Judicial System in Ancient, Medieval, and Post-Independent India PDF

MODULE IV JUDICIAL SYSTEM IN ANCIENT, MEDIEVAL AND POST- INDEPENDENT INDIA 1 JUDICIAL SYSTEM OF MADRAS PRESIDENCY 2  ADMINISTRATION OF JUSTICE AT MADRAS In 1639, an Englishman, Francis Day acquired a piece of land fr...

MODULE IV JUDICIAL SYSTEM IN ANCIENT, MEDIEVAL AND POST- INDEPENDENT INDIA 1 JUDICIAL SYSTEM OF MADRAS PRESIDENCY 2  ADMINISTRATION OF JUSTICE AT MADRAS In 1639, an Englishman, Francis Day acquired a piece of land from the Hindu Raja of Chandragiri, for the East India Company. It was known as Madraspatnam. The company constructed a factory on this land called Fort St. George in 1640. This Fort was known as White Town. While the nearby villages inhabited by the local population were called Black Town. Administrative Set-up The administrative head was called as ‘Agent’ and he administered the settlement with the help of the council. This Administrative Unit was subordinate to Surat. Initial stages, the affairs of the settlement were limited to commercial activity regulation. ADMINISTRATION OF JUSTICE AT MADRAS -CHOULTRY COURT Choultry court was established to deal with petty civil and criminal cases. In the Black Town, a Judicial Officer was appointed, who was always a native of such town and he was known as “Adhikari”. Adhikari’s dealt with only cases of small causes, they were not entitled to deal with complicated civil matters or serious offences like murder. Consequential appeals arising out of such simple matters were taken before the Appellate forum, viz. “Agent and Council”. Misuse of power was taken seriously and Adhikari’s were removed from the post for the same. ADMINISTRATION OF JUSTICE AT MADRAS -CHOULTRY COURT Choultry Court: Demerits No fixed trial procedure. Cases involving Indians were taken in an adhoc basis and the procedure for the same varied from case to case. In capital cases committed by natives, the reference was made to the Raja, he allowed the application of English laws on the subjects. It is because as per the 1600 charter, the Agent and Council lacked the power to award Death Penalty. This period witnessed 2 types of courts- Agent and Council for the White Town and Choultry Court for the Black Town. REORGANIZATION OF THE JUDICIAL SYSTEM (1678 -1683) The Governor of Madras (Streynsham Master) from 1667-1681 tried to put life, vigour and efficiency into the court of Governor and Council. In 1678 they decided to sit as a court on two days in a week to administer justice in all civil and criminal cases according to the laws of England with the help of 12 jurymen. Later on the Governor and council were renamed as the High Court of Judicature in 1678. Choultry courts were also reorganized. Indian officers of the court were replaced by the English officers. The number of judges were increased to three and a minimum of 2 were required to sit in hearing matters. The court sat two days in a week (Tuesday and Friday). Records of the cases were maintained. The court was empowered to try Civil cases up to 50 Pagodas and petty criminal cases. Appeal was allowed to the High Court of Judicature. Extensive Power and Delay in Justice.  ESTABLISHMENT OF ADMIRALTY COURT (1683 -1726) King Charles II, on request from the company granted a new charter on 9 August 1683 empowering the Governor and council to establish the Court of Admiralty, it was established 10 July 1686. The purpose of this court was to punish all the traders committing Crimes on the High Seas. Initially the Governor was appointed to be the judge advocate of the Admiralty Courts. On 28 July 1687, Sir John Biggs, a professional lawyer was sworn in as judge-advocate. Later on it worked as a general court of the land. It exercised a much wider jurisdiction and dispensed justice in all cases of civil, criminal, maritime and mercantile nature. The court was also authorized to deal with all cases of forfeiture of ships, piracy, trespass, injuries and wrongs. In administering justice, the court was guided by laws and customs of merchants and rules of equity and good conscience. The Governor and Council thereafter relinquished the judicial functions which they had been exercising previously under the charter of 1661 and ceased to sit as a court.  ADMIRALTY COURT (1683-1726) The year 1687 was thus considered to be important for two reasons; i. Firstly, a professional lawyer was appointed to administer justice. ii. Secondly, the executive gave up judicial functions in favour of the Admiralty court. The jury assisted the court in criminal cases, but not in civil cases. After the death of Sir Biggs in 1689, the Governor and Council appointed the Governor as the Judge Advocate and he was assisted by two members of the council, two merchants, an American and a Hindu. This violated the provision for a Civil lawyer as presiding officer directed by the Charter of 1683. In 1692 another Civil Lawyer was sent from England but was dismissed from service in 1694 on charges of bribery. From 1698, as per the instructions of the company, the Governor and Council started hearing appeals from the decisions of the Admiralty Court. The Court of Admiralty was functioning regularly up to 1704, post that the company paid more attention to the Mayor’s Court which resulted in the disappearance of the Admiralty court from the Judicial scene.  CHARTER OF 1687 AND ESTABLISHMENT OF MAYOR’S COURT (1683-1726) The town of Fort St.Geroge and the surrounding territories within a radius of ten miles were made to be a corporation by the company’s charter of 30 July 1687. It was customary in England those days to confer judicial power on municipal corporations. The Mayor and three senior Aldermen of the corporation formed as court of record known as the Mayor’s court and they were called as ‘Justice of peace’. They tried all civil and criminal cases arising within the corporation limit according to equity and good conscience. The Mayor’s court punished offenders with fine, imprisonment and capital punishment. From the civil cases valuing over 3 pagodas and criminal cases in which the offender was sentenced to loss of life or limb, appeals from the decisions of Mayor’s court were to be allowed to the Admiralty court. In all the other cases the decision of the Mayor’s court was final. As the Mayor and Aldermen had no legal knowledge, a Recorder of the Court with knowledge of law was appointed.  CHARTER OF 1687 AND ESTABLISHMENT OF MAYOR’S COURT Demerits of Mayor's Court The decisions lacked uniformity and consistency. Justice was rough, severe and not according to fixed system of law. Three Indians charged with murder were punished with death sentence. Initially, they were taken to the place where they committed a crime and their beard and whiskers were cutoff and then taken to the place of execution and the right hand is cut off then hanged by neck till death whereas in a case between two Englishmen, the court referred the matter to the authorities in England. The Mayors were alleged to be corrupt and they were not men of character and integrity. Sir Biggs in the absence of any learned lawyer acted as the recorder of the Mayor’s court as well. Governor also had a great deal of influence over the Mayors Court.  STATUS OF CHOULTY COURT AFTER THE ESTABLISHMENT OF MAYOR’S COURT With the establishment of Mayors Court, the Choultry Court lost its importance. It functioned as a court with petty jurisdiction trying only small offences and Civil cases up to two Pagodas. In criminal cases, it inflicted punishments like fine, pillory, whipping, imprisonment and slavery. Two Aldermen were appointed to preside over the court. This period witnessed, the Choultry Court, Mayors Court and Admiralty Court functioning in the Madras settlement.  CRIME AND PUNISHMENTS AT MADRAS SETTLEMENT There were no measures or standard of punishment nor was there any principle behind its mode and quality. Usually, the punishments were barbaric and inhuman. Imprisonment was awarded for theft and failure to repay the debt. Capital punishments were executed either by hanging and for Indians it was majorly whipped to death. Banishment was given to English officers by sending them out of settlement or by sending them to Sumatra to work for the company. For serious offences like murder, manslaughter etc English men were sent back to England. Piracy was a capital offence punishable with Death. Sometimes Europeans accused of piracy were branded with the letter ‘P’ on the forehead and banished to England. Forfeiture of property including ships were done in some cases.  CRIME AND PUNISHMENTS AT MADRAS SETTLEMENT Robbery was also punished with death. For forgery, banishment or imprisonment was the punishment. Witchcraft was punished with heavy fines and pillory. Punishment for stealing was slavery. In a case of perjury, the Mayor’s court ordered amputation of ears, Standing in pillory and banishment from company settlement. Brahmins were not awarded with death sentence in observance of Hindu practice but they were banished out of company settlement. JUDICIAL SYSTEM OF BOMBAY PRESIDENCY 14  AD M I NIS T RATIO N O F J US T I CE I N B O M B AY (1 6 6 8 – 1 7 2 6 ) F I R S T P H AS E (1 6 6 8 -16 83) C H ARTE R O F 1 6 6 8 -JUDICIAL S YS T E M The Portuguese were the 1st Europeans to acquire the island of Bombay in 1534 from the King of Gujarat. In 1661 the Portuguese King transferred the island to Charles II as Dowry on the marriage of his sister to the British King. Bombay at that time was a small and poor fishing village with merely 10,000 population. Due to the practical difficulties of governing this place from England, Charles II transferred it to the East India Company in 1668 for an insignificant annual rent of 10 pounds. The judicial system in Bombay grew in three stages before 1726. i. First phase (1668-1683) ii. Second phase (1683-1690) iii. Third phase (1718-1726) ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) Deputy Governor and Council were appointed to administer Bombay and were subject to the control of the Surat Presidency. The architect of the first judicial system in Bombay settlement was Gerald Aungier, the Governor of Surat Factory. His efforts established the first judicial system of Bombay in 1670. Bombay was divided into two divisions. First Division – comprised Bombay, Mazagaon and Girgaon and Second division- Mahim, Parel, Sion and Worli. Initially the customs officer of each division had to preside over the Divisional courts. The court consisted of five judges, with both English and Indian judges. Three judges formed the quorum. The court had jurisdiction to decide cases of small thefts and all civil actions involving subject matter up to 200 xeraphins. These courts were supposed to record the proceedings and submit authentic copies quarterly, to the Deputy Governor’s office, constituting a superior court. ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) Administration of criminal justice: For Administration of the Criminal Justice Bombay was divided into 4 divisions: - i. Bombay ii. Mahim iii. Mazagaon iv. Sion 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. All Justices of Peace sat in the court as assessors to help judge in deciding the criminal cases. Appeals are allowed to the Deputy Governor and Council of Bombay. ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) Deputy Governor’s Court The Deputy Governor and Council constituted the superior court. It had both original and appellate jurisdiction. Appellate jurisdiction over matters from the divisional courts and original jurisdiction over all civil and criminal matters lying beyond the scope of the divisional courts. This means cases over 200 Xeraphins and all treason-related, felonious, capital or criminal cases. It conducted all cases with the help of the jury. During this initial stage of the judicial system, like the system in Madras, this also was not free from drawbacks. The judges were merchants having no knowledge of the law. They received no salary for judicial work done by them. The Influence of the executive over the judicial system was more. The Governor, aware of the limitations of the current system, asked the company to send a lawyer to handle the settlement. However, the company declined the request and instead suggested that someone with some legal knowledge from among their employees should be selected to handle the settlement. In the year 1672 the legal system was reformed and George Wilcox became the judge. ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) The island of Bombay was under Portuguese domination for a century. This long association had transplanted Portuguese laws and customs there. The first judicial system established in 1668 didn’t abolish the same. George Wilcox abolished these Portuguese laws and customs and introduced English law with a Proclamation on August 1, 1672. The court was to have jurisdiction in all cases, civil, criminal, probate and testamentary cases. Administration of Civil Cases: The court sat once a week and tried all civil cases with the help of Jury. Jury would consist of 12 Englishmen. In cases were the dispute is between English and Portuguese, the jury shall have half English and Half Portuguese. Provisions were made for the speedy trials and quick decisions by the court. A fee of 5 percent was charged on each case that the court tried. A plaintiff who worth less than 60 Xeraphins could sue as pauper. ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) Court of Conscience Court of Conscience with Wilcox as judge was constituted to decide petty civil cases up to 20 Xeraphins without jury. The court sat once a week. Charged no fee. It was a forum provided to dispense the justice to poor litigants without any delay. In order to promote justice, the judge was debarred from private trade and was put on salary of 2000 pounds per anum. At a later stage, he was not paid the salary. After his death in 1675 Niccolls was appointed as the judge on a less salary of 120 pounds per annum. ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) Functioning of the judicial system during the First period: An Overview This judicial system was inaugurated by Aungier in 1672. During his speech, he exhibited a passion for fair, impartial and speedy justice. The company had directed the court to maintain a register of all its proceedings and send an annual report to it. In matters of civil justice, the court followed the simple and less technical version of English courts. Justice delivery was done within 10-12 days. Justice was inexpensive. The total charge on action was not more than 20 Xeraphins. ADMINISTRATION OF JUSTICE IN BOMBAY-FIRST PHASE (1668-1683) Punishments during the First Phase Debtors were either imprisoned until the debt was repaid or a decree was issued for the sale of their tangible assets. In one of the instances the dead body of a person was detained till the debt amount was paid by his relative. Felonies like murder, rape and witchcraft were punished with death as per the English law. Theft and Robbery were punished with slavery. After the death of Wilcox in 1675, Niccolls was appointed as the judge and two years later he was suspended on charge of insubordination and insolent behaviour. On an enquiry, the Court of Directors found nothing against him. The subservience of the judiciary to the executive was a common feature of those days. After Mr. Niccolls, Mr. Gray was appointed with a lesser salary of 90 pounds per annum. Gray held the office till 1683, later on, the judicial system came to an end due to Keigwin’s rebellion on the island.  ADMINISTRATION OF JUSTICE IN BOMBAY- SECOND PHASE (1684-1690) 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. 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 a civil lawyer was sent from England with an annual salary of 200 pound to preside the court as the judge Advocate. The Court of Judicature was also created, as the authority of the Admiralty Court was not sufficient to cover all other civil business. Dr. St. John was also authorized to act as Chief Justice of the Court of Judicature.  ADMINISTRATION OF JUSTICE IN BOMBAY (1668 – 1726) John Child, Governor of Bombay 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. In 1685 the powers of Dr. St. John to act as Chief Justice of the Court of Judicature were withdrawn by the Governor. Vaux, a member of the Bombay Council was appointed as judge to preside over this Court, in place of Dr. St. John. Vaux had no legal training. These steps further developed the existing conflict between the executive and the judiciary. Dr. St. John strongly criticized the transferring of his power to Vaux, a new judge, who according to him was ignorant of civil laws. ADMINISTRATION OF JUSTICE IN BOMBAY (1668 – 1726) This conflict led to the dismissal of Dr. St. John’s and 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. This interrupted the development of judicial system for over 3 decades. After an eclipse of 30 years, a new period in the Judicial history of Bombay began with the revival and inauguration of a court of judicature on 25th 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. ADMINISTRATION OF JUSTICE IN BOMBAY (1668 – 1726) The court of Judicature of 1718 consisted of nine Judges in all. It was specially provided that the Chief Justice and Five Judges will be Englishmen. The remaining Four were required to be Indian representing four different communities, namely, Hindus, Mohammedans, Christians and Parsi. All English Judges were also members of the Governor’s Council and enjoyed status superior to Indian Judges. The Court met once a week. Three English judges formed the quorum of the court. Indian Judges, who were also known as “Black Justices” were included mainly to increase the efficiency of the Court and their role was mostly that of assistants of the English judges. They do not appear to have enjoyed equal status with English judges. This court was not assisted by jury.  ADMINISTRATION OF JUSTICE IN BOMBAY (1668 – 1726) REVIVAL OF THE JUDICIAL MACHINERY It exercised jurisdiction over all civil and criminal and testamentary cases. It also had jurisdiction over administrative matters, it was further authorized to act as a Registration House for the registry of all sales concerning houses, lands and tenements. It administers justice according to law, equity, and good conscience. It was also guided by the rules and ordinances 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. In cases involving 100 Xeraphines or more, an appeal from the Court of Judicature's decision was allowed to the Court of Governor and Council. A notice to file an appeal was to be given within Forty-Eight hours of judgment 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 5 Xeraphines was to be paid.  FUNCTIONING OF THE COURT AND PUNISHMENTS IN BOMBAY Justice delivery was quick and inexpensive. It administered justice in a common sense, rough and ready manner. It was not bound by any technical rules, laws or precedent. The court did not think itself bound to award punishment only when the offence was proved beyond all reasonable doubt. There was overlapping of personnel between the court of first instance and the appellate court as some of the judges of the Court of Judicature were members of the Governor and council, they sat for hearing at Court of Judicature as well as the Governor and Council. This court also was not free from Executive control and there was no independence of judiciary. The judges were removed due to the differences with the Governor and Council. Punishments Debtors were kept in prison until the debt is paid. In matters of Hindu’s and Muslim’s customs were applied. Whipping with 39 lashes as the standard was found to be the most common punishment. This was repeated twice or thrice for serious offences.  FUNCTIONING OF THE COURT AND PUNISHMENTS IN THIRD PHASE The same punishment was awarded to both male and female. It was awarded in public to deter people from committing the same offence. Branding of the culprit was also a kind of punishment awarded. Felonies like murder, rape, treason and manslaughter were punished with death as per the English law. Theft of property worth 40 Shilling or more was treated as capital offence. Robbers were first whipped, then branded and later imprisoned with hard labour. Rama Kamati’s Case CJI D Y Chandrachud said the historical case serves as a reminder of the necessity for robust legal safeguards to protect individual rights and maintain the integrity of judicial system. Justice Rama Jois said “no substantive law to be enforced and no procedure law to be followed. The whole system was capricious and arbitrary”. JUDICIAL SYSTEM OF CALCUTTA PRESIDENCY 30  ADMINISTRATION OF JUSTICE AT CALCUTTA In 1690, few Englishmen under the leadership of Job Charnock landed at Sutanati on the banks of river Hooghly which led to the foundations of the Calcutta presidency. In 1698, grandson of emperor Aurangzeb granted Zamindari rights over 3 villages namely Calcutta, Sutanati and Govindpur to the company. Fort William was subsequently constructed in this region. In 1699, Calcutta became a Presidency and a Governor and Council were appointed to administer the settlement of the company. They were entrusted with all necessary administrative and Judicial powers. The collector who was an employee of the company was also appointed as the member of the Governor and Council. As a zamindar the company got all the powers which the other zamindars of Bengal received at that time within the framework of the Mughal administrative machinery because of the strategic acquisition of the Zamindari. The Company as a Zamindar became entitled to all the functions and powers within the zamindari territory. ADMINISTRATION OF JUSTICE AT CALCUTTA -JUDICIAL SYSTEM OF CALCUTTA UNDER MUGHAL RULE In Mughal Empire, zamindars got no significant judicial powers but collected the revenue and maintained law and order in the zamindari area or villages. For judicial purposes, Qazis courts were established in each district or Sarkar, parganah and villages. They handled civil and criminal matters. Village Panchayats were also active and decided all cases except serious crimes. Appeals from the decision of Panchayat were allowed to the Qazi of Sarkar and then to the Chief Qazi of Subah. In Hindus, elders or Brahmins solved their problems. The judicial system was simple, as everyone knew each other and their transactions. ADMINISTRATION OF JUSTICE AT CALCUTTA -JUDICIAL SYSTEM OF CALCUTTA UNDER MUGHAL RULE Downfall of Qazi Courts and Zamindars Gaining Judicial Power The Qazi’s court in the countryside functioned in an extremely corrupt manner or did not function at all. Due to the absence of regular judicial tribunals in the countryside, the zamindars assumed their judicial power which they exercised in an arbitrary manner. The zamindars started administering justice in all matters but did not have the power to award capital punishment in any matter. Matters of appeal went to the Nawab court in Murshidabad. The judicial powers of the Zamindar started oppressing the common people as the Zamindars used to charge high fees for deciding cases. There was no definite body of law at this time, so judgments were given on a discretionary basis. The entire judicial system was corrupt and impartial, and the purpose of administering justice was neglected. The appeals went to the Nawab’s court in theory but in reality not many appeals were taken. ADMINISTRATION OF JUSTICE AT CALCUTTA -JUDICIAL SYSTEM OF CALCUTTA UNDER MUGHAL RULE Nawab’s Court Nawab’s Court at Murshidabad was not in a great state either. Theoretically it was the highest criminal court as Nawab was the head of the Nizamat and responsible for maintenance of law and order and administration of criminal justice. While earlier the Nawab used to preside over the court, later the deputy of the Nawab known as the Darogah-adalat-al-alia, began to exercise all of the Nawab’s judicial functions. The highest civil court was that of the Diwani and thus responsible for the collection of land revenue. While earlier the diwan used to preside over the court for civil cases, later his deputy known as the Darogah-i-adalat diwani, began to execute these functions and decide civil and revenue cases. However, there was no rigid demarcation of jurisdiction among the various courts. Thus, there was a confusion of jurisdiction between the courts of the Nawab’s deputy and the Diwan’s deputy.  JUDICIAL SYSTEM OF 3 VILLAGES OF CALCUTTA UNDER EAST INDIA COMPANY Justice in Criminal Matters In order to administer justice in Criminal cases, company decided to adopt the existing Mughal pattern. A Faujdari Court, presided by an English collector was established to decide criminal cases of native of the three villages. The court also took cognizance of petty criminal cases committed by English people. Capital punishment was not inflicted unless the sentence was confirmed by the Governor and Council. In those days death sentence was executed by whipping to death. The Governor and Council were authorized to try serious crimes as per the 1661 charter. JUDICIAL SYSTEM OF 3 VILLAGES OF CALCUTTA UNDER EAST INDIA COMPANY Justice in Civil Cases To deal with civil matters, the collector presided over the civil court or Kacheri. Ordinarily the civil cases were referred to arbitrators by the collector. Collector decided the matters on the basis of the prevailing customs and usages of the country. In the absence of such customs, the case was decided based on natural justice and equity. In rare and important cases, appeals were allowed to Governor and Council. The collector being the Zamindar was also responsible for the collection of revenue from the natives of all three villages.  JUDICIAL SYSTEM OF 3 VILLAGES OF CALCUTTA UNDER EAST INDIA COMPANY Drawbacks of the Administration of Calcutta In the judicial system of Calcutta, the office of collector became a very important office. It was dealing with civil, criminal and revenue matters and in addition it also decided petty civil criminal cases concerning Europeans in India. There were no separation of power. Both Governor and Council and the Collector exercised both Executive and Judicial functions. CHARTER OF 1726 AND THE ESTABLISHMENT OF THE MAYOR’S COURT AT ALL THREE PRESIDENCIES 38  CHARTER OF 1726 AND THE ESTABLISHMENT OF THE MAYOR’S COURT AT ALL THREE PRESIDENCIES The Charter is issued by King George I on 24th September 1726. This charter established uniform judicial system in each presidency towns. The charter established civil and criminal courts in the Presidency towns and these courts derived their authority from the Crown not from the company. Therefore, these courts could be designated as ‘Royal Courts’. Appeals from these courts were allowed to Privy Council in England. According to the Charter of 1726 the three presidencies of Madras, Bombay, and Calcutta had to form corporations. The corporation was to consist of a Mayor and nine Aldermen. 39  CHARTER OF 1726 AND ESTABLISHMENT OF CORPORATIONS AT ALL THREE PRESIDENCY TOWNS Both the Mayor and seven Aldermen had to be Britain subjects and the other two Aldermen could be natives. The tenure of the Mayor was a year and after that, he continued as the Aldermen. The First Mayor and the Aldermen would be nominated by the Charter and thereafter the nomination of the mayor would be done by the Aldermen. The Aldermen could continue in office throughout his life or as long as he lived in the presidency town. The Mayor along with Aldermen selected Alderman for the vacant positions from the inhabitants in the particular presidency town. The Governor and the Council had the power to dismiss or remove any aldermen based on a reasonable cause against him. The Alderman also had the privilege to appeal his dismissal by the Governor and Council before the Privy Council. 40  ESTABLISHMENT OF MAYOR’S COURT According to the Charter of 1726 the Mayor's Court was to be established in each presidency town consisting of a Mayor and 9 Aldermen. The quorum was constituted by the Mayor or the Senior Aldermen along with two other Aldermen. The Mayor’s Court was to be the Court of Record. Under the Charter of 1726, the Mayor's Court could hear all civil cases arising in the Presidency Town and its subordinate factories. Under this the Mayor’s Court also had jurisdiction to hear cases of testamentary succession, to issue letters of administration to legal heirs of the deceased or his principal creditor, or to any other person who the court finds fit. The Mayor’s Court was also given further powers to provide Probates of wills of the deceased and to punish any person guilty of contempt. The appeals of the Mayor's Court would be heard by the Governor and Council and the decision is final where the value of the case is less than 100 pagodas and further appeal is allowed from the decisions of the Governor and Council to the King in Council in England for cases over the value of 1000 or more Pagodas. As the Charter mentioned the English law was used to govern both the natives and Englishmen and the Mayor’s Court was to function on the same procedure as followed in England. 41  MAYOR’S COURT-PROCEDURE The Governor and Council were to appoint a Sheriff who was the officer of the Mayor’s Court. His tenure was for a period of one year. On the written complaint provided by the plaintiff, the court issues the summons by directing the sheriff to order the defendant to appear in court on a set date and time fixed by the court. If the defendant doesn’t comply with the orders of the court, the court would issue a warrant directing the sheriff to arrest the defendant and present him before the court. The court could grant release to the defendant on bail or security. Warrants of execution were issued by the Court. On receiving the warrant the sheriff was to implement its judgement. 42  JUSTICE OF PEACE AND ADMINISTRATION OF JUSTICE Under the Charter of 1726, the Justice of Peace were the Governor and the five senior members of the Council. The Justice of Peace could hear Criminal offences and punish and arrest offenders. This was the first time English ideas and procedures of criminal justice were introduced in India. The session of the court was held four times a year, for the trial of all offences except the offence of high treason committed within the Presidency and subordinate factories. These were to be heard with the help of a jury. The procedure of the courts has to be similar to the procedure of similar courts in England. 43  MERITS OF THE CHARTER OF 1726 The charter of 1726 provided for the establishment of a corporation in each presidency town. It introduced the English laws into the country. A uniform judicial system was introduced in all the three presidency towns of Calcutta, Bombay, and Madras. Royal courts were introduced in India. Under this charter, the court was to derive its authority from the Crown and not the East India Company. Since it derived authority from the British Crown hence the Englishmen and court in England considered the decisions of the court in India as equally authoritative. Also introduced the system of appeal from India to the Privy Council in England. The Charter attempted to separate the judiciary from the executive. The judges of the Mayor’s Court were not appointed by the Governor and Council. The Governor and Council could dismiss the aldermen on reasonable grounds but the aldermen could challenge the decision in the Privy Council in England. The Charter made provision for the establishment of a local legislature in each presidency where laws could be made keeping in mind the needs of the local people. 44  DEMERITS OF THE CHARTER OF 1726 Attempts to separate the judiciary from the executive was not totally successful for the following reasons; 1. The Governor and Council could dismiss the aldermen on reasonable grounds and the aldermen could challenge this decision in the Privy Council but this privilege was only on paper. 2. Appeals from the Mayor’s Court were to be heard by the Governor and Council and the decision of the Governor and Council was final for cases less than 1000 Pagodas. 3. No separation of power as the Governor and five senior council members were justices of peace who exercised criminal jurisdiction. 4. The justice system was in the hands of laymen as the people judging the cases had no understanding of the law. 5. Indians did not have adequate representation in the Mayor’s Court since out of the nine Aldermen only two Aldermen were natives. 45  DIFFERENCE BETWEEN CHARTER OF 1687 AND 1726 Points Charter of 1687 Charter of 1726 Scope of Application Applied to Madras only Applied to all three presidency towns Creation Created by Company Created by the king hence called as Royal Courts Jurisdiction All civil and criminal cases arising Civil Cases only within the corporation limit Appeal Appeal was allowed to Admiralty First Appeal to Governor and Council of the Court respective presidency town and further appeal was allowed to King-in-Council in England Law and Procedure No defined law and procedure Expected to follow English Law and Practice Recorder A recorder (Civil Lawyer) was No recorder appointed to advise the court Participation of No mention about involvement of The representation of Indians were practically 46 Indians Indians negligible  CHANGES INTRODUCED TO THE CHARTER OF 1753 Under this Charter, the Governor and Council had the power to appoint the Aldermen and the Mayor. While appointing the Mayor a panel of names of Aldermen was to be submitted to the Governor and Council and they would select one name for the office of the Mayor. Under the Charter of 1726 the jurisdiction of the courts were uncertain which became one of the important causes for the conflict between the Mayor’s Court and the Governor and Council. In the Charter of 1753 attempts were made to bring about certainty in the jurisdiction of the Mayor’s Court. Under the Charter of 1753, the Mayor’s Court was given expressive rights to hear cases against the Mayor and aldermen, but under such a situation the parties of the dispute were not allowed to sit as Judges of the Court. Similarly, they were also to hear suits against the East India Company. The Charter of 1753 also clearly instructed that the Mayor’s Court had no jurisdiction in cases concerning native citizens unless both the parties agree to submit the case in front of the Mayor’s Court. 47  MERITS AND DE-MERITS OF CHARTER OF 1753 Merits of Charter of 1753 The Charter of 1753 expressly stated that in the case of the natives the Mayor’s Court had jurisdiction when both the plaintiff and the defendant agreed to submit the case in front of the court. It increased the jurisdiction of the Mayor’s Court and includes cases against mayor aldermen and the Company. In order to help the poor inhabitants of the presidency, the Court of Request was established which provided quick and cheap justice to poor litigants with small claims. Demerits of Charter of 1753 The Charter of 1753 made the judiciary subservient to the executive. The appointment of Mayor and Aldermen was given to the Governor and Council. The judges of the Mayor’s Court were expected to give judgements by using English law and English procedures but the Charter of 1753 made no provision for law experts thus the Mayor’s Court was forced to appoint company servants as judges who were laymen. 48 FEDERAL COURT 49  GOVERNMENT OF INDIA ACT 1935 After the Government of India Act,1919, the act of 1935 is the second milestone in the history of more responsible government in India. It played an important role in shaping the constitution of India. Important Provisions Option for states to form All India Federation and Provincial Autonomy. Division of Power: The act provided for the division of power between the centre and the provincial governments under three lists: the federal list, the provincial list and the concurrent list. The viceroy was vested with the residuary power. 50  GOVERNMENT OF INDIA ACT 1935 Diarchy at the Centre: The subjects under the Federal List were divided into two: Reserved and Transferred. The reserved subjects were controlled by the Governor-General and three counsellors appointed by him. They were not responsible to the legislature. The transferred subjects were administered by the Governor-General with his Council of Ministers (not more than 10 Ministers). They were responsible to the legislature. A Bicameral Legislature would be established with the Federal Assembly as the lower house and the Council of States as the upper house. Direct elections for the first time was introduced in India. 51  FEDERAL COURT Part IX, Chapter 1 of the Government of India Act (1935) made provisions for establishing the Federal Court of India. Section 200-218 of the act deals with Federal courts. Establishment: Section 200 established the Federal Court of India. On 1st October 1937, the Federal Court was inaugurated at Delhi and the Viceroy administered oath to the Chief Justice and two other judges. Composition of this court: It consisted of a Chief Justice and not more than six judges. The number of judges could be increased by the King. The other judges of the court shall be appointed by the Chief Justice by warrant under the Royal Sign. 52  FEDERAL COURT Tenure: These judges could hold office till attaining the age of 65 years unless resigned or removed from office for misbehavior or infirmity of mind or body. Qualification 1. He/she should have been a High Court judge in any province or of the federal state, or 2. He/she was a barrister in England or Northern Ireland for 10 years or had been a member of the Faculty of Advocates in Scotland for 10 years, or 3. He/she has been a pleader in any High Court of India. Salary: Section 201 of the Government of India Act (1935) specified the salaries, allowances and pension of the judges and Chief Justice of the Federal Court. It was fixed by the His Majesty by time to time. The Federal Court Order in Council of 1937 fixed it as RS. 7,000/ for the Chief Justice and Rs. 5,000/- for the other judges. 53  FEDERAL COURT Section 202 : In case the office of the Chief Justice becomes vacant, any other judge of the Federal Court is appointed to fill the vacancy temporarily until a new Chief Justice is appointed. The Governor-General of India enjoyed discretion in this regard. Section 203: Federal court is a ‘Court of Record’ with its primary seating at Delhi. Original jurisdiction: Section 204 granted original jurisdiction on disputes between the provinces and the federal state on determining the legal rights with respect to the questions of law and question of fact to the Federal Court. 54  FEDERAL COURT Appellate Jurisdiction: Sections 205-209 granted appellate jurisdiction to the Court on matters arising from disputes as appeals from the High Courts of British India. These sections determined the scope and powers of the Court under appellate jurisdiction. It also gave power to the Federal Legislature to expand the appellate jurisdiction of the Court to matters at the discretion of the Governor-General of India. 1. Appeals in Constitutional Matters from the judgment, decree or final order of the High Courts if the High Court certifies to the effect under Section 205. 2. In Civil Cases: Civil appeals which went to Privy Council were heard by the Federal Courts under the Federal Court (Enhancement of Jurisdiction) Act 1947. 3. In Criminal Matters: The Federal Court (Enhancement of Jurisdiction) Act 1947 completely abolished the system of appeal to Privy council. 55  FEDERAL COURT Advisory Jurisdiction: Section 213 granted powers to the Governor- General of India to consult the Federal Court in matters of public importance on questions of law and fact. Section 212 gave vast powers to the Federal Court by stating that the decisions of the Court ‘shall be binding all across the country and on all subordinate courts.’ Section 214 granted powers to the Federal Court to make rules for the conduct of its business with the Governor-General’s approval and monitoring. The Federal Court of India was in existence till 1950 later on it was replaced by the Supreme Court of India. 56 PRIVY COUNCIL 57  PRIVY COUNCIL The Privy Council was the judicial body, which heard appeals from various courts of the British colonies including India. The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century, the Normans introduced a Central Government in England for controlling their executive, legislative as well as judicial Departments. There was a Supreme Federal Council of Normans called ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in England was controlled. In a later period, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’. Magnum Concillium was to deal with executive matters whereas Curia Regis performs judicial functions. The Curia Regis was a small body consisting of high officials of the State, members of the Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation and administration and delivery of justice. The Curia Regis acted as a final Appellate Court for England and the English Empire. 58  PRIVY COUNCIL Later on, Curia Regis came to be considered as the advisory body of the King performing most of the vital functions in the field of judicial administration. Finally, during the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it led to the formation of two different Common Law Courts in England. They are: i. Court of King’s Bench ii. Court of Common Pleas In the course of time, the Privy Council originated from the smaller council of the king. The former became the highest Court of Appeal for the Courts in England while the Privy Council acted as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. It acted as the advisory body of the King with regard to the affairs of the State. The headquarters of the Privy Council was at Landon and its powers were implemented through royal proclamations, orders, instructions etc. 59  COMPOSITION OF PRIVY COUNCIL For India the Privy Council acted as an appellate body since 1726 with the establishment of the Mayor’s Court in India. Initial years, the Privy Council used to do its work by means of a system of committees and subcommittees. However, the committees did not have permanent existence and membership and most of members were the persons with little judicial experience. Naturally, it affected the administration of justice. In 1828, Lord Bourgham criticized such a constitution of the Privy Council keeping in view the extent and importance of the appellate jurisdiction of the Privy Council. Subsequently, in 1830 when he became the Lord Chancellor, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals from the courts in British Colonies as per the provisions of the Act. Accordingly, under this Act, the quorum of the judicial committee of the Privy Council was fixed to be four. It is composed of the Lord President, Lord Chancellor and other Chancellors. 60 This quorum was reduced to three in 1844. In important matters, the quorum consists of 5  APPEALS FROM COURTS IN INDIA TO THE PRIVY COUNCIL Mayors Courts Established under Charters of 1726: As per the provisions of the Charter of 1726, Mayors Courts were established in all three Presidency Towns. First appeal from the decisions of Mayor’s Court were allowed to the Governor-in-Council in respective provinces and the second appeal to the Privy Council in England where the value of the matter is more than 1000 pagodas. Mayors Courts Established under Charters of 1753: This Charter re-established the Mayor’s Courts and reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts. The Regulating Act, 1773, Charter of 1774 and Supreme Court of Judicature at Calcutta: Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following two conditions were followed; i. Where the amount involved exceed 1000 pagodas. ii. Where the appeal is filled within six month from the date of decision. Act of 1797 and the Recorders Court at Madras and Bombay: Act of 1797 replaced the Mayor’s Courts at Madras and Bombay with Recorders Court and provided for direct appeals from these Courts 61 to the Privy Council.  APPEALS FROM COURTS IN INDIA TO THE PRIVY COUNCIL Appeals from Supreme Court of Judicature: Civil Cases: In Civil cases, appeals are allowed to the King-In-Council with permission of the Supreme Court for subject matters in dispute exceeding the monetary value of 1000 Pagodas. The petition seeking permission must be filed within 6 months after the delivery of the judgment. In Criminal Cases, appeals can be heard by the King-In-Council with the permission of the Supreme Court but the Supreme Court also has complete authority to reject or accept permission of such appeals. Appeals to Privy Council from High Courts: High Courts were the amalgamation of King’s Courts and Company’s Courts. Appeals from High Courts to the Privy Council were allowed on all matters except in Criminal matters. In addition to this, there was a provision of Special Leave to Appeal in certain cases to be so certified by the High Courts. Appeals from Federal Court in India to Privy Council: The Government of India Act, 1935 provided for the establishment of Federal Court in India. The Federal Court was given exclusive original jurisdiction to decide disputes between the Center and constituent Units. The provision was made for filing of appeals from High Courts to the Federal Court and from the Federal Court to the Privy Council. 62  ABOLITION OF JURISDICTION OF PRIVY COUNCIL In 1933, a white paper was issued by the British Government for establishment of the Supreme Court in India so as to here appeal from Indian high Courts. After Indian independence, the Federal Court (Enlargement of Jurisdiction) Act, 1948 was passed and it enlarged the appellate jurisdiction of Federal Courts, it also abolished the old system of filing direct appeals from the High Court to the Privy Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council to the Federal Court in India. All powers of the Privy Council regarding appeals from the High Court were conferred to the Federal Court. 63 HIGH COURTS 64  HIGH COURTS Articles 214-231 in the Indian Constitution talk about the High Courts, their composition, powers and functions. Article 214 states that there shall be a High Court for each State. Article 215- High Courts to be courts of record: Every High Court shall be a court of record, the judgment, proceedings, and act of the high court are recorded for perpetual memory/testimony and it has all the powers of such a court including the power to punish for contempt of court. Article 216- Constitution of High Courts: Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem fit and necessary to appoint. 65  HIGH COURTS Appointment The judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the chief justice of India and the governor of the state concerned. For the appointment of other judges, the chief justice of the concerned high court is also consulted. In the case of a common high court for two or more states, the governors of all the states concerned are consulted by the President. A217(2) (a)-(b): Qualification of judges He should be a citizen of India He should have held a judicial office in the territory of India for ten years or He should have been an advocate of a high court for ten years 66  HIGH COURTS Tenure of judges He holds office until he attains the age of 62 years. He can resign from office by writing to the President He can be removed from his office by the President on the recommendation of the Parliament on grounds of proved misconduct or incapacity (Impeachment). He vacates his office when he is appointed as a judge of the SC or when he is transferred to another high court 67  HIGH COURTS Jurisdiction Court of Record (A. 215) Original jurisdiction of the High Court A 226 Writs Appellate Jurisdiction of High Court HC’s Power of Superintendence over all courts (A227) 68 SUPREME COURT OF INDIA 69  SUPREME COURT OF INDIA Establishment: Article 124 establishes the Supreme Court of India as the highest judicial forum and final court of appeal under the Constitution. Appointment: The Chief Justice is appointed by the President after consultation with such judges of the Supreme Court and High Courts as he deems necessary. The other judges are appointed by the President after consultation with the Chief Justice and such other judges of the Supreme Court and the High Courts as he deems necessary. Whether this consultation means concurrence? Composition: It provides that the Supreme Court shall consist of the Chief Justice of India and such other judges as the President may from time to time determine, provided that the total number of judges, including the Chief Justice, shall not exceed thirty. At present, the SC consists of 34 judges (1 Chief Justice and 33 other judges). Article125: Salaries, Allowances, and Conditions of Service of Judges: This article empowers Parliament to determine the salaries, allowances, and conditions of service of the judges of the Supreme Court. The salaries of the judges cannot be reduced after their appointment, ensuring their independence. 70  SUPREME COURT OF INDIA Qualifications of Judges of the Supreme Court A person to be appointed as a judge of the Supreme Court should have the following qualifications: He/she should be a citizen of India. He/she should: have been a judge of a High Court (or High Courts in succession) for 5 years; OR have been an advocate of a High Court (or High Courts in succession) for 10 years, OR be a distinguished jurist in the opinion of the President of India. 71  SUPREME COURT OF INDIA Tenure of Judges of Supreme Court He/she holds office until he attains the age of 65 years. He/she can resign from his office by writing to the President. He/she can be removed from his office by the President on the recommendation of the Parliament. Removal of Judges of Supreme Court A judge of the Supreme Court can be removed from his/her office by an order of the President on ground of; proved misbehaviour incapacity The procedure relating to the removal of a judge of the SC is regulated by the Judges Enquiry Act (1968). 72  SUPREME COURT OF INDIA Original Jurisdiction Supreme Court decides disputes between different units of the Indian Federation, including any dispute: Between the Center and one or more states; or Between the Center and one or more states on one side and one or more other states on the other side; or Between two or more states Writ Jurisdiction: The Supreme Court is empowered to issue writs for the enforcement of Fundamental Rights of an aggrieved citizen. Article 32 73  SUPREME COURT OF INDIA Appellate Jurisdiction Appeal in constitutional Mattes: An appeal can be made to the Supreme Court against the judgment of the High Court if the High Court certifies that the case involves a substantial question of law that requires interpretation of the Constitution. Appeals in Civil Matters Appeals in Criminal Matters Appeal by Special Leave (A.136): The Supreme Court is authorized to grant in its discretion Special Leave to Appeal from any judgment in any matter passed by any court or tribunal in the country, except the military tribunal or the martial court. Advisory Jurisdiction (A.143): The President can refer to the Supreme Court for its opinion on any question of law or fact of public importance. The court’s opinion in such matters is advisory. 74  SUPREME COURT OF INDIA Article 129: Supreme Court to be a Court of Record The Supreme Court is declared a “Court of Record,” meaning its judgments, proceedings, and acts are recorded and can be referred to in future cases. It has the authority to punish for its contempt. Article 139: Power of Supreme Court to Transfer Cases: The Supreme Court has the authority to transfer cases from one High Court to another or from a High Court to itself to ensure justice. Article 142: Enforcement of Rights: This article empowers the Supreme Court to pass any order necessary for doing complete justice in any cause or matter before it, enabling it to enforce the rights of individuals. Article 147: Interpretation of the Constitution: The Supreme Court has the authority to interpret the Constitution, ensuring that it is applied consistently across different cases and situations. 75 THANK YOU 76