedy and effectual administration of justice in civil cases and for trying and punishing of capital and other offences.

            In the year 1726 King George I issued a Charter to the Company. The Charter of 1726 became an important land mark in the legal history of India due to its various vital provision having charter is that this charter introduced uniformity of Justice system in all 3 presidency town. The Charter established Civil and Criminal Courts in each presidency towns.

            The another important point is that before 1726 the Court got authority from the company but after this Charter the Courts got authority from the Royal British Crown. The Court which were present that time in England with the Charter of 1726 the appeals from Court in India went to the Privy Council in England.

            The way English law system became accepted to Indians. Indians did not find it foreign and Indian did not have any other judicial system as such with this Charter in each Presidency town local legislature was established Charter 1726 is also known as Judicial Charter as this is the beginning of development of Indian law system and judiciary.

ESTABLISHMENT OF CORPORATION –

            The Charter of 1726 provided for the establishment of a corporation in each town i.e. Bombay, Calcutta, and Madras. Each corporation consisted of a Mayor and nine Aldermen. It provided that the mayor would be elected every year by nine Aldermen and the retiring mayo from amongst the Alderman. An Alderman was appointed either for life or for the term of his residence in the presidency town. The Governor – in – Council was empowered to dismiss or remove any of the Aldermen on reasonable cause.

1)    Legislative Power –

The Governor – in – Council of each presidency town was entrusted with the power to make by-laws, rules ordinances to regulate the working of the Corporation and also for the better administration of the inhabitants of the settlements. The Governor – in – Council was required to obtain in writing prior approval and confirmation of such rules, by-laws, etc. from the Court of Directors of the Company. It is, therefore, said that the Charter of 1726 for the first time created a subordinate legislative authority in each of the three presidency town of India.

2)    Mayor’s Court –

The Charter of 1726 provided for the establishment of a Mayor’s Court for each of the presidency town. It was to consist of the Mayor and Nine Aldermen were required to be present to form the quorum of the Court. The Mayor’s Courts were declared to be Courts of Record and were authorized to try, hear and determine all Civil Cases. The Mayor’s Court was also granted testamentary jurisdiction and power to issue letters of administration to the legal heir of the deceased person. It was authorized to exercise its jurisdiction over all persons living in the presidency town and working in the Company’s subordinate factories.

The procedure of the Mayor’s Court was clearly laid down by the Charter. The Sheriff, an officer of the Court, was appointed by the Governor – in – Council every year to serve the processes of the Court. On the written complaint of the aggrieved party the Court issued summons directing the Sheriff to order the defendant to appear before the Court. In case the defendant failed to appear on the fixed day, a warrant was issued by the Court asking the Sheriff to arrest the defendant and present him before the Court to face the charges. The Court was empowered to release the defendant on such bail or security as it considered suitable. The judgment of the Court was followed by a warrant of execution issued to the Sheriff to implement the decision. The Sheriff was authorized to arrest and imprison the defendant. The whole procedure of the Court was based on the procedure as adopted by the Courts in England.

An appeal was allowed to the Governor – in – Council from the decision of the Mayor’s Court in each presidency town. A period of Fourteen Days, from the date of judgment, was prescribed to file an appeal. The decision of the Governor – in – Council was final in all cases involving a sum less than 100 Pagodas. In case the sum involved was wither 1000 Pagodas or more, a further appeal was allowed to be field to the King – in – Council (His Majesty’s Privy Council) from the decision of the Governor – in – Council. Thus the Charter introduced a new system of first and second appeals, making the King of England the ultimate fountain of justice for litigants in India.

3)    Justice of Peace –

The Charter provided that in each presidency town, the Governor and five senior members of the Council will have criminal jurisdiction and would be justices of the peace. They were empowered to arrest and punish persons for petty criminal cases. These Courts were entrusted with the same powers as similar Court in England. These courts were authorized follow the procedure followed by Court in England. Thus the Charter of 1726 made the beginning of important English ideas, technical forms and procedure of criminal justice into India.

CONSEQUENCES OF THE CHARTER OF 1726 –

            The year 1726 saw the abolition of the Court of Admiralty at Madras. By establishing the Mayor’s Court at the three presidency town of Bombay, Calcutta and Madras, the Charter introduced a uniform judicial machinery for justice in India. The civil and criminal courts established under the Charter derived their authority directly from the King and not from the Company. In this respect, these courts were superior to the Courts which were established in 1686 by the Company. The King in England, in whose name justice was administered in England, also became the fountain of justice for Courts in India. It added prestige and status to these Courts not only in India but also in England.  These courts may therefore be said to be Royal Courts. The very fact that the Courts in India derived their authority from the King, in the field of judicial set-up, paved the way for importing English ideas of law and justice, in to India. It was through the Privy Council that the principles of English law were gradually applied in deciding cases wherever Indian law was silent or defective according to English Judges. Apart from this, the deep – rooted English tradition of showing respect to the decisions of the highest judiciary was also adopted in India. With the adaptation of the doctrine of precedent in India, the principles of English law greatly influenced Indian law and legal institutions. The Charter of 1726 itself played an important role in introducing English Common and Statue law in India.

THE CHARTER OF 1687 AND THE CHARTER OF 1726 – DISTINCTION –

1)    The Charter of 1687 applied to Madras only whereas the 1726 Charter applied to all presidency towns.

2)    The mayor’s Court established in 1687 was a Company’s Court. Three Mayor’s Courts established in 1726 were Royal Courts as they were created by King’s Charter of 1726. Naturally, the status of these Courts was recognized by the Courts in England.

3)    The old Mayor’s Court at Madras was empowered to exercise its jurisdiction over all civil and criminal matters and an appeal was allowed to go to the Admiralty Court. On the other hand, the Mayor’s Court established in 1726  were entrusted with civil jurisdiction only, and from their decision, first appeal was allowed to the Governor-in-Council in the respective presidency town, and a further appeal was allowed to go to the King – In – Council in all cases involving a sun of 1000 Pagodas or more.

4)    No specific rules of law and procedure were laid down for the old Mayor’s Court at Madras. The Mayor’s Courts, established by the Charter of 1726, were required to follow a well-defined procedure based on English and practice. Thus the former can be said to be governed more by principles of equity whereas the latter was governed by English Law.

5)    A lawyer known as Recorder was attached to the old Mayor’s to the old Mayor’s Court at Madras advice the Court, while no such officer was attached to the three new Mayor’s Courts.

DEFECTS IN THE CHARTER OF 1726 –

            After the Charter of 1726 was actually implemented and the Mayor’s Courts began their functioning, gradually the defects and lacunae in the provisions of the Charter came into limelight. It was realized that the Charter was not quite clear in its language. The working of the Mayors Courts at Bombay, Calcutta and Madras created many difficulties for native Indians. For the first time, the Mayor’s Court administered English law in India. The English law contained both common law and the statute law. Nearly all the common law and statue law as it existed in England in 1726 was introduced in the three presidency towns of India. It completely ignored the Indian customs and traditions, and was hardly suitable to Indian conditions in those days. The Mayor and Aldermen, who presided over the Mayor’s Court, were either senior servants of the Company or dependent on the Company’s pleasure for their stay in India. They had neither any regular legal training nor any judicial experience to their credit. Evil consequences were therefore bound to follow. As there was no specific mention about jurisdiction, the Courts decided that it was empowered to exercise its jurisdiction even in such cases where both parties were native Indians. All these created great dissatisfaction and unrest amongst the native inhabitants of each presidency town.

            The Charter of 1726 created a Corporation and a Mayor’s Court in each presidency town. The Mayor’s Court was constituted to work independently but its relationship with executive. Governor – in – Council was not stated clearly. In actual practice, the executive machinery expressed its hatred and jealousy against the independent attitude of the Mayor’s Court. The executive tried to dictate its terms to the judiciary. But the Mayor and Aldermen came into conflict with the Governor – in – Council in many cases at Bombay, Calcutta and Madras. Instead of the smooth working of these two wings – executive and judiciary – their relations became severely strained in each presidency town.

            The inhabitants of Bombay, Madras and Calcutta were the greatest sufferers due to the constant conflicts between judiciary and the executive. It created an atmosphere of great unrest in all the three presidency towns. A petition was sent to the Court of Directors of the Company, in its reply, made it clear that conflicts should be decided among themselves (natives) according to their own customs. If they request and choose them to be decided by English laws, then only the matter can be pursued according to the directions of the Charter of 1726.

POLITICAL CHANGES IN MADRAS (SEPTEMBER 1746 TO AUGUST 1749) –

            On September 14, 1746, the French captured the city of Madras. The victory of the French brought Madras under the temporary rule of Pondicherry. It gave a death blow to the Mayor’s Court at Madras. In 1749 the city of Madras was recaptured by the English from the French.

CHARTER 1753 –

            In the year 1746 the French got the control of Madras presidency because of this Madras corporation which was created after the Charter of 1726 was ceased to function in the year 1749 again British got the control of Madras to establish again Madras corporation, King George II again issue a new Charter on the 8^th January 1753, to the Company official utilized this chance and tried to remove all the disadvantages of the Charter of 1726. The new Charter of 1753 was made applicable to the entire presidency town. New charter changed the method of appointment of Mayor and Alderman. Governor and Council got the power to appoint the aldermen. 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.

            This way Mayor became the puppet of the Governor and Council. This way Mayor as well as Aldermen becomes the nominee of Government and Government got the Full Control of corporation.

            This way government got the power to appoint the judges of the mayor’s court and remove him also. If he disobeyed the government or Governor. Mayor’s Court lost all the autonomy and Independence and became Secondary in nature. The Court was allowed to hear the Indian cases only if both native Indian parties agreed and submitted the case to the Mayor’s Court. Mayor’s Court got the right to take action against the Mayor. No person was allowed to sit as a judge if he was interested in the matter in any way. Mayor’s Court got the power to hear the cases against the government and government defended them.

            Suitors deposited money with the government not to the Mayor’s Court. 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. This Court was established to help poor Indian litigants who cannot afford the expenses of the Court. The Court weekly sat once, and was, manned by Commissioners between 8 to 24 in numbers. The government appointed the commissioners and every half of the commissioners got retired and those places were filled by the ballot method by remaining commissioners. Commissioners sat in each court on rotations for small claims, cognizable by requests Court. If people plaintiff went to the Mayor’s Court the rule was that Defendant was awarded costs, this way it saved time and money also requests court got the power to hear the Indian matters also.

There were 3 Courts, namely –

1)    Court of request

2)    Mayor’s Court

3)    Jurisdiction Court of governor and Council.

The court where appeal from the mayor court went criminal cases. Justice of the peace and Court of quarter sessions consisting of governor and Council. Regarding Civil cases, Privy Council in the England was the final authority. This Charter introduced many changes but this Charter took away the independence of Mayor’s Court, which way given to this court by the Charter of 1726. The East India Company with this Charter also always followed the policy not to break the customs of Hindu and Muslims. When both Indian parties agreed that time only Mayor’s Court handseled those cases. An executive enjoyed more powers they appointed company servants as the judges. The executive handled the cases in such a way it does not harm them or did not harm the company servants or friends. In 1772 House of Commons appointed a committee of secrecy to check the affairs of the East India Company, the committee in its 7^th report gave adverse report regarding Calcutta judicial system. The report stated that Mayor’s Court behaved as the wish in all the cases without following English law.

            As a result of criticism Supreme Court was established at Calcutta in the year 1774.

Good feature of Charter 1753 –

            The Charter of 1753 removes out the uncertainty and made it clear that the Mayor’s Court could not hear the cases where both the parties were natives unless such cases were submitted to its judgment with the consent of both parties. The Mayor’s Court could hear the suits against the Mayor, Aldermen or the Company.

            The establishment of the Court of Requests was of great help to poor inhabitants. The Court provided quick and cheap justice to the poor litigants with small claims.

Defects of Charter 1753 –

1)    Too much executive oriented

2)    Non – professional judges

3)    Judges independent on the company and governor – in – council.