Administration of Justice in British India

The British rule in India is responsible for the development of the Common Law based legal system in India. The development of the British Common Law based system can be traced to the arrival and expansion of the British East India Company in India in the 17th Century.

The East India Company gained a foothold in India in 1612 after Mughal emperor Jahangir granted it the rights to establish a factory in the port of Surat. In 1640, the East India Company established a second factory in Madras (now Chennai) on the southeastern coast. Bombay Island, a former Portuguese outpost was gifted to England as dowry in the marriage of Catherine of Braganza to Charles II and was later leased to the East India Company in 1668.

In the early seventeenth century, the Crown, through a series of Charters, established a judicial system in the Indian towns of Bombay, Madras and Calcutta, basically for the purposes of administering justice within the establishments of the British East India Company. The Governor and the Council of these towns formulated these judicial systems independently. The Courts in Bombay and Madras were called Admiralty Courts, whereas the court in Calcutta was called Collector's Court. These courts had the authority to decide both civil and criminal matters. Interestingly, the courts did not derive their authority from the Crown, but from the East India Company.

The Charter issued by King George I on 24 September 1726 marks an important development in Indian legal history. This Charter forms the basis for the establishment of Crown's courts in India. The British East India Company requested King George to issue a Charter by which special power could be granted to the Company.

Establishment of Mayor's Courts

The expansion of its establishments brought new challenges to the East India Company. The Company requested the King to issue a Charter by which special powers could be granted to it. The Company was granted Charter by King George I in 1726 to establish Mayor's Courts in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Mayor's Courts were not courts of the Company, but courts of the King of England. Mayor's courts superseded all existing courts established in the above places.

The Mayor's Courts were authorized 'to try, hear and determine all civil suits, actions and pleas' that may arise within the three towns or within the factories of the Company. The Court consisted of a Mayor and nine Aldermen, seven of whom, including the Mayor, were required to be naturally born British subjects. Aldermen were elected from among the leading inhabitants of the settlement to hold the position for life. The Mayor was elected from the Aldermen.

The Mayor's Courts contributed significantly to the formulation of a uniform pattern of judicial functioning in India. The Mayor's Courts administered English law, which was assumed to be the lex loci ('law of the place') of the settlement. The inhabitants of the settlement were governed by the English law, irrespective of their nationality. English law did not extend outside the settlements, and there the Indians were subject to their own laws.

The Charter of 1726 did not specify the law to be applied by the Mayor's Courts. The Charter merely stated that the Court was required to 'give judgment and sentence according to justice and right'. However, based on the past practice and in the light of the 1661 Charter, the then existing English law, or principles of English Common Law and Equity were applied.

Appeals from the Mayor's Court were made to the Court of Governor and the Council. The Governor and five members of the Council were appointed Justices of Peace and constituted a criminal court of Oyer and Terminer (a partial translation of the Anglo-French oyeretterminer which literally means 'to hear and determine'). The Court of Governor and Council were required to meet four times a year for the trial of all offences, except that of high treason. However, a second appeal in cases valued at 1,000 pagodas or more, was available to the King-in-council in England. 

The Mayor's Courts established under the Charter of 1726 had severe limitations. There was no clarity regarding the applicable law, although the Company made considerable efforts to apply the English Law. The jurisdiction of the Mayor's Court over natives was relatively uncertain. In several instances, the Mayor's Court annoyed the natives by applying the principles of English Law, completely disregarding their personal laws and customs.

In 1746, the French occupied Madras, after which the functioning of the Mayor's Court was suspended in that City. However, the French surrendered Madras to the British in 1749 after the conclusion of the peace treaty of Aix-La Chappelle. Using this opportunity, the Company requested the King to remove some difficulties related to the 1726 Charter. King George II issued another Charter on 8 January 1753, which by and large left the 1726 Charter intact. 

By virtue of the 1753 Charter, the Mayor Courts were re-established in the three settlements with the same jurisdictions and powers as in the Charter of 1726. To avoid disputes between the Governor and Council, the Charter brought the Mayor's Court under the control of the Governor and the Council. The Mayor, instead of being selected by the Aldermen was to be selected by the Governor and Council. Furthermore, suits and other actions by natives were expressly excluded from the jurisdiction of the Mayor's Court unless both parties had submitted them to their determination. The jurisdiction of the Mayor's Court was restricted to suits of the value of over five pagodas.

Courts such as the Mayor's Courts were established for deciding mainly the disputes of the British natives or other foreigners. Therefore, in all the three settlements, different types of courts existed to decide the cases of the natives. In Madras, the Choultry courts existed to decide cases up to the value of 20 pagodas. In other words, Choultry courts heard, by and large, petty cases and continued up to the year 1800. In Calcutta, the natives were subject to the Zamindars' courts. The East India Company as the Zamindar, administered these courts. Zamindars' courts decided civil matters, viz, issues involving land, property and personal wrongs. It is also reported that the Zamindar's Courts and the Mayor's Court had disputes relating to jurisdiction on certain civil matters. Justices of Peace were appointed in Calcutta to decide criminal matters. However, in Bombay no separate courts were established to decide disputes among the natives. The reason was that the Company claimed complete sovereignty over the island and did not want to treat the natives differently.

Regulating Act of 1773

Judicial functions of the East India Company expanded substantially after its victory in the Battle of Plassey (1757). The battle established the Company rule in Bengal, which expanded over much of India for the next hundred years. After this battle, the real authority of the Nawabs of Bengal passed on to the British. In the year 1765, Robert Clive secured in perpetuity for the East India Company, the Diwani of Bengal, Bihar and Orissa from the Mughal Emperor Shah Alam, who was still considered to be the Ruler of the Country, against a payment of Rs. 26 lakhs.

By this grant, the Company claimed to have become the virtual sovereign and master of this territory. At that time, the Nawab, who was the Subedar of Bengal, represented the Mughal Emperor. While exercising his authority, the Nawab performed two main functions: (i) Diwani, i.e. collection of revenue and civil justice, and (ii) the Nizamat, i.e. the military power and criminal justice.

The East India Company obtained Diwani rights from the Mughal Emperor and the Nawab gave it Nizamat work. However, the administration of criminal justice was left with the Nawab, who was responsible for maintaining law and order.

Despite its success in Bengal, the East India Company was debt-ridden at that time and had to pay significant sums of money to the British Government to maintain monopoly rights in India. The affairs of the company were poorly managed and the natives were unhappy. Even the Tea Act of 1773, which triggered the American War of Independence, was designed to rescue the near bankrupt company and to generate money from the colonies. In 1773, Lord North, the then Prime Minister of England, decided to introduce some form of legal government to manage the Indian possessions of the East India Company.

As the East India Company acquired formal political power over substantial areas in eastern India, the British Parliament grew more concerned about the need to regulate its activities. In 1773, the British Parliament passed the Regulating Act. The Regulating Act of 1773 made some important changes in the structure of the Company, and appointed a Governor General and four councilors at Fort William in Calcutta. The Regulating Act of 1773 is widely considered as the first attempt by the British Parliament to construct a regular government for India and to intervene in the control of the Company's administration. The Regulating Act of 1773 also superseded the provisions of the 1753 Charter.

The Regulating Act of 1773 was the first attempt at creating a separate and somewhat independent judicial organ in India, under the direct control of the King. The Chief Justice and other puisne (junior) judges were appointed by the King. Section 13 of the Regulating Act empowered the Crown to establish by Charter, a Supreme Court of Judicature at fort William in Calcutta. On 26 March 1774, Letters Patent was issued to establish the Supreme Court of Judicature.

The Supreme Court was to consist of a Chief Justice and three puisne judges being barristers of not less than five years of standing to be appointed by His Majesty. Sir Elijah Impey, a distinguished English Barrister, was appointed as the first Chief Justice of the Supreme Court of Calcutta, a post he held until 1787. The power to administer justice and equity, (which was an important feature of the Crown Courts in Britain) was passed onto the Supreme Court and to subsequent Charter High Courts. The legacy of this practice continues to have influence in India at least in areas of Hindu law.

The Supreme Court, under the Regulating Act of 1773, was a court of record and had the power and authority similar to that of the King's Bench in England. The Supreme Court of Calcutta had jurisdiction over civil, criminal, admiralty and ecclesiastical (laws governing the affairs of the Christian Church) matters. It had the power to issue writs such as mandamus and certiorari, similar to the jurisdiction of the present day High Courts and Supreme Court. It also had the power of 'Oyer and Terminer' i.e. the power to try offences and imprisonment.

The Court also had to frame separate rules of practice and procedure for governing its functioning. The Supreme Court had jurisdiction over all British subjects and those residing in Bengal, Bihar and Orissa and had the power to decide all complaints regarding crime, misdemeanors or oppressions. Appeals from this court were made to the King-in-Council in England.

Defects of the Regulating Act of 1773

The Regulating Act of 1773 was one of the significant steps initiated to overhaul the functioning of the East India Company. However, one of its glaring defects was that it did not lay down any provision dealing with the relationship between the Company's Courts and the Supreme Court. The Regulating Act made the jurisdiction of the Supreme Court partially concurrent with that of the Adalats. In several instances, the Governor General and the Council supported the Adalats, which led to severe friction and conflicts between the Council and the Supreme Court. Furthermore, the system of checks and balances established by the Act, made the Governor General powerless before his own Council and the executive powerless before the Supreme Court.

The circumstances that prevailed at Bombay and Madras were not similar to those of Calcutta. For this reason, it was not considered necessary to establish a Supreme Court in these towns. An Act of the British Parliament made in 1797 also abolished the Mayor's Courts established at Bombay and Madras. The 1797 Act authorized the Crown to issue a Charter to establish Recorder's Courts at Madras. The Recorder's Court which was declared as a court of record, consisted of a Mayor, three Aldermen and a Recorder. The Recorder, who was the President of the Court, was appointed by His Majesty from among the lawyers with at least five years of experience at the Bar.

Supreme Courts were soon established in Madras and Bombay during the reign of King George III. In 1800, the British Parliament passed an Act empowering the Crown to establish a Supreme Court at Madras in the place of the Recorder's Court. The powers of the Recorder's Court were transferred to the newly established Supreme Court, and it was directed to apply the same jurisdiction and be subject to the same restrictions as those applied to the Supreme Court of Judicature at Calcutta.

In the case of Bombay, the Recorder's Court continued to function until 1823. In 1823, an Act of the British Parliament abolished the Recorder's Court and established a Supreme Court in its place. The Supreme Court in the Presidency Town of Bombay was established by a Crown Charter and consisted of Chief Justice Sir E. West and two other puisne judges. The jurisdiction of the Supreme Court was strictly limited to the town and the Island of Bombay at that time.

Law Reforms in British India

During the late 18th and early 19th centuries, the Indian cities, much like British cities of the time, were poorly administered and policed. Crimes were widespread and corruption was rampant especially in the police. Lord Cornwallis realized that implementation of judicial reforms would not be complete without police reforms. Much of the criminal justice system in Bengal remained in the hands of the Nawab, the nominal local ruler of the company's territory.

Warren Hastings had attempted several times to make changes in policing and the administration of justice, but with limited success. William Jones, an expert on languages and legal system in Ancient India, translated the existing Hindu and Muslim penal codes into English. The limited objective was that the principles of the ancient texts could be evaluated and applied by English-speaking judges. In 1787, Lord Cornwallis gave limited criminal judicial powers to the company's revenue collectors, who had already served as civil magistrates.

Most importantly, the collector was divested of judicial and magisterial powers and entrusted with the duty of administration of revenue. In 1790 the company took over the administration of justice from the Nawab, and Cornwallis introduced a system of circuit courts with a superior court that met in Calcutta and had the power of review over circuit court decisions. However, most of the judges were non-native. Lord Cornwallis had initiated efforts to harmonize different codes existing at that time. By the time of his departure in 1793, the harmonized code, known in India as the Cornwallis Code, was substantially complete.

Despite the best intentions, the Cornwallis reforms resulted in institutionalizing discrimination through judicial reforms. One consequence of the Cornwallis Code was that it, in effect, institutionalized a discrimination against natives in the legal system. In 1791 Lord Cornwallis issued an order that 'no person, the son of a Native Indian, shall henceforward be appointed by this Court to Employment in the Civil, Military, or Marine Service of the Company.' These policies led to the development of an elite class of English judges in India. English judges were appointed to various courts in India, including the High Courts and the Federal Court, until India became a Republic in 1950.

Charter of 1861

Following the First War of Independence in 1857, the control of East India Company territories in India passed to the British Crown. The Government of India Act 1858 authorized the British Crown to take over the administration of all territories from the East India Company. The Act also vested the power to appoint the Governor-General in the British Crown. In 1861 the Indian High Courts Act and the Indian Councils Act were passed by the British Parliament, which empowered Her Majesty to issue Letters Patent establishing High Courts in three Presidency towns.

The former provided for the abolition of the Supreme Courts of Judicature and the Sadar Diwani Adalats and the constitution of the High Courts of Judicature in their place in the three Presidency towns. The Chartered High Courts remained as the highest courts in India till the establishment of the Federal Court of India under the Government of India Act of 1935.

By virtue of section 16 (a), power was reserved to Her Majesty to constitute similar High Courts in other territories, which were not within the local jurisdiction of any of the three proposed High Courts of Calcutta, Bombay and Madras. The Indian Councils Act empowered the Governor-General to create local legislatures in various provinces though the exercise of this power.

The Charter High Courts initially administered their jurisdiction only within the Presidency towns. Subsequently, their jurisdiction got extended to the entire Presidency. The Charter High Courts, being established by the Act of the British Parliament, had the power to issue prerogative writs. The 'writs' were the normal method of commencing a local action in King's Courts such as the High Courts. The power to issue writ in the nature of habeas corpus was curtailed by Section 491 of the Criminal Procedure Code, 1898.

After the enactment of the Government of India Act, 1935, the power to issue habeas corpus writ was restored. Subsequent to the enactment of the Constitution (1950), the High Courts were recognized by the Constitution and the power to issue writs, orders or directions was conferred on them under Article 226 of the Constitution.

During the British Period, the Privy Council acted as the highest court of appeal. Appeals came from the colonies and certain other locations over which Britain exercised jurisdiction. In 1833 a distinct Judicial Committee of the Privy Council was appointed with jurisdiction over colonial, ecclesiastical and sundry other matters. The Law Lords of the House of Lords adjudicated cases before the Council. The State sued and was sued in the name of the British sovereign in her capacity as Empress of India. The Privy Council served as a bridge between the Indian and the English legal systems.

After India attained independence, the jurisdiction of the Privy Council was abolished by the Abolition of the Privy Council Jurisdiction Act, 1949. The Privy Council served as the highest court of appeals from India for a period of nearly 200 years and has rendered several landmark decisions, which have influenced the evolution of law in India.

Establishment of Federal Court

The Government of India Act, 1935 changed the structure of the Indian Government from "unitary" to that of "federal" type. The distribution of powers between the Centre and the Provinces required the balance to avoid disputes, which would have arisen between the constituent units and the Federation. The system of federation clearly demanded the creation of a Federal Court which would have jurisdiction over the States as well as the Provinces. The Original Jurisdiction was confined to disputes between Units of the Dominion or between the Dominion and any of the units.

The private individuals had no right to sue any Dominion before the Federal Court. The Federal Court also had appellate and advisory jurisdiction. Its appellate jurisdiction was extended to civil and criminal cases. The Supreme Court of India was also established. Section 200 of the Government of India Act, 1935 created the Federal Court at New Delhi. An appeal from any judgment, decree or final order of a High Court was entertained by the Federal Court, if the High Court certified that the case involved a substantial question of law in accordance with the interpretation of the Act of 1935 or any other Act and law.

Establishment of Other High Courts and Supreme Court

After India attained independence in 1947, the Constitution of India came into being on 26 January 1950. The transition from the Federal Court to the Supreme Court of India (SCI) was seamless. Justice Kania became the first Chief Justice of India. The original Indian Constitution envisaged a Supreme Court with a Chief Justice and seven puisne judges, while empowering the Parliament to increase the number of judges.

Subsequently, the Parliament increased the number of judges to 12 in 1956, 14 in 1960, 18 in 1978, and 26 in 1986. The number of judges in the Supreme Court was increased to 30 by virtue of the Supreme Court (Number of Judges) Amendment Act, 2008. Judges generally sit in smaller benches of twos or threes and form larger benches of five or more only when required to do so, or to settle a difference of opinion or controversy.

The Supreme Court has a threefold jurisdiction. As a federal court, it has exclusive original jurisdiction in any dispute arising between the Government of India and one or more states, between the Government of India and any state or states on one side and one or more states on the other or between two or more states. As an appellate court, the Supreme Court of India can hear appeals from the State High Courts on civil, criminal and constitutional matters. The Supreme Court has special advisory jurisdiction in matters, which may specifically be referred to it by the President of India under Article 143 of the Constitution. Furthermore, the Supreme Court has a concurrent original jurisdiction along with the High Courts, for the enforcement of fundamental rights under Article 32 of the Constitution of India.

The jurisdiction of the Supreme Court of India can be enlarged by the Parliament. The Supreme Court may also pass any decree or order as may be necessary for doing “complete justice”. According to Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India. More importantly, the Supreme Court of India exercises judicial review - the power to strike down or declare unconstitutional, both legislative and executive actions, which are contrary to the provisions of the Constitution of India, or violative of the fundamental rights guaranteed by the Constitution, and also on the distribution of powers between the Union and the States.

The President appoints the Judges after consultation with the Judges of Supreme Court and High Courts of States. Article 124 (4) guarantees the President power to impeach the Judges if a motion is passed by a special majority of each House of Parliament, on the basis of proved misbehavior or incapacity to discharge one's duties.

The Supreme Court of India has the special responsibility to render justice (social, economic and political) and to enforce equality, liberty, dignity and the ideals of democracy, socialism, secularism and such other values enshrined in the Constitution of India. 

The High Courts in various states are the apex judicial bodies of the States. There are currently 24 High Courts in India, four High Courts in the Northeast part of India having been established in March 2013. The bulk of the work of the High Courts consists of appeals from lower courts and writ petitions under Article 226 and 227 of the Constitution of India. Apart from writ petitions, any civil or criminal case which does not fall within the purview or ambit of the subordinate courts of that State, due to lack of pecuniary or territorial jurisdiction, can be heard by the High Court of that State. Also certain other matters or issues may be heard by the High Court as part of its original jurisdiction, if the law laid down by the legislature provides to that effect. For example, the company law cases fall within the original jurisdiction of the High Court.