LEGAL AND CONSTITUTIONAL

HISTORY ASSIGNMENT ON THE

TOPIC

INTRODUCTION OF
ENGLISH LAW IN
PRESIDENCIES TOWNS
AND MUFASSIL AREAS

SUBMITTED BY:
SHIMRAN ZAMAN
ROLL NO. 50
BA LLB (Hons.) Self Finance
JAMIA MILLIA ISLAMIA UNIVERSITY
NEW DELHI
TABLE OF CONTENTS
1. Introduction
2. Introduction and Development of English law in
Presidency Towns
3. Judicial Application of English law in Presidencies
4. Application of English laws in Mufassil Areas
5. Application of English law in Provinces
6. Demerits of Application of English law
INTRODUCTION
Law of India refers to the system of laws in the modern India. India
maintains a hybrid legal system with the mixture of civil, common
law and customary or religious lawwithin the legal framework inherited
from the colonial era and various legislation first introduced by the British
are still in effect in modified forms even today. Since the drafting of the
Constitution of India, Indian laws also adhere to the United
Nations guidelines on human rights law and the environmental law.
Certain international trade laws, such as those on intellectual property, are
enforced in India as well.

The Indian Legal history shows that initially the English law was introduced
in the Presidency towns out of necessity because indigenous laws were full
of absurdities and ambiguities. There were many areas where the indigenous
laws were silent and there was no alternative for the Indians. Thus, the
English law became acceptable to the natives. However, introduction and
development of English Law can be studied in broadly two distinct phases:

1. Introduction and Development of English Law in the Presidency

Towns.
2. Introduction and Development of English Law in the Mufassil Areas.

This project further intends to analyse the introduction of these English

Laws in India in the Presidency Towns and the Mufassil Areas.
INTRODUCTION AND DEVELOPMENT OF
ENGLISH LAW IN THE PRESIDENCY
TOWNS
The East India Company came to occupy the authority in the Presidency
towns, i.e., Madras in 1639, Bombay in 1668, and Calcutta in 1698. Thus,
English law was first introduced in these presidencies.

Charles II granted Charter of 1661 to introduce English Law in India. By

virtue of this Charter, the Governor and Council were authorized to dispose
of the civil and criminal cases of natives residing within the ambit of the
Company’s factory. Notably, the English Law first in Madras under the
Settlement Scheme and thereafter in Calcutta and Bombay.

By the Charter 1668, the British Crown transferred the island of Bombay to
the East India Company. This Charter authorized the East India Company to
make ordinances and laws for the purpose of good governance of Bombay
town and in process of observance of laws the Company was also
empowered to impose penalties and punishments. It was required that the
ordinances and laws made by the Company should not be contrary to the
laws of England.

Subsequently, by the Charter of 1726, the English law was applied to all
three Presidency towns. Under the Charter, Mayors’s Court was established
in each Presidency town and English law was applied in the Mayor’s Courts.

Thus, the procedure adopted by the Mayor’s Court was based on the
procedure followed by the courts in England. In Presidencies, the Governor
and Council were authorized to frame by-laws, rules and regulations for
better administration of justice. In case of violation of such by-laws, rules
and regulations, they could prescribe punishment for the same. It is to be
noted that these by-laws etc. were to be reasonable and not contrary to the
law in England and were subject to confirmation by the Company’s Court of
Directors in England. Further, the King-in-Council was empowered to
entertain rather hear appeals from India. Obviously, while deciding such
appeals the King-in-Council always applied the law of England.

Under the Charter of 1726, though there was no specific mention of what
law would be applied to the natives, but in practice the law of England was
applied even to the natives. On the other hand, in case of private rights of
natives their personal laws governed them. On most of the occasions it was
the discretion of the Mayor’s Court whether to apply the law of England or
indigenous laws.

At that time, the administration of justice suffered from many shortcomings,

which were as follows:

1. There was no uniformity, and consistency in the decisions of the

court.
2. There was uncertainty regarding application of law because the ruling
of one court was not binding on another court
3. The scope of discretionary power of the judges was unfettered, it was
sufficient to cause injustice to the litigants.

In appeal, between RaneeSurnomoyee v. The Advocate General 1, before the

Privy Council, Lord Kingsdown observed “the English law, civil and
criminal has been made applicable to the natives within the limits of
Calcutta in 1726, and that the English law shall be so applied. It seems to
have been held to be a necessary consequence of the provisions contained in
them.”

These difficulties paved the way for formulating the Charter of 1753,which
provided application for their personal law and custom, unless they

1
9 MIA 398.
submitted to the jurisdiction of law in England. Thus, the cases between
Indians could be better decided according to their own native laws.

After sometime in 1774, the British Crown granted the Charter of 1774,
which provided the establishment of the Supreme Court at Calcutta and
Mayor’s Courts in Presidencies were bought under the superintendence and
control of Supreme Court.

In a historic case in 1775, the Chief Justice of Supreme Court, Sir Elijah
Impey observed that by the Charter of 1726, and the Charter of 1753, the
English law has been introduced and applied in the administration of justice
in India.
JUDICIAL APPLICATION OF ENGLISH LAW
IN PRESIDENCIES
It is true that the introduction and application of English law depended upon
the personal discretion of the English Judges. But, while applying the
English law, the English judges were cautious enough as not to involve
themselves in any controversy. This judicial trend while applying the
English law can be traced out in the following cases:

a. Tagore v. Tagore2: The controversy involved in this case was related

to Hindu Will. The Privy Council held that as the parties belonged to
the Provinces of Bengal, the dispute should have been decided by
applying prevailing Hindu Law. The English law would have no
application in this case in whatsoever manner. The Council clarified
that in cases of transfer of property, inheritance and succession, the
English law was not applicable to Hindus in India.

b. BoonomoneyDosse v. NatabarBiswas3: In this case, the question

involved was whether the action for damages on the ground of
slanderous statements injuring the reputation of a person in India was
maintainable under the English law whereas indigenous was silent.
The Privy Council held that keeping in view the custom of the Indian
people, an action for damages for injury caused on account of
slanderous statements was maintainable in Calcutta by virtue of the
Charter of 1726.

c. Lopez v. Lopez4: In this case, the Calcutta High Court held that the
prohibited degrees to marriage of the Christians in India, the English

2
(1872) IA Suppl. 47.
3
ILR 28 Cal. 452 (1901)
4
ILR 12 Cal. 706 (1885
 law was not applicable. The Court was of the view that the prohibited
degrees to the marriage were not degrees prohibited by law of the
England. In such matter, customary law would be applicable i.e., the
law of Roman Catholic Church in India will be applicable.

d. Advocate General of Bengal v. RaneeSurnomoyeeDossee5: The

question was as to which law would be applicable where a British
Hindu committed suicide in Calcutta. Under the English law, the
personal property of the person committing suicide in England would
be forfeited. The Supreme Court of Calcutta ruled that the provisions
of English law would not apply to Mohammedans and Hindus in
India. In appeal before the Privy Council, Lord Kingsdown observed
that the application of English criminal law to natives in India would
cause intolerable justice and cruelty. Hence, in the instant case
English law would not be applicable specifically to Hindus in India
where self-destruction is considered meritorious, not illegal.

5
9 MIA 386
APPLICATION OF ENGLISH LAWS IN
MUFASSIL AREAS
Under the Judicial Plan of 1772, the Governor General, Lord Warren
Hastings formulated that the English Law would not be applicable to the
natives unless they voluntarily submitted to be adjudged by it for setting
their controversy. That provision was applied in Mufassil areas of Bengal,
Bihar and Orissa. Under the said Judicial Plan of 1772, it was provided that
the matters relating to marriage, inheritance, caste and religious institutions
were to be governed and decided according to the law of Shastra with
respect to Hindus and Law of Quran with respect to Muslims. Thus, in
administration of justice in such matters the relecant laws were to be
expounded by Pandits in case of Hindus and Mauulvies in case of Muslims.
The English Judges were to be assisted by the Pandits and Maulvies as the
native law officers. The Judicial Plan of 1772 did not provide as to what law
would be applicable in civil matters. In fact, Judicial Plan 0f 1772 did not
provide as to what law would be applicable in civil matters. In fact, the
judicial Plan of 1772 rejected the notion of applicability of English law and
instead preferred the applicability of personal law in the matters of marriage,
inheritance, castes, and religious institutions. Thus, the rigid application of
the English law was rejected under the Judicial Plan of 1772.

Subsequently, in 1773, the Governor General Lord Cornwallis laid down

Regulation XLI of 1793 providing the reduced form of digested code to be
applied to the Muslims and Hindus. The Cornwallis Code, i.e., Regulation
XLI of 1793 provided that the respective personal law of Hindus and
Muslims, based on customs and usages were to be applied in matters relating
to marriage, inheritance, succession, castes and religious institutions. These
provisions were extended to the province of Banaras in 1793 and United
Provinces in 1802. The respective personal laws of the Hindus and Muslims
though were based on customs and usages, practically differed to a great
extent. Even, within the Muslim community there were two different sects,
i.e., the Shias and Sunnis, who followed different customs and usages. On
the other hand, Hindus too followed different laws under Mistakshara and
Daybhaga schools.

Regulation XLI of 1793 was modified in 1827 whereby the provisions

relations relating to the applicability of personal laws to the natives were
amended. It was provided if the parties to a suit belonged to different
religious beliefs, in such circumstances the law of the defendant would apply
provided there was no specific law in regard. For deciding the cases the
principles of equity, justice and good conscience were applied. Notably,
under the Cornwallis Code, the Hindus and Muslims were treated equal.

Under the Cornwallis Code where the parties were neither Hindus nor
Muslims, the courts generally applied the law of the country of the origin of
the parties, unless the parties voluntarily submitted themselves to the
English law. In civil matters, the European British subjects residing in
Mufassil areas were governed by the English law.
APPLICABILITY OF ENGLISH LAW IN
PROVINCES
Though, similar scheme was adopted for the administration of justice in the
Provinces of Bengal and Madras, the Bombay Regulation IV of 1799
adopted a different scheme. The Bombay Regulation gave effect to usage as
distinct from the ancients texts of the religious law and its applicability was
extended to all the subject matters including marriage, inheritance and
succession etc. In criminal cases, the Hindu law was applied if the accused
belonged to the Hindu community.

Similar provisions are contained in the Cornwallis Code of 1793, were given
effect by virtue of the Elphinstone Code of 1827 in the Bombay Province.
Section 26 of Regulation IV of the Elphinstone Code made provision that in
the absence of a Regulation of Government or an Act of Parliament all the
suits were disposed of in accordancewith the usage of the place in which the
suit arose. If there was no known usage, the law of the defendant was to be
applied and if all these laws were silent in the matter in the hand, then the
suit was to be disposed off in terms of doctrine of justice, equity and good
conscience.

Under the Regulation Act, 1813, the Government of Bengal, Madras and
Bombay were authorized to frame regulation pertaining to imposing of taxes
and duties in their respective Provinces; however such Regulations were
subject to discussion by the Parliament in England for the purpose of getting
approval.

By introduction of an All India Legislation under the Charter Act, 1813, the
System legislation through regulations was abolished. Enactment was to be
called Act, and not regulations. From the historical point of view, it may be
mentioned that there were as many as 259 Regulations in the Province of
Bombay, 251 Regulations in the Province of Madras and 675 Regulations in
the Province of Bengal.

Notably, the codification of Indian laws began from 1833, which was
accelerated by setting up the Second Law Commission in 1853. Further, the
High Courts were established under the High Courts Act, 1861. Later on, the
Indian Penal Code, 1860 and the Code of Civil Procedure 1908, came to be
applied throughout the territory of India without any discrimination on the
ground of caste, creed or religion or nationality etc.

Though, the introduction of English law had taken place in the

administration justice of India but certain subject matters were excluded
from the purview of the English law keeping in view the diversifying Indian
conditions. The various provisions of English law were modified according
to exigencies of time and requirements of the people. The British rulers were
reluctant to offend the sentiments of the natives; therefore, the personal laws
of torts and contracts were not brought within the scope of English law.
DEMERITS OF APPLICATION OF ENGLISH
LAW
At that time, the courts in India were presided over by the English Judges
and they reflected the tendencies of applying English law on the ground of
equity, justice and good conscience to the Indian cases.

The system of application of English law had the following shortcomings:

1. Those days the views of English Judges were different on similar

points, thus, due to conflicting rules it was very difficult to present the
correct law on the point involved.
2. The discretion of English Judges was widened by application of the
doctrine equity, justice and good conscience, which caused a great
hardship to the litigants as the most of decisions of English Judges
were influenced by their personal opinion.
3. Through the concept of judicial legislation many English laws were
introduced which were originally contrary to the custom and usages of
the natives.
4. The doctrine of equity, justice and good conscience was applied by
the judges of the Crown’s Court as a devise to introduce English law
in Indian cases by the process of legislation based on so called rulings.